On April 29, 2026, DHS published an IFR titled USCIS Immigration Fees and Related Procedures Required by H.R. 1 Reconciliation Bill. 91 FR 22952. The IFR codified: (1) the Form I-94 fee requirement set forth in 8 U.S.C. 1807 as it applies to USCIS; (2) the Annual Asylum Fee (AAF) requirement in 8 U.S.C. 1808, including consequences for failure to pay the AAF and limitations related to employment authorization required by 8 U.S.C. 1810(b); (3) the requirement that every asylum application include the fee required by 8 U.S.C. 1802 at filing regardless of whether the application is rejected, and is not refundable; and (4) the H.R. 1 limits on the validity of Temporary Protected Status (TPS) employment authorization required by 8 U.S.C. 1803(c) and 8 U.S.C. 1811(a).

This document corrects an inadvertently omitted provision in the regulatory text at 8 CFR 208.7 regarding the processing timeframe for initial applications for employment authorization under 8 CFR 274a.12(c)(8). Before the IFR, 8 CFR 208.7(a)(1) provided, among other things, that “[i]f the asylum application is not so denied, [USCIS] shall have 30 days from the date of filing of the request employment authorization to grant or deny that application, except that no employment authorization shall be issued to an asylum applicant prior to the expiration of the 180-day period following the filing of the asylum application filed on or after April 1, 1997.”

The IFR revised and reformatted the regulatory text at 8 CFR 208.7(a)(1). As part of those revisions, DHS inadvertently did not include the final sentence in 8 CFR 208.7(a)(1) and as a result removed the 30-day processing timeframe for initial (c)(8) employment authorization applications. Therefore, this document corrects the regulatory text, 8 CFR 208.7(a)(1) to restore the 30-day processing timeframe for initial EAD applications based on a pending asylum application by adding a new paragraph to maintain the missing sentence. 1

Because the IFR provides that failure to pay the Annual Asylum Fee (AAF) results in rejection of the pending Form I-589, DHS is adding “rejected” to the 8 CFR 208.7(a)(1)(v) language so that the regulation expressly covers both denials and rejections of asylum applications. This ensures that any (c)(8) employment authorization application filed after an asylum application has been denied or rejected is itself rejected, and any (c)(8) application still pending when the asylum application is denied or rejected is denied, thereby aligning employment authorization consequences with the new AAF rejection mechanism and with 8 U.S.C. 1810(b).

This correction is applicable as if DHS had included this provision in the IFR that published on April 29, 2026. That rule had an effective date of May 29, 2026. Accordingly, the correction is applicable as of May 29, 2026, at 12 a.m. Eastern Time. In other words, DHS will apply the corrected IFR to applications pending on, or filed on or after, May 29, 2026; DHS has continued to prioritize adjudicative resources for initial (c)(8)-based EAD applications accordingly; and there will not be a gap in application of the 30-day processing timeline to asylum applicants seeking EADs under 8 CFR 208.7(a).

Section 553(b) of the Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect. 5 U.S.C. 553(b). In addition, section 553(d) of the APA requires agencies to delay the effective date of final rules by a minimum of 30 days after the date of their publication in the Federal Register . 5 U.S.C. 553(d). Both of these requirements can be waived if an agency finds, for good cause, that the notice and comment process and/or delayed effective date is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice. 5 U.S.C. 553(b)(B), (d)(3).

DHS believes there is good cause for publishing this document without prior notice and opportunity for public comment and with an effective date of less than 30 days because such procedures are unnecessary. This document corrects a technical error in the regulatory text and does not make substantive changes to the policies in the IFR. Therefore, DHS believes that it has good cause to waive the notice and comment and effective date requirements of section 553 of the APA.

Accordingly, 8 CFR part 208 is corrected by making the following amendment:

Part 20 of the Commission's regulations requires large traders in certain physical commodity swaps and swaptions to file position reports with the Commission. 1 The Commission adopted Part 20 on July 22, 2011, during the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act, as a temporary measure to enable the Commission to conduct surveillance of economically equivalent physical commodity futures, options, and swaps and to monitor and enforce position limits at a time when the Commission's broader swap data reporting framework had not yet been established. 2

When it adopted Part 20, the Commission anticipated that the rules would become unnecessary once its swap data reporting regime matured, and it therefore included a sunset provision in § 20.9. Section 20.9(a) provides that, except as otherwise provided in § 20.9(b), the sections of Part 20 “shall become ineffective and unenforceable upon a Commission finding that, through the issuance of an order, operating swap data repositories are processing positional data and that such processing will enable the Commission to effectively surveil trading in paired swaps and swaptions and paired swap and swaption markets.” Section 20.9(b) permits the Commission, in its discretion, to maintain the effectiveness and enforceability of any section of Part 20, or any requirement therein, upon finding that it provides the Commission with positional data or data elements that materially improve the accuracy and surveillance utility of the positional data processed by swap data repositories (“SDRs”).

Since 2011, the Commission's regulatory framework for swaps has changed substantially. The Commission, jointly with the Securities and Exchange Commission, has further defined the term “swap”; has authorized the registration of SDRs under Part 49; has adopted and subsequently refined the swap data reporting requirements in Parts 43 and 45; and has established position limits on economically equivalent swaps for the most systemically significant commodities in Part 150. Together, these developments have created a comprehensive and continuously maintained regime for the reporting of swap transaction and position data that did not exist when Part 20 was adopted.

Part 20 requires clearing organizations to report daily position data records (§ 20.3), requires clearing members and swap dealers to report daily consolidated-account position data records (§ 20.4), and requires related identification filings (§ 20.5). These reporting obligations were designed to give the Commission daily visibility into large positions in physical commodity swaps in the energy, metals, and agricultural markets.

The information collected through these reports is now, in substantial part, available to the Commission through its swap data reporting regime. Amendments to Part 49 adopted in 2020 require SDRs to identify “open swaps”—a term the Commission adopted to serve the same function as the “open swap” and “closed swap” definitions in Part 20—and to provide the Commission with detailed reports, and direct electronic access to, that data. SDRs also collect, and can provide to the Commission, data identifying the futures contracts and commodities underlying open swaps, including whether a swap references or is economically related to the futures contract relevant to the Commission's public reporting and position-limits rules. Because SDR data is reported in a standardized format by a small number of registered repositories, the Commission is able to aggregate open-swap positions across market participants.

The Commission further observes that the swap data reporting regime provides data on a more timely basis than the second-business-day (T+2) reporting required of clearing members and swap dealers under § 20.7(c), 3 and that the quality and standardization of SDR data have been the subject of sustained Commission attention since 2011, whereas the substance of the Part 20 reporting requirements has not materially changed. The forthcoming extension of the unique product identifier (“UPI”) to the other commodity asset class is expected to enhance the Commission's ability to surveil these markets further.

The routine Part 20 reporting requirement imposes significant and recurring costs on reporting entities. Clearing members and swap dealers must identify in-scope physical commodity swaps, convert those transactions into futures-equivalent positions, validate the resulting position data, and submit detailed daily reports—maintaining for that purpose reporting systems that are separate from, and cannot readily be integrated with, the systems used to satisfy the Commission's Parts 43 and 45 requirements. 4

The Commission makes limited use of Part 20 data. The data are not used in the Commission's enforcement program, are used only occasionally in the Commission's market oversight function, and have become less useful as the Commission's other reporting rules have been modernized.

The Commission has also received petitions from market participants requesting that it sunset Part 20. The Futures Industry Association (“FIA”) petitioned the Commission on September 22, 2025 to sunset the Swaps LTR Rules by Commission order  5 and, in May 2026, FIA, the International Swaps and Derivatives Association, and the Securities Industry and Financial Markets Association jointly petitioned to the same effect. 6 These petitions contend that the Swaps LTR Rules are duplicative of, and in relevant respects inferior to, the data available through the Commission's swap data reporting regime, and that the conditions for sunset under § 20.9 have been satisfied.

The Part 20 reports differ from SDR data in one respect that the Commission has considered. These reports submitted to the Commission include data on each trader's swap position already converted into a standardized futures-equivalent measure, which can assist the Commission in monitoring concentration in physical commodity swap positions. The Commission's swap data reporting systems collect the underlying swap transaction records and open swap position data but are not presently configured to process that data into the same futures-equivalent form, in part because the UPI framework for the other commodity asset class is not yet fully implemented. The Commission is able to perform that conversion itself, at least in part, from the data it already receives, supplemented by market data.

To ensure the Commission can continue to maintain the effectiveness and enforcement of any section of this part or requirement therein, the Commission is retaining, under § 20.9(b), the recordkeeping and special-call provisions of Part 20. Under retained § 20.6, clearing organizations and reporting entities must continue to keep records of their transactions in paired swaps and swaptions, and of the methods used to convert those positions into futures equivalents, and must furnish those records—together with any pertinent information—to the Commission upon request. Any such special call will be appropriately scoped and will seek only records and information relevant to the Commission's surveillance or oversight interest giving rise to the call. Consistent with § 20.6, the Commission will afford recipients a reasonable period of time to respond to any special call, taking into account the scope of the call, the nature and volume of the records requested, and the format in which the recipient maintains those records in the ordinary course of its business. Retained § 20.5(b) preserves the Commission's authority to require a Form 40S filing upon special call, and the relevant delegations in § 20.8 remain in effect to permit those calls. As § 20.6 already provides, the required records may be kept and reproduced for the Commission in the record-retention format that a person has developed in the normal course of its business operations. These retained provisions therefore call for records that reporting entities generally maintain in the ordinary course; they do not require the ongoing conversion, validation, and daily submission of position reports that make routine Part 20 reporting costly. The practical effect is that firms no longer bear the expense of daily reporting, the Commission retains a reliable means of obtaining position information when it is needed, and the Commission does not leave itself without access to the underlying data.

The Commission emphasizes that it is retaining the recordkeeping and special-call provisions of Part 20 as a transitional measure. The Commission anticipates that the forthcoming extension of the UPI framework to the other commodity asset class, together with related enhancements to the Commission's swap data reporting framework, will enable the Commission to derive futures-equivalent position information directly from the data it receives. Upon implementation of the UPI framework for the other commodity asset class and the Commission's satisfaction that the resulting data are sufficient for its surveillance purposes, the Commission expects that the need for the retained special-call authority under §§ 20.6 and 20.5(b) will diminish or be eliminated, and the Commission intends to revisit the continued necessity of these retained provisions at that time.

Upon due consideration and consistent with the determinations set forth herein, the Commission hereby issues the following order:

1. Pursuant to § 20.9(a), the Commission finds that SDRs collect the swap transaction records from market participants and construct open swap positions from the transaction records based on requirements detailed in Part 45 and report these data to the Commission. The Part 45 rule update in 2020 provided additional granularity to reporting requirements (including counterparty-related fields and standardized data elements), resulting in higher coverage of swap transactions in which both counterparties are identified. 7 Further improvements in the Commission's technical specifications for Parts 43 and 45 implemented in January 2024 have materially increased the accuracy and consistency of swap-market data. Taken together, these improvements, and the Commission's direct electronic access to SDR data under Part 49, enable the Commission to effectively surveil trading in paired swaps and swaptions and the boarder pair swap and swaption markets. Lastly, the Commission implemented Part 150 in 2021 to replace the Commission's positions limits with the federal speculative position limits on 25 core physical commodity derivatives, further diminishing the surveillance value of the routine Part 20 positional reports. In reaching this finding, the Commission relies on the swap data reporting and repository framework established under Parts 43, 45, and 49; the availability to the Commission, through that framework, of transaction and position data for open swaps; the Commission's direct electronic access to SDR data; and the position-limits framework in Part 150. The Commission's authority under retained § 20.6 to obtain, on special call, the underlying records and futures-equivalent conversion methods further ensures that the Commission will not lack access to position information in any particular case. Accordingly, the Commission has determined that the routine position-reporting requirements of Part 20 are henceforth ineffective and unenforceable and clearing organizations, clearing members, and swap dealers will no longer be required to file the daily and event-based position reports currently required under Part 20.

2. Pursuant to § 20.9(b), as explained in section IV above, the Commission finds that the recordkeeping and special-call requirements of §§ 20.6 and 20.5(b), together with the definitions in § 20.1, the list of covered contracts in § 20.2, the delegations in § 20.8 pertaining to those provisions, and the futures-equivalency guidance in Appendix A are necessary because they provide the Commission with data on open swap positions and relevant data elements—obtainable on special call—that materially improve the accuracy and surveillance utility of the open swap position data processed by SDRs. In exercising the special-call authority preserved by this paragraph, the Commission or its delegates will issue calls that are appropriately scoped to, and that seek only records and information relevant to, the specific surveillance or oversight interest prompting the call, and will afford recipients a reasonable period of time to respond in light of the scope of the call and the recipient's ordinary-course recordkeeping practices. The Commission further finds that this retained authority serves as a transitional bridge pending full implementation of the UPI framework for the other commodity asset class, upon which the Commission intends to reassess the continued necessity of these retained provisions.

Accordingly, the Commission has determined to maintain the effectiveness and enforceability of those provisions.

On this matter, Chairman Selig voted in the affirmative. No Commissioner voted in the negative.

In a letter dated July 25, 2025, 1 CME requested that the Commission grant an exemption from the requirements of CFTC regulation 41.25(c)  2 in connection with CME's intention to list cash-settled futures on individual equity securities for trading pursuant to its registration as a designated contract market (“DCM”) and notice registration as a national securities exchange. CME requested a parallel exemption from the Securities and Exchange Commission (“SEC”). 3 During the SEC's review of CME's request, CME agreed to incorporate certain heightened listing standards into its initial proposed listing standard rules. 4 On July 10, 2026, the SEC granted CME's exemptive request, and included as conditions to its exemptive order the heightened listing standards that CME had proposed. 5 Subsequently, on July 15, 2026, CME submitted an updated request to the Commission that proposed heightened listing standards identical to those listing standards incorporated as conditions in the SEC Exemptive Order. 6

For the reasons discussed below, the Commission has determined it is consistent with the public interest and the protection of customers to grant conditional exemptive relief pursuant to CFTC regulation 41.25(e)  7 to CME from the opening price settlement requirements of CFTC regulation 41.25(c).

The Commodity Futures Modernization Act of 2000 (“CFMA”) authorized the trading of futures on individual stocks and narrow-based security indexes (collectively, “security futures”). 8 Security futures are jointly regulated by the CFTC and the SEC (together, the “Commissions”). The CFMA defines a security future as a contract of sale for future delivery under the CEA  9 and as a security under the Exchange Act. 10 A DCM listing security futures must meet certain requirements specified in the CEA and the Commission's regulations, 11 including, among other things, applying listing standards requiring that “[t]rading in the security futures product is not readily susceptible to manipulation of the price of such security futures product, nor to causing or being used in the manipulation of the price of any underlying security, option on such security, or option on a group or index including such securities.”  12

Historically, stock index futures and options used closing-price settlement procedures, which generally base the settlement price on the execution prices from the last regular session trades in the underlying securities. 13 In the 1980s, use of closing-price settlement procedures led to the proliferation of index arbitrage activities. 14 To accommodate large buy and sell orders associated with the unwinding of arbitrage orders on expiration Fridays, specialists often had to significantly lower or raise prices at the close to establish sufficient interest to match orders in the underlying securities. 15 Accordingly, the unwinding of arbitrage-related positions severely strained the liquidity of the underlying securities markets, and raised concerns regarding potential manipulation and abusive trading practices. To ease expiration-related liquidity restraints, markets offering many of these products transitioned to opening-price settlement procedures. Opening-price settlement procedures enabled exchanges to leverage existing technology to process and match incoming unwinding stock orders before the opening of the regular session trading hours, and used long-standing procedures to disseminate indicative prices in an orderly manner before markets opened.

The Commissions codified these market practices in 2002. 16 Commission regulation 41.25(c) requires that the “final settlement price of a cash-settled security futures product must fairly reflect the opening price of the underlying security or securities.”  17 When promulgating the opening-price settlement procedures rules, the Commissions also established rules permitting exemptions from those requirements. Specifically, Commission regulation 41.25(e) provides that “[t]he Commission may exempt a designated contract market from the provisions of paragraph[ ] . . . and (c) of this section, either unconditionally or on specified terms and conditions, if the Commission determines that such exemption is consistent with the public interest and the protection of customers.”  18

CME intends to list cash-settled futures on individual equity securities for trading pursuant to its registration as a DCM and its notice registration with the SEC as a national securities exchange. 19 CME intends to use the underlying securities' closing price—rather than opening price—on the last day of trading to establish a final settlement price. 20

As discussed above, Commission regulation 41.25(c) states, in part, that the “final settlement price of a cash-settled security futures product must fairly reflect the opening price of the underlying security or securities.”  21 However, CME has determined that certain developments in the markets since the adoption of Commission regulation 41.25(c) support the use of the underlying securities' closing price in the settlement of security futures. 22 In light of these developments, CME requests exemptive relief from the requirement in CFTC Regulation 41.25(c) such that it may adopt listing standard rules for such security futures.

Specifically, CME believes an exemption from CFTC regulation 41.25(c)'s requirement that security futures settled based on the opening price of the underlying security is appropriate for three reasons. First, CME states that recent data show that highly liquid securities now trade in greater volume at market close, alleviating the concerns that motivated the promulgation of Commission regulation 41.25(c). 23 Second, CME states that trading in cash-settled index options that settle based on closing prices demonstrates the benefits of using underlying securities' closing price to establish a final settlement price. 24 Additionally, CME proposes to apply heightened listing standards for security futures that provide for final settlement based on the underlying security's closing price, rather than its opening price (“Proposed Security Futures”) to provide additional protection against manipulation. Those listing standards would, among other things, require the securities underlying the Proposed Security Futures be limited to those that are highly liquid, including at the close of market. 25 The Commission discusses each of these reasons in greater detail below.

CME states that, in general, liquidity in the equity securities markets has substantially increased since 2002, including trading volumes at both the open and close of markets. 26 CME further states that trading volumes for equity securities are today generally significantly greater at the market close, as compared to the market open. Given these developments, CME believes the concern that using closing prices for final settlement could strain trading liquidity at the close for the underlying securities when market participants engaged in intermarket trading strategies to unwind their securities positions is no longer valid. 27

To demonstrate the current state of liquidity for the relevant equity securities, CME analyzed recent data reflecting the trading volume of highly liquid stocks—specifically, stocks with average daily volume of transactions (“ADVT”) of $100 million or more—at market close. First, CME compared the trading volume  28 at the market close versus the market open for stocks in the Russell 1000 index, which were screened to capture securities that meet or exceed a $100 million ADVT threshold. 29 The analysis indicated that, on the 25 Fridays between January 2025 and June 2025 (excluding April 18, 2025, Good Friday, as the markets are closed), trading volume at the close was significantly higher than the trading volume at the open. 30 The analysis further indicated that the lower the ADVT, the higher the ratio became between closing and opening auction. 31

Next, CME provided a robustness analysis of trading under different market conditions. CME isolated trading data for three separate weeks, intending to capture periods of average, high, and low market volatility conditions. CME found that under all scenarios, the comparison between opening and closing auctions remained consistent in that closing auctions were more robust as compared to opening auctions. CME also found that for opening and closing prices on third Fridays other than quarterly third Fridays, the difference in volume is even more in favor of the close. 32

In sum, CME found that trading volumes at the close were substantially larger than the trading volumes at the opening across various market conditions. 33 CME therefore concluded that today's equities markets have substantial liquidity that can better accommodate demand at the close, as compared to the less liquid markets of the past. CME states that “it is no longer a valid concern that using official closing prices for final settlement of security futures contracts could strain trading liquidity at the close for the underlying securities when market participants engaged in intermarket trading strategies unwind their securities positions.”  34

CME also stated that other exchanges have relied on closing prices of underlying securities for listed options without incident, underscoring that securities markets have evolved and do not present the same concerns as in the past. 35 Specifically, CME states that while certain listed securities index options settle based on opening prices, listed options on individual stocks are exercised based on the underlying securities' closing prices. 36 The SEC has recently granted permanent approval of Cboe Exchange, Inc. rules pursuant to which Cboe Exchange, Inc. lists index options using closed prices of the underlying securities for the index calculation. 37

CME also explains that, because many cash-settled security index options, including those on individual securities, settle based on closing prices, 38 absent securities futures on the same underlying securities, a disconnect would arise in the settlement parameters between security futures and security index options and lead to market disruption and inefficiency for intermarket arbitrage or hedging strategies. Aligning settlement of security futures and security index options at closing prices could avoid the risk of such disruption and inefficiency.

CME's Request is limited to futures, herein called “Proposed Security Futures,” which would conform to certain initial requirements to ensure sufficient liquidity exists in the underlying securities. 39 CME believes that such heightened listing standards will “assure a robust market for the underlying security to protect against manipulation.”  40 Specifically, the Request stated that CME supported conditioning exemptive relief on CME implementing listing standards under which the underlying security for each Proposed Security Future must:  41

1. Exceed 20 million shares in estimated deliverable supply;

2. Have a minimum outstanding market capitalization of $100 billion;

3. Have a minimum ADVT of $450 million over the prior six months (or if the underlying security has been trading for less than six months, a minimum ADVT of $1 billion over the prior month).

CME also stated in the Request that it intends to review the underlying securities listed pursuant to the proposed exemption on a quarterly basis and apply as maintenance standards a market capitalization of at least $50 billion and ADVT of at least $200 million over the prior quarter (or if the underlying security has been trading for less than a calendar quarter, a minimum ADVT of $1 billion over the prior period traded during the calendar quarter). 42

CME further stated that position limits will provide additional protection against manipulation. 43 CME has set initial position limits at 200,000 contracts in the context of 100 share contracts, or the equivalent thereto for contracts listed in another size. 44 CME's rule also provides that any adjusted position limits will be set, in accordance with Commission regulation 41.25(b)(3), at levels no greater than the equivalent of 12.5 percent of the estimated deliverable supply of the underlying security for securities exceeding 20 million shares in estimated deliverable supply and no greater than 25,000 contracts for securities at or below 20 million shares in estimated deliverable supply, and that such limits will be effective during the last three trading days of an expiring contract month. 45

Additionally, CME cites its anti-manipulation rules and monitoring and surveillance by CME's Market Regulation Department as protections against manipulation. 46

Based upon the foregoing, including the following facts:

CME has represented and presented analysis to show the underlying securities for the Proposed Security Futures typically trade in greater volume at the close of the trading day than the opening of the trading day.

CME has represented that other exchanges have relied on closing prices of underlying securities for certain listed options without incident, underscoring that securities markets have evolved and do not present the same concerns of market manipulation as in the past.

CME has represented that it will apply heightened listing standards to the Proposed Security Futures to assure a robust market for the underlying security to protect against manipulation.

CME has represented that it will apply position limits to the Proposed Security Futures that are consistent with the requirements of Commission regulation 41.25(b)(3), 47 that it will apply its anti-manipulation rules, and that trading in the Proposed Security Futures will be subject to monitoring and surveillance by CME's Market Regulation Department.

The Commission believes these market developments and the heightened listing standards proposed by CME mitigate the concerns that animated Commission regulation 41.25(c)'s requirement that the final settlement price of cash-settled security futures must fairly reflect the opening price of the underlying security or securities. 48

Accordingly, the Commission FINDS, as required by Commission regulation 41.25(e), that, with respect to the Proposed Security Futures, an exemption from the opening price settlement requirement in Commission regulation 41.25(c) is consistent with the public interest and the protection of customers.

Now therefore:

It is hereby ordered that, pursuant to Commission regulation 41.25(e), 49 CME is exempted from the requirements of Commission regulation 41.25(c)  50 in connection with listing single security futures contracts, subject to the following conditions:

Listing Standards: CME shall establish the following listing standards for single security futures contracts:

1. Each underlying security for a securities future listed and traded pursuant to exemption shall maintain over 20 million shares in estimated deliverable supply;

2. Each underlying security for a securities future listed and traded pursuant to exemption shall maintain a minimum outstanding market capitalization of $100 billion;

3. Each underlying security for a securities future listed and traded pursuant to exemption shall maintain a minimum average daily value traded (“ADVT”) of $450 million over the prior six months (or if the underlying security has been trading for less than six months, a minimum ADVT of $1 billion over the prior month); and

4. To maintain listing of a securities future listed and traded pursuant to exemption, each underlying security must have a market capitalization of at least $50 billion and ADVT must be at least $200 million over the prior quarter (or if the underlying security has been trading for less than a calendar quarter, a minimum ADVT of $1 billion over the prior period traded during the calendar quarter).

Listing Schedule: CME shall limit its listing schedule for securities futures listed and traded pursuant to exemption to contracts with underlying securities with no longer than 9 months to expiration.

Public Data Provision: CME shall make publicly available in a machine-readable Comma-Separated Values format for a period of 18 months the following information:

1. On a daily basis, a daily report of aggregate long and short positions by market participant type (including market maker, firm, and customer) or by clearing member account type ( e.g., proprietary and customer account, as required by Commission regulation 16.00  51 ) for each security future listed and traded pursuant to this exemption (“Listed Cash-Settled Product”);

2. For each security underlying a Listed Cash-Settled Product, the opening price for the next trading day after the settlement Friday and the closing price on the settlement Friday, along with the percentage change between these two prices, and the average percent change between these two prices over the course of a year, made available every six months from initial listing and to the Commission upon request;

3. For each Listed Cash-Settled Product, the month-end aggregate long and short positions by market participant type (including market maker, firm and customer) or by clearing member account type ( e.g., proprietary and customer account as required by CFTC Rule 16.00) and trading volume for each month, made available every six months from initial listing and to the Commission upon request; and

4. For each security underlying a Listed Cash-Settled Product, the first traded price and the last traded price for the 15-minute periods of 3:30 p.m.-3:45 p.m. and 3:45 p.m.-4:00 p.m. for every Friday of each month along with the next trading day's opening price, made available every six months from initial listing and to the Commission upon request.

CME Study: CME shall provide the Commissions within 18 months from initial listing a report examining the effect of cash-settled single stock futures and, to the extent listed and traded, cash-settled single stock options, on the market for the underlying securities. This report shall include analysis concerning the Proposed Cash-Settled Products, as well as analysis of any other similar P.M. settled, cash-settled single stock security futures, security options, or other similar derivative listed and traded during the period subject to the report. The report shall examine the price of the underlying stock at 3:30 p.m. and 3:45 p.m. on expiration day, the closing price of the underlying stock on expiration day, the opening price on the next trading day, and the percentage change among such prices. The report shall also include the number of the Proposed Cash-Settled Products settled based on the closing price of the underlying stock, with a discussion of price reversal ( i.e., change in the closing price of the underlying security and the opening price on the next trading day). The report shall be made publicly available.

The Coast Guard will enforce special local regulations in 33 CFR 100.704 for the Beaufort Water Festival Air Show regulated area from 12 p.m. to 5 p.m. on July 25, 2026. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Coast Guard Southeast District, § 100.704, Item No. 8, specifies the location of the regulated area for the Beaufort Water Festival Air Show. During the enforcement periods, as reflected in § 100.704(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Captain of the Port, Sector Charleston, or their designated representative.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via Local Notice to Mariners, Marine Safety Information Bulletins, Broadcast Notice to Mariners, and on-scene designated representatives.

The Coast Guard will enforce special local regulations in 33 CFR 100.704 for the Beaufort Water Festival regulated area from 7 a.m. to 5 p.m. each day from July 17, 2026, through July 26, 2026. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Coast Guard Southeast District, § 100.704, specifies the location of the regulated area for the Beaufort Water Festival event which encompasses all waters 200 yards from seawall at Waterfront Park extending from Lady's Island Bridge to Spanish Point in Beaufort, SC.

During the enforcement periods, as reflected in § 100.704(c), if you are the operator of a vessel in the regulated area you must comply with directions from the Captain of the Port, Sector Charleston, or their designated representative.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via Local Notice to Mariners, Marine Safety Information Bulletins, Broadcast Notice to Mariners, and on-scene designated representatives.

The Coast Guard received notification that the Fleet Week Maritime Festival Parade of Ships will be conducted within the waters near Pier 66, Elliott Bay, Seattle, WA. The Captain of the Port (COTP) Sector Puget Sound has determined that potential hazards associated with the parade are a safety concern for anyone within all waters extending 100 yards from Pier 66, Elliott Bay, Seattle, Washington within a box encompassed by the points, 47°36.719′ N, 122°21.099′ W; 47°36.682′ N, 122°21.149′ W; 47°36.514′ N, 122°20.865′ W; and 47°36.552′ N, 122°20.814′ W. Therefore, the COTP is issuing this rule under the authority in 46 U.S.C. 70034, which is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

Because of these potential hazards, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was notified of this event on June 23, 2026, but we must establish this safety zone by July 21, 2026, to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule establishes a safety zone from noon through 4 p.m. on July 21, 2026. The safety zone will encompass all waters extending 100 yards from Pier 66, Elliott Bay, Seattle, Washington within a box encompassed by the points, 47°36.719′ N, 122°21.099′ W; 47°36.682′ N, 122°21.149′ W; 47°36.514′ N, 122°20.865′ W; and 47°36.552′ N, 122°20.814′ W. This action is being taken to provide for the safety of life on navigable waterways during this event. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the COTP.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analysis based on a number of these statutes and Executive orders.

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in that Order.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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.

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard received notification that fireworks will be launched from a point on land over the Outer Harbor, in Buffalo, NY. The Captain of the Port (COTP) Eastern Great Lakes has determined that potential hazards associated with fireworks are a safety concern for anyone within a 560-foot radius of the fireworks launch site. Therefore, the COTP is issuing this rule under the authority in 46 U.S.C. 70034, which is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone.

Because of these potential hazards, the Coast Guard is issuing this rule without prior notice and comment. As is authorized by 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard was notified of this event on June 4, 2026, but we must establish this safety zone by August 2, 2026 to protect personnel, vessels, and the marine environment. Therefore, we do not have enough time to solicit and respond to comments.

For the same reason, the Coast Guard finds that under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This rule establishes a safety zone from 9:15 p.m. to 10:15 p.m. on August 2, 2026. The safety zone will cover all navigable waters of the Outer Harbor in Buffalo, NY, within a 560-foot radius of the launch position at 42°52′07.70″ N, 78°53′ 01.72″ W. Vessels and persons will not be allowed to enter the zone during this time, unless authorized by the Captain of the Port.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders.

The regulatory flexibility analysis provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to rules that are not subject to notice and comment. Because the Coast Guard has, for good cause, waived the notice and comment requirement that would otherwise apply to this rulemaking, the Regulatory Flexibility Act's flexibility analysis provisions do not apply here.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), if this rule will affect your small business, organization, or governmental jurisdiction and you have questions, contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards by calling 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in that Order.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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.

As required by The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), the Coast Guard certifies that this rule will not result in an annual expenditure of $100,000,000 or more (adjusted for inflation) by a State, local, or tribal government, in the aggregate, or by the private sector.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.

This rule is a safety zone. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

This is a summary of the Commission's Order on Reconsideration in MD Docket Nos. 25-190, 24-85, FCC 26-43, adopted on June 23, 2026, and released on June 24, 2026. The full text of this document is available at https://docs.fcc.gov/public/attachments/FCC-26-43A1.pdf. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice).

Final Regulatory Flexibility Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, in the FY 2025 Regulatory Fees Report and Order, the Commission prepared a final Regulatory Flexibility Analysis (FRFA) concerning the potential impact of rule and policy changes contained in the FY 2025 Regulatory Fees Report and Order. We received no petitions for reconsideration of that Final Regulatory Flexibility Analysis. In this present Order on Reconsideration, the Commission promulgates no additional final rules. Our present action is, therefore, not an RFA matter.

Congressional Review Act. The Commission will not send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because no rule was adopted or amended.

Final Paperwork Reduction Act of 1995 Analysis. This document does not contain any proposed new or substantively modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. In this Order on Reconsideration, we deny the petition for partial reconsideration filed by Kinéis challenging the FY 2025 Regulatory Fees Report and Order, 90 FR 43284 (September 8, 2025). For the reasons presented below, we deny the petition for reconsideration and reject Kinéis's request to modify the Commission's determination to assess regulatory fees on all holders of space station authorizations as of the start of the fiscal year rather than only the holders of space station authorizations that have been certified to be operational as of the start of the fiscal year.

2. In 2024, the Commission initiated a rulemaking proceeding to seek comment on possible changes to the then existing methodology for assessing regulatory fees on space and earth stations. Among other proposals, the Commission proposed to assess regulatory fees on all authorized earth or space stations as of the start of the fiscal year, which commences on October 1 and ends on September 30th. At the time, regulatory fees for earth and space stations were only assessed for stations that were certified as operational as of the start of the relevant fiscal year.

3. In the FY 2024 Space and Earth Station Regulatory Fees NPRM, 89 FR 20582 (March 25, 2024), the Commission set forth numerous reasons why such a change in methodology would be reasonable. First, the Commission tentatively concluded that there was no statutory bar to assessing regulatory fees on authorized, but not yet operational, space and earth stations. The Commission observed that section 9(d) of the Act, 47 U.S.C. 159(d), explicitly gives the Commission authority to adjust its regulatory fees by rule if it determines that the schedule of fees requires amendment, and that Congress deleted the original textual language of section 9 that provided the basis for assessing space station regulatory fees on operational stations. Second, it observed that both license holders and station operators granted authority to access the market in the United States benefit from substantial full time equivalent (FTE) resources. The Commission explained that one FTE, a “Full Time Equivalent” or “Full Time Employee,” is a unit of measure equal to the work performed annually by a full-time person (working a 40-hour workweek for a full year) assigned to the particular job, and subject to agency personnel staffing limitations established by the U.S. Office of Management and Budget. Specifically, FTE resources were used to review and grant the respective application or petition for market access as well as to protect the benefits conferred by the authorization, such as use of spectrum and orbital resources and protection from interference. In addition, the Commission observed that if regulatory fees were assessed only when space stations become operational, rather than when they are authorized, then some authorization holders would not be assessed regulatory fees associated with FTE work for potentially many years or perhaps never. As a result, space stations that become operational earlier than other licensed stations would bear the entire burden of regulatory work done on behalf of all similarly situated entities. The Commission noted that regulatory fees are a zero-sum situation, so any decrease to the fees paid by one category of regulatees necessitates an increase in fees paid by other fee payors.

4. In proposing the change to its methodology, the Commission noted that it should not present a challenge to administer because the date a license or market access is issued is a matter of public record and contained in its licensing database. The FY 2024 Space and Earth Station Regulatory Fees NPRM acknowledged that the proposal could increase the costs to the satellite operator at the initial funding phases and sought comment on this and other potential collateral effects of the proposal and how the Commission should consider them.

5. In February 2025, the Commission released the FY 2024 Space and Earth Station Regulatory Fees FNPRM, 90 FR 11918 (March 13, 2025), seeking additional comment on the proposal to assess regulatory fees on all holders of space station authorizations as of the start of the fiscal year, along with other matters. The Commission tentatively concluded that the concerns raised regarding costs, financial risks, and the impact on innovation did not outweigh the need to assess regulatory fees on the same class who benefit from the Commission's FTE efforts. The Commission stated that while it understood the desire of interested parties to delay assessing regulatory fees on a satellite operator until the system becomes operational and generates revenues, it did not believe that this continuing with such an approach best comported with the requirements of section 9 of the Communications Act, 47 U.S.C. 159, nor was it fair to other fee payors in the same regulatory fee category. The Commission further noted that fairness is one of the overarching goals in implementing regulatory fee system.

6. In June 2025, the Commission adopted the Space and Earth Station Regulatory Fees Third Report and Order, 90 FR 29760 (July 7, 2025), which, among other changes, adopted the proposal to assess regulatory fees on all authorized earth or space stations as of the start of the fiscal year, rather than only on those certified as operational as of the start of the fiscal year. That is, the Commission changed the existing methodology from assessing fees only after notification that the station is operational to assessing fees on all stations authorized by license or grant of market access as of the start of the fiscal year. In doing so, the Commission observed that significant Commission resources, expressed in Space Bureau FTEs, are involved with the review and grant of space and earth station licenses. The Commission noted that under the prior methodology, fee payors with systems that become operational earlier than other licensed systems bear the entire fee burden of regulatory work done on behalf of all regulated systems. Moreover, even if a system never becomes operational, the licensee or market access grant recipient nonetheless benefited from the FTE burdens. The Commission also noted that, although the term of a license does not commence until the space station or system of space stations is operational, the benefits and protections provided by a license or market access grant, such as the ability to use spectrum and orbital resources and to preclude others from using those same resources, accrue upon authorization or grant. In such an instance, the Commission would not be able to recover the FTE burdens associated with regulating the licensed space or earth station, and other licensees with operational space or earth stations would have to bear all the costs of such regulation. The Commission also observed that, given the bespoke nature of many satellite systems, FTE resources are used by the industry before, during, and after an application is filed. Finally, the Commission concluded that assessing regulatory fees on authorized, not just operational stations, broadens the base of regulatory fee payors, creating a more fair methodology. The Commission also observed that broadening the base to include authorized, but not operational, stations more accurately allocates FTE burdens.

7. In August 2025, the Commission adopted a schedule to assess and collect regulatory fees for FY 2025 by September 30, 2025. In doing so, the Commission implemented the amendments to the fee methodology that were adopted in the Space and Earth Station Regulatory Fees Third Report and Order, including the change to assessing regulatory fees on all authorized space stations as of the start of the fiscal year, rather than only on stations that had become operational as of the start of the fiscal year. The Commission specifically declined a request by petitioner Kinéis to interpret “authorized stations” solely as stations “that have received unconditional permission to provide service without the need for further agency action.” The Commission found that this request effectively was an attempt to revisit whether operational status should be the basis for assessing regulatory fees on a space station, although the Commission had just decided in June 2025 that the operational status of a space or earth station should no longer be the deciding factor of whether regulatory fees should be assessed. The Commission reiterated that significant FTE burdens are involved with the licensing of space and earth stations, even before a station becomes operational, and that if an authorized space station never becomes operational, then the FTE burdens associated with oversight and regulating such space stations would never be recovered and would have to be borne by stations that are operational. The Commission found that these considerations equally apply to space stations that are authorized, but subject to a condition that needs to be fulfilled by the licensee or grantee prior to becoming operational, or prior to accessing the U.S. market in the case of a non-U.S. licensed space station. The Commission also noted that assessment of regulatory fees could provide an incentive for licensees to resolve any aspects of their application that are within their control prior to action on the application, or as quickly as possible if the application is granted with conditions subject to the licensee's control.

8. The Commission also pointed to the prior finding in the Space and Earth Station Regulatory Fees Third Report and Order that assessing regulatory fees on authorized stations broadens the base of regulatory fee payors, spreading the recovery of regulatory fees from all licensees and grantees that benefit from the Space Bureau FTE's licensing and regulatory activities, and potentially lowering the per unit regulatory fee burden by increasing the number of units on which fees are assessed. The Commission found that this rationale for adopting regulatory fees on authorized stations would be undermined by not assessing regulatory fees on space stations that are authorized, but are subject to conditions that need to be fulfilled prior to commencing operations. Not assessing regulatory fees until all aspects of an application are fully resolved could effectively remove a significant number of current fee payors from regulatory fee assessments. The Commission noted that all the NGSO large constellation fee payors have not received unconditional authorization for all aspects of their applied-for systems. If they are not assessed regulatory fees, their share of NGSO space station regulatory fees would need to be paid by other NGSO space station fee payors. Finally, the Commission found that requiring Commission staff to determine whether the conditions placed on every space and earth station grant prevent the licensee from commencing operations risks being subjective and administratively burdensome.

9. Kinéis sought partial reconsideration of the FY 2025 Report and Order. Since no party sought reconsideration of the Commission's determination in the Space and Earth Station Regulatory Fees Third Report and Order to assess regulatory fees on all authorized earth stations, rather than on earth stations certified as operational at the start of the relevant fiscal year, this reconsideration focuses solely on the Commission's determination to assess regulatory fees on authorized, rather than operational, space stations. No other party has sought reconsideration on the Commission's determinations regarding the assessment of regulatory fees for FY 2025. The Commission released a public notice inviting comment on the Kinéis Petition, which was also published in the Federal Register . No parties filed oppositions in response to Kinéis's petition.

10. Standard of Review. Under § 1.429 of the Commission's rules, any interested person may petition for reconsideration of a final action in a rulemaking proceeding. Our rules require that a petition for reconsideration must state with particularity the respects in which the action taken should be changed, and must be filed within 30 days from the date of public notice of such action. In addition, a petition for reconsideration cannot rely on facts or arguments that were not previously presented to the Commission, except under enumerated conditions.

11. Kinéis argues that the Commission did not adequately address all aspects of the concerns raised regarding the assessment of regulatory fees on space stations that are “provisionally authorized,” but that remain subject to a “critical” condition on their authorization that would preclude the licensee from initiating service without further agency action. Kinéis asserts that the Commission failed to consider fully all aspects of the financial burdens that its definition of “authorized” places upon small, start-up operators. It states that the Commission failed to acknowledge that a license or grant of market access, without certainty that the licensee or grantee will be able to satisfy all conditions of the grant and be able to access the market, is likely to have a significant detrimental effect on the licensee or grantee. Instead, Kinéis broadly argues that the Commission's decision to assess fees on space stations authorized as of the start of the fiscal year, but not yet operational, reflected a bias towards maximizing fee collections and avoiding the need for administrative decisions, while discounting the significant financial impact on licensees whose authorizations “remain in regulatory limbo” absent grant of unconditional authority and who may lack the resources to pay regulatory fees without an unrestricted license. Kinéis claims that the Commission focused solely on the administrative burden of having to determine whether the conditions placed on every earth or space station grant prevent the licensee (or grantee) from commencing operations, which it alleges is not a valid concern.

12. We disagree that the Commission failed to consider sufficiently Kinéis's concerns. In the FY 2025 Report and Order, the Commission explained its reasoning for declining to interpret “authorized stations” solely as stations “that have received unconditional permission to provide service without the need for further agency action” as requested by Kinéis. We disagree that the Commission failed to acknowledge the “significant detrimental effect” that assessing regulatory fees on authorized stations would have on fee payors that are conditionally licensed or granted market access, without certainty the licensee or grantee will be able to satisfy all the conditions. To the contrary, the Commission recognized that assessing a regulatory fee on any station—including those authorized but subject to conditions—involves a financial burden for a regulatory fee payor. However, as the Commission correctly observed, the Commission changed the methodology used to assess regulatory fees from one based on the operational status of the space station to whether the space station was authorized, since significant FTE burdens are involved with the licensing of space stations, even before a station becomes operational. That is, the Commission decided to assess regulatory fees once an applicant becomes a licensee or grantee and receives the benefits of regulation (that is, benefits from the FTE burdens that went into reviewing and granting the license and that go into oversight and regulation of the licensee after the license is granted). Congress has prescribed a method for the Commission to collect the full annual salaries and expenses (S&E) appropriation by keying our regulatory fee assessment to the relevant FTE burden. The methodology for assessing regulatory fees must “reflect the full-time equivalent number of employees within the bureaus and offices of the Commission, adjusted to take into account factors that are reasonably related to the benefits provided to the payor of the fee by the Commission's activities.” FTEs within a bureau are not assigned to specific fee categories “by rote or at random, but rather in a manner that reflects the time spent by FTEs on a regulatory fee category, which is in itself a reflection of `benefit' to the fee category.” As the Commission has explained before, section 9, 47 U.S.C. 159, is clear that regulatory fee assessments are based on the burden imposed on the Commission, not benefits realized by regulatees. Thus, the fee assigned to each regulatory fee category relates to the FTE burden associated with oversight and regulation of each regulatory fee category by the relevant core bureaus.

13. Because the annual assessment of regulatory fees is a zero-sum game, the FY 2025 Report and Order explained that adopting Kinéis's proposal would result in an increased financial burden on other regulatory fee payors. As the Commission has previously found, “assessing regulatory fees on authorized stations broadens the base of regulatory fee payors, spreading the recovery of fees from all licensees and grantees that benefit from the Space Bureau's licensing and regulatory activities, and potentially lowering the per unit regulatory fee burden by increasing the number of units on which fees are assessed.” We are unpersuaded by Kinéis's argument that such entities should be excluded from the base of regulatory fee payors. Moreover, to the extent Kinéis argues that it does not have an ability to pay regulatory fees, we remind Kinéis of existing processes to seek a waiver, reduction, or deferral of regulatory fees to mitigate the impact of regulatory fees on operators when paying such fees would cause a hardship. Section 9A(d) permits the Commission to waive, reduce, or defer payment of a regulatory fee and associated interest charges and penalties for good cause. As the Commission has repeatedly noted, however, it interprets this provision narrowly to permit only those waivers “unambiguously articulating `extraordinary circumstances' outweighing the public interest in recouping the cost of the Commission's regulatory services for a particular regulatee.”

14. Furthermore, under Kinéis's proposal, it is more than an “inconvenience” to require the Commission to assess whether license conditions provide certainty that a licensee or grantee can operate or enter the U.S. market under the license or grant. Virtually every space station license or market access grant is subject to conditions. In proposing regulatory fees, the Commission must determine the number of units in a category over which regulatory fees are to be assessed. The fewer units, the greater the regulatory fee per unit. As the Commission stated, requiring Commission staff to determine whether conditions placed on every space (and earth) station license or market access grant would prevent the licensee from commencing operations risks being subjective and administratively burdensome. The Commission also noted that all regulatory fee payors in the large constellation non-geostationary orbit (NGSO) fee category have not received unconditional authorizations for all aspects of their applied-for systems, so other NGSO space station fee payors would have to pay more regulatory fees if those large constellation fee payers were no longer assessed regulatory fees under Kinéis's proposal. The fact that it might be theoretically possible to analyze what constitutes a “critical” condition on an authorization that would preclude the licensee from initiating service without further agency action to avoid this administrative burden, does not change the fact that change would still be more difficult to administer than the proposal adopted. Moreover, such a proposal does not appear to best comport with the statute because it fails to ensure that regulatory fees be paid by all entities holding authorizations that benefit from the Space Bureau's licensing and regulatory activities. Furthermore, it undermines efforts to potentially lower the per unit regulatory fee burden by increasing the number of units on which fees are assessed. As such, we affirm that the concerns stated by the Commission were valid.

15. Kinéis also seeks reconsideration based on the alleged failure of the Commission to address potential alternatives that Kinéis suggests would allow regulatees to have a license or grant of market access but not pay regulatory fees. We note that the alternatives proposed by Kinéis originate from a fundamental misunderstanding of the basis for assessing regulatory fees. Kinéis's alternatives seek to address whether a license is final or subject to additional action by the licensee and the Commission, and whether it is fair to assess regulatory fees while these additional actions are yet to be taken. This misses the point entirely. As discussed above, regulatory fees are keyed to the FTE burden. Even if a license is conditional and additional steps must be taken, by the licensee or the Commission, before the licensee can operate a space station under the license, there is still a license, and the licensee or authorization holder has benefitted, and continues to benefit from Space Bureau FTE resources used to review and grant licenses in the category of the fee payor and continue to have regulatory oversight over licenses in the payor's fee category.

16. In sum, we reject the alternatives proposed by Kinéis as fundamentally incorrect in both fact and law when Kinéis contends that the benefits of the regulatory process are manifested only once unconditional approval is received, and the Commission should not assess regulatory fees premised on these benefits absent “unfettered” authorization. Not only does this ignore the longstanding regulatory fee framework required by Congress in keying our regulatory fee assessment to the relevant FTE burden, but it also improperly focuses on the fee assessment of a particular regulatee, rather than the category of fee payors as a whole. Accordingly, we reject the alternatives posed by Kinéis.

17. Kinéis argues that its position that an authorization is not final when conditioned on the future submission of an orbital debris mitigation plan is supported by language in the Space Modernization NPRM adopted by the Commission in October 2025. In the Space Modernization NPRM, the Commission sought comment on whether to allow the grant of a conditional space station authorization where an applicant did not provide an orbital debris mitigation plan, but instead certified its intent to comply with the Commission's orbital debris mitigation rules in a subsequent filing. The conditionally authorized applicant would then be required to submit a compliant orbital debris mitigation plan or a modification application no later than six months prior to integration of satellites into a launch vehicle. If the applicant files for a modification or seeks a waiver of Commission rules instead of submitting a fully compliant proposal, the conditional grant would be rescinded. Kinéis argues that the proposal in the NPRM supports its position that a “conditionally approved applicant” has not yet been authorized.

18. As an initial matter, we considered this argument even though it was not previously presented to the Commission because the Space Modernization NPRM was released after the August FY 2025 Report and Order. Even so, we do not find that the statements in the Space Modernization NPRM support reconsideration. The Commission's statements in the Space Modernization NPRM about the creation of new types of grants and processes reflect things that may or may not come to pass. Should the Commission adopt changes to its regulation of space and earth stations that impact the FTE resources allocated to the relevant regulatory fee categories and methodology used for such fee categories, those changes would be appropriately addressed in a future regulatory fees rulemaking rather than at this time in a reconsideration of a past regulatory fee rulemaking. As the Commission has repeatedly explained, apportionment of amounts to be collected from each fee category within a Bureau or Office based on FTE resources allocated is not required to be calculated with scientific precision. In plain terms, whether any of the proposed changes, if adopted, will materially alter FTE resources devoted to the oversight and regulation of space stations sufficient to merit the Commission proposing changes to fee categories or methodologies is premature at this time. As such, we do not find that the statements in the Space Modernization NPRM support reconsideration of the Commission's decision.

19. Accordingly, it is ordered that pursuant to sections 1, 4(i), 4(j), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) 154(j), 155(c), and 405, and § 1.429(b) of the Commission's rules, 47 CFR 1.429(b), the Petition for Reconsideration filed on November 14, 2025 by Kinéis is denied.

I. Abbreviations APA Administrative Procedure Act CDC U.S. Center for Disease Control and Prevention CDL Commercial Driver's License CDLIS Commercial Driver's License Information System CFR Code of Federal Regulations CMV Commercial Motor Vehicle DOT Department of Transportation E.O. Executive Order FHWA Federal Highway Administration FMCSA Federal Motor Carrier Safety Administration FMCSR Federal Motor Carrier Safety Regulations GVWR Gross vehicle weight rating IC Information collection ICC Interstate Commerce Commission ICCTA ICC Termination Act of 1995 IT Information technology LCV Longer combination vehicle MCSIA Motor Carrier Safety Improvement Act of 1999 MVR Motor vehicle records NARA National Archives and Records Administration OFR Office of the Federal Register OMB Office of Management and Budget PIA Privacy Impact Analysis PTA Privacy Threshold Assessment SAFETEA-LU Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users SDLAs State Driver's Licensing Agencies SPE Skills performance evaluation UMRA Unfunded Mandates Reform Act of 1995 U.S.C. United States Code II. Legal Basis for the Rulemaking

Congress delegated certain powers to regulate interstate commerce to DOT in numerous pieces of legislation, most notably in section 6 of the Department of Transportation Act (DOT Act) (Pub. L. 89-670, 80 Stat. 931, 937, Oct. 15, 1966). Section 6 of the DOT Act transferred to DOT the authority of the former Interstate Commerce Commission (ICC) to regulate the qualifications and maximum hours of service of employees, the safety of operations, and the equipment, of motor carriers in interstate commerce (80 Stat. 939; see also 49 U.S.C. 31502(b)). This authority, first granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The regulations issued under this authority, as well as subsequently enacted laws, became known as the FMCSR and are codified at 49 CFR parts 350-399. The administrative powers to enforce chapter 315 (codified in 49 U.S.C. chapter 5) were also transferred from the ICC to DOT in 1966, assigned first to the Federal Highway Administration (FHWA), and then to FMCSA. The FMCSA Administrator, whose powers and duties are set forth in 49 U.S.C. 113, has been delegated authority by the Secretary of Transportation (the Secretary) under 49 CFR 1.81 to prescribe regulations and to exercise authority over and with respect to any personnel within the organization, and under 49 CFR 1.87 to carry out the motor carrier functions vested in the Secretary.

Between 1984 and 1999, enforcement of the FMCSR, the Hazardous Materials Regulations, and the Commercial Regulations was added to FHWA's authority. The statutes granting these authorities include the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, Title II, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C. chapter 311, subchapter III; the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, Oct. 27, 1986), codified at 49 U.S.C. chapter 313; the Hazardous Materials Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615, 104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; the Omnibus Transportation Employee Testing Act of 1991 (Pub. L. 102-143, Title V, 105 Stat. 917, 952, Oct. 28, 1991), codified at 49 U.S.C. 31306; the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149; and the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998).

The Motor Carrier Safety Improvement Act of 1999 (MCSIA), Public Law 106-159, 113 Stat. 1748, Dec. 9, 1999, established FMCSA as a new operating administration within DOT, effective January 1, 2000, and transferred authorities specifically related to commercial motor vehicle safety to FMCSA. Accordingly, since that time the motor carrier safety, and certain commercial, responsibilities previously assigned to both the ICC and FHWA have been the jurisdiction of FMCSA. These responsibilities also include regulations relating to section 18 of the Noise Control Act of 1972, codified at 42 U.S.C. 4917, which were originally assigned to the Secretary of Transportation (Pub. L. 92-574, 86 Stat. 1249, Oct. 27, 1972) and delegated to FHWA (39 FR 7791, Feb. 28, 1974), and are now the jurisdiction of FMCSA, as codified at 49 U.S.C. 113(f)(1). 1

Congress subsequently expanded, modified, and amended FMCSA's authority in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. 107-56, 115 Stat. 272, Oct. 26, 2001); the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005); the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, June 6, 2008); the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141, 126 Stat. 405, July 6, 2012); Fixing America's Surface Transportation Act (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015); and the Infrastructure Investment and Jobs Act (Pub. L. 117-58, 135 Stat. 429, Nov. 15, 2021).

The regulations amended by this rule are based on the statutes detailed above. Generally, the legal authority for each provision being amended was explained when the requirement was originally adopted and is noted at the beginning of each part in Title 49 of the CFR.

The APA specifically provides exceptions to its notice and comment rulemaking procedures when an agency finds there is good cause to dispense with them, and incorporates the finding, and a brief statement of reasons therefore, in the rules issued (5 U.S.C. 553(b)(B)). Good cause exists when an agency determines that notice and public comment procedures are impractical, unnecessary, or contrary to the public interest. The amendments made in this final rule primarily correct inadvertent errors and omissions, remove or update obsolete references, and make minor language changes to improve clarity and consistency. The technical amendments do not impose any new material requirements or increase compliance obligations. For these reasons, FMCSA finds good cause that notice and public comment on this final rule are unnecessary.

In addition to amendments that fall within the APA good cause exception, this rule also contains amendments that fall within the APA exception for rules of agency organization, procedure, or practice. Specifically, the Agency amends 49 CFR 387.307(e) to specify the same procedures for Agency review of documents filed by brokers notified of a pending suspension of operating authority due to insufficient financial responsibility as are followed by the Agency when such brokers file documents in support of a reinstatement from suspension. These amendments fall within the exception to the APA's notice and comment rulemaking procedures for “rules of agency organization, procedure, or practice,” (5 U.S.C. 553(b)(A)) because the procedures for filing such documents are already specified in § 387.307(e) and so are made clearer with this amendment. Similarly, an amendment to part 389 also concerns matters of Agency policy. These changes are therefore excepted from the notice and public comment requirements.

The APA also allows agencies to make rules effective immediately with good cause (5 U.S.C. 553(d)(3)), instead of requiring publication 30 days prior to the effective date. For the reasons already stated, FMCSA finds there is good cause for this rule to be effective immediately.

This rule contains numerous, unrelated provisions that focus on unique aspects of FMCSA's regulations. Therefore, FMCSA finds that the various provisions of this final rule are severable and able to operate functionally if severed from each other. In the event a court were to invalidate one or more of this final rule's unique provisions, the remaining provisions should stand.

FMCSA is updating Appendix A to part 372 to ensure internal consistency in the regulations. On December 12, 1976, the ICC modified its regulations, which were then codified at 49 CFR part 1048, to expand commercial zones and motor carrier and freight forwarder terminal areas. (41 FR 56655). This amendment was based on a new population-mileage formula, which better reflected the growing economic and social development of American municipalities. As a result, ICC expanded the population-mileage boundaries beyond the existing zones in the regulations to better equalize competition between shippers located beyond the existing shipping zones and those located within the existing zones.

Congress transferred jurisdiction over these regulations to the Federal Highway Administration (FHWA) as part of ICCTA (Pub. L. 104-88, 109 Stat. 803). In a final rule published on May 19, 1988 (53 FR 18042), FHWA added Appendix F to section 1048 and titled it, “Appendix F to Subchapter B—Commercial Zones.” A note was added to Appendix F to mention that its text is identical to the text of part 1048, revised as of October 1, 1975, which is no longer in print. On April 1, 1997, FHWA issued a final rule (62 FR 15417) to amend the former ICC regulations. The rule modified references to the ICC Act by changing references to provisions no longer in effect following enactment of ICCTA. As a result, part 372 was amended by replacing the words “part II of the ICC Act” and “part II of the Act” with “49 U.S.C. subtitle IV, part B.” In a later technical amendment published on September 24, 1997 (62 FR 49939), § 1048.101 was removed and replaced with § 372.241.

Jurisdiction over commercial zones transferred to FMCSA in 2000, after Congress created the Agency as part of MCSIA. On October 14, 2021, FMCSA published a final rule moving Appendix F of subchapter B of chapter III, to part 372, and redesignating it as Appendix A (86 FR 57060).

It has come to FMCSA's attention that when the regulatory language was moved in 1997 from its former position at 49 CFR 1048.101 to its current position at 372.241, conforming changes were never made in Appendix A (formerly Appendix F of subchapter B). FMCSA now amends the outdated language in Appendix A to part 372 to match that of § 372.241, so that all references will be to the correct authority of 49 U.S.C. subtitle IV, part B.

Section 384.234 requires that States meet the medical certification recordkeeping requirements set out in the referenced sections of part 383. FMCSA published a final rule in October 2021 (86 FR 57060) to delete obsolete language from § 383.73 by revising the introductory paragraph (a), removing paragraph (a)(1), and renumbering paragraphs (a)(2)(i) through (vii) as paragraphs (a)(1) through (7). As a result of the change, prior § 383.73(a)(2)(vii) became 383.73(a)(7). However, the cross-references in § 384.234 were not updated to maintain consistency. FMCSA amends § 384.234 to change the outdated cross-reference to § 383.73(a)(2)(vii) to the current regulation, § 383.73(a)(7).

FMCSA amends § 384.301 to more clearly explain which requirements the States need to comply with. Currently, the regulations cause confusion among State Driver's Licensing Agencies (SDLAs) because they do not specifically describe which requirements are covered by each compliance date paragraph; in most cases, the wording of each paragraph is identical except for the dates. To eliminate confusion, FMCSA supplements the words “requirements of subpart B of this part” each time they appear with the precise regulation each paragraph references. FMCSA also supplements “the requirements of part 383 of this chapter” in paragraph (m) with the name of the applicable regulation and adds the name of the applicable regulation to paragraph (n). No substantive changes to the requirements are made by this revision. Instead, this revision will eliminate confusion for SDLAs and ensure the compliance dates applicable to States are clear.

FMCSA is amending paragraph (g)(1) in Appendix B to part 386 to make clear that all entities required to register pursuant to 49 U.S.C. 13901 are subject to the civil penalty set out in 49 U.S.C. 14901 for failure to register. In 2015, FMCSA made numerous technical amendments to Appendix B, during which the earlier provision addressing civil penalties for noncompliance with 13901 was split in two. The first provision was made applicable to motor carriers and the second, to brokers. However, the provision addressing brokers, which is found at paragraph (g)(2) of Appendix B, only sets out the penalty for entities who knowingly operate as a broker in violation of registration requirements of 49 U.S.C 13904 or financial security requirements of 49 U.S.C 13906. It does not address the registration obligations in 13901, which are applicable to motor carriers, brokers, and freight forwarders.

At the same time, the term “carrier” in paragraph (g)(1) was amended to read, “motor carrier.” Under the definition in 49 U.S.C. 13102(3), which applies to 49 U.S.C. 13901, the term “carrier” is defined to include freight forwarders (and water carriers)  2 in addition to motor carriers. By specifying that (g)(1) was applicable only to motor carriers, the 2015 amendments erroneously removed freight forwarders from the entities subject to civil penalties for violations of 49 U.S.C. 13901.

FMCSA is therefore conforming paragraph (g)(1) of Appendix B to the statute to correct the omission of covered entities and clarify once again that brokers and freight forwarders are also subject to the penalty specified in that paragraph for failure to comply with the requirements of 49 U.S.C. 13901.

Section 387.9 specifies minimum levels of financial responsibility that motor carriers must maintain to comply with § 387.7. FMCSA, and FHWA before it, have amended table 1 to § 387.9 several times to clarify that the list generally refers to commodities carried in bulk (see 59 FR 63921, 63924 (Dec. 12, 1994), 73 FR 76472, 76496 (Dec. 16, 2008), 86 FR 57060, 57064 (Oct. 14, 2021), and 88 FR 80169 (Nov. 17, 2023)). The table previously used various terms to describe the quantities of these commodities, which were all revised to read “in bulk” in order to eliminate confusion and increase consistency by replacing the various terms with a single defined term.

The second row of the table specifies a combination of carriage type and commodity subject to a $5,000,000 level of financial responsibility. In the description in the “Commodity transported” column of this row, the words “with capacities in bulk” were inadvertently added to describe hopper-type vehicles. This phrase is redundant, as the requirements already apply to hazardous materials transported “in bulk in cargo tanks, portable tanks, or hopper-type vehicles.” In order to clarify and streamline the description, FMCSA revises table 1, second row, second column, by removing the words “with capacities in bulk.”

FMCSA amends §  387.307(e)(1)(iv)(C) and (e)(3)(ii) to correct an inadvertent typographical error from a previous final rule titled “Broker and Freight Forwarder Financial Responsibility” (88 FR 78656). The rule set out financial responsibility requirements for brokers of property and freight forwarders in five separate areas: assets readily available; immediate suspension of broker and freight forwarder operating authority; surety or trust responsibilities in cases of broker and freight forwarder financial failure or insolvency; enforcement authority; and entities eligible to provide trust funds for brokers and freight forwarders. The rule introduced new paragraphs, including paragraph (e), subparagraphs (e)(1) through (e)(6), which set out specific requirements for immediate suspension of broker and freight forwarder operating authority. When the Agency introduced paragraphs (e)(1)(iv)(C) and (e)(3)(ii), references to a non-existent paragraph (e)(1)(D) were inadvertently introduced. FMCSA amends both paragraphs to remove references to non-existent paragraph (e)(1)(D) and replace them with the correct provision, paragraph (e)(1)(ii).

FMCSA amends part 389 to simplify the process for any interested person to petition the Administrator to establish, amend, interpret, clarify, or withdraw a rule, by clarifying the process to submit a petition. The Agency modifies the regulations to replace the general FMCSA website listed in § 389.31(b)(1) with a direct link to www.regulations.gov, which will facilitate submitting petitions for a rulemaking for the public. Docket number FMCSA-2021-0054 continues to serve as a mailbox for the public's submission of a petition for rulemaking. All petitions submitted to the docket will continue to be tracked on FMCSA's Petitions website.

FMCSA amends this section by making a clarifying change to the definition of Gross vehicle weight rating (GVWR ). Some stakeholders have found the definition ambiguous regarding whether a vehicle with a GVWR of 10,001 pounds or more ceases to be a commercial motor vehicle (CMV) when, unladen, the vehicle weighs less than 10,001 pounds. This amendment serves to clarify that a vehicle with a GVWR of 10,001 pounds or more are always a CMV, regardless of the vehicle's actual weight at any point in time, as actual weight may fluctuate. Because the manufacturer determines a vehicle's GVWR, the weight rating does not change regardless of the actual weight of a vehicle at any given time. Although this section is currently suspended, FMCSA is amending it to mirror the amendments to temporary regulations in § 390.5T.

As explained in the prior paragraph, Section 390.5 Definitions, FMCSA amends this section by making a clarifying change to the definition of Gross vehicle weight rating (GVWR ).

Section 390.27 provides the addresses of the motor carrier safety service centers. FMCSA revises §  390.27 to change the address of the Midwestern Service Center from 600 Holiday Plaza Drive, Suite 240, Matteson, Illinois 60443, to 600 Town Center Road, Suite 240, Matteson, Illinois 60443. Although the Midwestern Service Center has not changed physical locations, FMCSA was notified that the Village of Matteson has changed the name of “Holiday Plaza Drive” to “Town Center Road,” requiring this technical update to the address.

FMCSA also revises §  390.27 to change the address for the Western Service Center from 12600 West Colfax Avenue, Suite B-300, Lakewood, Colorado 80215, to 12300 West Dakota Avenue, Suite 131, Lakewood, Colorado 80229. This location change is effective as of December 2025.

This section describes the investigations and inquiries a motor carrier conducts to ensure the qualifications of each driver it employs. Section 391.23(a)(1) describes the inquiry process to obtain a motor vehicle record covering the driver's prior 3-year driving history, which must be initiated within 30 days of the date the driver's employment begins. A final rule published in March 2022 (87 FR 13192) eliminated the requirement that drivers operating CMVs in interstate commerce prepare and submit an annual list of their convictions for traffic violations to their employers. As a result of the final rule, the language in § 391.23(a)(1) was amended to require inquiries for motor vehicle records (or MVRs) be made to “driver's licensing authorities” where the driver holds or has held a motor vehicle operator's license or permit, rather than to a “State.” The change of term usage from “State” to “driver's licensing authorities” was established to ensure motor carriers are aware of traffic convictions for a driver who is licensed by a foreign authority and not only drivers licensed by a State.

In a subsequent rule published in November 2023, FMCSA amended its regulations by making technical corrections throughout the FMCSRs, including to § 391.23 (88 FR 80169, 80176 (Nov. 17, 2023)). As explained in the 2023 rule, the amendment was intended to clarify that the initial MVR required by § 391.23(a) is to cover the prior 3 years. However, the language inadvertently utilized the term “State” that had been replaced the in the rulemaking the prior year.

Accordingly, FMCSA revises § 391.23(a)(1) to revert the word “State” to the term “driver's licensing authorities,” as accomplished in the March 2022 rule, as this is the accurate terminology.

Separately, Section 391.23(m)(3)(i)(C) allows a driver to use a copy of the medical examiner's certificate as proof of the driver's certification for up to 15 days after the date it was issued, if the driver provided the motor carrier with a copy of the current medical examiner's certificate that was submitted to the State in accordance with § 383.73(a)(2)(vii). FMCSA published a final rule in October 2021 (86 FR 57060), in which it deleted obsolete language from § 383.73 by revising the introductory paragraph (a), removing paragraph (a)(1), and renumbering paragraphs (a)(2)(i) through (vii) as paragraphs (a)(1) through (7). As a result of the change, prior § 383.73(a)(2)(vii) became 383.73(a)(7). The rule failed to change cross-references to § 383.73(a)(2)(vii) in § 391.23(m)(3)(i)(C). FMCSA amends § 391.23(m)(3)(i)(C) to change an obsolete cross-reference to § 383.73(a)(2)(vii) to the current regulation, § 383.73(a)(7).

Section 391.41(a)(1)(i) describes the medical certification requirements for drivers physically qualified to operate a CMV. It requires drivers to obtain a medical certification to operate a CMV and have on their person the original or a copy of the current medical examiner's certificate indicating they can operate a CMV (with exceptions indicated in Section 391.41(a)(2)). FMCSA amends § 391.41(2)(1)(i) to correct an error in the last sentence referencing medical variance by replacing the words “medical variance” with “exemption or waiver.”

In 1999, the United States and Canada entered into a Reciprocity Agreement (the Agreement), recognizing that a Canadian commercial driver's license is proof of medical fitness to drive a CMV. In 2000, the waiver program then codified at § 391.49 was changed to an alternative physical qualification standard under FMCSA's general safety authority, following changes to exemption authorities mandated by the Transportation Equity Act for the 21st Century, Public Law 105-178 (Jun. 9, 1998). Also in 2000, the Agreement was amended to prohibit drivers with medical exemptions, in addition to those who were medically certified via waivers or grandfathering, from engaging in cross-border operations.

On December 1, 2008, FMCSA published a final rule amending the FMCSR to add a provision excluding CDL drivers subject to part 391 from the requirement to carry the medical examiner's certificate because their current medical certification status information is reflected in the electronic Commercial Driver's License Information System (CDLIS) driver record. The rule also amended the regulations in § 390.5 to add the definition for “medical variance,” which means a driver has received either an exemption letter permitting operation of a CMV, or a skills performance evaluation (SPE) permitting CMV operation per § 381.49. However, the last sentence introduced in the amendments to § 391.41(2)(1)(i) states that U.S. drivers who received a medical variance from FMCSA cannot operate a CMV in Canada. By using the term “medical variance,” this amendment included drivers with SPE certificates in the category of drivers prohibited from cross-border operations in Canada, when only drivers with exemptions or waivers are actually prohibited under the Agreement. 3 The amendment is clearly erroneous because SPE certificates are neither an exemption nor waiver, and the Agreement does not specifically mention limb loss or impairment. FMCSA revises this section to replace the words “medical variance” with “exemption or waiver” to rectify that error.

FMCSA deletes a cross-reference in 391.45(b) that is no longer valid. In 2023, paragraph (d) of 391.45 was removed and reserved because it related to an obsolete vision waiver program that no longer exists (88 FR 80169). However, the cross-reference in paragraph (b) was not deleted at that time, and FMCSA is now making the correction.

FMCSA corrects a spelling error found in § 393.45(b)(2), which describes brake tubing and hose installation and assembly. Currently, the section uses the word “chaffing” which will be corrected to “chafing.” The revised spelling conforms to the use of the word in other FMCSR, including § 393.65(f)(2) and § 393.77(b)(7).

FMCSA revises the section heading of § 395.38 to change “Incorporation by reference” to “Matter incorporated by reference”, as the latter more accurately describes the contents of the section.

Section 396.3(b) sets out the required records that motor carriers and intermodal equipment providers must maintain or cause to be maintained. The first recordkeeping requirement found in § 369.3(b)(1) states that records must include an identification of the vehicle including company number, if so marked, make, serial number, year, and tire size. This regulation was established by the FHWA in 1979 to mitigate vehicle defects and defect-related accidents. FMCSA revises this regulation to remove tire size from the recordkeeping requirement, as the Agency believes this requirement is obsolete.

Section 399.205 under Subpart L sets out a definition of the term “person” as described by the 1962 Health Examination Survey. This definition was incorporated by reference and approved by the Director of the Federal Register on July 17, 1979. In FMCSA's current regulations, the survey is available for purchase from the U.S. Department of Commerce, National Technical Information Service, or for inspection at the National Archives and Records Administration (NARA). However, the material incorporated by reference into FMCSA's regulations is now available for free at the U.S. Center for Disease Control and Prevention (CDC) website at: www.cdc.gov/nchs/data/series/sr_11/sr11_008.pdf. Accordingly, FMCSA amends the paragraph describing the definition of “person” to provide free online public access to view copies of the 1962 Health Examination Survey via the CDC website. In addition, FMCSA updates NARA's contact information as the information currently listed dates to 1979.

Since the Office of the Federal Register (OFR) updated the incorporation by reference system and the Director revoked approval for all previously approved IBR material in the CFR as of August 6, 1982, FMCSA has received a new approval under the changed system to continue using the section.

FMCSA has considered the impact of this final rule under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, and DOT Order 2100.6B, Policies and Procedures for Rulemakings. 4 The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this final rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866 and has not reviewed it under that E.O.

In addition, this rule is not significant within the meaning of DOT regulations (49 CFR 5.13(a)). The amendments made in this final rule primarily correct inadvertent errors and omissions, remove or update obsolete references, and make minor language changes to improve clarity and consistency. In accommodating those changes, the Agency is performing nondiscretionary, ministerial acts. Other changes merely align regulatory requirements with the underlying statutory authority. None of the changes in this final rule impose new material requirements or increase compliance obligations; therefore, this final rule imposes no new costs and a full regulatory evaluation is unnecessary.

E.O. 14192 (90 FR 9065, Jan. 31, 2025), Unleashing Prosperity Through Deregulation, requires that for “each new [E.O. 14192 regulatory action] issued, at least ten prior regulations be identified for elimination.”  5

Implementation guidance for E.O. 14192 issued by OMB (Memorandum M-25-20, Mar. 26, 2025) defines two different types of E.O. 14192 actions: an E.O. 14192 deregulatory action, and an E.O. 14192 regulatory action. 6

An E.O. 14192 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” This final rulemaking is expected to have total costs equal to zero, and is therefore neither an E.O. 14192 deregulatory nor regulatory action.

This rule is not a major rule as defined under the Congressional Review Act (5 U.S.C. 801-808). 7

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. 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)).

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

The regulations in this rule provide criteria or otherwise clarify the processes by which the FWS will implement various statutory requirements set forth in section 4 of the Act. This rule is intended to provide the public with a clear, transparent explanation of how we are revising the ESA regulations in 50 CFR part 17. These regulatory guidelines are based on our expertise in evaluating and protecting species, as well as in employing traditional tools of statutory interpretation that the courts have outlined.

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

Unless the FWS concludes that a critical habitat designation is not prudent and determinable for species listed under the Act, we must follow the statutory and regulatory provisions to designate critical habitat. The Act's language makes clear that biological considerations drive the initial step of identifying critical habitat. Section 4(b)(2) expressly requires designations to be made based on the best scientific data available. Therefore, the designation process begins by relying on the best scientific data available to identify the species' habitat. Next, the Act's definition of “critical habitat” requires the Secretary to identify those areas of habitat occupied by the species at the time of listing that contain physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection, and the specific areas of unoccupied habitat that are essential to the conservation of the species.

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

In our 2025 proposed rule (90 FR 52592, November 21, 2025) we referred to an Executive Order (E.O.) as the impetus for reviewing and revising the regulations that pertain to excluding areas from critical habitat under section 4(b)(2). E.O. 14154, “Unleashing American Energy,” issued January 20, 2025, directed all departments and agencies to immediately review agency actions that potentially impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions that conflict with this national objective. To implement provisions of E.O. 14154, the Department of the Interior subsequently issued Secretary's Order (S.O.) 3418, which directed Assistant Secretaries to take steps, as appropriate, to suspend, revise, or rescind multiple actions that had been finalized under the prior Administration. While E.O. 14154 and S.O. 3418 initiated our review, our goal in revising these regulations was to determine how best to designate critical habitat for endangered species and threatened species in compliance with section 4(b)(2) of the Act while also considering our experience administering the Act and the Administration's priorities. Based on our evaluation, and for reasons discussed in more detail below, we revise 50 CFR part 17.

This rule is one of two rules publishing in today's Federal Register that revise the regulations that implement the Act.

We made two minor changes in the regulatory text. The first is at 50 CFR 17.90(d)(1) in which we have changed the phrase “the FWS's expertise” to “the Service's expertise.” We made this change for consistent use of “Service” throughout the regulatory text. The second change is at 50 CFR 17.90(d)(2), in which we have changed the word “assign” to “give.” This ensures consistency with 17.90(d)(1). We did not intend for the regulatory text to be inconsistent between paragraphs (d)(1) and (d)(2) and have changed paragraph (d)(2) to be consistent with the regulatory text finalized in 2020. Further we want to avoid any potential misconception that we would quantify the weight of a particular impact when designating a specific area as critical habitat.

This rule provides the framework for the FWS's consideration of the economic impact, impact on national security, and any other relevant impacts of specifying any particular area as critical habitat under section 4(b)(2) of the Act and for the FWS's process for identifying any exclusions of particular areas from designations of critical habitat.

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

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

As stated above, these regulations apply to the considerations under section 4(b)(2) of the ESA and determinations whether to exclude particular areas of critical habitat from a final critical habitat designation. However, given existing case law, we seek to clarify that these regulations do not apply to section 4(a)(3) of the ESA, which requires the designation of critical habitat “to the maximum extent prudent . . .”. Previous statements made with respect to how we anticipated interpreting section 4(a)(3) likely contributed to confusion regarding the relationship between 4(b)(2) and 4(a)(3), leading a few courts to determine that we had not conducted the proper analysis under 4(b)(2) when finding critical habitat was not prudent for a given species. See Natural Resources Defense Council v. U.S. Dep't of the Interior, 113 F.3d 1121, 125 (9th Cir. 1997) (hereafter “ NRDC ”) (citing 49 FR 38900 at 38903, October 1, 1984) (noting that the Services would balance the risks to the species of designating versus the benefits that might derive from designation and would forgo designations of critical habitat where the possible adverse consequences would outweigh the benefits). See also Conservation Council of Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998) (hereafter “ Conservation Council of Hawaii ”); and Center for Biological Diversity and Healthy Gulf v. U.S. Fish and Wildlife Service, 792 F. Supp. 3d 50 (D.D.C. 2025) (hereafter “ CBD and Healthy Gulf ”). The legislative history discussing prudency under what is now section 4(a)(3) refers to circumstances where a designation would not be in the best interest of the species ( Center for Biological Diversity, et al. v. U.S. Department of the Interior, et al, 2026 WL 898264, at *22 (N.D. Cal. Mar. 30, 2026)) and does not include any reference to consideration of economic impacts and other factors. The legislative history that discusses section 4(b), however, notes that while prior to the 1978 amendments, the determination of critical habitat had been a purely biological question. Under the amended text of section 4(b)(2), economics and other relevant impacts, including impacts to the public, must be considered in setting the limits of critical habitat (H.R. Rep. No. 95-1625, at 16-17 (1978), as reprinted in 1978 U.S.C.C.A.N. 9453, 9466-67).

The reference in the legislative history to what is now 4(b)(2) makes clear that critical habitat is only designated after impacts to human activity are considered, which includes considerations of the impacts to the public from a designation. Additionally, the language of 4(a)(3)(A) states that the FWS shall “designate” critical habitat to the maximum extent prudent, which implies that a determination that critical habitat is not prudent is not a “designation.” The language in 4(b)(2) then is directed to “designations” and considerations for excluding specific areas from a designation. Given the plain language of the Act and the context of the legislative history, a decision that critical habitat is not prudent must rest on considering whether designation is in the best interest of the species and its conservation; whereas, during the course of actually designating critical habitat, the Services must consider economic and other relevant impacts pursuant to section 4(b)(2). Though sections 4(a)(3) and 4(b)(2) cross-reference each other, their functions are distinct: section 4(a)(3) provides that (unless the Secretary determines that designating critical habitat is not prudent) critical habitat must be designated in accordance with 4(b) and reinforces the timeline ( i.e., concurrently with listing) of designating critical habitat.

As the court holdings in NRDC 113 F.3d at 1125, Conservation Council of Hawaii 2 F. Supp. 2d at 1287-88, and CBD and Healthy Gulf at 792 F. Supp. 3d at 66 demonstrate, when considering whether a designation of critical habitat is not prudent, the Services must take into account the specific factual circumstances at issue for each species including consideration of the risks and benefits of the critical habitat designation as a whole rather than individual areas. However, this does not require the Services to engage in the type of area-by-area weighing process that applies under section 4(b)(2) of the Act.

As mentioned earlier, the Services' joint regulations at 50 CFR 424.19 describe the standards and procedures for impact analysis and exclusions of particular areas of critical habitat, and the non-binding 2016 policy provides direction regarding how the Services would consider partnerships and conservation plans, conservation plans under section 10 of the ESA, Tribal lands, Federal lands, economic impacts, and national and homeland security impacts in the exclusion process under section 4(b)(2) of the ESA. We have concluded that reinstating our FWS-only regulations at 50 CFR 17.90 will be more effective in guiding agency activities and will provide greater transparency and certainty to the public and stakeholders and is our preferred approach. The regulations include some differences relative to what was outlined in the 2016 policy. These differences from the 2016 policy include an information standard applicable to when FWS undertakes a discretionary weighing analysis, a clarification of how considerations for exclusions will be conducted for Federal lands, and an approach for giving weight to the benefits of inclusion or exclusion of any particular areas designated as critical habitat. Additionally, as discussed in our 2020 proposed rule (85 FR 55398, September 8, 2020) we decided to revisit certain language in the preamble of the 2016 policy, as well as certain statements in the preamble to the 2013 rule that revised the regulations on the timing of our economic analyses at 50 CFR 424.19 (78 FR 53058, August 28, 2013) (hereafter “the 2013 rule”), to provide clarity to the FWS and the public in light of the Supreme Court's decision in Weyerhaeuser Co. v. U.S. FWS, 586 U.S. 9 (2018) (hereafter “ Weyerhaeuser ”) that decisions not to exclude particular areas of critical habitat are judicially reviewable. At the time we developed the 2013 rule and 2016 policy, the Services were guided by a line of cases in which courts had held that a decision by the Services not to exclude a particular area under section 4(b)(2) of the Act was committed to agency discretion by law and therefore not subject to judicial review. The FWS is of the view that the Supreme Court's decision underscores the importance of being deliberate and transparent about how we go about making decisions to exclude areas from designations of critical habitat. For more details, please see our 2020 proposed rule and 2025 proposed rule.

These regulations largely adopt provisions of the 2016 policy and regulations at 50 CFR 424.19 with further clarifications in the process that FWS will use when undertaking exclusion analyses. After consideration of the information provided through the public comment process, we are finalizing this rule as proposed with the two minor changes mentioned above (see Changes From Proposed Rule). We have provided clarification to questions and concerns below in the responses to public comments.

In the event any provision is invalidated or held to be impermissible as a result of a legal challenge, “the remainder of the regulation could function sensibly without the stricken provision” ( Belmont Mun. Light Dep't v. FERC, 38 F.4th 173, 187 (D.C. Cir. 2022) (quoting MD/DC/DE Broad. Ass'n v. FCC, 236 F.3d 13, 22 (D.C. Cir. 2001))). Because each of the provisions stand on their own, the FWS 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 FWS to exclude particular areas from critical habitat designations. Specifically, these distinct provisions include: (1) impact analysis procedures, (2) consideration of economic impacts, national security, and other relevant impacts, (3) when the Secretary will conduct an exclusion analysis, (4) weighing of the benefits of inclusion and exclusion, and (5) when the Secretary shall exclude an area. In the event that any portion of this final rule is held to be invalid or impermissible, the FWS intends that the remaining aspects of the regulatory provisions be severable.

In finalizing the specific changes to the current regulations in the rule portion of this document and setting out the accompanying clarifying discussion in this preamble, we are establishing prospective standards only. These regulations will supersede the 2016 policy and regulations at 50 CFR 424.19 for FWS; and they will apply to FWS critical habitat rules finalized after the effective date of this rule and will not apply retroactively to critical habitat rules finalized prior to the effective date of this rule. For the effective date of this rule, see DATES , above. Nothing in these revisions to the regulations is intended to require that any critical habitat designations be reevaluated on the basis of these final regulations.

In our November 21, 2025, proposed rule (90 FR 52592), we requested public comments by December 22, 2025. We received a total of 12,532 submissions, representing approximately 306,628 individuals, 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 APA 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 on the proposed rule, as demonstrated by the thousands of comments received.

The revisions are to portions of the regulations that were previously revised in 2020 and 2022. 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. Other comments expressed opinions regarding topics not covered within the proposed regulation. We also 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 regarding litigation on other ESA regulations ( Center For Biological Diversity v. Dep't of the Interior, 2026 WL 898264, at *22 (N. D. Cal. Mar. 30, 2026)) that are pending and that we are not responding to here. Below, we summarize and respond to the significant, substantive comments we received.

Comment 1: Some commenters stated that the Service should engage with appropriate State and other authorities to the maximum extent practicable in exclusion analysis and prior to publishing a proposed critical habitat designation. Commenters suggested that we include additional regulatory text to include a process for consulting with and considering input from State fish and wildlife agencies, local governments, small businesses, and Tribal governments to identify economic, biological, and other relevant impacts.

Response: We routinely coordinate with partners and stakeholders ( e.g., State natural resource agencies, Federal agencies, Tribes) before and after a species is listed and critical habitat is designated. For example, we coordinate during the development of a species status assessment which informs our evaluation of whether to list a species as well as possible areas for designation as critical habitat if listing is warranted. We also coordinate with Federal agencies during the development of the draft economic analysis prior to the publication of the proposed critical habitat rule. Through these coordination efforts, we typically receive information from State and Federal agencies regarding potentially relevant impacts early in our development of a critical habitat designation. Additionally, during the public comment period for a proposed critical habitat designation, we receive information regarding other potentially relevant economic or other impacts from a variety of sources (for example, State agencies, local governments, small businesses, private individuals and Tribal governments) that we consider when finalizing the designation. In addition, language in the ESA or other authorities already require the Services to coordinate and seek input from States, Tribes, and local governmental agencies. For instance, the requirements regarding coordination with States and counties in section 4(b)(5)(A)(ii) of the Act are already included in our regulations at 50 CFR 424.16(c). The Services also have a joint policy, “Interagency Policy Regarding the Role of State Agencies in ESA Activities,” which was developed in coordination with the State fish and wildlife agencies, that outlines our commitment to engagement and collaboration among the Services and State fish and wildlife agencies on many aspects of ESA implementation, including listing species (81 FR 8663, February 22, 2016). We conclude that our current process provides for coordination with potentially affected parties, and it is unnecessary to codify it in regulation.

Comment 2: We received multiple comments regarding public involvement and transparency of exclusion analyses for future critical habitat rulemakings. For example, some commenters stated that we should allow comments on the draft economic analysis and on our evaluation of any relevant impact of including or excluding areas from critical habitat. Other commenters appreciated the requirement for the Service to publish for public comment the draft economic analysis suggesting it would add transparency to the process. Finally, other commenters suggested that rather than merely considering the economic impacts of designating critical habitat, the Service now has to conduct an exhaustive economic analysis of the overall proposed designation and conduct a full public comment process on the economic analysis before the critical habitat can be designated which would pose a significant burden on the agency. Commenters suggested additional regulatory text to require documentation of specific evidence when we rebut information provided by the public or to allow the public to comment on any relevant factor regarding a designation and not just the economic analysis.

Response: With respect to public comment, we always seek comment on any proposed critical habitat designation regarding a wide range of issues, including biological factors that may inform the proposed designation and non-biological considerations that may inform potential exclusions from the final designation. We do not limit the scope of public comment to economic considerations; all relevant substantive comments are considered when developing a final critical habitat designation. We also already make the draft economic analysis of the proposed critical habitat designation available as supplemental information on Regulations.gov concurrently with publication of the proposed rule to designate critical habitat. The regulations we are finalizing at 50 CFR 17.90 will not change this existing practice. During the public comment period for a proposed critical habitat designation, the public has the opportunity to review and comment on the draft economic analysis, as well as on any other relevant impacts from the designation. Because we already request public comment on all areas of the rulemaking whenever we propose to designate critical habitat, modifying the regulation to require the Service to request comments on any relevant impacts, including non-economic impacts, is duplicative and unnecessary. Also, regarding documentation of evidence, regardless of whether we exclude an area or not, whenever we conduct a weighing analysis we detail what was considered within our final rules for the critical habitat designation. We decline to include additional regulatory text regarding this aspect of the process.

Comment 3: Many commenters support inclusion of the non-exhaustive list of categories of potential impacts described at 50 CFR 17.90(a). Commenters stated that lists provide transparency and clarity and allow focused public comments while being adaptable to specific situations. Other commenters stated that the rule sets forth an unlawfully broad list of impacts. For example, for “economic impacts” they cited our example of “opportunity costs arising from the critical habitat designation (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation),” and “impacts to . . . Federal lands” (90 FR 52592 at 52599, November 21, 2025) which they point out would include routine regulatory costs that will exist for most areas of proposed critical habitat and therefore would be likely to result in a significant reduction in the number and extent of critical habitat designations. Others suggest the examples of “other relevant impacts” provides a nearly unlimited basis for exclusions. Some highlighted “community interests” as redundant, or subjective and vague.

Additionally, many commenters recommended revisions to regulatory text describing impacts. For example, commenters suggested that we add to or elaborate on the potential impacts listed in the proposed regulations, such as direct and indirect impacts, foreseeable delays in permitting, and economic effects on developers and builders. Commenters requested explicit inclusion of impacts to Tribes including treaty-reserved rights and the Federal trust responsibilities as other relevant impacts. Commenters suggested that we remove the term “nonbiological” in paragraphs (d)(1)(i), (d)(1)(ii), and (d)(1)(iv) or rephrase to expressly acknowledge and allow for external input within the Service's areas of expertise as well as outside it.

Response: We will evaluate on a case-by-case basis any information that is submitted by a proponent of an exclusion to determine whether they have presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area. Therefore, with the application of the credible information standard, we anticipate that not every submission by a proponent of an exclusion would meet the standard of having a meaningful impact and thereby trigger an exclusion analysis.

We decline to make additional regulatory text revisions. The text of the regulation is clear that the examples of potential impacts provided at 50 CFR 17.90(a) are not exhaustive and “other relevant impacts” may include but are not limited to impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. Based on the specific facts in particular critical habitat designations, there may be other impacts identified, and we would consider those impacts.

The phrase “other relevant impacts” in the Act gives the Secretary broad discretion to determine what those other relevant impacts might be. The discretionary exclusion authority is thoroughly described in Solicitor's Memorandum Opinion M-37016, “The Secretary's Authority to Exclude Areas from a Critical Habitat Designation under Section 4(b)(2) of the Endangered Species Act,” ( https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37016.pdf ) (October 3, 2008, p. 12), and the list provided in the preamble to the proposed rule and in the final regulatory text of this rule illustrates the types of information we may consider. Furthermore, subparagraphs (i)-(iv) in paragraph (d)(1) identify a non-exhaustive list of categories of impacts that may be outside the scope of the Service's expertise. Even though some of the categories on this list refer to “nonbiological impacts,” we recognize that many sources outside of the Service also have information and expertise regarding biological impacts. The Service would consider that information or expertise in the weighing of benefits of inclusion or exclusion of particular areas.

Comment 4: Commenters stated that the proposed rule's non-exhaustive list of “other relevant impacts” and economic impacts is heavily weighted toward negative impacts of designating critical habitat on the community and other stakeholders. They state the list does not include the potential economic and community benefits, for example, socio-economic benefits, cultural or other ecological benefits, or co-benefits (such as protection of other species), that may be distinct from the “conservation value of the area.” Commenters requested that full economic accounting of future designations include these potential benefits.

Response: We are not limited to considering the examples of impacts (economic or otherwise) included in this rule. If the specific facts indicate that there are economic benefits from including a particular area in the designation, we will consider those benefits, as appropriate. In situations where economic benefits are relevant, we generally describe two broad categories of benefits of inclusion of particular areas of critical habitat: (1) those associated with the primary goal of species conservation and recovery, and (2) those that derive from the habitat conservation measures to achieve this primary goal. In the cases where there are incremental impacts beyond administrative impacts from designating critical habitat, we may lack specific information to quantify the use or non-use benefits associated with critical habitat designations such as recreation, wildlife viewing, or ecosystem services but can discuss them qualitatively, as per Office of Management and Budget (OMB) Circular A-4 guidance. As a result, when we lack quantitative data we focus our analysis of benefits of inclusion qualitatively to describe the conservation value of the particular area of critical habitat as weighed against the benefits of exclusion.

Comment 5: Commenters stated that the proposed rule does not address the impacts of excluding an area necessary to the recovery of a species and that impacts on recovery should be addressed because the goal of the Act is ultimately to recover and delist the species. Multiple comments highlight that incremental exclusions, each deemed non-extinction-causing, can collectively degrade ecosystems and recovery potential, contrary to the mandate of the Act. Commenters requested an evaluation of the cumulative effects of exclusions, rather than on a case-by-case basis. Others requested that proposed critical habitat designations essential for future climate adaptation be prohibited from exclusion.

Response: We note that critical habitat is one of many tools available to conserve species, and the exclusion of an area from a critical habitat designation does not mean that the area can no longer contribute to conservation. In fact, we have excluded many areas because they are already being managed for the conservation of a species, thereby reducing the benefits of including those areas within a critical habitat designation. Even though these areas are excluded from critical habitat designations, they will still contribute to the recovery of the species.

We consider the potential effects to species' recovery when we enter into an exclusion analysis under section 4(b)(2) of the Act. In giving weight to the benefits of including and excluding particular areas, we evaluate the conservation value of the area, including the current function of the area for the species and the future recovery value of the area to the species. Benefits of including or excluding an area from critical habitat are considered for each designation, are fact-specific to each species, and take into consideration the best scientific data available for the species.

With regards to evaluating the cumulative effects of individual exclusions for a critical habitat designation, the Act is clear that we are required to take into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. And as for the suggestion to prohibit any exclusions of critical habitat that may be important to provide areas for climate change adaptation, the Act does not contemplate any such prohibition, and we decline to include it in regulation.

Comment 6: Commenters cite the statutory requirement that the appropriate scale of an exclusion analysis is of the “particular area” of a proposed critical habitat designation and note that this is in conflict with the proposed rule allowing the Secretary to determine the appropriate scale for the consideration of impacts from a critical habitat designation. Many comments emphasize that the “particular area” should be a localized scale, such as individual parcels or counties rather than broad regional or national scales.

Some commenters state that scale decisions should be based on species' biological needs, not external economic or political factors. Other commenters suggest that the Secretary should retain the discretion to determine exclusions at whatever scale he deems to be appropriate, to specifically state what that scale is in the proposed rule when making a critical habitat designation, and to take into full consideration the economic impacts at that scale.

Response: We decline to define a scale for an exclusion analysis. If we were to suggest a consistent scale, it would need to be broad or generic to adequately address each species' situation and data availability which would not ultimately provide the desired clarity. The Service must have flexibility to evaluate these “particular areas” of critical habitat at whatever scale is appropriate to each situation. Each critical habitat proposal includes a description of the scope of the area being proposed and often includes “particular areas” that are being considered for exclusion and the Service then uses the scale of analysis appropriate to that situation. In one case, the court upheld the Service's analysis at the “subunit” level rather than individual parcels that the plaintiff argued was required ( Otay Mesa Prop. L.P. v. DOI, 714 F. Supp. 2d 73, 84 (D.D.C. 2010) (rev'd on other grounds (646 F.3d 914 (D.C. Cir. 2011))).

Comment 7: Commenters stated that use of the incremental approach to assessing impacts of critical habitat prevents consideration of the full costs of a critical habitat designation. They requested that we include all economic impacts of a listing in our economic assessment following the coextensive approach, rather than limiting it to the incremental effects of critical habitat designation (citing Skipper v. United States Fish & Wildlife Serv., 796 F. Supp. 3d 996, 1006 (D. Ala 2025) (hereafter “ Skipper ”)).

Response: The 2013 rule revisions to 50 CFR 424.19 codified the use of the “incremental analysis” or “baseline approach” method for conducting impact analyses, including economic, national security, or other relevant impacts analyses, for critical habitat designations. That final rule contains responses to public comments that clearly lay out the Services' rationale for using the incremental analysis method (78 FR 53058 at 53067, August 28, 2013). Evaluating incremental impacts that result from a regulation being promulgated, rather than considering coextensive impacts that may be ascribed to other regulations, is further supported by E.O. 12866, as applied by OMB Circular A-4. Agencies should identify the baseline to describe how the world would look in the absence of the proposed action. Identifying this baseline is necessary to allow assessment of the relative benefits and costs attributable to the proposed action (Regulatory Impact Analysis: Frequently Asked Questions (FAQs), February 7, 2011). In addition, a court decision addressing this question confirmed the validity of evaluating incremental impacts of critical habitat designations in the Tenth Circuit. See Northern New Mexico Stockman's Ass'n v. United States Fish & Wildlife Serv., 30 F.4th 1210 (10th Cir. 2022) which concludes that the Service's incremental impacts approach was permissible in light of regulatory changes that post-dated the Tenth Circuit decision that had required coextensive approach. Recently, in Skipper, a district court “adopted the reasoning” of an earlier Tenth Circuit decision in New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277, 1285 (10th Cir. 2001) (hereafter “ New Mexico Cattle Growers” ) which invalidated the Service's “baseline approach” to assessing the economic costs of critical habitat designations wherein the Service isolated the anticipated costs to those attributable solely to the designation itself. The Skipper court noted an apparent circuit split and distinguished New Mexico Cattle Growers from a Ninth Circuit decision that upheld the Service's use of the baseline approach. See Arizona Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160 (9th Cir. 2010). In 2022, however, following revision of the relevant regulatory definitions in effect at the time of the 2001 New Mexico Cattle Growers decision, the Tenth Circuit issued a decision upholding the Service's use of the baseline methodology and, in doing so, resolved the previous circuit split. See Northern New Mexico Stockman's Ass'n v. U.S. Fish and Wildlife Service, 30 F.4th 1210, 1227 (10th Cir. 2022). The Skipper court failed to consider this development in its summary judgment opinion and order and Intervenor-Defendants moved for reconsideration, relying on the 2022 Tenth Circuit opinion; the court has not yet ruled on that motion.

Comment 8: Some commenters supported the proposed language at 50 CFR 17.90(b). However, some suggested that we should not consider economic or national security impacts when designating critical habitat. Others suggested the inclusion of the current language “probable economic, national security, and other relevant impacts” requires less certainty compared to the “clear and substantial” evidence requirement proposed for section 7 consultations at 50 CFR 402 or the proposed foreseeable future requirements at 50 CFR 424.11. Commenters are concerned the language will result in the Service prioritizing nonbiological impacts when weighing impacts. Commenters describe the need for evidentiary guardrails such that information used should be objective, rigorous, and consistent with “best available scientific and commercial data” mandate.

Response: Section 4(b)(2) of the Act requires us to take into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. We include “probable” from 50 CFR 424.19 as it provides guidance that the Service should not consider improbable or speculative impacts. However, as discussed in our 2013 rule (78 FR 53058, August 28, 2013), we do not intend that the term “probable” requires a showing of statistical probability or any specific numeric likelihood. Moreover, the “activities” at issue are only those that would require consultation under section 7 of the Act. Although impact analyses are based on the best scientific data available, any predictions of future impacts are inherently uncertain and subject to change. Thus, the Service will consider the likely impact of the designation using our experience administering the ESA and conducting section 7 consultations and will not make specific predictions about the outcome of particular section 7 consultations that have not been completed.

Realistically, the Service can only consider activities likely to occur, which we interpret for purposes of this rule to mean the same thing as the term “probable.” This use of “probable” reflects a reasonable interpretation of the statute. Furthermore, as stated in OMB Circular A-4, the assumptions of the analysis must be clearly articulated and should avoid speculation when assessing costs and benefits of a regulation. We use the best available information in our consideration of impacts of a critical habitat designation and fully describe the methods, assumptions, and results in our draft economic analysis.

Comment 9: Some commenters interpreted the proposed rule as creating a provision that requires the Secretary to waive his discretion on whether to conduct an exclusion analysis given (1) the presence of the “credible information” trigger to enter into an exclusion analysis, and (2) the language “will conduct” which makes exclusion analyses mandatory whenever credible information is presented. Other commenters argue that exclusion analyses are already mandatory. Some cite Weyerhaeuser in stating that the regulation should include language requiring documentation of any rationale for not performing an exclusion analysis and, if an analysis is conducted, providing rationale for not excluding areas.

Response: Under this rule, the Secretary will conduct an exclusion analysis when credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area has been presented or whenever the Secretary otherwise decides to exercise discretion to evaluate any particular area for possible exclusion. The rule does not waive the Secretary's discretion; instead, the regulation constitutes the Secretary's decision on how to exercise his discretion under the Act on a consistent comprehensive basis.

We decline to include additional regulatory text requiring documentation of our rationale. As discussed in both the 2020 and 2025 proposed rules, and in accordance with Weyerhaeuser, the Service will document the basis for any decision whether or not to undertake an exclusion analysis in the final determination regarding critical habitat for the species.

Comment 10: Some commenters expressed concern that the proposed rule would reduce the Secretary's discretion as to whether to conduct an exclusion analysis because it would collapse the second step (the discretionary exclusion analysis) of the critical habitat designation process into the first step (the requirement to take into consideration economic and other relevant impacts). One commenter suggested the Service include additional fact patterns that would always trigger an exclusion analysis, such as when private property is being considered for designation as critical habitat and when considering Federal lands with privately held permits or licenses. Other commenters took the contrary view, suggesting the rule should narrow the Secretary's discretion to undertake an exclusion analysis by specifying when and how he will exercise that discretion. Multiple commenters requested additional clarification as to when the Secretary may exercise his discretion to improve predictability for stakeholders and the public, reduce complexity, and improve efficiency. Some of the commenters requested that the rule eliminate the Secretary's discretion on this issue by requiring the Secretary to always conduct an exclusion analysis to determine if the benefits of exclusion outweigh the benefits of inclusion because section 4(b)(2) of the Act requires the Secretary to take economic and other relevant impacts into consideration and the balancing of impacts in the exclusion analysis is part of that consideration.

Response: As discussed in our response to Comment 3, we will evaluate on a case-by-case basis any information that is submitted by a proponent of an exclusion to determine whether they have presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area or the Secretary otherwise decides to exercise discretion to evaluate any particular area for possible exclusion. These regulation revisions neither alters the structure of section 4(b)(2) nor collapses the two sentences together—it just describes how and when the Secretary will exercise the discretion to undertake an exclusion analysis. This framework facilitates the transparent and consistent implementation of the statute. We decline to provide additional specificity at 50 CFR 17.90(c)(2) regarding when the Secretary may exercise his discretion to undertake an exclusion analysis. We will document in final rules how the Secretary has exercised his discretion whether to undertake an exclusion analysis.

Comment 11: Commenters requested that the regulation include a definition of “meaningful” economic impacts and a description of their scope, along with a requirement to use a quantitative economic assessment whenever possible. At least one commenter noted that even minimal economic impacts should be considered meaningful because they could outweigh the benefit of designation if the area provides low conservation value. Additionally, some commenters requested that only economic impacts in a defined area and only those tied to Federal actions should be considered. Multiple commenters stated that economic analyses should account for localized impacts, particularly on rural communities and private landowners, and evaluate consequences at the county level rather than only statewide or national scales, especially given concerns about energy development and county revenues.

Response: We decline to define “meaningful,” as we intend it to have its plain-language meaning. We included the word to indicate that evidence of only de minimis impacts of designating a particular area will not trigger an exclusion analysis for that particular area. Our consideration of economic or other relevant impacts includes an assessment of the probable impacts of a designation. We evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. These impacts are considered part of the benefits of exclusion and are balanced against the benefits of inclusion which may include the importance or conservation value of a particular area. When considering the economic impacts of critical habitat designations, we follow the guidance and best practices set out in E.O.s 12866 and 13563, as well as OMB Circular A-4. Those guidelines direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible, including monetization) and qualitative terms.

Consistent with these E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. To determine whether the designation of critical habitat may have an economic effect of $100 million or more in any given year, which would trigger section 3(f)(1) of E.O. 12866, we use a screening analysis to assess whether a designation of critical habitat is likely to exceed this threshold. This analysis can also assist with compilation of information that may be useful for exclusion analyses under section 4(b)(2).

As part of this process, we first develop an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from a proposed designation of critical habitat. The information contained in our IEM is then used to develop the screening analysis of the probable effects of the designation of critical habitat. The screening analysis is used to focus our analysis on the key factors that are likely to result in incremental economic impacts. We invite public comment on both the IEM and screening analysis, which are made available in the docket accompanying each proposed critical habitat designation. One purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to regulation due to the presence of the listed species or other similar listed species and critical habitat and are, therefore, unlikely to incur more than de minimus incremental economic impacts. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis combined with the information contained in our IEM constitute our draft economic analysis of a proposed critical habitat designation.

During the development of our draft economic analysis, we consider information at the scale available to us. With regard to including localized economic impacts, we have and will continue to conduct our exclusion analyses on the scale relevant for the analysis and based on the credible information available. We develop and share a draft of the IEM with our Federal partners that considers potential economic impacts requesting information on whether a Federal nexus may exist triggering future section 7 consultations. We request information on specific projects and the potential impacts of designations of critical habitat. When we consider potential economic impacts, we also acknowledge there may be effects to land values in areas that are designated critical habitat which may lead to an increase or a decrease in property values (see Comment 15 below).

Our draft economic analysis is only one aspect of our exclusion process. When available at the proposed rule stage, we also describe exclusions we are considering and solicit public comments on specific information that may inform those potential exclusions and other potential impacts unknown to us at the time of the proposed designation. We evaluate, on a case-by-case basis, any information submitted by a proponent of an exclusion to determine whether credible information is provided regarding the impact and whether the benefits of exclusion are presented at the appropriate scale. We will conduct a discretionary exclusion analysis when we receive a request with credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area or when we otherwise decide to exercise our discretion to evaluate any particular area for possible exclusion. We can then refine our consideration of the relevant impacts with information provided during a public comment period for a given rulemaking.

Comment 12: Commenters stated that the phrase “credible information” was ambiguous and requested the Service provide a regulatory definition, outline a clear process for soliciting this information, and clarify how this information will be evaluated. Commenters added that the proposed “credible information” standard is subjective, resulting in an unnecessary burden on the Service to perform more exclusion analyses with limited resources. Multiple commenters called for clear procedures on submission of credible information, documentation of decisions, interim steps to inform proponents whether their information qualifies, and procedures for managing confidential business data and sensitive, confidential, or national security information. Others suggest replacing the term “credible information” with “best available data.” However, some commenters noted that the standard allows the Service discretion and flexibility and recommended avoiding a regulatory definition or formal submission requirements.

Response: As stated in the 2025 proposed rule, “credible information” refers to information that constitutes a reasonably reliable indication regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for a particular area. We do not consider speculative, erroneous, intentionally misleading, or unsupported information to be credible information and will use our best professional judgment to evaluate all information critically before incorporating it into any exclusion analysis. Also, as stated in response to Comment 11, above, “meaningful” indicates evidence of more than de minimis impacts of a proposed designation that would trigger an exclusion analysis. Our consideration of economic or other relevant impacts includes an assessment of the probable impacts of a designation. We decline to further define “credible information” in regulation.

We also decline to replace the phrase “credible information” with “best available data,” as section 4(b)(2) of the Act already requires that “[t]he Secretary shall designate critical habitat . . . on the basis of the best scientific data available. . . .” In determining what constitutes “credible information,” we will look at whether the proponent has provided factual information in support of the claimed impacts. We use our IEM and screening analysis to help determine whether any economic impact information meets the credible information standard and, when appropriate, to confirm or rebut information that is provided by a proponent of an exclusion.

Comment 13: Commenters expressed both support and concern for identifying specific eligible proponents who can submit credible information. Some expressed concerns that an inclusive list of eligible proponents will result in outsized influence from non-conservation stakeholders with no biological expertise. Some commenters noted that the non-exhaustive list is currently focused on those with legal rights to use Federal lands. They suggest expanding the list to include proponents not engaged with a Federal entity that may be affected by critical habitat designations, including private property, counties, and industry. Others questioned whether applicants of Federal permits or funding should be treated the same as active Federal permittees or lessees, since applications do not constitute a Federal nexus or commitment.

Multiple commenters expressed concerns that corporate or industry actors could use proprietary, unverifiable data to influence decisions, overshadowing scientific integrity. These commenters note that using information from entities with direct financial interests over independent science undermines the intentions of the Act.

Response: We will evaluate any information provided from outside entities on a case-by-case basis and will decide whether to conduct an exclusion analysis based on whether the proponent of an exclusion has presented credible information regarding a meaningful impact supporting a benefit of exclusion. All information submitted to us in support of exclusion will be subject to the credible information standard. Under the credible information standard, an impact must be meaningful to justify an exclusion. It is likely that some submissions will not meet this standard; each will be reviewed individually to determine if credible information shows a meaningful impact, including information from proponents of an exclusion. With regards to Federal applicants, anyone can submit credible information regarding meaningful impacts of a critical habitat designation and request an exclusion, regardless of whether they may or may not have a future Federal nexus.

Comment 14: Some commenters supported adding the requirement that the Service always exclude areas from critical habitat when the costs of designating areas ( i.e., benefits of exclusion) outweigh the benefits of designating those areas as critical habitat, while others said that the proposed process would prioritize economics over species protection. Some were concerned that the proposed process for analyzing potential exclusions would base critical habitat exclusion decisions on analyses of incomparable ecological benefits with economic costs and could result in prioritization of economic and administrative impacts over biological value and conservation benefit.

Multiple commenters noted that the proposed regulation text did not sufficiently define benefits of critical habitat and others recommended that we clarify that benefits cannot be speculative. Additionally, some commenters requested that we determine the monetary value of species and habitats according to the ecosystem services they provide as a way to directly compare the economic costs of designation with biological benefits (some referencing OMB Circular A-4 and Natural Resource Damage Assessment valuation methods).

Response: When identifying the areas that meet the definition of “critical habitat,” Congress expressly prohibited the Secretaries from using anything other than the best scientific data available. However, Congress also expressly required the Secretaries to consider economic impacts, national security impacts, and other relevant impacts before finalizing the critical habitat designation. Thus, Congress intended us to consider both the biological needs of a species as well as economic and other impacts when designating critical habitat.

As described in the 2020 proposed rule, once the Secretary has identified and considered economic, national security, and other relevant impacts, he has discretion in how to determine whether the benefits of excluding a particular area from the designation outweigh the benefits of including that area in the designation. Regarding the comments about clarifying the benefits of critical habitat, we are not limited to considering the examples included in this rule. If the facts indicate that there are economic benefits from including a particular area in the designation, we would consider those benefits, where appropriate. In situations where economic benefits are relevant, we generally describe two broad categories of benefits of inclusion of particular areas of critical habitat: (1) those associated with the primary goal of species conservation and recovery, and (2) those that derive from the habitat conservation measures to achieve this primary goal. We may lack specific information to quantify the use or non-use benefits associated with critical habitat designations such as recreation, wildlife viewing, or ecosystem services that may result from critical habitat designations, but discuss them qualitatively, as per OMB Circular A-4 guidance. As a result, we focus our analysis of benefits of inclusion qualitatively to describe the conservation value of the particular area of critical habitat as weighed against the benefits of exclusion.

Comment 15: Commenters stated that impacts considered in the economic or exclusion analyses should be tied to the probability of Federal nexus, as critical habitat designations affect only Federal agency actions or federally funded or permitted activities. Conversely, at least one commenter suggested that the Service must make clear that we intend to adequately analyze perceptional effects to land values in its exclusion analyses. They suggested that it is widely recognized that a critical habitat designation will immediately reduce the value and damage the salability of any private property within its boundaries due to public recognition of the potential burdens that flow from the designation of critical habitat, citing Auffhammer et al. (2020, entire) and Klick and Ruhl (2020, entire). They also suggest that while we acknowledge this phenomenon, we generally fail to quantify or meaningfully analyze impacts from perceptional effects when making exclusion decisions under section 4(b)(2).

Response: Critical habitat receives protection under section 7 of the Act through the requirement that each Federal action agency ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of designated critical habitat. The section 7-related economic costs solely due to the critical habitat designation may include: costs of increased administrative efforts that result from the designation; costs of any project delays due to consideration of critical habitat; costs of conservation measures, including costs of reasonable and prudent alternatives adopted by Federal action agencies for consultations that conclude that the proposed action is likely to destroy or adversely modify critical habitat; and costs of discretionary actions that Federal agencies and applicants/permittees/project proponents or others may undertake due to the critical habitat designation.

However, within our draft economic analysis, we acknowledge incremental costs of critical habitat designations can also occur outside of the section 7 consultation process. These types of costs include triggering additional requirements or project modifications under state laws or regulations, and perceptional effects on land values. These types of costs may occur even when activities do not have a Federal nexus for consultation. In a 2023 review (Paterson and Flight, entire) of all known studies on the potential property value impacts of critical habitat, some studies identified negative property value effects of critical habitat designation (List et al. 2006, entire; Auffhammer et al. 2020, entire; and Klick and Ruhl 2020, entire), while others did not (Melstrom 2021, entire; and Mamun et al. 2023, entire). Further, some found that critical habitat can positively affect property values (Zabel and Paterson 2011, entire; Mamun et al 2023, entire). Mamun et al. (2024, entire) found that, at a national level on average, critical habitat designation has “little to no effect” on values for developed and undeveloped properties. They also examined several subsets of, or individual species', critical habitat designations ( e.g., riparian species, terrestrial animals, plants, jaguar, Gunnison sage-grouse) to investigate possible changes in land values and found mixed results with some positive and some negative effects on developed or undeveloped parcels. The impact of a designation of critical habitat on parcel prices cannot be reduced to a simple, consistent narrative (Mamun et al. 2024, p. 169). In general, the literature suggests that the potential for property value impacts is species-specific and not generalizable to all critical habitat designations. Therefore, while effects on property values are possible, the likelihood, magnitude, and duration of such effects for any given designation are uncertain. Over time, as public awareness of the potential regulatory burden placed on designated lands evolves, particularly where no Federal nexus compelling a section 7 consultation exists, the effect of critical habitat designation on property values may attenuate. Existing literature provides little specific insight into the time horizon of potential property value effects. However, Mamun et al. (2024, p. 160) observed that, nationally, parcel values fell just before critical habitat was proposed and then strongly rebounded soon after the finalized critical habitat designation. Further, the availability of species-specific or area-specific information is often lacking, and it is not possible to quantify or monetize with any accuracy. Therefore, our draft economic analyses generally do not quantify the impacts of perceptional effects of critical habitat designations due to the fact- and species-specific nature of these effects; however, we routinely address and consider information provided through public comments to evaluate the validity and likelihood of the impacts.

Comment 16: Commenters suggested an apparent inconsistency between suggesting that economics are outside of the Service's area of expertise in the proposed rule compared to our recent proposed revisions to protective regulations for threatened species (90 FR 52592, November 21, 2025) requiring the Service to conduct economic analyses.

Response: The Service routinely considers economic impacts of critical habitat (see Response to Comment 11 ). To support this required consideration of impacts of the designation of critical habitat, we contract with economists to ensure the information we base our consideration on is robust, thorough, and meets the requirements under E.O. 12866 and OMB Circular A-4. This rulemaking does not change our overall approach. However, we recognize that others may have expertise about their specific parcels and situation and we will consider that information along with the information in our draft economic analysis. We acknowledge that the Service will consider impacts of 4(d) rules and we may consult with economists as part of that effort as well.

Comment 17: Commenters provided both support for and opposition to the provision at 50 CFR 17.90(d)(1) to assign the weight of benefits of inclusion or exclusion based on who has the expertise. Some commenters supported this provision because it allows for engagement from the public and stakeholders that will allow them to be part of the process and provide their firsthand knowledge. Some commenters supported the provision to weigh nonbiological impacts in accordance with information provided by State or local governments because these entities have special expertise that should be included in an exclusion analysis. Other commenters expressed support for allowing outside entities to provide information on economic impacts of the designation of critical habitat because they suggest information from outside entities would improve FWS's economic analyses, which currently do not provide enough granularity to allow the public to understand the impacts.

However, some commenters stated that it is unclear how the Service will determine if someone is an expert or what constitutes firsthand knowledge. Some commenters stated that the proposed rule would give too much discretion to the Secretary in assigning weights and ultimately deciding if an area is excluded, which would contradict congressional intent to afford imperiled species “the highest of priorities.” Others were concerned that the broad discretion that the proposed rule gives to the Secretary in assigning weights to experts in nonbiological fields of knowledge runs the risk of placing disproportionate weight on the expertise of entities with private interests whose ultimate goal may not be conservation. Commenters expressed concern that this provision would inappropriately presume the validity of such information, which could include speculative economic analyses because the rule incentivizes inclusion of impacts provided by self-interested parties.

Commenters state that the proposed framework opens the door for industry influence, undermining the Act's mandate to base decisions solely on science. Commenters expressed concern that incorporating economic considerations and deferring to information from outside experts would inappropriately delegate expert judgment and authority to third parties who are not statutorily authorized to perform these duties, which risks prioritizing private, economic, and political interests over species protection. Multiple commenters disagreed with the language “will give weight to those benefits” suggesting this language infringes on the Service's regulatory discretion and amounts to impermissible subdelegation of statutory duties, citing U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). One commenter noted the proposed rule forces the Service to weigh “credible” exclusion requests without sufficient means to challenge cost estimates, encouraging incomplete or even fraudulent submissions.

Some commenters found it reasonable for experts to provide information about costs and benefits but wanted to make sure that the Service ultimately retained the discretion to reject questionable claims by critical habitat opponents, as well as to “assign the weights” that result in the balance achieved by a particular decision meeting legal requirements. Some commenters went further and stated that only the Service has the expertise to determine the weight of costs and benefits.

Response: Section 4(b)(2) of the Act requires consideration of the economic impact, the impact on national security, and any other relevant impact of designating any particular area as critical habitat. The regulations set forth in this rule are intended to provide greater transparency and certainty for the public and stakeholders. As stated in the 2025 proposed rule, we will give weight to benefits of inclusion or exclusion based on who has the relevant expertise. We will base critical habitat designations on the best scientific data available, evaluate the information provided from outside entities on a case-by-case basis, and give weight to those benefits of inclusion or exclusion consistent with the available information from experts, firsthand knowledge, and the best available information that the Secretary may have to rebut or confirm that information. We do not consider speculative, erroneous, intentionally misleading, or unsupported information to be the best available information and will use our best professional judgment to evaluate all information critically before incorporating it into any exclusion analysis. We will not be subdelegating our statutory duties but rather more explicitly setting out a process to consider the information from affected entities. We continue to make critical habitat decisions based on the best scientific data available and the Secretary's discretionary authority.

Rather than ceding the Secretary's discretion, this rule enhances its implementation by establishing a transparent and balanced approach in exercising that discretion. Congress gave the Secretary authority to undertake exclusion analyses, and the Secretary delegated that authority to the Director of the Service because the Service has the expertise to evaluate the impact that excluding particular areas from a critical habitat designation would have on an endangered species or threatened species. Other relevant impacts of excluding or including particular areas in a critical habitat designation may not be within the Service's expertise. As some of the commenters pointed out, it is reasonable for the Secretary to seek input from experts regarding those other relevant impacts that are outside the scope of the Service's expertise. This rule strikes that balance by providing for the Service to seek input from experts and give weight to impacts accordingly, while also making clear that the Service ultimately retains the discretion to reject or adjust that input to the extent it is rebutted by the best information available to the Service, including information that the Service develops to consider economic or relevant impacts such as the IEM (see Comment 11 ). By retaining that discretion for the Service, the rule avoids putting disproportionate weight on the expertise of entities whose ultimate goal may not be conservation.

Comment 18: Several commenters requested a clear definition for “national security,” with predetermined activities to avoid the use of open-ended terms. Commenters referenced national security as both a factor to be considered for exclusion as described in the rule and a reason for inclusion given that ecological degradation can pose a security risk ( e.g., food and water security, disaster resilience).

Response: We will rely on the expertise of the Department of War, Department of Homeland Security, or affiliated agencies to make a determination as to what constitutes an impact to national or homeland security. The Service does not have the expertise to determine all activities or projects that may have national security implications; therefore, we decline to produce a list or further define “national security” in these regulations. We will continue to rely on the expert judgment of the agencies responsible for national security and homeland security and any reasonably detailed justification of the potential impacts that they provide regarding a designation of critical habitat to inform our discretionary exclusion analysis.

Comment 19: Commenters both opposed and supported the provision clarifying when the Service will consider excluding Federal lands. Those that expressed opposition to the proposed provision cited sections 2(c) and 7 of the Act, which generally state that Federal agencies shall seek to conserve listed species and use their authorities to further the purposes of the Act. Furthermore, commenters stated that, because section 7 of the Act requires consultation by Federal agencies to ensure their actions are not likely to jeopardize listed species or destroy or adversely modify their critical habitat, Federal lands are important for species recovery. Other commenters noted that the potential increase in exclusions of Federal lands could be a negative signal to private landowners regarding the commitment of Federal land managers to species recovery and section 7 consultation. Commenters also noted that, combined with national-security exclusions and exemptions, additional exclusion of Federal lands could skew critical habitat designations to, and pose an economic disadvantage to, State and private lands, especially in Western States. Commenters further stated that administrative or transactional costs tend to be minor and should not be a basis for exclusion.

Other commenters expressed support for the approach to Federal lands in the proposed rule and asked that additional provisions be added to the final rule, such as specifically including consideration of more than section 7 transactional costs (for example, considering impacts on the private property of a lessee or permittee). Commenters asked for additional specificity in the types of Federal lands and activities to be considered for exclusion; whether federally withdrawn lands ( e.g., National Forest System lands withdrawn from public entry and reserved for Reclamation Project purposes (“withdrawn lands”)) on which non-Federal entities are conducting activities could be considered; and whether exclusion could apply only within a project footprint or would extend to adjacent areas on Federal land where there may be an effect from a project.

Response: The Act is clear in section 2(c)(1) and section 7(a)(1) that Federal agencies shall use their authorities to further the purposes of the Act and carry out programs for the conservation of endangered species and threatened species, and in section 7(a)(2) that Federal agencies must ensure their actions are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of their critical habitat. However, the Ninth Circuit held that the “ESA's declaration of purposes and policy” [Section 2] is a “non-operative statement of policy that `does not create an enforceable mandate'” ( Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 987 (9th Cir. 2015), hereafter “ Bear Valley” ). Regardless, the final regulation does not change any of the obligations of Federal agencies under the Act. Section 4(b)(2) of the Act does not provide for a different standard for exclusions on Federal lands relative to other lands.

While the standards for evaluating Federal and non-Federal lands are the same, we will consider the extent to which consultation may produce an outcome that has probable economic or other impacts, such as by requiring project modifications and additional conservation measures by the Federal agency or other affected parties, on a case-by-case basis. Additionally, we expect to evaluate the types of activities that are being permitted or the types of leases and activities being conducted on Federal land, any economic benefits associated with those leases and activities, and any potential impacts that designating the lands as critical habitat could have on those economic benefits, as well as the conservation value of the areas that qualify as critical habitat, including whether the areas are occupied or unoccupied. Regardless of inclusion or exclusion of Federal lands from a designation of critical habitat, we recognize that Federal lands may provide important areas for species recovery efforts.

In any exclusion analysis for Federal lands, we will consider not only the transactional costs associated with section 7 consultations, but also any potential costs to affected parties (including non-Federal entities) such as changes to anticipated permits, licenses, leases, or contracts that would stem from any project modifications that may be required to avoid destruction or adverse modification of critical habitat. We will now consider impacts on Federal lands the same as non-Federal lands by considering the impacts of the designation on applicants, permittees, or lessees. Consideration of those incremental costs will be done on a case-by-case basis. We decline to include additional details about what specific areas may be considered for exclusion.

Comment 20: One commenter said the Secretary's evaluations of proposed exclusions of critical habitat on Federal lands must be conducted under the lens of the mandated purposes Multiple Use and Sustained Yield Act of 1960 (MUSYA; 16 U.S.C. 528-531). The commenter stated this act established co-equal purposes for the administration and management of federal lands: outdoor recreation, range, timber, watershed, and wildlife and fish conservation. These purposes are to be achieved through “harmonious and coordinated management of the various resources, each with the other without impairment of the productivity of the land.” The prevailing interpretation of this act is that each of the designated purposes have equal standing on federal lands.

Response: The MUSYA is not applicable to this rulemaking. The MUSYA directs the Secretary of Agriculture on administering national forests ( U.S. v. New Mexico, 438 U.S. 696, 714 (1978)), and it does not apply to the Department of Interior. Furthermore, the language the commenter cites is from the portion of the MUSYA that is the declaration of congressional policy and as stated above, does not have any legal effect. See, for example, Bear Valley, holding that a declaration of purposes and policy is a non-operative statement of policy that does not create an enforceable mandate.

Comment 21: Some commenters supported the consideration of section 10(a) permitted plans and agreements such as habitat conservation plans, safe harbor agreements, candidate conservation agreements with assurances, or conservation benefit agreements in our exclusion process. Commenters appreciated that we stated that the Service places great value on the partnerships that are developed during the preparation and implementation of conservation plans in the proposed rule. Others requested the Service always exclude all areas covered by permitted plans from critical habitat designations and requested additional regulatory language stating this. Commenters requested that the Service revise the regulation to simplify the requirements for areas covered by permitted plans to be excluded from critical habitat to bolster the confidence of landowners, as well as incentivize participation in permitted plans.

However, several commenters shared concerns over the changed circumstance provision which allows changing conservation measures over time, the finite nature of the agreements, the question of whether the lands are in a currently acceptable state for the listed entity, the effectiveness of conservation plans, the lack of protective measures compared to a designation, and an overall concern regarding the durability of agreements compared to a critical habitat designation.

Response: As stated in the 2025 proposed rule in paragraph (d)(3) and associated preamble text, we place great value on the partnerships that are developed during the preparation and implementation of plans and agreements that have been permitted under section 10(a) of the Act. We anticipate consistently excluding areas covered by plans, agreements, or partnerships, such as those listed in the 2016 policy, as long as the conditions in paragraphs (d)(3)(i)-(iii) are met. Because section 10(a) permits authorize take of covered species that would otherwise be prohibited, permittees are incentivized to continue the implementation of the measures contained in the conservation plan and required by the associated permit following the exclusion of the covered area. Therefore, the benefits of inclusion are generally less than the benefits of exclusion. This is not the same fact pattern for draft plans or agreements, and we thus would generally give little weight to these draft agreements or unrealized or uncertain commitments of future conservation actions in a discretionary section 4(b)(2) exclusion analysis. The Service will always consider the plans or agreements that have been permitted under section 10(a) of the Act on a case-by-case basis to determine whether the benefits of exclusion outweigh the benefits of inclusion. We have been applying these concepts following the finalization of the 2016 policy, and our experience is that they work well, do not impose unnecessary burden on the Service, and provide the clarity needed for landowners and partners to meet the exclusion requirements.

Comment 22: A commenter suggests that excluding lands operating under a permitted agreement conflates the regulatory standard for “take” with the relevant standard for section 7 consultation relating to critical habitat ( i.e., whether an action is likely to “destroy or adversely modify” designated critical habitat) and cited to Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1028 (9th Cir. 2012) (hereafter “ Karuk” ), which states “[w]hether mining activities effectuate a `taking' under Section 9 of the ESA is a distinct inquiry from whether they `may affect' a species or its critical habitat under Section 7.” The commenter suggests that equating these two distinct standards ignores the ESA's plain language and the many independent conservation benefits that accrue from critical habitat designation.

The commenter also suggests the proposal to exclude areas based on permitted plans or agreements is inconsistent with the case law, and while such plans and agreements are important for species conservation, they are not a substitute for critical habitat designation. They cited to NRDC, in which the Ninth Circuit rejected FWS's argument that it did not need to designate critical habitat for the coastal California gnatcatcher because such lands were already covered by a Natural Community Conservation Plan (NCCP). The Ninth Circuit held that “the NCCP alternative cannot be viewed as a functional substitute for critical habitat designation” because such designation “triggers mandatory consultation requirements for [F]ederal agency actions involving critical habitat” (Id. at 1127). “The NCCP alternative, in contrast, is a purely voluntary program that applies only to non-[F]ederal land-use activities” (Id). Further, the commenter cited to Bear Valley, in which the Ninth Circuit held that FWS properly designated critical habitat that was also included in a habitat conservation plan (HCP). The commenter suggests the Service has now inexplicably reversed its position, pointing to language in the 2025 proposed rule that “the unhindered, continued ability to maintain existing partnerships, as well as the opportunity to seek new partnerships with potential plan participants,” generally outweighs the benefits of designating areas subject to conservation plans as critical habitat (90 FR 52592 at 52596, November 21, 2025).

The commenter also states that the Service has failed to justify the proposed change from the 2016 policy about permitted plans that adds the phrase “or information provided by proponents of an exclusion.” They suggest this language provides an opportunity for proponents of an exclusion—but not proponents of an inclusion—to provide relevant information to inform critical habitat designations.

Response: As we explained above, we anticipate consistently excluding areas covered by plans, agreements, or partnerships as long as the conditions in paragraphs (d)(3)(i)-(iii) are met. None of the court opinions cited by the commenter specifically address an application of these conditions, nor provide legal justification against this rule.

In reference to the commenter citing Karuk, we disagree with the commenter that excluding lands operating under a permitted agreement conflates the regulatory standards between section 7 and 9. While those are two different standards in two different sections of the ESA, section 4(b)(2) provides an independent standard for “The Secretary [to] exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” Also as discussed below, it is the Service's long-standing policy that the benefits of exclusion due to conservation plans or agreements, including the commenter's permitted agreement, that meet certain criteria (such as the conditions in paragraphs (d)(3)(i)-(iii)) generally outweigh the benefits of designating areas subject to conservation plans or agreements as critical habitat.

As for the 1997 NRDC Ninth Circuit opinion the commenter cites, that opinion was based on a challenge to the Service's “not prudent” critical habitat determination made under ESA section 4(a)(3). The Ninth Circuit language on the NCCP that the commenter provides was an argument to the determination that a critical habitat designation was “not prudent.” Thus, the Ninth Circuit did not explicitly opine on the Secretary's discretion under 4(b)(2) to exclude areas designated as critical habitat, and the Ninth Circuit's opinion is not relevant on the matter of critical habitat exclusion.

As for the 2015 Bear Valley Ninth Circuit opinion the commenter cites, this rule is not a reversal on the Service's position on whether partnership and conservation benefits generally outweigh the benefits of designating areas subject to conservation plans or agreements as critical habitat. In Bear Valley, the Service made a specific determination, specific to that agreement ( i.e., Western Riverside County Multiple Species HCP). That determination did not preclude the Service from future determinations related to critical habitat exclusions, such as this rule. In fact, it has been the Service's long-standing policy that the benefits of exclusion due to conservation plans or agreements that meet certain criteria (such as the conditions in paragraphs (d)(3)(i)-(iii)) generally outweigh the benefits of designating areas subject to conservation plans or agreements as critical habitat. A lower court, in an earlier decision, upheld the Service's exclusion of a regional HCP and Tribal lands from critical habitat based on the preservation of partnerships ( Cntr. for Biological Diversity v. FWS, 2011 WL 13356055 (S.D. Cal. Sept. 26, 2011)).

Comment 23: Commenters both opposed and supported our consideration of non-permitted plans for possible exclusions. Commenters suggested that considering draft plans not yet proven effective creates perverse incentives for landowners to develop minimal conservation plans to avoid designation, knowing the Service will likely grant exclusions before implementation or effectiveness can be evaluated. Commenters also stated that the circumstances in which the Service proposes to exclude areas covered by conservation agreements fail to account for the actual benefit of those plans to listed species.

Commenters supporting the consideration of non-permitted plans recognized the incentives this creates for voluntary conservation and stated the regulation provides greater transparency and predictability for the public and stakeholders as to what elements might be needed for a conservation plan or agreement to serve as a basis for an exclusion. Of those that appreciated its inclusion, some were concerned that the Service would provide too little weight to draft voluntary agreements and emphasized that analysis of each agreement should be based on the past successes, on the strength of existing relationships, and on the stage of the process ( e.g., whether the draft is an early version or a late version). Alternatively, other commenters agreed that a party must demonstrate that the voluntary conservation plan is being implemented consistent with its terms. Some commenters thought the factors set out in paragraphs (d)(4)(i)-(viii) are too onerous for the Service to consider in evaluating whether to exclude areas covered by non-permitted plans. For example, commenters suggested, the requirement to demonstrate “success” of the plan is overly broad and would place an unreasonable threshold and that instead of attempting to measure “success,” the Service should instead consider whether the party is meeting or exceeding the metrics or goals identified within the applicable plan. Commenters stated that the regulations should provide clear and simple procedures to meet the exclusion threshold. Commenters suggest the Service should take the necessary steps to promote conservation plans and bring more attention to them, not disincentivize their use. Additionally, some commenters stated that the presumption of exclusion should extend to agreements not permitted under section 10(a) of the Act and that we should include regulatory text referring to automatic exclusions of such areas so long as: (1) the agreement or plan is being implemented in accordance with its terms; (2) the agreement or plan contains measures that provide for the protection or enhancement of habitat for the subject species; and (3) confirmation that exclusion of the covered area will not result in the extinction of the species concerned. At least one commenter urged the Service to clarify that the existence of an active or pending voluntary agreement constitutes credible information triggering a 4(b)(2) analysis.

Response: Adding the provision from our 2016 policy to consider non-permitted plans for possible exclusions to our regulations is intended to incentivize and recognize voluntary conservation efforts that provide conservation benefits to listed species and other at-risk species. When we consider plans, agreements, or partnerships that have not been authorized by a permit under section 10(a) of the Act, we evaluate a variety of factors. Paragraphs (d)(4)(i)-(viii) of the rule provide a non-exhaustive list of these factors. We use these factors to determine how the benefits of exclusion and the benefits of inclusion of a particular area are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. We have been applying these concepts following the finalization of the 2016 policy, and our experience is that they work well. Further, as described in the preamble to the 2025 proposed rule, the Service is not required to be part of a non-permitted plan or agreement to consider the area for exclusion based on that plan. Evaluation of the success of a non-permitted plan or agreement directly relates to the benefits of exclusion of specific areas. We value the collaboration and conservation value provided by voluntary private or non-Federal conservation plans or agreements. It is in that context that we included in paragraphs (d)(4)(i)-(viii) descriptions of how we will consider these plans in a discretionary section 4(b)(2) exclusion analysis. Because every plan is unique, as are the specific needs of every species, it is difficult to offer an automatic exclusion and/or a single comprehensive analysis to cover all conservation agreements. For this reason, the Service has set out general conditions in the final regulation and conducts case-by-case analyses to determine whether to exclude areas covered by non-permitted, as well as permitted, plans.

Comment 24: We received comments that both supported and opposed the inclusion of the phrase “shall exclude” in § 17.90(e). Specifically, commenters supported the conclusion that the Service will always exclude the areas where the benefits of exclusion outweigh the benefits of inclusion, as long as exclusion will not result in the extinction of the listed species. Commenters stated that the proposed provision would create a clear standard, encourage consistent and transparent application of section 4(b)(2) of the Act, and support reasoned decision making ( Michigan v. EPA, 576 U.S. 743 (2015)). In addition, in the view of some commenters, once the exclusion analysis is completed, if the benefits of exclusion outweigh the benefits of inclusion, there are no further considerations. If we did not exclude that area, our decision would be arbitrary and capricious, lack a rational basis, and run counter to the evidence evaluated by the Service.

Alternatively, other commenters opposed using the words “shall exclude” in § 17.90(e) because those words are more restrictive and would require the Service to automatically exclude an area from critical habitat if we determine that the benefits of exclusion outweigh the benefits of inclusion, regardless of the circumstances. Commenters expressed concern that use of the word “shall” constituted an arbitrary and capricious change in agency practice without justification, citing the language in the 2016 policy ( i.e., that “the decision to exclude is always discretionary,” and, “[u]nder no circumstances is exclusion required under the second sentence of section 4(b)(2)”) (81 FR 7226 at 7229, February 11, 2016). Commenters expressed concern that this approach would result in more exclusions and contradict the purpose of the Act and Congress's intent that the Secretary retain discretion in determining whether or not to exclude particular areas from critical habitat. Commenters also expressed concern that requiring the Secretary to exclude areas whenever the benefits of exclusion outweigh the benefits of inclusion would allow for detrimental impacts to a listed species' habitat as long as the species does not go completely extinct.

Response: As described in the 2025 proposed rule, and in the Summary above, this final rule largely adopts the 2016 policy with further clarifications in the process that FWS will use when undertaking exclusion analyses. Using the phrase “shall exclude” in this rulemaking is not inconsistent with the statements that the commenters cite from the 2016 policy. The commenters' excerpts from the 2016 policy make clear that decisions to exclude areas from critical habitat are discretionary under the structure and language of the statute. The regulation does not change or contravene that fact. Rather, this rulemaking is an exercise of the discretion referenced in those excerpts. The Secretary is choosing to exercise his discretion in this way to provide for transparency and certainty. Under the Act, the Secretary could have elected to undertake exclusion analyses on a case-by-case basis and exclude areas every time the benefits of exclusion outweigh the benefits of inclusion. However, the approach finalized here provides greater transparency and certainty because it explicitly states how the Secretary will proceed when the benefits of exclusion outweigh the benefits of inclusion. Our intent with applying the Secretary's discretion in this way is to incentivize conservation efforts. As we explained in the proposed rule, section 4(b)(2) of the Act gives the Secretary the discretion to exclude areas from critical habitat designations when certain criteria have been met. Using the phrase “shall exclude” in the regulation indicates how the Secretary is choosing to exercise his discretion, and making this choice is neither unlawful nor contrary to the purposes of the Act. Even with the words “shall exclude” in the regulation, under the statute the Secretary can only exclude areas if he determines that the benefits of exclusion outweigh the benefits of inclusion after considering the conservation value or benefit of inclusion of the area weighed against the impacts of the designation or benefits of exclusion, and the Secretary determines that exclusion will not lead to extinction of the species.

Comment 25: Commenters stated that using the standard “will result in extinction” sets too low of a bar ( e.g., may allow significant habitat loss as long as species do not reach extinction) and may introduce legal vulnerability by ignoring the recovery mandate of the Act. Commenters also posed questions about whether extinction risk is considered immediate or over time. Commenters suggested alternatives such as “does not preclude recovery” or “essential to conservation.”

Response: The standard of “will result in the extinction” comes directly from section 4(b)(2) of the Act. We decline to impose an alternative standard in regulation. Further, conservation is explicitly considered when determining whether or not an area should be excluded. The Secretary must determine that the benefits of exclusion outweigh the benefits of designating that particular area as critical habitat. The benefits of designating critical habitat include the conservation value or benefit that the particular area provides to the conservation of the species.

Comment 26: Multiple commenters point out that E.O. 14154, and the related S.O. 3418, do not require or support the proposed rule. For example, commenters state that the Service does not explain how the proposed changes would reduce burdens on development of energy resources. At least one commenter suggested that the proposed rule should be reviewed by the Secretary and Solicitor of the Interior using the classes of regulations criteria in section 2(a) of E.O. 14219, “Ensuring Lawful Governance and Implementing the President's `Department of Government Efficiency' Deregulatory Initiative.”

Response: As explained above, while E.O. 14154 initiated our review, our goal in revising these regulations was to determine how best to designate critical habitat for endangered species and threatened species under section 4(b)(2) of the Act while also considering our experience administering the Act and policy preferences. We considered section 2(a) of E.O. 14219 and did not find that these regulation revisions met any of those criteria. These regulations primarily adopt and clarify the provisions in the 2016 policy and regulations at 50 CFR 424.19, which have been in place for over a decade. These regulations reflect the Service's experience and existing case law and intend to provide greater transparency and certainty for the public and stakeholders.

Comment 27: Several commenters stated that we did not comply with APA requirements. For example, commenters suggested that we did not provide a transparent, reasoned explanation for the proposed departure from our 2016 policy or justification supporting the 2022 recission of the 2020 rule or a complete and transparent analysis. At least one commenter 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). A commenter stated the APA prohibits agencies from segmenting actions to obscure their true impact ( Delaware Riverkeeper Network v. FERC, 753 F.3d 1304, 1307 (D.C. Cir. 2014); hereafter “ Delaware Riverkeeper Network” ) and if multiple rules are released on the same day and are functionally dependent on one another, we must explain their interrelationship.

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 52592, November 21, 2025), provided an opportunity for public comment, considered the relevant matter presented in those comments, and we have provided a rational explanation for our action. Regarding Delaware Riverkeeper Network, that opinion was specific to the National Environmental Policy Act and segmented environmental review.

In our 2020 rule (85 FR 82376 at 82376, December 18, 2020), we explained that we were ending our reliance on the 2016 policy and 50 CFR 424.19 to provide clarity to the Service and the public in light of agency experience and current practices, and to respond to the Supreme Court's decision in Weyerhaeuser. In our 2022 rescission (87 FR 43433, July 21, 2022), we rescinded the 2020 rule because we determined that the 2020 rule was problematic because it unduly constrained the Service's discretion in administering the Act, potentially limiting or undermining the Service's role as the expert agency and its ability to further the conservation of endangered and threatened species through designation of their critical habitats. We now find—as explained further in our preamble to the November 21, 2025, proposed rule (90 FR 52592 at 52594)—that reinstating the regulations at 50 CFR 17.90 is the preferable policy choice. This rule reflects the Service's experience and existing case law. The intended effect of these regulations is to provide greater transparency and certainty for the public and stakeholders. 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 28: Commenters expressed concern that the regulatory changes outlined in the proposed rule are not grounded in the best available science, allow undue influence from the regulated community, weaken ESA mandates and protections, and are contrary to the stated conservation purpose of the Act.

Response: We do not share the commenters' concerns. We will continue to base critical habitat designations on the best scientific data available, evaluate the information provided from outside entities on a case-by-case basis, and give weight of the benefits of inclusion or exclusion consistent with the available information from experts, firsthand knowledge, and the best available information that the Secretary may have to rebut that information. We do not consider speculative or unsupported information to be credible information and will use our best professional judgment to evaluate all information critically before incorporating it into any exclusion analysis.

Comment 29: One commenter stated the proposed rule fails to fulfill the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33).

Response: Our obligation to have a government-to-government relationship with federally recognized Tribes is paramount and is addressed by S.O.s 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 them as we administer the provisions of the ESA.

Comment 30: Commenters suggested additional analyses are required for our required determinations (for example, Regulatory Flexibility Act, Federalism, 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 this 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 critical habitat designation or revision, we will determine whether any areas should be excluded from designation. 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 in their respective sections below.

Comment 31: Multiple commenters remarked on whether aspects of this rule are legal under the Act, whether they are the best interpretation of the Act, and whether they are consistent with congressional intent. Some commenters viewed aspects of the regulations as lawful and consistent with congressional intent. These commenters pointed out that the 2020 rule, and therefore the 2025 proposed rule, reversed the 2016 policy's impermissible de facto moratorium on section 4(b)(2) analyses whenever a potential critical habitat area was located on Federal land. They suggest this moratorium, which was reinstated by the 2022 rule, was squarely at odds with section 4(b)(2)'s requirement that the Service consider the economic and other impacts of designating critical habitat irrespective of where areas otherwise qualifying as critical habitat may be located. They suggest that Congress drafted section 4(b)(2) with the express intent that it would “cause the Secretary to be more judicious in specifying such a critical habitat, and to avoid conflicts between [species] and Federal activities at an early stage” (124 Cong. Rec. 38,128 (1978); H.R. Rep. No. 95-1625, at 16).

The same commenters found that for one aspect of the proposed rulemaking, neither the 2016 policy reflected in the 2022 rescission rule, nor the 2020 rule, reflected in the 2025 proposed rule, reflect the “single, best meaning” of the Act. They suggest that weighing the benefits of excluding an area against the benefits of including an area in a critical habitat designation is not “optional” or otherwise a matter of discretion and misreads the Supreme Court's decisions in Weyerhaeuser and Bennett v. Spear, 520 U.S. 154 (1997) (hereafter “ Bennett” ), and is at odds with Congress's intent in enacting section 4(b)(2).

Conversely, other commenters suggested that the regulations are unlawful and inconsistent with the best reading of the Act as required by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (hereafter, “ Loper Bright”). For example, commenters state the proposed rule unlawfully conflated the initial, mandatory economic impact analysis in section 4(b)(2) with the subsequent, discretionary critical habitat exclusion analysis, and appears to unlawfully presume that such an exclusion analysis will occur in every case counter to Weyerhaeuser and Bldg. Industry Ass'n of the Bay Area v. U.S. Dep't of Com., 792 F.3d 1027 (9th Cir. 2015) (hereafter “ Bldg. Industry Ass'n” ).

Commenters also 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: These regulation revisions articulate when and how we determine whether the benefits of excluding an area outweigh the benefits of designating the area as critical habitat (exclusion analysis). As discussed above in the SUMMARY , these regulations primarily adopt and clarify the provisions in the 2016 policy and regulations at 50 CFR 424.19 with a new information standard for when we enter into a discretionary weighing analysis, a clarification of how considerations for exclusions will be conducted for Federal lands, and an approach to giving weight to the benefits of inclusion or exclusion of any particular areas designated as critical habitat. We also removed a statement from the 2016 policy that “although the Services will explain their rationale for not excluding a particular area, that decision is committed to agency discretion.” Additionally, as discussed in our 2020 proposed rule (85 FR 55398, September 8, 2020) we decided to revisit certain language in the preamble of the 2016 policy, as well as certain statements in the preamble to the 2013 rule that revised the regulations on the timing of our economic analyses at 50 CFR 424.19, to provide clarity to FWS staff and the public in light of the Supreme Court's decision in Weyerhaeuser. At the time we developed the 2013 rule and 2016 policy, the Services were guided by a line of cases in which courts had held that a decision by the Services not to exclude a particular area under section 4(b)(2) of the Act was committed to agency discretion by law and therefore not subject to judicial review.

In addition, regarding Weyerhaeuser, although the Supreme Court's opinion did not require promulgation of regulations on the procedure for exclusion analyses under section 4(b)(2) of the Act, it did establish that decisions not to exclude a particular area of critical habitat are judicially reviewable. See Weyerhaeuser, 586 U.S. at 25, noting that the challenge to the Service's decision not to exclude a particular area was a “familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion.” Weyerhaeuser cited the Court's earlier decision Bennett to justify its decision (and though Weyerhaeuser does not cite the Ninth Circuit's 2015 Bldg. Industry Ass'n opinion, Weyerhaeuser's holding overturns the Ninth Circuit's holding that critical habitat exclusions are not judicially reviewable). In light of the Supreme Court's holding that decisions not to exclude may be reviewed by courts for abuse of discretion under section 706(2) of the APA, the Service is of the view that the Court's decision underscores the importance of being deliberate and transparent about how the Service goes about making decisions about whether to exclude areas from designations of critical habitat.

In response to the conflicting comments about whether section 4(b)(2) of the Act requires the Service to conduct weighing analyses or to exclude an area from designation as critical habitat when the benefits of exclusion outweigh the benefits of inclusion; regardless of these comments, crafting these regulations that provide greater transparency and certainty for the public and stakeholders is the most appropriate way for the Service to administer section 4(b)(2) of the Act and our preferred policy approach.

Comment 32: Commenters stated that the Service failed to comply with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) 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 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” preclude use of a categorical exclusion; for example, those having significant impacts on species listed, or proposed to be listed under the Actor having significant impacts on designated critical habitat for these species (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 “harm” rule, 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 the 2020 rule. 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 explained this determination in an environmental action statement (EAS) that is posted in the docket for this final rule. As explained in the EAS, this rulemaking primarily provides the procedure for excluding areas from a critical habitat designation but does not apply this procedure to any species' designation; it is not until we are in the process of determining what to designate as critical habitat that this procedure applies to that species. Because the revisions are intended to clarify, interpret, and implement portions of the Act concerning procedures for excluding critical habitat for endangered species or 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 rulemaking. 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 and criteria used for designating or revising critical habitat under section 4 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-2025-0048). To the extent that some commenters assert that the rules are ineligible for these categorical exclusions 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 Services were 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. 14154 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 directly rely 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 33: Some commenters requested that we address in the final rule that there is a requirement to conduct NEPA analyses when designating critical habitat within the Tenth Circuit citing Catron Cnty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1436 (10th Cir. 1996) (hereafter “ Catron County ”). This addition to the rule would clarify that interested parties have a chance to participate in and meaningfully contribute to the environmental analysis underlying future critical habitat designations.

Response: Regulations adopted pursuant to section 4(a) of the Act are exempt from NEPA and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations. In a line of cases starting with Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this position. However, as the commenter suggested, when any of the areas that meet the definition of “critical habitat” for the species are in States within the Tenth Circuit, we had been required to undertake a NEPA analysis for that critical habitat designation consistent with the Tenth Circuit ruling in Catron County Board. We have recently updated our NEPA practice (91 FR 8738, February 24, 2026), and note that the February 2026 Department of Interior Handbook of National Environmental Policy Act Implementing Procedures (516 DM 1; https://www.doi.gov/media/document/doi-nepa-handbook ) states that critical habitat designations is not a “major federal action,” Section 1.1(a)(6)(iii)(D)(d) provides that “Certain decisions made by the U.S. Fish and Wildlife Service under the Endangered Species Act do not require NEPA compliance: . . .(d) Determinations whether to designate, amend, or rescind critical habitat.” Therefore, we no longer conduct NEPA analyses for any critical habitat designations or revisions, including in the Tenth Circuit.

Comment 34: Commenters expressed concern that the proposed rule would result in inconsistent regulations in which the FWS follows one set of guidelines and NMFS retains their current regulations resulting in potential conflict and lack of transparency.

Response: In some situations, the regulated community is best served if the agencies have the same regulations and policy. However, in other situations it may make sense for the FWS and NMFS to apply their own regulations to be responsive to the needs and circumstances of the species for which they are responsible. We find in this particular instance that differing regulations is the preferred approach.

Comment 35: Several commenters expressed concern about the Service's resource constraints and potential delays associated with the rule. They suggested that expanded weighing analyses could result in slower critical habitat designations, undermining State and partner planning that relies on timely, clear designations. Alternatively, commenters recommended longer public comment windows for future critical habitat rulemakings and commitments to update and reopen analyses when new exclusion requests or data arrive. Commenters suggested that the Service should strengthen in-house expertise in economics, national security, and “other impacts” to put the agency in a position to better defend its determinations.

Response: The mandatory requirements to designate critical habitat according to section 4(b)(6)(A) and section 4(b)(2) of the Act will not change following the finalization of these regulations. These regulations primarily adopt and clarify the provisions in the 2016 policy and regulations at 50 CFR 424.19. These revisions articulate when and how we determine whether the benefits of excluding an area outweigh the benefits of designating the area as critical habitat (exclusion analysis). This rule will provide greater transparency and certainty for the public and stakeholders. The provisions added to the regulations will not create additional workload for the Service but will help to ensure that credible information is considered in making decisions related to exclusions of particular areas from critical habitat designations. We have a history of contracting support related to our consideration of economic impacts of a critical habitat designation, and this regulation revision will not change that practice. We find that it is more efficient and effective to contract support from experts in the field who stay informed and abreast of new techniques and availability of data sources than relying on internal staff to complete these analyses. We do not find it appropriate or necessary for the Service to become experts in national security impacts or all other relevant impacts of designation of critical habitat.

Comment 36: At least one commenter requested that we limit critical habitat designations to only regulations that are consistent with the U.S. Constitution and requested we make specific commitments concerning the content of future rulemakings.

Our Response: The Service only promulgates regulations that are consistent with the U.S. Constitution. The specific content of future individual rulemakings is beyond the scope of this rulemaking.

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. 13653 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this final rule in a manner consistent with these requirements.

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 52592, 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.

Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. This rulemaking revises the Service's regulations designating critical habitat for endangered and threatened species under the Act. The Service is the only entity that is directly affected by this regulation change at 50 CFR part 17 because changes to this section of the Code of Federal Regulations merely describe how we will designate critical habitat under the ESA. 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.

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 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.

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. A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and will not present a barrier to all reasonable and expected beneficial use of private property.

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

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 clarify factors for designating critical habitat pursuant to the ESA.

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 excluding critical habitat for endangered species and 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 Joint S.O. 3206 (“American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” June 5, 1997)).

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. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We analyzed this rule pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR part 46), and the Department of the Interior 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; we prepared an Environmental Action Statement accordingly. Please see our supporting NEPA documentation, available at https://www.regulations.gov at Docket No. FWS-HQ-ES-2025-0048, 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.

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.

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

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

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

Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et seq. ), a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. We have determined that the Florida Keys mole skink meets the Act's definition of an endangered species; therefore, we are listing it as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule lists the Florida Keys mole skink as an endangered species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Florida Keys mole skink is endangered due to threats associated with sea level rise, increased high tide flooding, and increased-intensity storm events (Factor E), as well as threats due to habitat loss and degradation that result from development and habitat disturbance (Factor A).

Please refer to the proposed listing and critical habitat rule for the Florida Keys mole skink published on September 27, 2022 (87 FR 58648), for a detailed description of previous Federal actions concerning this species. That document proposed to list the Florida Keys mole skink as a threatened species with regulatory provisions under section 4(d) of the Act (“a 4(d) rule”) and to designate critical habitat.

A species status assessment (SSA) team prepared an SSA report for the Florida Keys mole skink. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy with the National Marine Fisheries Service (NMFS) on peer review that published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review in listing and recovery actions under the Act ( https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf ), we solicited independent scientific review of the information contained in the Florida Keys mole skink SSA report. As discussed in the proposed rule, we sent the SSA report to nine independent peer reviewers and received two responses. The peer reviews can be found at https://www.regulations.gov. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the Summary of Comments and Recommendations below.

The final rule incorporates changes to our proposed listing rule and SSA report based on the comments we received, as discussed below in the Summary of Comments and Recommendations. Based on updated data and our further consideration of the overall low numbers of Florida Keys mole skink on most islands, we determined the risk from sea level rise and high tide flooding is higher (see Determination of Florida Keys Mole Skink Status, below) than characterized in our proposal to list the Florida Keys mole skink as a threatened species (87 FR 58648; September 27, 2022). We reassessed our analysis, including new sea level rise data (Sweet et al. 2022, entire) and new updated National Oceanic and Atmospheric Administration (NOAA) inundation data layers that were used to determine habitat effects (NOAA 2024a, unpaginated), and found that the Florida Keys mole skink is at a higher risk to threats from sea level rise throughout its range. We have updated our analysis with these data and information in our SSA report and in this final rule. Thus, after evaluating the best available information, we determined that the Florida Keys mole skink is currently in danger of extinction because of the magnitude and immediacy of the threats it faces, as compounded by the species' likely inherently low numbers. Because we determined that the Florida Keys mole skink meets the definition of an endangered species, a 4(d) rule is inapplicable; consequently, we have removed the regulatory provisions under the authority of section 4(d) of the Act from this final rule. Lastly, we made minor editorial and nonsubstantive corrections throughout the SSA report and this final rule.

In the proposed rule published on September 27, 2022 (87 FR 58648), we requested that all interested parties submit written comments on the proposal by November 28, 2022. Due to the impact of Hurricane Ian, we extended the public comment period to January 12, 2023, in order to allow all interested parties time to comment (see 87 FR 72958). We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Key West Citizen Newspaper and the Miami Herald Newspaper. We did not receive any requests for a public hearing. All substantive information received during the comment periods has either been incorporated directly into this final determination or is addressed below.

As discussed in Peer Review, above, we received comments from two peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA report. Peer reviewer comments are addressed in the following summary. As discussed above, because we conducted this peer review prior to the publication of our proposed rule, we had already incorporated all applicable peer review comments into version 2.0 of the SSA report, which was the foundation for the proposed rule and this final rule.

(1) Comment: One peer reviewer commented that our use of the term “analysis of comparative population resiliency” was misleading because an analysis was not performed.

Our response: We reviewed that section of the SSA report and changed the word “analysis” to “assessment” as we did not perform a quantitative analysis to determine current population resiliency. Instead, current population resiliency was based on a comparative assessment between islands regarding the number of individual Florida Keys mole skinks and the number of locations of skinks documented for each island.

(2) Comment: One commenter indicated that our current population resiliency estimates were too optimistic given the lack of available data regarding population trends, structure, or demographics—and the absence of abundance data. This commenter stated that an estimate of the extent and quality of occupied suitable habitat is a better proxy for current and future status of the species.

Our response: In the SSA report and the proposed rule, we describe our current population resiliency assessment as comparative among populations. Current population resiliency is based on time passed since the last detection and the number of distinct locations (separated by 100 meters (m) (328 feet (ft)) or more) where current detections were recorded on an island (Service 2024, p. 49). Thus, an island with a greater number of Florida Keys mole skinks found at multiple locations on an island is considered to have higher resiliency than an island with only one or two detections from the same location.

For the Florida Keys mole skink, we define suitable habitat as beach and dune, coastal berm, rockland hammock, and pine rockland habitats that provide ground cover in the form of leaf litter and wrack material. As outlined in the SSA report (Service 2024, p. 53), we are not able to calculate the full extent of Florida Keys mole skink suitable habitat for all islands that are considered occupied. Furthermore, even when suitable habitat exists, it does not necessarily mean Florida Keys mole skinks are present. For example, Ohio Key is regularly surveyed by Service Refuge staff and despite available high-quality suitable habitat and numerous searches, no Florida Keys mole skinks have been located there (Service 2024, pp. 19, 34, 48). Additionally, Florida Keys mole skink have been found in urban areas that appear to lack suitable habitat such as parking lots, cemeteries, residential yards, and golf courses, though we lack an understanding of how these inland urban areas are used (Service 2024, p. 36). Thus, the existence of suitable habitat does not mean that the species is present, and the absence of suitable habitat does not mean that the species is absent. We used the best available science in the form of actual detection data and the number of individual Florida Keys mole skinks to help inform population resiliency. However, for our overall evaluation of current condition, we took into consideration not only the population resiliency assessment, but also how threats have impacted the availability of Florida Keys mole skink habitat.

(3) Comment: One commenter thought that we must consider impacts of sea level rise beyond 2060 and suggested that the Florida Keys mole skink should be listed as endangered rather than threatened, based on the future potential for widespread loss of habitat due to climate change impacts. Additionally, another commenter stated that our decision to limit the sea level rise analysis to 2060 is arbitrarily inconsistent with our treatment of other species impacted by sea level rise and that are proposed for listing as endangered species.

Our response: In the SSA report, we include evaluation of sea level rise impacts on Florida Keys mole skink habitat to 2100 (years 2020-2100; Service 2024 pp. 56-65, appendices D and E). As outlined in our proposed rule (87 FR 58648, September 27, 2022), we determined that consideration of sea level rise impacts beyond 2060 was unnecessary for our proposed threatened species determination because widespread habitat loss is expected to occur by that time. However, for our final rule we incorporated new sea level rise data (Sweet et al. 2022, entire) and new data layers that were used to determine habitat effects (NOAA 2024a, unpaginated) and we found that the Florida Keys mole skink is at imminent risk from the impacts of sea level rise throughout its range. As a result, for this final rule we focus on current impacts to the species and changes in the near term (by 2040) because loss of skink habitat is already occurring. Four Florida Keys mole skink populations (including moderate and high-resiliency populations) are projected to be extirpated by 2040, and up to 75 percent of Florida Keys mole skink habitat is projected to be lost by 2040. Accordingly, after further analysis, we have determined that the species meets the Act's definition of an endangered species (see Determination of Florida Keys Mole Skink Status section of this final rule), given the current and near-term threats from sea level rise, increased high tide flooding, and increased-intensity storm events (Factor E).

(4) Comment: One commenter referenced our use of Sweet et al. (2017, entire), a study that projects sea level rise scenarios specifically for the Florida Keys and pointed out that we did not include impacts of sea level rise from ice sheet melting, which would make sea level rise significantly higher. This commenter also provided the Sweet et al. (2022, entire) publication, which is an update to the 2017 study.

Our response: The sea level rise models projected by Sweet et al. (2017, entire) incorporate the impacts from ice sheet melting in the sea level rise projections, and thus, this information was accounted for in our projections. The Sweet et al. (2022, entire) publication was made publicly available after we had completed our SSA report, version 2.0. However, we compared the Sweet et al. (2017, entire) sea level rise projections to the new updated Sweet et al. (2022, entire) projections and added this comparison summary as an appendix to the SSA report (Service 2024, appendix E). We have updated our analysis with these data and information in our SSA report and in this final rule.

(5) Comment: One commenter suggested that we include a more detailed evaluation of the impacts of saltwater intrusion on the root zone of an islands upland vegetation because freshwater-dependent habitats such as upland hammocks and rocklands could be impacted by saltwater intrusion, and Florida Keys mole skinks have been found in these habitats.

Our response: In the SSA report, we provided a more detailed discussion of how the inundation of soils from storm surges and sea level rise can cause saltwater intrusion, compaction of sand, and the inability or difficulty for Florida Keys mole skinks to dig nests and burrow (Service 2024, pp. 30, 32). We also indicated that vegetation is expected to increasingly convert to tidal and salt-tolerant species within inland areas that can contain suitable habitats for Florida Keys mole skink including rockland hammock and pine rockland habitats. These habitats are used by Florida Keys mole skink, and changes to the quality and availability of these habitats as a result of saltwater intrusion could have negative impacts on Florida Keys mole skink (Service 2024, p. 26). We added an additional discussion in the threats section of the SSA report that, over time, vegetation succession (from root zone salinization) will result in a transition from fresh-water-dependent pine rocklands and rockland hammock into saltwater-tolerant habitats, initially in the Lower and Middle Keys in the forthcoming decades. In this final rule, we also include saltwater intrusion in our discussion of additional threats that were considered cumulatively for their effects to the Florida Keys mole skink viability.

(6) Comment: One commenter indicated that our conclusion in the proposed rule that new development will not pose a substantive threat to the Florida Keys mole skink is inconsistent with our finding in the SSA report that skinks inhabit the same beaches, coastal berm, and hammock habitat that is desirable for residential and commercial development.

Our response: We understand how our statement in the proposed rule that new development will not likely pose a substantive threat to the Florida Keys mole skink could be perceived as being in tension with some of the information in the SSA report as well as information elsewhere in the proposed rule. In the SSA report and the proposed rule, we indicated that very little new development is projected within the Florida Keys. Land development ordinances are in place to guide any new development away from environmentally sensitive areas. However, we recognize that any new development, including the effects of development of the remaining platted parcels in the Florida Keys, has the potential to further reduce habitat and impact individual survival of Florida Keys mole skinks and, therefore, may decrease population resiliency. Resiliency may be further reduced due to loss of habitat connectivity and a decrease of dispersal of individuals within populations as habitat becomes increasingly fragmented. Although we do not have data available to model projected impacts of development on the Florida Keys mole skink, in our assessment of the species' current condition, we considered how potential new development (although projected to be low) would impact the species. In this final rule, we determined that the Florida Keys mole skink is an endangered species due primarily to threats associated with sea level rise, increased high tide flooding, and increased-intensity storm events.

A thorough review of the taxonomy, life history, and ecology of the Florida Keys mole skink ( Plestiodon egregius egregius) is presented in the SSA report (Service 2024, pp. 10-22). The Florida Keys mole skink is one of five distinct subspecies of mole skinks in Florida, all in the genus Plestiodon (previously Eumeces ) (Brandley et al. 2005, pp. 387-388) and is endemic to the Florida Keys. The Florida Keys mole skink is a small, slender lizard with a long, brilliantly colored tail (color variation from orange and red to faded pink) and short legs. Adults reach a total length of approximately 12.7 centimeters (cm) (5 inches (in)) (Florida Natural Areas Inventory (FNAI) 2001, p. 1). The age at first reproduction is estimated at 2 years, and generation time is approximately 4 years (McCoy 2010, p. 641).

The Florida Keys mole skink is semi-fossorial (adapted to digging and living underground) and cryptic in nature. The Florida Keys mole skink moves through sand and soil using a swimming motion and prefers loose soils that allow for easy mobility. Loose soils are also conducive for burrowing and nesting (Christman 1992, p. 179). Ground cover, such as leaf litter, debris, and tidal wrack (organic material and other debris deposited at high tide) provide shelter and a food resource (insects and arthropods that live under ground cover) for the Florida Keys mole skink. Florida Keys mole skinks are found on low-lying islands with preferred habitats consisting of beaches, dunes, coastal berms, rockland hammocks, and pine rocklands. However, individuals have been detected in developed areas such as cemeteries, vacant lots, backyards, along roads, and golf courses (Mays and Enge 2016, p. 10; Emerick 2017a, pers. comm.; iNaturalist 2020, entire). Home range distances for the Florida Keys mole skink are estimated at a maximum 328 ft (100 m) (Gianopulos 2001, p. 81; Mushinsky et al. 2001, p. 54; McCoy et al. 2020, p. 8), and dispersal between islands is limited (Mercier 2018, pp. 18-21).

The Florida Keys are a low-lying chain of small ancient coral reef islands extending 125 miles (mi) (201 kilometers (km)) southwest from the southeastern tip of the Florida peninsula. The Florida Keys are primarily mangrove islands composed of predominantly limestone substrate (ancient coral reef). The average elevation of the Florida Keys is less than 4.0 (ft) (1.2 m) above sea level (Service 2024, p. 13). Florida Keys mole skinks have been documented on 23 islands throughout the Florida Keys (see figure, below). Fifteen of these islands have had detections in the last two decades (years 2000 to 2021); four islands have had relatively recent detections (years 1970 to 1999); and four islands have had historical detections (before 1970). Systematic surveys have not been conducted for the Florida Keys mole skink across all of the Florida Keys; therefore, the true spatial distribution of populations throughout the Florida Keys is unknown. Consequently, Florida Keys mole skinks may occur on Florida Keys other than those reported.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations 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. On April 5, 2024, jointly with the National Marine Fisheries Service, we issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and what criteria we apply when designating listed species' critical habitat (89 FR 24300). On the same day, we published a final rule revising our protections for endangered species and threatened species at 50 CFR part 17 (89 FR 23919). These final rules are now in effect and are incorporated into the current regulations. Our analysis for this final decision applied our current regulations. Given that we proposed listing for this species under our prior regulations (revised in 2019), we have also undertaken an analysis of whether our decision would be different if we had continued to apply the 2019 regulations; we concluded that the decision would be the same. The analyses under both the regulations currently in effect and the 2019 regulations are available on https://www.regulations.gov.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis, which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M-Opinion,” available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf ). The foreseeable future extends as far into the future as the U.S. Fish and Wildlife Service and NMFS (hereafter, the Services) can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess Florida Keys mole skink viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best scientific and commercial data available to characterize viability as the ability of a species to sustain populations in the wild over time, which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R4-ES-2022-0104 on https://www.regulations.gov.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

The SSA report contains a detailed discussion of the Florida Keys mole skink individual and population requirements (Service 2024, pp. 10-22); we provide a summary here. Based upon the best available scientific and commercial information, and acknowledging existing ecological uncertainties, the resource and demographic needs for breeding, feeding, sheltering, and dispersal of the Florida Keys mole skink are characterized as:

• Beach and dune, coastal berm, rockland hammock, and pine rockland habitats that provide ground cover in the form of leaf litter and wrack material that Florida Keys mole skinks need for nesting, arthropod and insect food sources, and cover;

• Dry, loose, sandy, permeable, or friable (crumbly in texture) soils for digging of nest cavities and for their swimming movement;

• Ground cover such as leaf litter, debris, or tidal wrack for thermoregulation, food sources, cover from predators, and breeding; and

• Arthropod and insect food sources (found within the ground cover and wrack).

Florida key mole skink abundance, distribution, and life history behaviors (nesting, breeding) are limited by the availability of these resources in the areas of beach and dune, coastal berm, rockland hammock, and pine rockland habitats. While ground cover and insect food sources appear sufficient and occur in adequate amounts, no ecological or quantitative studies have been completed on these factors.

Sea level rise, more frequent tidal flooding (increase of tides above the mean high tide), and increasing intensity of storm events (such as hurricanes) are the predominant threats to the Florida Keys mole skink and its habitat. Other threats to the Florida Keys mole skink include habitat loss and degradation that result from development and habitat disturbance. We also evaluated existing regulatory mechanisms and ongoing conservation measures. In the SSA report, we considered additional threats: overutilization due to recreational, educational, and scientific use; disease; oil spills; saltwater intrusion; and nonnative species. We concluded that, as indicated by the best available scientific and commercial information, these additional threats are currently having little to no impact on the Florida Keys mole skink, and thus their overall effect now and into the future is expected to be minimal. For full descriptions of all threats and how they impact the Florida Keys mole skink, please see the SSA report (Service 2024, pp. 25-46).

The predominant threats currently affecting the Florida Keys mole skink and its habitat are sea level rise, more frequent high tide flooding, and increased intensity of storm events.

Sea level rise—Within Florida, sea level rise is increasing at a faster rate than the global average, making this species especially vulnerable to impacts from sea level rise across its entire range (Carter et al. 2014, pp. 401-403; Park and Sweet 2015, entire; Sweet et al. 2017, p. 25, Sweet et al. 2022, p. 14). Global sea level has increased by 20 to 23 cm (8 to 9 in) since 1880, with approximately 8 cm (3 in) occurring in the last couple of decades (NOAA 2017, pp. 1-10). At Key West tidal gauge, the total average increase in sea level rise between 2000-2023 was approximately 15 cm (6 in) or approximately 0.25 cm per year (0.09 in per year) (NOAA 2019, unpaginated; Southeast Florida Regional Climate Change Compact 2023, p. 3). On Vaca Key, sea levels rose approximately 17 cm (7 in) between 1971 and 2018 or 0.14 in (0.36 cm) per year (NOAA 2019, unpaginated; Southeast Florida Regional Climate Change Compact 2023, p. 4). Globally, the average sea level rise is projected to be approximately 24 cm (9 in) by 2050, whereas in Florida the average sea level rise is projected to be approximately 41-46 cm (16-18 in) by 2050 (Sweet et al. 2022, pp. 20-21). Accelerated sea level rise in Florida is attributed to shifts in the Florida Current due to added ocean mass brought on by the melting Antarctic and Greenland ice packs and thermal expansion from warming oceans (Park and Sweet 2015, entire; Rahmstorf et al. 2015, entire; Deconto and Pollard 2016, p. 596; Sweet et al. 2022, p. 14).

A majority of the Florida Keys are low-lying (average elevation less than 4.0 ft (1.2 m)) (Service 2020, p. 9), making them highly susceptible to flooding, and at risk of inundation and saltwater intrusion (Florida Department of Environmental Protection (FDEP) 2012, p. 12; U.S. Geological Survey (USGS) 2017, n.p.). Because the Florida Keys mole skink inhabits low-lying islands, the species is especially vulnerable to sea level rise across its entire range.

As a result of sea level rise, higher tidal surges, coastal and inland flooding, and saltwater intrusion further degrade and remove habitat (Carter et al. 2014, pp. 398-400, 403; Wadlow 2016, entire). Across the Florida Keys, the impacts of sea level rise (to date) have resulted in erosion and loss of beach habitats (Southeast Florida Regional Climate Change Compact 2019, pp. 5, 34-35). Additionally, as a result of sea level rise and salt-water intrusion, a decline in pine trees and pine forest ecosystems has been documented throughout the Florida Keys (Ross et al. 1994, entire).

High Tide Flooding—One of the most noticeable impacts from sea level rise is the increased frequency of high tide flooding (Sweet et al. 2022, pp. 28-42). High tide flooding events have increased over the past several decades and are projected to continue to increase (Sweet et al. 2021, entire). High tide flooding data at Key West from 1965-1974 was approximately 5 flood days, from 1995-2004 was approximately 20 flood days, and from 2005-2014 was approximately 25-30 coastal flood days (NOAA 2017, p. 50). High tide flooding begins when coastal water levels exceed the mean higher high-water level (increase of tides above the mean high tide) (Sweet et al. 2014, entire). Florida Keys mole skinks require dry, sandy soils for all their life history needs. Thus, when frequent flooding above the high tide line occurs, flooded areas become unusable to the Florida Keys mole skink. In flooded areas, skinks cannot easily move through wet sand and individuals or nests may be washed away. When high tide flooding and storm surge flooding occurs frequently, habitat could be highly degraded or eliminated prior to sea level rise inundation. Even infrequent high tide or surge flooding will cause Florida Keys mole skink habitat to experience vegetation shifts triggered by hydrological changes to a wetter environment, higher salinity levels, and beach erosion and salinization of soils (Saha et al. 2011a, pp. 181-182; Saha et al. 2011b, pp. 82-84; Sweet et al. 2020, pp. 1-4). Thus, high tide flooding is likely to result in continued loss of habitat, displacement of individuals landward, and loss of individuals due to drowning.

Storm Events—Habitat for the Florida Keys mole skink can be degraded or removed by extreme storm events such as hurricanes, storm surges, and floods. Although storms and hurricanes are part of this tropical island system, storms and hurricane activity have been above normal since the Atlantic Multi-Decadal Oscillation (the natural variability of the sea surface temperature in the Atlantic Ocean) went into its warm phase around 1992 (NOAA 2019, p. 1). Currently, while the incidence of tropical storms in southeast Florida (including the Florida Keys) is above normal, this frequency is expected to decrease over time, but the intensity of storms is expected to increase (Service 2017, p. 7; NOAA 2024b, entire). The increased intensity could result in larger tidal storm surges, flood events, and greater destruction than historically documented (Service 2017, p. 7). Higher intensity storms can kill skinks directly and destroy habitat and thereby reduce population resiliency and overall species' redundancy.

Long-term monitoring of the Florida Keys mole skink species and information on strong storm impacts to this species are lacking. However, information does exist on the impacts to habitat from hurricanes and other strong storms that have occurred in the region that can provide insight to the potential damage and loss of Florida Keys mole skink habitat. Storm events can disturb and reduce the quantity and quality of Florida Keys mole skink resources (food, cover, nesting beach) and may do so significantly depending upon the severity and proximity of the storm center. This is particularly the case of storm surges which bring in nutrient-rich sediment that exacerbate soil accretion, deposit salt, and damage vegetation (Dingler al. 1995, p. 296; Jackson et al. 1995, p. 321; Enge et al. 2017).

In the last several decades, hurricanes and other strong storms have occurred throughout the Florida Keys and have negatively impacted Florida Keys mole skink habitat. For example, in 2005, Hurricane Wilma (Category 3) passed just north of the Florida Keys causing maximum storm tides 5.0 ft to 6.0 ft (1.5 m to 1.8 m) above mean sea level in Key West and flooding in approximately 60 percent of the city, causing severe beach erosion (Kasper 2007, p. 6; FDEP 2025, pp. 46-47). On Boca Chica and Big Pine Key, Hurricane Wilma caused a storm surge of 5.0 ft to 8.0 ft (1.5 m to 2.4 m) (Kasper 2007, p. 9) and resulted in significant erosion to beach habitat on those islands (FDEP 2025, p. 46). In September of 2017, Hurricane Irma (Category 4) caused a storm surge of up to 7.8 ft (2.4 m) in the Lower Keys and Middle Keys (NOAA 2018, pp. 3-4). Hurricane Irma altered whole dune ecosystems, removing sand, vegetation, and litter from these areas via wind and storm surge forces and uprooting many of the maritime hammock ecosystems (Emerick 2017b, p. 6). As a result of Hurricane Irma, beach habitat on Big Pine Key, Boca Chica, and Key West, islands where Florida Keys mole skink have been documented, are considered to be critically eroded (FDEP 2025, pp. 46-47). After Hurricane Irma, Florida Keys mole skink surveys found low numbers of skinks on Sawyer Key in 2018, Content Key in 2020, Big Pine Key in 2018, and Long Key in 2018 (Zambrano 2021, pers. comm.). However, long-term survey efforts were not in place prior to Hurricane Irma, and we are not able to determine trends or how skinks may have been directly impacted by this hurricane.

Additionally, Ohio Key experienced significant impacts from both Hurricane Wilma and Hurricane Irma and was surveyed between 2015 and 2017 for Florida Keys mole skinks. Despite available high-quality suitable habitat and numerous searches, no Florida Keys mole skinks were located (Emerick 2017b, pers. comm.). We do not know if Ohio Key had Florida Keys mole skinks prior to Hurricane Wilma or Hurricane Irma; it is possible that although the island contains suitable habitat, Florida Keys mole skinks were never present on the island.

In summary, these collective impacts have reduced the survival of the Florida Keys mole skink at the individual, population, and species level. Sea level rise is degrading existing habitat that supports the Florida Keys mole skink, reducing the habitat features that the species needs, and thus reducing population resiliency. Increased high tide flooding and increased intensity of storm events have further degraded Florida Keys mole skink habitat. Increased high tide flooding and storm events also have the potential to kill skinks directly or to reduce individual survival, which could result in reduced resiliency and redundancy. An increase in the intensity of storms or a direct hit from a strong hurricane could reduce species abundance (reducing population resiliency), and potentially extirpate populations (limiting redundancy), making the Florida Keys mole skink more vulnerable to all other threats. There are no regulatory mechanisms or conservation measures that address the impacts of sea level rise, high tide flooding, or increased intensity of storm events on the Florida Keys mole skink.

Within the Florida Keys, human population growth and development has occurred at a high rate and much of the land available for development has been developed (Zwick and Carr 2006, p. 15; Carr and Zwick 2016, entire). The April 2020 human population census of Monroe County, Florida, was 82,874 individuals (U.S. Census Bureau 2021, n.p.), which is already higher than the 2060 population estimate of 77,038 individuals (Carr and Zwick 2016, p. 28). An assessment of the Florida Keys assumed that the size of the human population is directly related to remaining land area (Hoegh-Guldberg 2010, p. 14). Consequently, as land area is further reduced due to coastal flooding, erosion, and sea level rise, the human population in the Florida Keys is expected to decline in order to accommodate the loss of land and consequential negative effects on property values and the economy (Zhang et al. 2011, pp. 9-17; Hino et al. 2017, entire).

The Florida Keys were designated as an Area of Critical State Concern in 1974 by the Florida Legislature (§ 380.0552 Florida Statutes) and local ordinances have been adopted to control development growth based on the Florida Keys' carrying capacity related to hurricane evacuation clearance time and to protect the natural environment (FDEO 2020, p. 1). A rate of growth ordinance has been adopted by Monroe County (MC-LDC Chapter 138), and building permit allocation system ordinances have been adopted by the municipalities within the Florida Keys: City of Key West (KW-Code of Ordinances Ch. 108, Art. X), Village of Islamorada (Islamorada-Code of Ordinances Chapter 30, Art. IV, Div. 11), and City of Marathon (CM-LDC Chapter 107, Art. 1). These ordinances were adopted in order to provide for the safety of residents in the event of a hurricane evacuation, to protect the significant natural resources, and to acquire environmentally sensitive lands as guided by the State of Florida's Area of Critical State Concern designation. These ordinances guide new development toward areas with infrastructure and away from flood zones and environmentally sensitive areas such as habitat for threatened or endangered species. It is projected that carrying capacity will be reached in 2023 within the municipalities (FDEO 2020, p. 4) and 2026 in the unincorporated Monroe County (MCCPLA 2020, p. 8) and at such a time new building permits will no longer be issued as dictated by the State of Florida's Area of Critical State Concern designation.

In addition to direct impacts from loss of habitat, disturbance to these habitats can reduce groundcover that provides shelter and supports food resources. Additionally, loss of habitat connectivity can impact the Florida Keys mole skink's ability to find mates and disperse to new locations. Roads and humanmade structures fragment habitat and Florida Keys mole skink populations, leading to a reduction in population health (resiliency) and genetic differentiation (representation) (Jochimsen et al. 2004, p. 40). Although past development activities have reduced Florida Keys mole skink habitat, individual skinks show some tolerance to habitat alteration and have been documented in developed areas (Mays and Enge 2016, p. 10; Emerick 2017a, pers. comm.).

The effects of development have the potential to continue to reduce habitat and individual survival of Florida Keys mole skinks and, therefore, may result in a decline in population resiliency. Resiliency may be further reduced due to loss of habitat connectivity and declining dispersal of individuals within populations as habitat becomes fragmented.

The Florida Keys are well known for outdoor recreational activities, particularly waterfront and beachfront activities, which directly overlap with the habitats used by Florida Keys mole skinks. Hiking, camping, beach combing, and other activities in beach and dune, coastal berm, rockland hammock, and pine rockland habitats can cause direct disturbances to behavior and habitat of the Florida Keys mole skink. Beach cleaning directly removes wrack and vegetative material that act as shelter and a food resource for the Florida Keys mole skink. The behaviors (feeding, movement, and nesting) of individual skinks are likely disturbed by these recreational activities.

Increased road traffic is a direct consequence of visitors and tourists as is the need for parking. Off-road parking sites, gravel lots, and boat trailer parking can disturb the dry soils and other areas used by Florida Keys mole skinks. Smaller off-road vehicles and golf carts are also sometimes used in communities to get around locally. These small vehicles use non-paved areas that can displace, disturb, or cause direct mortality of individual skinks.

The primary threats impacting the Florida Keys mole skink and its habitat are sea level rise, increased high tide flooding, and increased intensity of storm events. The effects of sea level rise, increased high tide flooding, and an increased intensity of storm events can degrade existing habitat that supports the Florida Keys mole skink, leading to reductions in habitat that the species needs, and thus to population resiliency. Individual skinks could also be lost during high tide floods or strong storms. Ongoing habitat degradation and loss associated with development and recreational activities will also continue to reduce available habitat for the Florida Keys mole skink, thus decreasing population resiliency.

Even minor threats that impact just a few individuals in a population need to be considered for their additive effects. For example, threats such as collection, disease, pesticides, oil spills, nonnative species, and saltwater intrusion may have low impacts on their own, but combined with impacts of other threats, they could further reduce the relatively low numbers of Florida Keys mole skinks. These minor threats (collection, disease, pesticides, oil spills, nonnative species, and saltwater intrusion) were considered cumulatively for their effects to the Florida Keys mole skink, and, while they may impact individuals, we currently do not consider these minor threats to have negative effects at the population level (Service 2024, pp. 39-45).

The severity of threats may also be exacerbated by the Florida Keys mole skink's limited distribution and low numbers on most islands. Currently, the existing regulatory mechanisms do not address the threats to the Florida Keys mole skink from sea level rise, high tide flooding, and increased intensity of storm events. However, regulatory mechanisms that address development provide some protections, and conservation lands that overlap with some Florida Keys mole skink habitat provide a conservation benefit to the species (see Conservation Efforts and Regulatory Mechanisms).

The Florida Keys mole skink species was State listed as threatened by Florida in 1974 but was changed to a State of Florida species of concern in 1978. In 2010, after a species status review by the Florida Fish and Wildlife Conservation Commission (FWC), the Florida Keys mole skink was again found warranted for listing as a State threatened species. A Florida Keys Mole Skink State Action Plan was developed in 2013 (FWC 2013, entire). The goal of the plan is to secure the Florida Keys mole skink within its historical range (FWC 2013, pp. 8-19).

As a threatened species under State law, intentional take and some forms of incidental take of the Florida Keys mole skink are prohibited. The FWC lists several measures to avoid and minimize take during development and habitat management activities, including avoiding and minimizing impacts to coastal strand, coastal dune, pine rockland, and tropical hardwood hammock habitats within the range of the Florida Keys mole skink (FWC 2016, p. 5). Specifically, these measures recommend avoiding the removal of microhabitat features and the prevention of activities that cause soil compaction. Some of these land management activities may be beneficial ( e.g., beach habitat restoration activities) to the long-term quality of the natural habitats for the Florida Keys mole skink but can also result in local disturbance or direct mortality of individual skinks.

The Florida Coastal Management Plan designates the Florida Keys as an Area of Critical Concern (FDEP 2014, p. 25). Through the Florida Forever program (and the previous State of Florida Conservation and Recreation Lands and Preservation 2000 Programs), the Monroe County Land Authority and the State of Florida have purchased 12,862 acres (ac) (5,205 hectares (ha)) of Florida Keys land for the protection of natural resources (Florida Department of Economic Opportunity 2020, p. 1, and FDEP 2020, pp. 199, 289). The protection of these lands overlaps with occurrences of Florida Keys mole skinks, primarily on Big Pine Key and No Name Key and provide direct and indirect conservation benefits for the Florida Keys mole skink.

Several local government plans provide indirect conservation benefits to the species. The Village of Islamorada, the City of Marathon, Monroe County, and the City of Key West have comprehensive plans that incorporate native habitat and species protections (City of Marathon 2013, entire; City of Key West, 2013, entire; Monroe County 2016a, entire; Village of Islamorada 2017, entire). Although they do not mention the Florida Keys mole skink specifically these protections can benefit the Florida Keys mole skink indirectly by protecting habitats that skinks use and protecting other species that co-occur with Florida Keys mole skink.

The Florida Keys mole skink occurs within numerous State Parks, including Zachary Taylor State Park (Key West), the Florida Keys Overseas Heritage Trail (Key West, Big Pine Key, Vaca Key, Long Key, Lower Matecumbe Key, Key Largo), Bahia Honda State Park (Bahia Honda Key), Long Key State Park (Long Key), Lignumvitae Key Botanical State Park (Lower Matecumbe Key), John Pennekamp Coral Reef State Park (Key Largo), and Dagny Johnson Key Largo Hammock Botanical State Park (Key Largo). Active management of these State Parks provides indirect benefits to the Florida Keys mole skink by protecting and providing habitat through management of beach restoration and nourishment and providing nonnative plant and animal control.

The Florida Keys mole skink occurs within multiple National Wildlife Refuges including the National Key Deer Refuge on Content Key and Big Pine Key, the Key West National Wildlife Refuge on Marquesas Key and Boca Grande Key, the Crocodile Lake National Wildlife Refuge on Key Largo, and the Great White Heron National Wildlife Refuge on Sawyer Key and Content Key. The Florida Keys mole skink also occurs within Dry Tortugas National Park on Loggerhead Key in the Dry Tortugas. Specific management or conservation objectives for the Florida Keys mole skink are not identified in the management plans for these National Wildlife Refuges and National Park Service lands; however, ongoing management activities including habitat restoration and nonnative species control provide benefits to the Florida Keys mole skink and its habitat.

The Sikes Act Improvement Act (1997) led to Department of Defense (DoD) guidance regarding development of Integrated Natural Resources Management Plans (INRMPs) for promoting environmental conservation on military installations. There are occurrence records of Florida Keys mole skinks on lands owned and managed by the DoD as part of the Naval Air Station Key West, on Boca Chica and Key West. The Naval Air Station Key West has a current and completed INRMP, covering land owned by the DoD on Boca Chica Key and Key West (Department of the Navy 2020). Although the Florida Keys mole skink is not specifically mentioned, the INRMP provides conservation and habitat management measures applicable to the species, such as preventative measures to reduce damage caused by flooding and maintenance and expansion of living shorelines.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

For the purposes of this assessment, we divided the Florida Keys into four geographically representative units: the Upper Keys, Middle Keys, Lower Keys, and Distal Sand Keys. The average elevation for the Upper Keys is 4.8 ft (1.5 m); for the Middle Keys, is 4.29 ft (1.3 m); and for the Lower Keys, is 3.17 ft (1.0 m) (Monroe County 2022b, p. 1). The Distal Sand Keys are low-lying (average less than 4.0 ft (1.2 m)) sand islands and mangrove islands with the exception of Loggerhead Key, which has a peak elevation of 10.0 ft (3.0 m) (Monroe County 2022b, p. 1). Range-wide, the majority of islands within the Florida Keys are low-lying with an average elevation less than 4.0 ft (1.2 m) (Service 2020, p. 9). We note that the Upper Keys island of Key Largo has an average elevation of 7.0 ft (2.1 m), and the ridge forming the spine of the island peaks at 15.0 ft (4.6 m) and is 33 mi (53 km) long.

The current condition of the Florida Keys mole skink is described in terms of population resiliency, redundancy, and representation across the species. The analysis of these conservation principles to understand the species' current viability is described in more detail in the Florida Keys mole skink SSA report (Service 2024, pp. 46-54).

Islands contain genetically distinct lineages of the Florida Keys mole skink species (Mercier 2018, pp. 18-21). Thus, to assess the species' resiliency, we delineated populations of Florida Keys mole skink by islands, where all detections on the same island represent a population (or groups of interbreeding individuals). We considered Key Largo to represent two different populations, based on the length of the island and distance between detection locations (greater than 4 mi (6.4 km)) that are separated by U.S. Route 1 highway (which acts as a barrier to dispersal). Therefore, for our assessment of population resiliency, we considered everything north of U.S. Route 1 as the North Key Largo population and everything south of U.S. Route 1 as the Key Largo population.

Due to the semi-fossorial and cryptic nature of the Florida Keys mole skink, abundance data are lacking, and no population trend data exist for this species. There are also no data available regarding the population structure of the Florida Keys mole skink. Therefore, we assessed resiliency based on the number of individuals detected on an island (multiple individuals indicate a larger population), and the number of locations within an area (greater than 328 ft (100 m) apart) where individual Florida Keys mole skinks were observed (table 1). We chose the 328-ft (100-m) distance based on the estimated dispersal distance of individuals within other skink species populations (Gianopulos 2001, p. 81; Mushinsky et al. 2001, p. 54; McCoy et al. 2020, p. 8; table 1).

Florida Keys mole skinks have been documented on 23 islands throughout the Florida Keys. Four populations are considered historical (no detections since 1970), four are considered relatively recent (skinks were detected between 1970 and 1999), and 15 are considered current (skinks were detected between 2000 and 2021) (Service 2024, pp. 16-20). Of the four historical populations none of the islands have been resurveyed for skinks since 1970. Of the four relatively recent populations, only one island (Scout Key) has been surveyed since 1999, and no skinks were found during those surveys (surveys were conducted between 2016 and 2017). For our current resiliency analysis, we include only populations that have had skink detections since 2000 and refer to these populations as current populations. In the SSA, we provide more detailed information about the islands that have historical and relatively recent populations (Service 2024, entire).

Of the 15 current populations, 2 are in the Upper Keys, 3 are in the Middle Keys, 8 are in the Lower Keys, and 2 are in the Distal Sand Keys (table 2). Based on the parameters outlined above (table 1), one current population is considered to have very high resiliency, and two current populations are considered to have high resiliency. Six current populations are determined to be moderately resilient, and six current populations are considered to have low resiliency (Service 2024, p. 50; table 2). Since 2000, 205 individual Florida Keys mole skinks have been detected across these 15 islands (Service 2024, p. 17). Big Pine Key in the Lower Keys has the majority of the skink detections (144 Florida Keys mole skinks, or 70 percent of all skinks documented since 2000; Service 2024, p. 17).

To date, sea level rise has resulted in the direct loss of habitat, as beaches have become inundated for long periods of time, resulting in erosion and loss of beach habitat. Repeated high tide flooding has resulted in additional loss of habitat as frequently flooded areas become unusable to the Florida Keys mole skink (individuals cannot easily move through wet sand; individuals or nests are washed away). While our SSA predicts the impacts of sea level rise out to 2100 (Service 2024 pp. 56-65, appendix D and E), the majority of impacts are projected to be realized by the species in the near-term (by 2040). Accordingly, given the magnitude and immediacy of the impacts of sea level rise on the Florida Keys mole skink and its habitat, we evaluate current and near-term impacts as part of our current condition assessment.

To understand the near-term impacts (prior to 2040) from sea level rise, we considered our updated evaluation of (Service 2024, appendix E) modeled projections of sea level rise (Sweet et al. 2022, pp. 6-27) and high tide flooding (Sweet et al. 2022, pp. 28-31). We used a suite of scenarios that describe the bounds of a range of plausible near-term and future conditions (intermediate, intermediate-high, and high), which are aligned with emissions-based, conditional probabilistic and global model projections of mean sea level rise (Sweet et al. 2022, p. 27). We used the nearest local scenarios for specific sea level rise height values within the Florida Keys. Near-term and future sea level rise projections account for normal high tides (mean high tide for a given local station) (NOAA 2017, entire; Sweet et al. 2022, entire). In addition to normal high tides, minor, moderate, and major flood events are also projected to increase in the near-term (Sweet et al. 2022, p. xiii). Minor high tide flooding is defined as more disruptive than damaging and currently can be expected about 2 days per year (Sweet et al. 2018, p. 11). Minor high tide flooding is likely to increase to 7 to 15 days per year by 2030, and to 25 to 75 days per year by 2050, (Sweet et al. 2017, p. 37; Sweet et al. 2021, pp. v-vi). To account for flooding events in the near-term, we included minor and moderate high tide flooding threshold values from local gauges in the Florida Keys. Detailed descriptions of sea level rise and high tide flooding data are available in the SSA report (Service 2024, pp. 25-26, 31-32, 56-58; appendices D and E).

Areas that have frequently occurring high tide flooding events to have negative impacts on Florida Keys mole skink habitat. Repeated high tide flooding events are likely to degrade habitat (by moving the wrack line, rendering habitat unsuitable until waters recede) even before sea level is high enough to inundate habitat. Repeated habitat disturbance by high tide flooding reduces the chance for an area to become repopulated by skinks following disturbance.

To assess the amount of Florida Keys mole skink habitat that would be lost or degraded due to sea level rise and high tide flooding by year 2040, we evaluated the total potential habitat for each island with a current population. In the SSA report, we also provide total potential habitat estimates for relatively recent and historical populations (Service 2024, pp. 58-60). Because Florida Keys mole skinks have been documented in habitats away from the beach, we calculated total potential habitat as the entire island area subtracting areas not considered to be suitable habitat for Florida Keys mole skink, including freshwater, water, and impervious cover areas (Monroe County 2016b, entire). For each foot of sea level rise and high tide flooding threshold, we calculated the percent area that would be inundated or degraded for each island with a current, recent, or historical population. We provide detailed descriptions of our methods and results in the SSA report, and we also provide calculations for some islands with data available for preferred habitats (including beach berm, coastal hammock, and preferred soils) (Monroe County 2016b, entire; Service 2024, pp. 62-63; appendices D and E).

Within the near term (by 2040 or sooner), sea level rise and the effects of high tide flooding are projected to be between 1.0 ft and 1.67 ft, respectively (0.3 m and 0.5 m) above the current mean high-water line. Even under the lowest sea level rise scenario (1.0 ft (0.3 m)), 9 of the 15 current populations are projected to lose 50 to 90 percent of habitat, and two populations are projected to be extirpated (table 2). The greatest impacts from sea level rise are projected within the Lower Keys, where more than 70 percent of the current populations are found and where all highly resilient populations currently occur (table 2). When considering the effects of sea level rise by 2040, along with the current and near-term impacts of inundation prior to complete habitat loss from sea level rise, we expect the resiliency for all populations to decline.

Table 2, below, provides a summary of the projected magnitude of change in resiliency for populations of the Florida Keys mole skink for sea level rise and high tide flooding scenarios in the year 2040. In the “Year 2040” column, we use symbols as follows:

• ↓ means a slight decrease in population resiliency (more than 10 percent but less than or equal to 50 percent);

• ↓↓ means a moderate decrease in population resiliency (more than 50 percent but less than or equal to 75 percent);

• ↓↓↓ means a large decrease in population resiliency (more than 75 percent but less than or equal to 90 percent); and

• X means extirpated, based on more than 90 percent of the potential habitat being impacted.

Redundancy is the ability of a species to withstand catastrophic events. In the Florida Keys, tropical storms and hurricanes are regular and common events. However, catastrophic events may include particularly strong or intense hurricanes or storms and the resulting winds, waves, and storm surges associated with these events. Increased frequency of such storms could further reduce the ability of Florida Keys mole skink populations to recover and could cause catastrophic impact to the species.

For the Florida Keys mole skink to withstand catastrophic events such as hurricanes, it needs to have multiple, sufficiently resilient populations across its range. Of the 15 currently known populations of Florida Keys mole skink, one population is considered to have very high resiliency, two populations are considered to have high resiliency, and all three of these populations are found on islands in the Lower Keys (table 2). Furthermore, 70 percent of all current detections (144 of 205 skink detections since 2000) occur on Big Pine Key where the majority of the detections have been found at low elevation (Service 2024, pp. 67-69). By 2040, with just sea level rise impacts alone (1.0 ft (0.3 m) of sea level rise), one moderate-resiliency population and one high-resiliency population are projected to be extirpated in the Lower Keys. With the added impacts of high tide flooding (1.67 ft (0.5 m) of sea level rise), two more populations are projected to be extirpated, one moderate-resiliency population in the Middle Keys and one low-resiliency population in the Distal Sand Keys (table 2). In addition, when considering the near-term impacts of inundation occurring and reducing the available habitat for the species prior to complete habitat loss, this species is at high risk from impacts prior to 2040.

Because the Florida Keys mole skink is endemic to the Florida Keys, losing even a few populations (or reduced resiliency in even a few populations) would result in a significant reduction in redundancy. With the projected continued loss of habitat by 2040, especially in the Lower Keys where the majority of current populations are located, and where all high resiliency populations are located, redundancy for the species is expected to be severely reduced. Although a severe hurricane is unlikely to inundate all populations at once, if a hurricane were to extirpate some populations, especially those with lower numbers of skinks, the remaining populations of Florida Keys mole skink would be more vulnerable to other threats. With the continued loss or degradation of Florida Keys mole skink habitat, we expect loss of island populations, thereby further reducing the species' ability to withstand catastrophic events such as hurricanes.

Given the current impacts of sea level rise, high tide flooding, and hurricanes, and given the limited available habitat, the relatively low number of individuals documented, and the potential for repeated catastrophic storm events, the overall redundancy of the Florida Keys mole skink is considered low.

Representation describes the ability of a species to adapt to changing environmental conditions and is measured by the breadth of genetic or environmental diversity within and among populations. Overall, the genetic and environmental diversity of the Florida Keys mole skink is low, with no sign of morphological or behavioral differences between skinks on different islands (Branch et al. 2003, pp. 202-205; Technical Team Working Group 2016, pers. comm.; Mercier 2017, pers. comm.).

The species occurs on several islands across a narrow geographic and ecological range; there is little variation in habitat types across distance or elevation as occurs in wider ranging and more abundant species. The entire species is represented within the same tropical system. The amount of coastal sandy substrate and hammock habitat is limited and distributed in patches throughout the Florida Keys. Furthermore, island to island dispersal is considered rare and likely occurs as a result of stochastic events (storms, hurricanes, flooding) where individuals may be passively carried by floating debris and seaweed wrack to new locations (Adler et al. 1995, pp. 535-537; Branch et al. p. 2003 p. 207; Losos and Ricklefs 2010, p. 360). Within the narrow ecological range in which the Florida Keys mole skink occurs, there are some differences in the substrates and habitat types available, specifically between the Upper Keys and Lower Keys regions, but overall representation of the Florida Keys mole skink is considered to be relatively low.

As part of the SSA, we developed sea level rise and high tide flooding future condition scenarios projected out until the year 2100. Our scenarios included intermediate, intermediate-high, and high scenarios, which are aligned with emissions-based, conditional probabilistic and global model projections of global mean sea level rise (Service 2024, p. 42). Because we determined that the current condition of the Florida Keys mole skink is consistent with an endangered species (see Determination of Florida Keys Mole Skink's Status, below), we are not presenting the detailed results of the future scenarios in this final rule and only present future projection results to 2040 (See Current Condition section above). Please refer to the SSA report (Service 2024, pp. 41-50, appendix E) for the full analysis of future scenarios.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we found that impacts from sea level rise, high tide flooding, and storm events present the most substantial threat to the Florida Keys mole skink's viability. Sea level rise and repeated high tide flooding have resulted in the direct loss of habitat. Over the last several decades, hurricanes have had a significant impact on Florida Keys mole skink habitat causing erosion and loss of beach habitat. Given the historical and current impacts from sea level rise, high tide flooding, and storm events, habitat for the Florida Keys mole skink is limited. Threats associated with sea level rise, high tide flooding, and storm events are already being observed in the Florida Keys, and these threats will continue to increase in magnitude. Further, before the effects of complete habitat loss from inundation due to sea level rise are fully realized, higher water levels and flooding will create wetted sand environments, which are unsuitable for the Florida Keys mole skink.

Since 2000, only 205 skinks have been documented on 15 islands; 70 percent of individuals have been documented on Big Pine Key in the Lower Keys. We assessed the current population resiliency of Florida Keys mole skink using a comparative assessment of detections. We assessed that one population has very high resiliency, two populations have high resiliency, six populations have moderate resiliency, and six populations have low resiliency. However, ongoing and near-term impacts from sea level rise were not accounted for in this comparative assessment of population resiliency. Given the magnitude and immediacy (including the ongoing nature) of these threats, we determined the species is more susceptible and at high risk from sea level rise, given the ongoing sea level rise, inundation, and loss of habitat in the near term (prior to 2040). As mentioned previously, the species will experience impacts from inundation, even if temporary, prior to complete habitat loss from sea level rise. In addition, populations in the Lower Keys, specifically Big Pine Key, although assessed to have higher resiliency based on detections since 2000, are at higher risk from inundation and loss of habitat given the low elevation of the islands. Further, more frequent and intense high tide flooding and storm events will accelerate habitat loss, may kill individual skinks, and will reduce overall population resiliency and species redundancy and representation. Acting together, these threats will continue to cause irreversible habitat degradation and loss.

Due to its narrow endemic range, the species has inherently low redundancy (historically and currently). Surveys have documented low numbers of individuals across its range. Despite some redundancy provided by the fact that discrete populations exist on multiple islands, large-scale impacts from catastrophic events ( e.g., hurricanes or storm surges) could affect the entire Florida Keys archipelago, leaving the entire species vulnerable to the timing and intensity of impacts. Similarly, this species occurs across a narrow geographic and ecological range; there is little variation in habitat types across distance or elevation as occurs in wider ranging and more abundant species. Thus, representation for this species is thought to be inherently low.

Because of the Florida Keys mole skink's low redundancy and limited representation, the species is vulnerable to catastrophic storm events. Although a severe hurricane is unlikely to inundate all populations at once, if a hurricane were to extirpate some populations, especially those with lower numbers of skinks, the remaining populations of Florida Keys mole skink would be more vulnerable to other threats. We also considered the effects of development, habitat disturbance, and minor threats including overutilization due to recreational, educational, and scientific use, disease, oil spills, saltwater intrusion, and nonnative species for their cumulative effects. Given that the Florida Keys mole skink is experiencing impacts from these threats currently and its resiliency, redundancy, and representation are projected to continue to decline in the near-term, we find that a threatened species status throughout all of its range is not appropriate. Thus, after assessing the best available information, we conclude that the Florida Keys mole skink is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Florida Keys mole skink is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portions of its range. Because the Florida Keys mole skink warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), because that decision related to significant portion of the range analyses for species that warrant listing as threatened, not endangered, throughout all of their range.

Based on the best scientific and commercial data available, we determine that the Florida Keys mole skink meets the Act's definition of an endangered species. Therefore, we are listing the Florida Keys mole skink as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, foreign governments, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies, including the Service, and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Lists of Endangered and Threatened Wildlife and Plants.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

The recovery planning process begins with development of a recovery outline made available to the public soon after a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions while a recovery plan is being developed. Recovery teams (composed of species and other experts, including those from Federal and State agencies, Tribes, the academic community, or nongovernmental organizations) may be established to develop or implement recovery plans. The recovery outline, draft recovery plan, final recovery plan, and any revisions will be available on our website as they are completed ( https://www.fws.gov/program/endangered-species ) or from our Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. Recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

Once this species is listed, funding for recovery actions may be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Florida will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Florida Keys mole skink. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.

Please let us know if you are interested in participating in recovery efforts for the Florida Keys mole skink. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7 of the Act is titled, “Interagency Cooperation,” and it mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402.

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the Federal action is likely to result in jeopardy or adverse modification.

Examples of discretionary actions for the Florida Keys mole skink that may be subject to consultation procedures under section 7 are management of Federal lands administered by the Service and the National Park Service, as well as actions that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. )) or actions funded by Federal agencies such as the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency. Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Federal agencies should coordinate with the local Service Field Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions on section 7 consultation and conference requirements.

The Act and its implementing regulations set forth a series of prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, and the Service's implementing regulations codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit or to cause to be committed any of the following acts with regard to any endangered wildlife: (1) import into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect) within the United States, within the territorial sea of the United States, or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. Certain exceptions to these prohibitions apply to employees or agents of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22, and general Service permitting regulations are codified at 50 CFR part 13. With regard to endangered wildlife, a permit may be issued: for scientific purposes, for enhancing the propagation or survival of the species, or for take incidental to otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify, to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that will be considered likely to result in violation will also be identified in as specific a manner as possible. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the species.

At this time, we are unable to identify specific activities that will not be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions or already excepted through our regulations at 50 CFR 17.21 ( e.g., any person may take endangered wildlife in defense of his own life or the lives of others). Also, as discussed above, certain activities that are prohibited under section 9 may be permitted under section 10 of the Act.

At this time, we are unable to identify specific activities that will be considered likely to result in a violation of section 9 of the Act beyond what is already clear from the descriptions of the prohibitions at 50 CFR 17.21. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951, May 4, 1994), Executive Order 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 readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) on a government-to-government basis. In accordance with Secretaries' Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. No Tribal lands overlap with the range of the Florida Keys mole skink.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Florida Ecological Services Field Office.

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

Why we need to publish a rule. The Act (16 U.S.C. 1531 et seq. ) defines a “species” as including any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly. We have determined that the Key ring-necked snake and the rim rock crowned snake both meet the Act's definition of an endangered species; therefore, we are listing them as such. Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. We are listing both the Key ring-necked snake and the rim rock crowned snake as endangered species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the Key ring-necked snake and the rim rock crowned snake are facing threats due to development (Factor A), fire suppression (Factor A), and sea level rise and saltwater intrusion (Factor A).

We use many abbreviations and acronyms in this rule. For the convenience of the reader, we define some of them here:

Please refer to our October 14, 2022, proposed rule (87 FR 62614) for a detailed description of previous Federal actions concerning the Key ring-necked snake and the rim rock crowned snake.

An SSA team prepared SSA reports for both the Key ring-necked snake and the rim rock crowned snake (Service 2023a, entire; Service 2023b, entire). The SSA teams were composed of Service biologists, in consultation with other species experts. The SSA reports represent a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy with the National Marine Fisheries Service (NMFS) on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing and recovery actions under the Act ( https://www.fws.gov/sites/default/files/documents/peer-review-policy-directors-memo-2016-08-22.pdf ), we solicited independent scientific review of the information contained in the SSA reports. As discussed in our October 14, 2022, proposed rule (87 FR 62614 at 62616), we sent the Key ring-necked snake SSA report to five independent peer reviewers for review, including scientists with expertise in wildlife biology, herpetology, and conservation biology. We received two responses. We sent the rim rock crowned snake SSA report to five independent peer reviewers, including scientists with expertise in wildlife biology, herpetology, and conservation biology. We received three responses. The peer reviews can be found at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0022. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA reports, which served as the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found under Summary of Comments and Recommendations, below.

Based on information provided during the October 14, 2022, proposed rule's comment period, we make the following changes to this final rule:

(1) We updated the reference for the sea level rise report cited in the proposed rule. In the proposed rule, the reference for that report was U.S. Geological Survey (USGS) 2019. Since the publication of the proposed rule, the results have been published in the journal “Conservation Science and Practice,” and we have updated the reference to now be Subedi et al. (2022). The results themselves were unchanged, so we did not revise the discussion of this information in the SSA reports and this final rule.

(2) Although updated sea level rise projections were released by NOAA (Sweet et al. 2022) subsequent to our completion of the SSA reports, we reviewed the updated projections and found that they do not alter our analyses of impacts to Key ring-necked snake and rim rock crowned snake habitat. Where appropriate, we added the Sweet et al. 2022 reference to the text of this rule.

(3) We updated information on habitat protections related to the HCP for Big Pine Key and No Name Key, which expired June 30, 2026.

(4) We made minor, nonsubstantive editorial revisions and corrections throughout this rule to ensure better consistency and to clarify information.

Beyond those changes, this final rule listing the Key ring-necked snake and rim rock crowned snake as endangered species is unchanged from what we proposed on October 14, 2022 (87 FR 62614).

In the proposed rule published on October 14, 2022 (87 FR 62614), we requested that all interested parties submit written comments on the proposal by December 13, 2022. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting public comments for both species were published in the Key West Citizen and the Miami Herald. Due to the impact of Hurricane Ian, on November 28, 2022, we extended the public comment period to January 12, 2023, in order to allow all interested parties time to comment (see 87 FR 72958). We did not receive any requests for a public hearing. All substantive information received during the comment period has either been incorporated directly into this final determination or is addressed below.

As discussed above in Peer Review, we received comments from two peer reviewers on the draft SSA report for the Key ring-necked snake and three peer reviewers on the draft SSA report for the rim rock crowned snake. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA reports. Peer reviewer comments are addressed in the following summary. As discussed above, because we conducted these peer reviews prior to the publication of our October 14, 2022, proposed rule, we had already incorporated all applicable peer review comments into version 1.0 of both SSA reports, which serve as the foundation for the proposed rule and this final rule.

The peer reviewers generally concurred with our methods and conclusions. They provided additional information, clarifications, and suggestions to improve the final SSA reports, including on snake ecology, habitat use, and characterization of threats. No substantive changes to our analysis and conclusions within the SSA reports were deemed necessary, and peer reviewer comments are addressed in version 1.0 of the SSA reports and this final rule.

(1) Comment: One reviewer questioned our assessment of water as essential to the rim rock crowned snake. They stated that some species in the same genus are found in deserts, and that the primary prey (centipedes, insects, and other small invertebrates) of the rim rock crowned snake is not reliant on water.

Our response: Snakes in the genus Tantilla have a wide distribution, with the 76 recognized species ranging from the southern United States to northern Argentina (Powell et al. 2016, pp. 395-400). The available data on the rim rock crowned snake indicate that this species is associated with moist microhabitats and that it is vulnerable to desiccation (Powell et al. 2016, pp. 395-400). While we acknowledge that large bodies of water are not required by the species, we affirm that small amounts of available freshwater and warm, moist microhabitats are an appropriate individual need for the rim rock crowned snake.

(2) Comment: One peer reviewer and one public commenter disagreed with our assessment of fire suppression as a threat to the rim rock crowned snake because some prescribed burning is occurring. The peer reviewer stated that even if we do conclude that fire suppression is a threat, we should not rank it as high risk. The public commenter highlighted recent prescribed burns in areas such as Richmond Pine Rocklands and Ned Glenn Nature Preserve, and they stated that we should reclassify those areas as moderate risk.

Our response: In the SSA reports, we defined moderate risk as a level of fire suppression that would affect some suitable habitat and displace some individual snakes, but not at an extent to affect population resiliency. We defined high risk as a situation where a significant amount of suitable habitat would be lost due to fire suppression such that snake population resiliency would be impacted. At the time of the drafting of the SSA reports, the areas identified by the public commenter were considered highly fire suppressed. We acknowledge that conditions at some of these sites have improved in recent years due to some prescribed burning. However, despite management plans supporting prescribed fire, continuous cycles of burning can be disrupted due to urbanization or lack of available funding. We, therefore, conclude that the rank of high risk is appropriate for fire suppression in Miami-Dade County populations.

(3) Comment: One peer reviewer, one member of a State agency, and several public commenters asked for clarification on the ranking of predation as low risk in Miami-Dade County, given previous issues with feral cats at some sites in the area. They noted potential effects of predation on the rim rock crowned snake and their eggs due to species such as red imported fire ants or feral cats. One commenter added that any effects of disease or invasive species would be very difficult to observe, due to the rarity of the species. Another urged us to carefully monitor the effects of cumulative impacts, including those associated with disease, predation, and invasive species.

Our response: In the SSA reports for the species, we considered all threats impacting the Key ring-necked snake and the rim rock crowned snake, including disease and predation. Although we present summaries of only six threats in the October 14, 2022, proposed rule and in this final rule, we evaluated the cumulative effects of all threats, including disease and predation, and carefully considered them in the determination for each species. Although disease and predation may have low impacts on their own, combined with impacts of other threats, they could further reduce the already low numbers of Key ring-necked snakes or rim rock crowned snakes. Thus, we consider the ranking of disease and predation as low risk to be appropriate. We acknowledge that these threats could be difficult to detect, however, so we will continue to investigate the magnitude and interactions of threats and any potential identifiable impacts of disease and predation in recovery planning for the species.

We reviewed the literature, and there is no new information on predation that we did not consider in the SSA reports or the October 14, 2022, proposed rule.

We did not receive any comments from Federal agencies or from Tribal entities. We received one comment from the State of Florida, which is addressed above under (3) Comment.

(4) Comment: One commenter disagreed with our statement that we did not expect a future reduction in representation in Miami-Dade County for the rim rock crowned snake. The commenter noted that the populations in that county are under threat due to sea level rise, invasive species, and the overall rarity of the species.

Our response: Based on our future scenarios for the rim rock crowned snake, we do expect a decrease in population resiliency in Miami-Dade County in the foreseeable future; that is, we expect that due to the impacts of fire suppression and sea level rise, rim rock crowned snake populations will be less likely to withstand stochastic events. However, we do not expect any changes in rim rock crowned snake representation; that is, we do not expect any changes in the ability of the species in that area to adapt to both near-term and long-term changes in its physical and biological environment. In the most pessimistic future scenario in Miami-Dade County, approximately 2.3 percent of pine rocklands habitat (52 ac (21 ha)) and 19 percent of rockland hammock habitat (113 ac (46 ha)) are forecasted to be impacted by sea level rise (see tables 5 and 6, below, for more details on projected future change to habitat due to sea level rise in Miami Dade County). Given that small amount of forecasted impact from sea level rise and limited information about invasive species' direct effect on the rim rock crowned snake, we do not expect a decrease in representation for the species in Miami-Dade County.

(5) Comment: One commenter recommended that we re-evaluate the risk categories for sea level rise and saltwater intrusion in Miami-Dade County and recommended that some locations such as Arch Creek Park be scored as high risk rather than moderate risk.

Our response: We reviewed our model estimating sea level rise and saltwater intrusion in Arch Creek Park and other coastal areas in Miami Dade County. Neither Arch Creek Park nor Barnacle Historic State Park (the areas closest to the coast in Miami-Dade County that we identify as currently occupied by the rim rock crowned snake) are projected to be inundated in any of our future scenarios. However, the risk remains moderate due to uncertainty regarding the extent that saltwater intrusion will transform habitat. Therefore, we conclude that moderate risk is appropriate for these two areas.

(6) Comment: One commenter recommended we re-evaluate the risk category for development for all non-EEL properties in Miami-Dade County. The commenter thought all those lands should be listed as high risk of development given that they lack the protections of EEL properties. They did agree with the moderate risk of development for EEL properties, given that recreational development has occurred and that the lands are subject to secondary effects from development.

Our response: The seven populations of rim rock crowned snake that we identified in Miami-Dade County (shown in table 4 of this rule) are located primarily on park lands, with very little private ownership. For example, Barnacle Historic State Park is owned and managed by the State of Florida. Other locations, such as the Bill Sadowski Park and the Deering Estate/Ludlum Pineland Area/Chapman Field (DLC) area, are a mix of public and private lands without EEL designations. (EEL properties are part of a taxpayer-funded program to protect environmentally endangered lands such as pine rocklands). Therefore, since only portions of the above areas are at risk of destruction due to development, we find our current ranking of these populations as having a moderate risk of the threat of development is appropriate. We define moderate risk as the level of development that would affect suitable habitat and displace some individual snakes, but not at an extent to affect snake populations.

A thorough review of the taxonomy, life history, and ecology of the Key ring-necked snake ( Diadophis punctatus acricus ) is presented in the SSA report (version 1.0; Service 2023a, pp. 2-5). The Key ring-necked snake is one of 14 distinct subspecies of ring-necked snakes in North America, all of which are subspecies of D. punctatus. It is one of the smallest subspecies of the Family Dipsadidae; an adult specimen will average between 6 and 10 in (15.2 and 25.4 cm). A recent review of phylogenetic data supports the current subspecies classification for the Key ring-necked snake (Hoffman 2019, entire).

This slender snake has a pale grayish-brown head; a grayish-black dorsal surface; and a yellow, orange, or bright red abdomen which fades to orange/red underneath the tail (Florida Fish and Wildlife Conservation Commission (FWC) 2013, p. 1). The pupil is round, and the juvenile color is similar to that of the adult (Ernst and Ernst 2003, p. 92; FWC 2013, p. 1). The characteristic neck ring is indistinct or virtually absent in both juveniles and adults.

Little life-history information is available on the Key ring-necked snake, especially as it relates to microhabitat, feeding, and reproduction. Life-history characteristics are thought to be similar to the southern ring-necked snake. In general, mating of ring-necked snakes can occur in the spring or fall, delayed fertilization is possible, and eggs are laid in June or early July. Females lay 1 to 10 eggs at a time each year (1 clutch per year) in covered, moist locations (Ernst and Ernst 2003, p. 95). Juveniles are thought to hatch in August and September.

Suitable habitat consists of pinelands, pine rocklands, tropical hammock, rockland hammock, limestone outcroppings, and rocky pine scrub areas (McDiarmid 1978, p. 41; Lazell 1989, p. 134; Auth and Scott 1996, p. 33; Enge et al. 2003, pp. 26-28). Most of the observations in the Florida Keys were from pine rocklands or nearby rockland hammocks. This subspecies appears to be restricted to areas near permanent freshwater that often occur as small holes in the oolitic (a sedimentary rock, usually limestone, composed of minute rounded concretions) substrate that underlies pine rocklands and rockland hammock habitat (Lazell 1989, pp. 134, 136). All Diadophis apparently require moist microhabitats to balance evaporative water loss from the body (Myers 1965, p. 4; Clark 1967, pp. 492-494).

Key ring-necked snakes have been documented on seven lower Florida Keys: Key West, Big Pine Key, Little Torch Key, Middle Torch Key, No Name Key, Cudjoe Key, and Stock Island (Auth and Scott 1996, p. 33; FWC 2011, p. 3; 2013, p. 1; Mays and Enge 2016, pp. 11, 13; Mays 2020, pers. comm.) (see figure 1, below). A unique characteristic of the Florida Keys is the thin (< 3.94 in (10 cm)) layer of sediment on the islands beneath which lies a bed of limestone, and below that a shallow layer of freshwater referred to as a freshwater lens (Subedi et al. 2022, p. 2-3). Because the density of freshwater is less than the underlying saltwater, it floats to the top and into the limestone rock formations where it becomes available to the island's biota. The volume of a freshwater lens fluctuates in response to rainfall, evapotranspiration, and human use (local wells).

Systematic recent surveys have not been conducted for the Key ring-necked snake across all of the Florida Keys; therefore, the true spatial distribution of populations throughout the Florida Keys is unclear and our current understanding of the subspecies' distribution is primarily based on historical records. Consequently, this subspecies may occur on Florida Keys other than those reported.

A thorough review of the taxonomy, life history, and ecology of the rim rock crowned snake ( Tantilla oolitica ) is presented in the SSA report (version 1.0; Service 2023b, pp. 10-20). The rim rock crowned snake is in the family Colubridae, part of the black-headed, crowned, and flat-headed snake genus Tantilla, with 76 currently recognized species ranging from the southern United States to northern Argentina (Powell et al. 2016, pp. 395-400). The rim rock crowned snake is most closely related to the southeastern crowned snake ( T. coronata ) taxonomically, although it is located geographically closer to the Florida crowned snake ( T. relicta; Ernst and Ernst 2003, pp. 353-355). No genetic analysis has been conducted on the rim rock crowned snake.

Rim rock crowned snakes have a black head (“cap”) that is continuous from snout to neck (“collar”), transitioning to tan or beige on its back, and a pinkish white to cream belly. There is often a pale blotch just behind the eye. Specimens from the Florida Keys may have a pale neckband that is not present in mainland specimens, separating the black cap from the black collar (Porras and Wilson 1979, pp. 218-220). Adults range from 7 to 9 in (18 to 23 cm) in length. Females reach a greater length than do males, but have shorter tails (Ernst and Ernst 2003, pp. 353-355). Hatchlings range from 3-3.5 in (7.5-9.0 cm) in length.

The reproduction, longevity, and diet of the rim rock crowned snake are unknown, but if it is similar to the closely related southeastern crowned snake, it probably matures at 2 years old and may live to be at least 5 years old in the wild (Todd et al. 2008, p. 392). There may be three eggs in a clutch, and they may be able to produce two clutches annually (Ernst and Ernst 2003, pp. 353-355). There is no information as to whether eggs or juvenile rim rock crowned snakes require different habitat than adults. Predators are likely larger snake species that inhabit the same areas. The rim rock crowned snake may also be preyed upon by the slender brown scorpion ( Centruroides gracilis ), which is abundant in rockland habitat (Porras and Wilson 1979, pp. 218-220).

The rim rock crowned snake is a mostly fossorial (underground) species that inhabits shallow soil over limestone formations, and it can sometimes be found in rotten stumps and under anthropogenic surface detritus, fallen logs, and rocks (Duellman and Schwarz 1958, p. 306; Rochford et al. 2010, p. 99; Yirka et al. 2010, p. 386; FWC 2011, p. 3; Hines 2011, p. 353). These snakes are vulnerable to desiccation, so they usually occupy moist microhabitats (Powell et al. 2016, pp. 395-400). Refugia in pine rocklands and rockland hammock are provided by holes and crevices in the limestone, piles of rock rubble, pockets of organic matter accumulating in solution holes, and shallow depressions in the limestone (Enge et al. 2003, pp. 27-28). Rim rock crowned snakes likely come to the surface after rains (Porras and Wilson 1979, pp. 218-220), possibly because of flooding of their underground refugia.

The rim rock crowned snake has been historically found in the lower Florida Keys, in particular Key West and Big Pine Key; the upper Florida Keys; and the southeastern Florida peninsula within Miami-Dade County, in a variety of locations (see figure 2, below). Within this limited range, the rim rock crowned snake is found in pine rocklands and rockland hammock, which consist of a limestone substrate and outcroppings. Pine rocklands habitat is fire-maintained and dominated by pine trees and a diverse understory of grasses and forbs/herbs. In contrast, rockland hammock contains more hardwood shrubs and trees due to less fire influence. There are also occurrence records from human-altered habitats such as roadsides, vacant lots, and pastures with shrubby growth and slash pines ( Pinus elliottii ) (Duellman and Schwarz 1958, p. 306; Hines 2011, pp. 352-356).

Because of the rim rock crowned snake's cryptic and fossorial nature, a method to formally census remaining populations throughout the species' range has not been developed. We based our understanding of the species' range on observational records and habitat suitability. Limited dispersal is thought to occur between rim rock crowned snake populations within the Florida Keys because there is no evidence that indicates they readily swim to other islands. Additionally, areas in Miami-Dade County where populations may remain are likely isolated from others due to physical barriers from a dense urban interface.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations 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. On April 5, 2024, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and what criteria we apply when designating listed species' critical habitat (89 FR 24300). On the same day, the Service published a final rule revising our protections for endangered species and threatened species at 50 CFR part 17 (89 FR 23919). These final rules are now in effect and are incorporated into the current regulations. Our analysis for this final decision applied our current regulations. Given that we proposed listing these species under our prior regulations (revised in 2019), we have also undertaken an analysis of whether our decision would be different if we had continued to apply the 2019 regulations; we concluded that the decision would be the same. The analyses under both the regulations currently in effect and the 2019 regulations are available on https://www.regulations.gov.

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an endangered species or a threatened species. In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an endangered species or a threatened species only after conducting this cumulative analysis and describing the expected effect on the species.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of threatened species. Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis, which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M-Opinion,” available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf ). The foreseeable future extends as far into the future as the Service can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We will describe the foreseeable future on a case-by-case basis, using the best scientific and commercial data available and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

The SSA reports documents the results of our comprehensive biological review of the best scientific and commercial data available regarding the status of the two species, including an assessment of the potential threats to the species. The SSA reports do not represent our decision on whether the species should be listed as an endangered or threatened species under the Act. However, they do provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies.

To assess the viability of the Key ring-necked snake and the rim rock crowned snake, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, large pollution events); and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306) Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' future condition, including responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best scientific and commercial data available to characterize viability as the ability of a species to sustain populations in the wild over time, which we then used to inform our regulatory decision.

The following is a summary of the key results and conclusions from the Key ring-necked snake and the rim rock crowned snake SSA reports; the full SSA reports can be found at Docket No. FWS-R4-ES-2022-0022 on https://www.regulations.gov and at https://www.fws.gov/species/key-ring-necked-snake-diadophis-punctatus-acricus for the Key ring-necked snake and at https://www.fws.gov/species/rim-rock-crowned-snake-tantilla-oolitica for the rim rock crowned snake.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

In this discussion, we outline the resource needs of individuals and populations of the Key ring-necked snake. As part of the assessment, we first identify and describe the four most influential factors representing the individual and population needs for the subspecies: prey, refugia, water, and available suitable habitat. Due to the relative rarity of this subspecies and its secretive nature, many aspects of the life history of this taxon, as well as information on population status and trends, are poorly known. We rely upon ecologically and genetically similar species to draw inferences when data are lacking.

For prey, the Key ring-necked snake is assumed to be similar to other Diadophis species (such as the southern ring-necked snake), which prey upon small insects, snakes, lizards (anoles, geckos), slugs, amphibians (frogs, tadpoles), and earthworms (Ernst and Ernst 2003, p. 96; FWC 2013, p. 2).

Key ring-necked snakes require refugia to escape and hide from predators and to regulate body temperature. Refugia in pine rocklands and rockland hammock are likely provided by holes and crevices in the limestone, piles of rock rubble, and pockets of organic matter accumulating in solution holes and shallow depressions in the oolitic limestone (Enge et al. 2003, p. 28). Snakes are ectothermic organisms, which require an external heat source to warm their bodies in order to increase body function and productivity. Snakes can also become too hot, leading to desiccation. Therefore, a warm, moist habitat, typically subterranean or shielded from the sun, is likely a preferred refugium to escape from predators and to properly maintain homeostasis (suitable internal temperature and moisture levels).

Water is essential for Key ring-necked snake survival. This subspecies appears to be restricted to areas near permanent freshwater sources that often occur as small holes in the limestone (Lazell 1989, pp. 134, 136). The extensive network of holes, tunnels, and cavities in the limestone substrate most likely assists in creating more permanent water sources. During times of drought, these sources may become scarce and the Key ring-necked snakes may need to seek out other freshwater sources. Consequently, it is important for the Key ring-necked snake to have multiple freshwater sources in case one becomes depleted, contaminated, or unavailable. If all local water sources within a snake's home range become dry, the snake may need to expend more energy and time in search of new water sources.

The most influential need for population viability is available suitable habitat. Home range is defined as the area a snake traverses for its normal daily activities (Burt 1943, pp. 350-351; Miller 2008, p. 16). The specific acreage associated with the Key ring-necked snake's home range is unknown; however, an individual was documented traveling 154.2 ft (47 m) between coverboards (Lazell 1989, p. 134). Over 400 mark recapture measurements of ring-necked snakes in Kansas indicated a mean travel distance of 262 ft (80 m) with a maximum distance of 5,577 ft (1,700 m) (Fitch 1975, p. 25). In another study, a different ring-necked snake subspecies ( Diadophis punctatus edwardsii ) in northern Michigan was documented to travel between 20 ft (6 m) and 1 mi (1,609 m) (Blanchard et al. 1979, pp. 382, 385). Thus, although ring-necked snakes generally only move within a small home range, they will occasionally disperse over longer distances through suitable habitat.

In regard to population size and distribution of the Key ring-necked snake, there may be either distinct, non-interbreeding populations at each Key, or some occasional but rare level of dispersal from rafting (oceanic dispersal whereby a species travels between islands on a mass or raft of vegetation) between Keys, providing at least a small level of connectivity between individual populations. Because the Key ring-necked snake appears to be isolated to the Florida Keys, the relatively small archipelago of islands can each support only a small number of individuals (or separate populations).

Due to the cryptic nature of the Key ring-necked snake and limited research on the subspecies, there is virtually no information concerning the population structure and demographics exhibited by this subspecies. Additionally, no information exists on the abundance (number of individuals) or growth rate of these populations. Therefore, we base our assessment of the health and resiliency of these populations on the condition of its habitat as a proxy. That said, continued occurrence of populations over time at known locations suggest some ability to withstand stochastic events on the Keys, historically.

Populations of the Key ring-necked snake are supported by the existence of suitable available habitat (pine rocklands and rockland hammock) across the subspecies' range. Therefore, a strong correlation to habitat availability and Key ring-necked snake populations can be assumed, but not at a level of certainty in which the presence of suitable pine rocklands or rockland hammock habitat can be used as a surrogate for Key ring-necked snake presence.

Passive dispersal of individual Key ring-necked snakes among the Florida Keys may be occurring on a very limited and random basis. The level to which immigration and emigration via dispersal acts as a factor towards population resiliency and prevention against extinction for this subspecies is unknown. Many of the Florida Keys have yet to be surveyed for Key ring-necked snakes, but if occupied, they could act as “stepping stones” in the random dispersal of individual snakes by way of swimming or rafting. That said, due to the limited size of the Florida Keys, the distance between the Keys, and the fact that swimming has not been documented in Key ring-necked snakes, dispersal is not likely, and, thus, it has a limited influence on population dynamics.

Because systematic recent surveys have not been conducted for the Key ring-necked snake across all of the Florida Keys, the true spatial distribution of populations throughout the Florida Keys is unclear and our current understanding of the subspecies' distribution is primarily based on historical records.

As discussed above, widely distributed populations offer better redundancy than if the populations all occur in close proximity and are vulnerable to similar threats at the same intensity or timing. Because of the Key ring-necked snake's limited geographic range, the species is exposed to threats concurrently and of similar frequency, intensity, and duration across its range. For example, the entire subspecies is vulnerable to the effects of a hurricane passing over the Florida Keys. Additionally, the extent of suitable habitat is naturally limited in the Keys. Consequently, there is little natural redundancy or “backup” for the available habitat, and natural expansion or movement of the subspecies to new areas is not probable. The minimum number of sufficiently resilient populations necessary to sustain the subspecies is unknown. Based on the presence of pine rocklands and rockland hammock habitat (total acreage 7,006 ac (2,835 ha)) in the upper Florida Keys, redundancy could be higher if discrete populations occur across the upper Florida Keys. However, the range of this subspecies appears to be restricted to the lower Florida Keys (Mays 2020, pers. comm.). Given the low likelihood of dispersal between islands, we considered islands in the lower Florida Keys (Key West, Big Pine Key, Little Torch Key, Middle Torch Key, No Name Key, Cudjoe Key, and Stock Island) as separate Key ring-necked snake populations.

As currently indicated, the Key ring-necked snake occupies a small geographic area, making it vulnerable to large-scale threats (for example, storm events/hurricanes, sea level rise) that affect the entire Florida Keys archipelago.

Because of the Key ring-necked snake's narrow geographic and ecological range, there is little variation in habitat types occupied. Also, the Key ring-necked snake does not occur across different ecosystems or have access to different systems in which to adapt. Therefore, the Key ring-necked snake has a narrow breadth of genetic and environmental diversity within and among populations.

As part of the population needs assessment for the rim rock crowned snake, we identified and described the most influential factors (available prey, water, refugia, and suitable habitat) representing the individual and population needs for the species.

The diet of rim rock crowned snakes probably consists of centipedes, insects, and other small invertebrates, similar to the diet of other members of the genus Tantilla. Prey eaten by wild and captive T. coronata include tenebrionid beetle larvae, earthworms, snails, centipedes, spiders, cutworms, wireworms, and termites and their larvae (Ernst and Ernst 2003, pp. 353-355). We do not know what the prey-related requirements (abundance, variety, range, etc.) are to maintain viability.

Water is essential for the survival of the rim rock crowned snake. We have no specific information on the amount of water the species requires; however, similar species of Tantilla tend to survive in warm, moist conditions where water is intermittently available. Small amounts of water can be found in depressions and holes in the limestone substrate, which fill from rainfall or overnight dew. The extensive network of holes, tunnels, and cavities in the limestone substrate may also lead to more permanent water sources. During times of drought, these sources may become scarce, and the snake may need to seek out other freshwater sources. The rim rock crowned snake must have multiple freshwater sources in case one becomes depleted, contaminated, or unavailable. If all local water sources within a snake's home range become dry, the snake may need to expend more energy and time in search of new water sources.

Rim rock crowned snakes require refugia to escape and hide from predators and to regulate body temperature. Refugia in pine rocklands and rockland hammock are provided by holes and crevices in the limestone, piles of rock rubble, and pockets of organic matter accumulating in solution holes and shallow depressions in the limestone (Enge et al. 2003, pp. 27-28). Snakes are ectothermic organisms, which require an external heat source for homeostasis. Snakes can also become too hot, consequently leading to desiccation. Therefore, a warm, moist habitat, typically subterranean or shielded from the sun, is likely a preferred refugium to escape from predators and to properly maintain homeostasis.

We do not know how much suitable habitat and habitat connectivity is required to maintain the rim rock crowned snake's viability. An observation of a rim rock crowned snake was recorded (Hines 2011, pp. 352-356) at the Barnacle Historic State Park in Coconut Grove, Miami, Florida, a site that consists of only 6 ac (2 ha) of rockland hammock habitat. We do not know if pine rocklands or rockland hammocks are more suitable for the rim rock crowned snake, as they have been observed in both. Home range is defined as the area a snake traverses for its normal daily activities (Burt 1943, pp. 350-351; Miller 2008, p. 16). The rim rock crowned snake's home range size is unknown.

Rim rock crowned snake populations need abundant individuals within habitat patches of adequate area and quality to maintain survival and reproduction despite disturbance. Therefore, a strong correlation to habitat availability and rim rock crowned snake populations can be assumed, but not at a level of certainty in which the presence of suitable pine rocklands or rockland hammock habitat can be used as a surrogate for rim rock crowned snake presence.

Despite these uncertainties, data indicate that the limited and patchy distribution of occupied suitable habitat is negatively affecting population resiliency across the species' range. The majority of suitable rim rock crowned snake habitat in southeastern Miami-Dade County and the Florida Keys has been developed and is highly impacted by human activities. Additionally, the Florida Keys are limited naturally in their land area.

Dispersal of individual snakes among the fragmented suitable habitat in Miami-Dade County could occur, but if it does, it is expected to be on a limited and random basis. The level to which immigration and emigration via dispersal influence population resiliency and extinction risk is unknown. Aboveground dispersal may not be as effective in a highly urbanized environment. The limited size of the suitable habitat and the distance of urban barriers between them suggest that dispersal is unlikely to currently influence the population dynamics. Because the underlying rock ridge throughout Miami-Dade County is porous, there is potential for individuals to use it as a means of dispersal to avoid urban barriers. If used, it could allow more successful random dispersal of individual snakes than aboveground means. However, the extent of influence of dispersal remains largely unknown.

In the Florida Keys, passive dispersal of individual snakes among keys may be occurring on a very limited and random basis. The level to which immigration and emigration via dispersal acts as a factor towards population resiliency and prevention against extinction for this species is unknown. Many of the Florida Keys have yet to be searched, but if occupied, they could act as “stepping stones” in the random dispersal of individual snakes. However, the limited size of the Florida Keys and the distance between them means that dispersal is not likely; thus, it currently has a limited influence on population dynamics.

No recent surveys have been conducted for the rim rock crowned snake; therefore, the true spatial distribution of populations throughout Miami-Dade County and the Florida Keys is unclear, and our current understanding of the species' distribution is primarily based on historical records. Consequently, this species may very well occur in areas in Miami-Dade County or the Florida Keys other than those reported, and the importance of the other areas (other than those with identified populations) to the overall species' resiliency is unclear. To date, no genetic analysis has been conducted on the rim rock crowned snake. Consequently, it is unknown whether or not genetically discrete populations exist in the upper or lower Florida Keys or Miami-Dade County where this species has been historically reported. No information exists on the abundance or growth rate of these populations.

Having multiple populations distributed across the landscape offers better redundancy than if the populations all occur in very close proximity and are vulnerable to stressors with the same intensity or timing. For example, the entire species is vulnerable to the effects of a hurricane passing over south Florida. Limited acreage of suitable habitat remains in Miami-Dade County and the Florida Keys; consequently, there is limited opportunity for natural expansion, and movement of the species to new areas is not probable.

Species redundancy for the rim rock crowned snake is provided by individuals being distributed across Miami-Dade County and the upper and lower Florida Keys. Despite a level of redundancy provided by the discrete populations and individuals found dispersed across Miami-Dade County and the Florida Keys, the rim rock crowned snake has limited redundancy because of its small endemic range. For some large-scale stressors (storm events and hurricanes) that affect southeastern Florida and the Florida Keys, the species is vulnerable to the timing and intensity of impacts. Overall, the rim rock crowned snake needs multiple, interconnected, healthy populations across its range.

Given the low likelihood of dispersal between islands, we considered islands in the Florida Keys as separate rim rock crowned snake populations. Specifically, populations in the upper Keys, north Key Largo, south Key Largo, Plantation Key, Upper Matecombe Key, Lower Matecombe Key, and Marathon (Grassy and Vaca Keys) are considered separate populations. In the lower Keys, Big Pine Key and Key West are considered separate populations. Similarly, due to physical barriers (roads, structures, canals, etc.), we consider the Miami-Dade County locations as distinct populations: Arch Creek Park, Barnacle Historic State Park, DLC, Ned Glenn Nature Preserve, Rockdale Pineland Preserve, and Richmond Pine Rocklands Tract (Zoo Miami).

With regard to representation, the rim rock crowned snake occurs across a narrow geographic and ecological range. Consequently, there is no variation across distance or elevation for the rim rock crowned snake as there is for other wider-ranging species. The rim rock crowned snake has not been found to occur across different ecosystems, and it is not known if it disperses farther from the limestone rock ridge in southeastern peninsular Florida.

As mentioned previously, no genetic analyses have been conducted on the rim rock crowned snake. Hence, the genetic diversity of this species is unknown, and there is little environmental diversity beyond the two habitat types where the species is found. Similarly, it is unclear if there are morphological or behavioral differences between different rim rock crowned snake populations.

Following are summary evaluations of six threats analyzed in the SSAs for both the Key ring-necked snake and the rim rock crowned snake: Development (Factor A), fire suppression (Factor A), sea level rise (Factor A), saltwater intrusion (Factor A), shifts in seasonal patterns of rainfall and temperature (Factor A), and storm events (Factor A). We also evaluate existing regulatory mechanisms (Factor D) and ongoing conservation measures.

In the SSAs, we also considered four additional threats: Overutilization due to recreational, educational, and scientific use (Factor B); disease (Factor C); predation (Factor C); and invasive species (Factor E). We concluded that, as indicated by the best available scientific and commercial information, these threats are currently having little to no impact on either the Key ring-necked snake or the rim rock crowned snake and their habitats, and thus their overall effect now and into the future is expected to be minimal. Therefore, we will not present summary analyses of those threats in this document, but we consider them in our cumulative assessment of impacts to the species. For full descriptions of all threats and how they impact the species, please see both SSA reports (Service 2023a, pp. 9-21; Service 2023b, pp. 25-40).

For the Key ring-necked snake, we considered threats and population resiliency on the scale of individual islands.

The Key ring-necked snake inhabits a variety of rockland habitat in Monroe County that has been and is still desirable for residential and commercial development (Service 1999, p. 3-174). Over half of the rockland habitat within the Florida Keys has been and continues to be altered, degraded, or destroyed for residential and commercial development (Hodges and Bradley 2006, pp. 8-9). Urban development and historical land use for agriculture have greatly reduced the extent of pine rocklands in the Florida Keys. Additionally, the quality of some pine rocklands has declined in the Keys because the remaining habitat patches are isolated and confined by surrounding urban development. Although individual snakes show some tolerance of habitat alteration, development and conversion of suitable snake habitat can impact all life stages of the Key ring-necked snake. In addition to direct impacts from loss of soils for nesting and movement and the loss of shelter and shade for adult snakes, ground cover and availability of invertebrate food sources can be reduced. Indirectly, connectivity is further decreased, hindering the finding of mates and the dispersal to new locations by juveniles.

Currently, total habitat area potentially available to Key ring-necked snakes in the lower Florida Keys consists of 1,899 ac (769 ha) of pine rocklands habitat and 3,806 ac (1,540 ha) of rockland hammock habitat (Subedi et al. 2022, pp. 6-7). While the hammock habitats are widespread across many islands in various sizes, pine rocklands remain on only five islands in the lower Florida Keys. One of these islands, Big Pine Key, has 1,480 ac (599 ha) (78 percent) of total pine rocklands area, while other Keys (Little Pine Key, No Name Key, Cudjoe Key, and Sugarloaf Key) contain only small areas of hardwood-invaded pine rocklands. The Florida Keys Carrying Capacity Study conducted in 2003 (Monroe County 2016, entire), concluded that development in the Florida Keys has surpassed the carrying capacity of upland habitats to maintain their ecological integrity, that any further development in the Florida Keys would exacerbate secondary and indirect impacts to remaining habitat, and that any further urbanization in areas dominated by native vegetation would exacerbate habitat loss and fragmentation.

Some habitat protections are currently in place for the Key ring-necked snake. In 2006, Monroe County implemented an HCP for Big Pine Key and No Name Key that incorporates guidelines and recommendations from the 2003 study. The primary goal of the HCP is to maintain and implement a system that directs future growth to meet goals, including to protect natural resources and to encourage a compact pattern of development. Subsequently, future development on these islands must meet the requirements of the HCP. Furthermore, to fulfill the HCP's mitigation requirement, Monroe County actively acquired parcels of high-quality habitat for listed species and managing them for conservation, including pine rocklands habitat on Big Pine Key and No Name Key. This HCP expired on June 30, 2026. In coordination with Monroe County, the Service is incorporating provisions from the HCP into an existing FEMA flood management BO. The BO will provide the same habitat protections as the HCP and the County will continue to acquire parcels of land for listed species (Service 2026, entire). Although the Key ring-necked snake was not a covered species under this HCP, we expect the habitat protections afforded by the HCP and the BO to provide the Key ring- necked snake some protection from development.

Suitable habitat for the Key ring-necked snake is protected within preserves such as the Florida Keys National Wildlife Refuge Complex. The complex spans two Key ring-necked snake populations on No Name Key and Big Pine Key. Overall, 4,711.36 ac (1,906.62 ha) (82.6 percent) of pine rocklands and rockland hammock habitats in the lower Keys are protected or under conservation (Florida Natural Areas Inventory (FNAI) 2019, unpaginated). The remaining suitable habitat for the Key ring-necked snake is extremely vulnerable to development. Other than these protections for suitable habitat, the existing regulatory mechanisms and conservation measures do not address the impacts of development.

The effects of development have the potential to reduce individual survival of Key ring-necked snakes and, therefore, may decrease population resiliency. Resiliency may be further reduced due to loss of connectivity between populations, both as dispersal within populations as they become fragmented and dispersal between occurrences on individual islands. Similarly, because the Key ring-necked snake is endemic to only a few lower Florida Key islands, losing even a few populations to the effects of development would result in a substantial reduction in subspecies redundancy. The Monroe County HCP may prevent further development of pine rocklands, although population resiliency would continue to decline as habitats remain degraded due to impacts associated with existing development.

In addition to historical loss of habitat via urban development and agriculture, the quality of pine rocklands has declined due to fire suppression. Further, the quality of some pine rocklands has declined in the Keys because they are isolated and confined by surrounding urban development that restricts the use of prescribed fire, which is the principal management tool. Prescribed fire must be periodically introduced to sustain the pine rocklands community structure. In the absence of fire, pine rocklands are invaded by many of the species found in hardwood hammocks, they lose their herbaceous flora, and they move along a successional trajectory toward hammock (Service 1999, pp. 3-173). These rockland hammocks are generally present where pine rocklands were not burned for a long period of time, leading to pine rocklands fragmentation. This fragmentation in turn increases the risk of invasion by exotic vegetation along the interface with disturbed or developed areas, further altering, degrading, or destroying suitable habitat for the Key ring-necked snake.

Although Key ring-necked snakes occur in areas where fire has been suppressed, pine rocklands habitat quality is reduced by lack of fire. Thus, fire suppression has the potential to reduce population resiliency through ongoing habitat degradation.

The predominant threats currently affecting the Key ring-necked snake and its habitat are sea level rise, saltwater intrusion, shifts in seasonal patterns of rainfall and temperature, and storm events (Service 2023a, pp. 23-28). The entire Florida Keys archipelago is being affected by increases in sea level, saltwater intrusion, increases in tide and tidal flooding, and shifts in seasonal climate patterns.

Sea level rise —The Key ring-necked snake is vulnerable to current and predicted sea level rise across its entire range because it is located only in the Florida Keys, where the effects of increasing sea levels, higher tidal surges, increased coastal and inland flooding, and saltwater intrusion are currently being experienced (Benedict et al. 2018, pp. 9, 13, 31, 7-i; Service 2019, p. 1). The Florida Keys are among the most vulnerable areas to the effects of sea level rise due to their low mean elevation of less than 4 ft (1.2 m) (Service 2019, p. 9). Consequently, the lowest parts of the Florida Keys are highly susceptible to flooding, with parts of the islands farther upland at risk of inundation and saltwater intrusion.

Global sea level has increased by 8 to 9 in (0.20 to 0.23 m) since 1880, with the rate of increase doubling over the past 20 years (Service 2017, p. 5). From 1913 to 2018, the mean high-water line on Key West rose 0.09 in (0.23 cm) per year (NOAA 2019, unpaginated; Service 2023a, figure 3). On Vaca Key, sea levels rose 0.14 in (0.36 cm) per year between 1971 (start of data collection) and 2018 (NOAA 2019, unpaginated; Service 2023a, figure 3).

Recent analysis is now indicating an accelerated rate of sea level rise for the eastern United States above that of the global rate (Park and Sweet 2015, entire; Sweet et al. 2017, pp. 39-41; Sweet et al. 2022, pp. 20-21). The accelerated sea level rise in south Florida is being attributed to shifts in the Florida Current due to added ocean mass brought on by the melting Antarctic and Greenland ice packs and thermal expansion from the warming ocean (Park and Sweet 2015, entire; Rahmstorf et al. 2015, entire; Deconto and Pollard 2016, p. 596; Sweet et al. 2017, pp. vi, 14, 15, 18; Sweet et al. 2022, pp. 22-23). For this reason, adding approximately 15 percent to global mean sea level rise projections is recommended for southeast Florida and the Florida Keys (Park and Sweet 2015, entire;). The most recent intermediate sea level scenario for the Florida Keys projects a 1.1 to 1.2 m (3.6 to 3.9 ft) increase by 2100 (Sweet et al. 2022, pp. 20-21).

The effects of sea level rise are likely to impact the Key ring-necked snake both through loss of individuals during flooding events, and alteration of suitable habitat, causing a loss in population resiliency. If flooding is severe enough, it could extirpate entire populations, leading to a substantial loss of redundancy.

Saltwater intrusion —Higher tidal surges, coastal and inland flooding, and saltwater intrusion due to increasing sea levels are currently being experienced in the Florida Keys. In the Florida Keys, high tide flooding events primarily affect low-lying coastal areas and exposed pine rocklands and rockland hammock habitats. With worsening storms and extreme tidal events, storm surges along the Florida Keys will increase in frequency and severity over time and will impact habitats farther inland. Additionally, with continued increase in sea level rise, high tide/king tide flood frequencies are also expected to rapidly increase, with potentially severe damage to remaining rockland habitat. Pine rocklands species, particularly the dominant canopy species (slash pine), have little ability to tolerate saltwater (Subedi et al. 2022, p. 6).

Salt from ocean water deposited during these high-water events has the potential to remain in place in and under the soil for long periods of time, which negatively impacts vegetative growth. For pine rocklands and rockland hammock forests to be sustained in such an ecosystem, nutrient cycling must be extremely efficient (that is, there can be little leaching of nutrients beyond the root zone).

In other instances, the effects of more powerful storm surges, rising sea levels, and saltwater intrusion of the islands' freshwater lens have contributed to the conversion and loss of pine forest habitat in the Florida Keys to more halophilic (salt-loving) vegetation such as mangroves and buttonwood (Alexander 1976, pp. 219-222; Ross et al. 1994, pp. 151-154). As discussed above in Background, a unique characteristic of the Florida Keys is the existence of a freshwater lens below each island that is critically important for humans, flora, fauna, and a variety of habitats. Consequently, pine rocklands habitat has already undergone a significant reduction in the Florida Keys due to sea level rise and saltwater intrusion (Ross et al. 1994, p. 154). Currently, some of these areas are occupied by halophytic (salt-tolerant) vegetation such as mangroves and buttonwood (Alexander 1976, pp. 219-222) owing to high tide flooding as a result of rising sea level but also due to saltwater intrusion of the islands' freshwater lens. Over time, further vegetation succession will result in halophytic vegetation dominance on the remaining land and more expansive estuaries across much of the island.

Overall, saltwater intrusion from storm surge and flooding causes the loss of habitat, habitat conversion, and reduction in the capacity of freshwater storage and the freshwater resources relied upon by the Key ring-necked snake to maintain its thermoregulatory requirements. These effects will continue to result in the loss of suitable habitat, displacement landward to less suitable habitat, and the loss of individual Key ring-necked snakes.

Shifts in seasonal patterns of rainfall and temperature —In the United States, the average temperatures have increased by 1.3 to 1.9 degrees Fahrenheit (°F) (0.77 to 1.1 degrees Celsius (°C)) since recordkeeping began in 1895 (Service 2017, p. 2). The decade from 2000 to 2009 is documented as the warmest on record (Service 2017, p. 2). Since 1991, average temperatures in south Florida have increased 1.5 °F (0.83 °C) or more (Service 2017, p. 2).

We presume that the normal range of temperatures in which activity occurs for the Key ring-necked snake is consistent with that which it has experienced in south Florida. Any continuously higher average number of hot days out of the Key ring-necked snake's optimum range or a permanent shift in average air temperature out of this range has the potential to cause physiological stress. In more extreme cases, once an ectothermic organism is exposed to a temperature outside of its activity temperature range, it is closer to reaching a critical thermal maximum/minimum, in which locomotion becomes uncoordinated and the animal loses its ability to escape conditions that will lead to its death (Zug et al. 2001, pp. 179-188). Key ring-necked snakes may become more vulnerable to situations involving critical thermal maximum when habitat loss and fragmentation limit its ability to move or find suitable microhabitats. Additionally, ambient temperature out of the optimal range will physically influence the environment of nests, which may modify incubation periods, embryo temperatures, egg survival, and hatching times. Physiological stress can also result in a variety of risks, including increased predation, reduced reproductive performance, and reduced foraging success.

Precipitation patterns are also changing. Since 1900, annual average precipitation in south Florida has increased by 5 to 10 percent (Service 2017, p. 4). Shifts in seasonal rainfall events are also currently being documented (USGCRP 2018, pp. 745-808). The south Florida dry season (November through April) has become wetter, the rainy season (May through October) has become drier, and current projections show that this trend will continue. This will likely have detrimental effects on the Key ring-necked snake's seasonal feeding, breeding, and sheltering patterns. Heavy downpours are currently increasing and have especially increased over the last 30 to 50 years. The frequency and intensity of heavy downpours in the Florida Keys have increased by 27 percent since the 1970s (Service 2017, p. 4). Increased inland flooding is predicted during heavy rain events in low-lying areas. With worsening storms, storm surges along coastlines become stronger and push farther inland. Consequently, more powerful storm surges will exacerbate the effects of the increased sea level along the Florida Keys' shorelines.

Currently, the existing regulatory mechanisms and conservation measures do not address the impacts of shifting seasonal patterns of rainfall and temperature. Although changes in seasonal weather patterns in south Florida have been documented (Service 2017, entire), direct impacts on the Key ring-necked snake's habitat have not been observed. However, with increased flooding events and sea level rise, the magnitude of this threat could increase into the future, decreasing population resiliency across the range of the subspecies.

Storm events —There has been a substantial increase in a number of Atlantic hurricane characteristics since the early 1980s, the period during which high-quality satellite data first became available. These include measures of intensity, frequency, and duration as well as the number of strongest (Category 4 and 5) storms (Walsh et al. 2014, p. 20). Strong rainstorms, tropical storms, and hurricanes are all-natural parts of a tropical ecosystem. However, although these events are common occurrences, the vulnerability of Key ring-necked snake populations increases as the quantity and quality of their habitat is compromised. This is especially true when the frequency of storm surges increases without adequate time for habitats to recover.

Hurricane activity has been above normal since the Atlantic Multi-Decadal Oscillation (the natural variability of the sea surface temperature in the Atlantic Ocean) went into its warm phase around 1992. The incidence of tropical storms in southeast Florida (including the Keys) is above normal, and this frequency is expected to increase (Sweet et al. 2017, pp. 39-41; Sweet et al. 2022, pp. 20-21).The intensity of the storms is expected to increase by approximately 20 percent (Service 2017, p. 7), which will result in larger tidal storm surge and greater destruction than historically documented. Ecosystem resiliency is reduced when impacts by extreme events such as floods or storms occur (Service 2017, p. 7). Saltwater intrusion from storm surge and flooding results in displacement landward to less suitable habitat and the loss of individual Key ring-necked snakes. The limestone substrate, on which snakes rely for cover, prey, and nesting, will become flooded more frequently, resulting in a higher frequency and longevity of displacement and stress.

Information on how strong storms impact this subspecies is lacking. However, information does exist on the impacts to habitat from hurricanes and other strong storms that have occurred in the region, providing some insight of the potential damage and loss to the Key ring-necked snake from such storms. These events likely disturb and reduce the quantity and quality of their resources (such as food and cover) and may do so significantly depending upon the severity and proximity of the storm center. This is particularly true when storm surges bring in nutrient-rich sediment that exacerbates soil accretion, salt deposition, and vegetation loss (Dingler et al. 1995, p. 296; Jackson et al. 1995, p. 321).

Additionally, saltwater surges and short-term flooding of upland habitats from strong storms and hurricanes in the Keys have the potential to kill some Key ring-necked snakes and their prey. In 2005, Hurricane Wilma (Category 3) passed just north of the Florida Keys, causing maximum storm tides 5 to 6 ft (1.5 to 1.8 m) above mean sea level in Key West and flooding approximately 60 percent of the city. On Boca Chica and Big Pine Keys, Hurricane Wilma caused a storm surge of 5 to 8 ft (1.5 to 2.4 m) (Kasper 2007, pp. 10-16). In 2017, the combined effect of storm surge and the tide from Hurricane Irma produced maximum inundation levels of 5 to 8 ft (1.5 to 2.4 m) above ground level for portions of the lower Florida Keys from Cudjoe Key eastward to Big Pine Key and Bahia Honda Key, near and to the east of where Irma's center made landfall as a Category 4 storm (Cangialosi et al. 2018, pp. 8-9). A storm surge of 13 ft (4 m) would completely submerge Big Pine Key (Lopez et al. 2004, p. 284).

Currently, the existing regulatory mechanisms and conservation measures do not address the impacts of storm events. The effects of storm events have the potential to reduce individual survival, which could then lead to a reduction in the snake's resiliency and redundancy. While past storms have not resulted in complete inundation of islands, an increase in the intensity and frequency of storms or a direct hit from a strong hurricane could cause significant reductions in subspecies numbers, further limiting the subspecies' population resiliency and making it even more vulnerable to all other threats.

Multiple threats are currently impacting the Key ring-necked snake and its habitat. Although individual populations are less likely to be completely lost to development, ongoing habitat degradation associated with urbanization of both pine rocklands and rockland hammock habitat and fire suppression of pine rocklands are continuing to reduce the availability of the features that individual Key ring-necked snakes need for feeding, breeding, and sheltering, thus decreasing population size and, therefore, resiliency. Because of the current barriers to dispersal from development, recolonization is unlikely after a population is isolated.

Even minor threats that impact just a few individuals in a population need to be considered for their additive effects. For example, threats like predation and invasive species may have low impacts on their own, but combined with impacts of other threats, they are further reducing already low numbers of Key ring-necked snakes. These minor threats were considered cumulatively for their effects to the Key ring-necked snake and, while they may reduce the numbers for some individual populations, were currently found not to impose negative effects at the population level.

Additionally, various threats can originate from a similar cause but produce interdependent effects on the subspecies. For example, greenhouse gas emissions increase the rate and severity of climatic changes, which act in combination as threats on the subspecies. These include sea level rise, seasonal shifts in timing and amounts of precipitation, shifts in temperature patterns, and increased storm intensities that affect the subspecies. Sea level rise reduces available habitat. Because the average high-water line is now higher than historical levels, areas not typically flooded are now flooded on a more regular basis. The rate of sea level rise in the Florida Keys—specifically at NOAA's KYWF1-8724580 Key West ocean data buoy—had been an average rate of 0.09 inch per year (2.3 mm per year) prior to the previous decade (1990s; NOAA 2016, unpaginated). In the early 2000s, sea level rise began to accelerate exponentially and was estimated at 0.3 inch per year (7.6 mm per year) in 2016 (NOAA 2016, unpaginated).

The severity of threats may also be exacerbated by the Key ring-necked snake's limited distribution and small population size. There are no records that demonstrate that the Key ring-necked snake was ever distributed beyond the lower Florida Keys. Thus, it has, and probably has always had, low natural redundancy. Currently, it is found only on seven lower Florida Key islands. Rarity is not in itself a threat; however, small population size can exacerbate the effects of ongoing threats, making the subspecies more vulnerable to extirpation. As discussed previously, the Key ring-necked snake is a narrow endemic, meaning it has naturally low redundancy to help it buffer against catastrophic events.

Currently, the existing regulatory mechanisms and conservation measures do not address the impacts of sea level rise and saltwater intrusion. As mentioned above, sea level has increased exponentially since the early 2000s (NOAA 2016, unpaginated). Therefore, the effects of saltwater intrusion have likely degraded existing habitat that supports the Key ring-necked snake, leading to reductions in the features (such as freshwater) that the subspecies needs, and thus reducing population resiliency. The effects of saltwater intrusion are primarily habitat-based, but some individual snakes could also be lost. Signs of saltwater intrusion impacts are currently documented on Big Pine Key, where pine trees have been replaced by salt-tolerant mangrove. The magnitude of this threat has the potential to greatly increase in the future with the projected severity of sea level rise.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA reports, we have analyzed the cumulative effects of identified threats and conservation actions on the species. To assess the current and future condition of the species, we evaluate the effects of all the relevant factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative-effects analysis.

To characterize the current status of Key ring-necked snake populations, we assigned each stressor as low, moderate, or high impacts to the subspecies based on criteria (see table 1, below); these impacts are occurring at the individual (moderate risk) and population (high risk) levels. The risk of each threat, using the risk scoring criteria in tables 1 and 2, was applied to each population and used to assess the overall population condition (see table 3, below). More specifically, point values were summed for each threat (listed in table 1, below) to determine an overall population condition score (scoring criteria listed in table 2, below) and summarized to convey the current condition of each population of the subspecies (see table 3, below). An area with a high risk of threat as described in tables 1 and 2 will result in low population condition in table 3, and a low risk of threat will result in a high population condition. Based on the cumulative risk of threats to each population, we then estimated the current condition of each population and the likelihood of persistence of each population (scoring criteria listed in table 2, below). We defined populations in the SSA report and this rule by the boundary of each island, as we lack information on possible population divisions within each island or about distribution between islands.

Overall, all populations of the Key ring-necked snake are in low condition and reduced from historical condition, with ongoing effects from habitat degradation, fire suppression, sea level rise, and saltwater intrusion. Although populations are currently extant on all known islands throughout the species' range, the species is only found on seven islands in a similar ecological setting. Thus, species representation and redundancy are low.

Point values for each threat (see table 1, above) were summed within an analysis area to determine the overall population condition score.

The subspecies was analyzed by island. Note that the first nine columns rank the condition of threats, while the final column ranks current population condition. Thus, multiple columns of high threat risk result in low overall population condition.

For the rim rock crowned snake, we considered threats at a larger scale in three general areas: eastern Miami-Dade County, the upper Florida Keys, and the lower Florida Keys, and on individual islands where data were available. We also considered population resiliency in isolated habitat patches in the Miami- Dade area and on individual islands in the Florida Keys. We considered North Key Largo and Key Largo as two separate populations due to the distances between occurrences and due to several barriers to movement.

The rim rock crowned snake inhabits upland rockland habitat (pine rocklands and rockland hammock) that is also desirable for residential and commercial development (Service 1999, p. 3-174). Urban development and agriculture have greatly reduced the extent of pine rocklands and rockland hammock habitat in eastern Miami-Dade County and the Florida Keys. Additionally, the quality of some pine rocklands has declined in the Keys because the remaining habitat patches are isolated and confined by surrounding urban development. Individual rim rock crowned snakes are occasionally documented in roadsides, vacant lots, trash piles, and pastures with shrubby growth and slash pines (FWC 2011, pp. 2-3; Hines 2011, pp. 352-356), but it is unknown whether these individuals are tolerating urban conditions or have been displaced. However, development and conversion of rockland habitat can impact all life stages of the rim rock crowned snake due to direct habitat loss and mortality. In addition to direct impacts from loss of soils for nesting and movement, ground cover and availability of invertebrate food sources can be reduced. Loss of habitat reduces shelter and shade for adults and decreases connectivity, thereby hindering dispersal by juveniles and finding of mates.

Extensive land clearing for human population growth, development, and agriculture in Miami-Dade and Monroe Counties has altered, degraded, or destroyed thousands of acres of suitable habitat for rim rock crowned snakes. Throughout south Florida, development and agriculture have reduced pine rocklands habitat to approximately 3 percent of historical levels. Currently, the total habitat area available in Miami-Dade County is approximately 2,275 ac (921 ha) of pine rocklands habitat and 609 ac (247 ha) of rockland hammock habitat, not including Everglades National Park (where the rim rock crowned snake has never been found), or less than 10 percent of the historical extent of this habitat. In the lower Florida Keys, the total area of pine rocklands habitat is approximately 1,899 ac (769 ha), and the total area of rockland hammock habitat is approximately 3,806 ac (1,540 ha), or less than half of the historical extent of this habitat. While the hammock habitats are widespread across many islands in various sizes, pine rocklands remain on only five islands in the lower Florida Keys and none of the upper Florida Keys. The total area covered by rockland hammock in the upper Florida Keys is 7,006 ac (2,835 ha).

Some habitat protections are currently in place for the rim rock crowned snake. Starting in 1990, Miami-Dade County's EEL program began acquiring pine rocklands and other natural areas to preserve and protect them from development. Once acquired, the EEL program funds land management to maintain and protect the habitat. Since the program's inception, more than 1,500 ac (607 ha) of pine rocklands have become EEL preserves (Miami-Dade County 2019, unpaginated). Rim rock crowned snakes have been found at four EEL preserves.

Additionally, Monroe County implemented an HCP for Big Pine and No Name Keys starting in 2006. In 2007, a rim rock crowned snake was observed on Big Pine Key (Hines 2011, p. 353). Subsequently, development on these islands has to meet the requirements of the HCP in regard to future development. In order to fulfill the HCP's mitigation requirement, Monroe County has been actively acquiring parcels of high-quality habitat for listed species and managing them for conservation, including pine rocklands habitat on Big Pine and No Name Keys. As discussed in Key Ring-necked Snake — Current Threats and Condition, the HCP expired on June 30, 2026, but the FEMA flood management BO will continue to provide habitat protections (Service 2026, entire). Although the rim rock crowned snake was not a covered species under this HCP, we still expect the habitat protections afforded by the HCP and the BO to provide the rim rock crowned snake some protection from development.

Suitable habitat for the rim rock crowned snake is protected within Federal preserves such as Everglades National Park, Crocodile Lake National Wildlife Refuge, and the National Key Deer Refuge; however, the rim rock crowned snake has only been documented in the National Key Deer Wildlife Refuge and Crocodile Lake National Wildlife Refuge. Most of the other records are located on State, local government, or privately owned lands, which are all small fragments of suitable habitat. Extensive pine rocklands habitat is present in the Long Pine Key area of Everglades National Park. However, despite extensive survey efforts (Dalrymple et al. 1991, entire), no evidence of the rim rock crowned snake has been found in Everglades National Park.

More than 90 percent of suitable rockland habitat for rim rock crowned snakes has been lost due to human development in south Florida (including the Florida Keys), meaning some populations (and thus redundancy) have already been lost. For example, rim rock crowned snakes were previously detected at sites in Miami near intersections of SW 27th Avenue and SW 24th Street, Old Cutler Road and Red Road, and U.S. Highway 1 and SW 154th Ave. There are also numerous historical records detected at locations in the greater Miami metropolitan area (Kendall, Coral Gables, Ludlum, Homestead Air Reserve Base). However, no rim rock crowned snakes have been found at these locations since the 1980s. Furthermore, extensive urbanization surrounding these remaining habitats reduces survival, rendering the species less able to withstand environmental and demographic stochasticity and disturbances (that is, reduced resiliency). Resiliency may be further reduced due to loss of connectivity between populations. Because the rim rock crowned snake is endemic to only the southeastern part of the Florida peninsula and the Florida Keys, losing even a few populations to the effects of development would result in a substantial reduction in species redundancy. However, most of the remaining habitat patches are protected, meaning few additional populations are likely to be extirpated due to development, although habitat degradation could result in continued decreases in population resiliency as the species' needs, such as prey and cover, are lost.

As discussed above under “Development,” urban development and historical conversion to agriculture has greatly reduced the extent of pine rocklands in southeastern Florida and the Florida Keys. The quality of remaining pine rocklands has declined because those areas are isolated by surrounding urban development that restricts the use of prescribed fire, which is the principal management tool for pine rocklands. Prescribed fire must be periodically introduced to sustain the pine rocklands community structure. In the absence of fire, pine rocklands are invaded by many of the species found in hardwood hammocks. They lose their herbaceous flora and move along a successional trajectory toward hammock (Service 1999, p. 3-173). These rockland hammocks are generally present where pine rocklands were not burned for a long period of time, creating more pine rocklands fragmentation. This fragmentation of pine rocklands in the South Florida and the Florida Keys increases the risk of invasion by exotic vegetation along the interface with disturbed or developed areas, further altering, degrading, or destroying suitable habitat for the rim rock crowned snake.

Although rim rock crowned snakes can still persist in areas where fire has been suppressed, habitat quality is reduced by lack of fire. Thus, the effects of fire suppression in pine rocklands have the potential to reduce population resiliency through ongoing habitat degradation that impacts the rim rock crowned snake and its habitat.

The predominant threats currently affecting the rim rock crowned snake and its habitat come from sea level rise, saltwater intrusion, shifts in seasonal patterns of rainfall and temperature, and storm events. South Florida and the Florida Keys are being affected by increases in sea level, saltwater intrusion, increases in tidal flooding, and shifts in seasonal climate patterns.

Sea level rise —The rim rock crowned snake is vulnerable to current and predicted sea level rise and saltwater intrusion across its entire range because it is located only in south Florida. South Florida, including the Florida Keys, are among the most vulnerable areas to the effects of sea level rise due to their low mean elevation of less than 1.2 m (4 ft) (Service 2019, p. 9). Consequently, south Florida is highly susceptible to flooding, with lands farther upland at risk of inundation and saltwater intrusion. The effects of increasing sea levels, higher tidal surges, coastal and inland flooding, and saltwater intrusion are currently being experienced in south Florida and the Florida Keys (Benedict et al. 2018, pp. 9, 13, 31, 7-i; Service 2019, p. 1).

As discussed above in Key Ring-necked Snake—Current Threats and Condition under “Effects of Sea Level Rise, Saltwater Intrusion, Shifts in Seasonal Patterns of Rainfall and Temperature, and Storm Events,” Sea level rise, the Florida Keys and South Florida are experiencing higher levels of sea level rise than other parts of the globe, as well as higher tidal surges, increased coastal and inland flooding, and saltwater intrusion (Benedict et al. 2018, pp. 9, 13, 31, 7-i; Service 2019, p. 1).

Consequently, pine rockland habitat has already undergone a significant reduction in the Florida Keys due to sea level rise (Ross et al. 1994, p. 154). As mentioned previously, some of these areas are currently occupied by halophytic (salt-tolerant) vegetation such as mangroves and buttonwood (Alexander 1976, pp. 219-222) owing to high tide flooding as a result of rising sea level but also due to saltwater intrusion of the islands' freshwater lens.

The effects of sea level rise could impact the rim rock crowned snake by loss of individuals during flooding events, causing a loss in population resiliency. If flooding is severe enough, it could extirpate entire populations, particularly in the lower Florida Keys, leading to a substantial loss of redundancy of the species.

Saltwater intrusion —Higher tidal surges, coastal and inland flooding, and saltwater intrusion due to increasing sea levels are currently being experienced in south Florida and the Florida Keys. With worsening storms and extreme tidal events, storm surges along south Florida and the Keys will increase in frequency and severity over time and will impact habitats farther inland. As discussed above in Key Ring-necked Snake—Current Threats and Condition under “Effects of Sea Level Rise, Saltwater Intrusion, Shifts in Seasonal Patterns of Rainfall and Temperature, and Storm Events,” Saltwater intrusion, this threat will result in habitat degradation and the loss of individual snakes. For the rim rock crowned snake, these effects have been primarily felt in populations in the Florida Keys, although some coastal populations in eastern Miami-Dade County may also experience some small amounts of saltwater intrusion.

Currently, the existing regulatory mechanisms and conservation measures do not address the impacts of saltwater intrusion. As mentioned above, sea level has increased exponentially since the early 2000s (NOAA 2016, unpaginated). The effects of saltwater intrusion have likely degraded existing habitat that supports the rim rock crowned snake in the Keys, leading to reductions in the habitat features (such as freshwater) that the species needs, and thus reducing population resiliency. The effects of saltwater intrusion are primarily habitat-based, but some individual snakes could also be lost as increasingly frequent flooding of underground refugia could make areas uninhabitable and displace individual snakes. Signs of saltwater intrusion impacts have been documented on Big Pine Key, where pine trees have been replaced by salt-tolerant mangrove. The magnitude of this threat has the potential to greatly increase with the projected future severity of sea level rise.

Shifts in seasonal patterns of rainfall and temperature —Rising greenhouse gases are resulting in increasing temperatures and shifting precipitation patterns, as discussed above in Key Ring-necked Snake—Current Threats and Condition under “Effects of Sea Level Rise, Saltwater Intrusion, Shifts in Seasonal Patterns of Rainfall and Temperature, and Storm Events,” Shifts in seasonal patterns of rainfall and temperature. Like the Key ring-necked snake, the rim rock crowned snake is a fossorial ectotherm and, therefore, dependent on gaining heat from its microhabitat or by coming into contact with the undersides of warm surfaces (for example, rocks) that are exposed to direct sunlight. As with the Key ring-necked snake, increased temperatures could result in a permanent shift in average air temperature out of the rim rock crowned snake's optimal range, causing physiological stress. Physiological stress can manifest into a variety of risks including predation, reduced performance, and reduced foraging success. Altered precipitation patterns could have detrimental effects on the seasonal feeding, breeding, and sheltering patterns for the rim rock crowned snake. Increased inland flooding is predicted during heavy rain events in low-lying areas. With worsening storms, storm surges along coastlines can become stronger and push farther inland. Consequently, more powerful storm surges will exacerbate the effects of the increased sea level along south Florida and Florida Keys' shorelines and could have impacts on rockland habitat.

Currently, the existing regulatory mechanisms and conservation measures do not address the impacts of shifting seasonal patterns of rainfall and temperature. Although changes in seasonal weather patterns in south Florida have been documented (Service 2017, entire), direct impacts on the rim rock crowned snake or its habitat have not been observed. However, with increased flooding events associated with sea level rise, the magnitude of this threat could increase into the future, particularly for populations in the Florida Keys and coastal areas of Miami-Dade County, decreasing population resiliency.

Storm events —Changing patterns in hurricane activity are having similar effects to the rim rock crowned snake as to the Key ring-necked snake, as discussed above in Key Ring-necked Snake—Current Threats and Condition under “Effects of Sea Level Rise, Saltwater Intrusion, Shifts in Seasonal Patterns of Rainfall and Temperature, and Storm Events,” Storm events. The health of the rim rock crowned snake becomes vulnerable when the quantity and quality of resources (for example, food, cover/substrate) are compromised. This can happen in the case of storm surges and with an increase in the number of incidences of flooding (for example, being impacted repeatedly without time to recover). Saltwater intrusion from storm surge and flooding results in displacement landward to less suitable habitat and the loss of individual rim rock crowned snakes. The limestone substrate, which rim rock crowned snakes rely on for cover, prey, and nesting, will become more frequently flooded, creating a higher frequency and longevity of displacement and stress. Storm events disturb and reduce the quantity and quality of the resources for the rim rock crowned snake.

In 1992, Hurricane Andrew (Category 5) hit southern Miami-Dade County with sustained winds in excess of 145 miles per hour (233 kilometers per hour), impacting 99 percent of pine rocklands. Within 1 year of the event, many adult trees were dead, outbreaks of Ips beetles (including I. calligraphus, I. avulsus, and I. grandicollis ) had been reported, and two species of weevil ( Hylobius pales and Pachylobius picivorus ) had attacked juvenile trees. The outbreak has been attributed to the combination of wind damage and drought following a very dry spring, making the trees more susceptible to infestation. In a fall 1993 follow-up survey of Miami-Dade County pine rocklands, only 2 of 18 sites had living mature pines. The loss of the pines affected fire fuel loads while also making the habitat more susceptible to invasive species (Service 1999, p. 3-176), decreasing habitat suitability and negatively affecting the needs of the rim rock crowned snake.

Existing regulatory mechanisms and conservation measures do not address storm events. The effects of storm events have the potential to reduce individual survival, which could lead to a reduction in the snake's resiliency and redundancy. While past storms have not resulted in complete inundation of islands, an increase in the intensity and frequency of storms has the potential to produce complete inundation of suitable snake habitat, and therefore possible extirpation of the species.

Multiple threats are currently impacting the rim rock crowned snake at the individual and population level and affecting its habitat. The risk of each threat was based on the scoring criteria in tables 1 and 2, above, as applied to each population, and used to assess the overall population condition (see table 4, below).

Although individual populations are less likely to be lost to development, ongoing habitat degradation associated with urbanization and fire suppression in pine rocklands are continuing to reduce the availability of the features that the rim rock crowned snake needs for feeding, breeding, and sheltering, thus decreasing population resiliency. Although a severe hurricane is unlikely to flood all populations at once, if a hurricane were to eliminate a majority of rim rock crowned snake populations, it would leave the remainder of the species significantly more vulnerable to other threats. Because of the current barriers to dispersal for populations in Miami-Dade County, recolonization is unlikely after a population is extirpated. Some populations, for example on Big Pine Key, may be able to recolonize extirpated sites occurring on the same Key because there are fewer barriers to dispersal due to lower levels of urbanization.

Even minor threats that impact just a few individuals in a population need to be considered for their additive effects. For example, predation and invasive species may have low impacts on their own, but combined with impacts of other threats, they are further reducing already low numbers of rim rock crowned snakes.

Additionally, various threats can originate from a similar cause but produce a set of interdependent effects on the species. For example, greenhouse gas emissions increase the rate and severity of climactic changes, which act in combination as threats on the species. These include sea level rise, seasonal shifts in timing and amounts of precipitation, shifts in temperature patterns, and increased storm intensities that affect the species. Sea level rise further reduces available habitat. Because the average high-water line is now higher than historical levels, areas not typically flooded are now flooded on a more regular basis.

The severity of threats may also be exacerbated by the rim rock crowned snake's limited distribution and small population size. The rim rock crowned snake is not known to occur beyond the southeastern peninsula of Florida or the Florida Keys. Thus, it has, and probably has always had, low representation and redundancy. Currently, it is thought to exist in seven small and fragmented parcels in eastern Miami-Dade County, six islands in the upper Florida Keys, and two islands in the lower Florida Keys. Rarity is not in itself a threat; however, small population size can exacerbate the effects of ongoing threats, making the species more vulnerable to extinction.

As with the Key ring-necked snake, to characterize the current status of the rim rock crowned snake, we assigned each stressor as low, moderate, or high impacts to the subspecies (see tables 1 and 2, above). We summarize the current condition of rim rock crowned snake populations in table 4. Overall, the current condition of populations in the Miami-Dade area is moderate, and the condition of populations in the Florida Keys is low.

Given the species' limited distribution and limited ecological setting, representation is currently low. However, the species has moderate redundancy, as it has multiple populations distributed throughout the Miami-Dade area and the upper and lower Florida Keys.

Note that the first nine columns rank the condition of threats, while the final column ranks population condition. Thus, multiple columns of high threat risk result in low population condition.

To examine the potential future condition of the Key ring-necked snake and the rim rock crowned snake, four plausible future scenarios were developed. The scenarios focused on a range of conditions and projections for land development. The range of what is likely to happen in each scenario is described based on current condition and how resiliency, representation, and redundancy would be expected to change. The levels of certainty or uncertainty are addressed in each scenario. Given that there is uncertainty as to exact future trends of many threats, these future scenarios are meant to explore the range of plausible future scenarios and examine the snakes' response across the range of these conditions.

We define viability as the ability to sustain populations over time. For this to occur, a species must have a sufficient number and distribution of healthy populations to withstand changes in its biological (predators, disease) and physical (habitat loss) environment, environmental stochasticity (flooding, storm surge), and catastrophic events (hurricanes). In considering the future scenarios for the Key ring-necked snake and the rim rock crowned snake, we analyzed expected changes in development through 2070 based on the timeframe forecast in the urban planning documents (Zwick and Carr 2006, entire), shifts in seasonal patterns of rainfall and temperature (up through 2100), and sea level rise and saltwater intrusion from 2030 to 2100. The habitat in Miami-Dade County is forecasted to continue on the same trend up to 2100 as predicted from 2040 to 2080 (Subedi et al. 2022, p. 7). That said, we focused on changes that are expected over the next 20 to 60 years ( i.e., by 2040 to 2080) because virtually no habitat is forecasted to be present in the lower Florida Keys by 2080. We do not have any information on future trends of other threats (disease, predation, invasive species, and collection). We chose four plausible scenarios to examine the potential impacts to Key ring-necked snake and rim rock crowned snake populations We determined the population condition (using criteria described above in table 1) given our future projections of threats.

In order to understand the impacts of sea level rise and associated impacts on the Key ring-necked snake and the rim rock crowned snake, we contracted a study with the USGS to measure the potential future impacts on pine rocklands and rockland hammock habitat in the range of the Key ring-necked snake and the rim rock crowned snake (Subedi et al. 2022, entire). The study calculated the impacts of root zone salinization, regional sea level rise, and high tide effects on suitable habitat in Miami-Dade County and the Florida Keys in 10-year intervals between 2030 and 2100. Detailed descriptions of the study and its results are available in the SSA reports for the Key ring-necked snake and the rim rock crowned snake (Service 2023a, pp. 25-27; Service 2023b, pp. 43-47).

Because we determined that the current condition of the Key ring-necked snake is consistent with an endangered species throughout its range (see Determination, below), we are not presenting the results of the future scenarios in this rule. For more information on the future condition, future threats, and future scenarios for the Key ring-necked snake, please see the SSA report (Service 2023a, pp. 21-33).

Future development is very likely to continue across the range of the rim rock crowned snake. Suitable habitat that is projected to be lost in all of these scenarios is privately owned and not currently under conservation.

Miami-Dade and Monroe Counties are not anticipated to undergo dramatic land use changes by 2070, because most land in these counties is already allocated to development, agriculture, or conservation (Carr and Zwick 2016, pp. 20-22). Of remaining pine rocklands and rockland hammock habitat, 76 percent in eastern Miami-Dade County, 79 percent in the upper Florida Keys, and 83 percent in the lower Florida Keys are protected or conserved (FNAI 2019, unpaginated). However, because such limited habitat area remains, even the loss of one population (particularly in the Miami-Dade area) could have a significant effect on the species.

Of the remaining suitable habitat for rim rock crowned snake in Miami-Dade County, between 19 and 21 percent is expected to be lost to development by 2070 (Carr and Zwick 2016, pp. 20-22). Although the expected population growth in Monroe County in the Florida Keys is relatively modest, all vacant private lands not protected for conservation purposes are projected to be developed, including lands currently inaccessible for development, such as islands not attached to the Overseas Highway (U.S. Highway 1) (Zwick and Carr 2006, pp. 14-15). This development will have the potential to further reduce the amount of suitable habitat for the rim rock crowned snake.

Fire suppression has had considerable negative impacts on pine rocklands communities. The condition of some extant pine rocklands has declined and become degraded because of inadequate management or because they are isolated and confined by surrounding development that restricts the use of prescribed fire, which is the primary management tool. We do not expect the amount of prescribed burning to increase in the future, so we anticipate that existing habitat will continue to decline in quality and undergo habitat conversion to hammock habitats, particularly in eastern Miami-Dade County.

In Florida, sea level is projected to rise between 1 ft (0.4 m) at the low end and up to 8.4 ft (3.2 m) at the high end by 2100 (Subedi et al. 2022, p. 4). Due to sea level rise, low-lying islands and coastal areas have increasingly become more vulnerable to high tide flooding, which is rapidly increasing in frequency, depth, and extent (Sweet et al. 2018, p. 3). In South Florida as well as the Keys, storm surge and high tide flooding events primarily affect low-lying coastal areas and exposed habitats such as pine rocklands and rockland hammocks. With continued increase in sea level rise, high tide intensities are also expected to rapidly increase, with potentially severe damage to remaining rockland habitat in the Florida Keys. Pine rocklands species, particularly the dominant canopy species (slash pine), have little ability to tolerate saltwater (Subedi et al. 2022, p. 6). As mentioned above, pine rocklands habitat has already undergone a significant reduction in the Florida Keys due to sea level rise (Ross et al. 1994, p. 154), and some of these areas affected by sea level rise in previous decades are now occupied by halophytic (salt-tolerant) vegetation such as mangroves and buttonwood (Alexander 1976, pp. 219-222). As discussed above in Background, a unique characteristic of the Florida Keys is the existence of a freshwater lens below each island that is critically important for humans, flora, fauna, and a variety of habitats.

In eastern Miami-Dade County, a shallow layer of highly permeable limestone forms the unconfined Biscayne aquifer. Because this aquifer is unconfined, the top-most layer makes up the water table and directly interacts with natural and human-made bodies of water. The Biscayne aquifer merges with the floor of Biscayne Bay and the Atlantic Ocean, making it a coastal aquifer. Being a coastal aquifer, there is a potential for contamination from lowered water tables, primarily from over-pumping due to residential and commercial use, which could allow saltwater intrusion and could be exacerbated by sea level rise.

The anticipated impacts of sea level rise and high tides for the rim rock crowned snake for our four future scenarios are shown below in tables 5 through 9. There is no table for pine rocklands habitat change in the upper Florida Keys, as there is no pine rocklands habitat there.

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. 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.

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 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 § 17.31(a) or § 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.

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 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.

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 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 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 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 § 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 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.

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 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.

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.

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, 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.

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 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 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.

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 § 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 § 17.31(a) and § 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 § 17.11(h) and § 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.

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.

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 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.

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.

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.

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.

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.

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)).

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.

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 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.

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.

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.

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

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

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.111. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102, and the final 2026 allocations were published on February 19, 2026 (91 FR 7896).

The final rule implementing amendment 5 to the FMP, as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: (1) the transfers or combinations would not preclude the overall annual quota from being fully harvested; (2) the transfers address an unforeseen variation or contingency in the fishery; and (3) the transfers are consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Regional Administrator has determined these three criteria have been met for the transfer approved in this notification.

North Carolina is transferring 5,000 pounds (lb; 2,268 kilograms (kg)) of summer flounder to Massachusetts through a mutual agreement between the states. This transfer was requested to repay landings made by an out-of-state permitted vessel under a safe harbor agreement. The revised summer flounder quotas for 2026 are: North Carolina, 2,902,006 lb (1,316,328 kg); and Massachusetts, 1,046,297 lb (474,592 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.102(c)(2)(i) through (iv), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempted from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the BSAI (FMP) prepared and recommended by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The annual apportionment of the 2026 Pacific cod TAC allocated to AFA trawl catcher/processors in the BSAI is 2,712 metric tons (mt) as established by the final 2026 and 2027 harvest specifications for groundfish in the BSAI (91 FR 11750, March 10, 2026).

In accordance with § 679.20(d)(1)(i) and § 679.20(d)(1)(ii)(B), the Regional Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the annual 2026 Pacific cod TAC allocated to AFA trawl catcher/processors in the BSAI is necessary to account for the incidental catch in other anticipated fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,112 mt and is setting aside the remaining 600 mt as incidental catch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been or will be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI to prevent exceeding this sector's allocation of Pacific cod TAC.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data on Pacific cod catch in a timely fashion and would delay the closure of directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI, which could lead to this sector exceeding its annual 2026 allocation of Pacific cod TAC. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data on Pacific cod catch only became available as of July 16, 2026.

There is good cause under 5 U.S.C. 553(d)(3) to establish an effective date less than 30 days after date of publication. This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.