2021-23214. Endangered and Threatened Wildlife and Plants; Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat

AGENCY:

U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (hereafter collectively referred to as the “Services” or “we”), propose to rescind the final rule titled “Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat” that was published on December 16, 2020, and became effective on January 15, 2021. The proposed rescission, if finalized, would remove the regulatory definition of “habitat” established by that rule.

DATES:

We will accept comments from all interested parties until November 26, 2021. Please note that if you are using the Federal eRulemaking Portal (see ADDRESSES below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Standard Time on that date.

ADDRESSES:

You may submit comments by one of the following methods:

(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2020-0047, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment.”

(2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2020-0047; U.S. Fish and Wildlife Service, MS: PRB(3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803.

We request that you send comments only by the methods described above. Comments and materials we receive will be available for public inspection on https://www.regulations.gov. (See Public Comments below for more information.)

FOR FURTHER INFORMATION CONTACT:

Bridget Fahey, U.S. Fish and Wildlife Service, Division of Conservation and Classification, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone [phone]; or Angela Somma, National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone [phone]. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS) at 800/877-8339.

SUPPLEMENTARY INFORMATION:

Background

On December 16, 2020, we published a final rule adding a definition of the term “habitat” to our implementing regulations at 50 CFR 424.02 (85 FR 81411). The final rule summarized and responded to numerous public comments on our proposed rule that published on August 5, 2020 (85 FR 47333).

The definition of “habitat” that we adopted in that final rule is: For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.

Rationale for Rescission

On January 20, 2021, the President issued Executive Order 13990 (hereafter referred to as “the E.O.”), which, among other things, required all agencies to review agency actions issued between January 20, 2017, and January 20, 2021. In support of the E.O., a “Fact Sheet” was issued that set forth a non-exhaustive list of specific agency actions that agencies are required to review to determine consistency with section 1 of the E.O. (See www.whitehouse.gov/​briefing-room/​statements-releases/​2021/​01/​20/​fact-sheet-list-of-agency-actions-for-review/​ ). One of the agency actions included on the Fact Sheet was our December 16, 2020, final rule promulgating a regulatory definition for “habitat” under the Endangered Species Act of 1973, as amended (hereafter referred to as “the Act”; 16 U.S.C. 1531 et seq. ). We have reevaluated that final rule, and we are now proposing to rescind it. The following discussion provides our rationale for rescinding that rule.

First, upon reconsideration of the final rule's discussion of the extent to which areas that may need some degree of restoration can be considered “habitat” for a species, we find that the definition and the preamble of the final rule inappropriately constrain the Services' ability to designate areas that meet the definition of “critical habitat” under the Act. The definition of “habitat” requires that the areas contain the resources and conditions necessary to support one or more life processes of a species. As stated in the preamble to the final rule, this definition of “habitat” excludes areas that do not currently or periodically contain the requisite resources and conditions, even if such areas could meet this requirement in the future after restoration activities or other changes occur. We have reviewed the statute's broad definition of “conservation” and find significant tension between that definition and that of “habitat” as defined in our December 16, 2020, final rule. The statute's definition of “conservation” expressly contemplates a wide range of tools for furthering the ultimate goal of recovering listed species. “Conservation” is defined as follows: 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 this Act are no longer necessary; such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation (16 U.S.C. 1532(3); defining “conserve,” “conserving,” and “conservation”).

We find that the broad definition of “conservation,” along with the statute's recognition of destruction or loss of habitat as a key factor in the decline of listed species (in section 4(a)(1) of the Act), indicates that areas not currently in an optimal state to support the species could nonetheless be considered “habitat” and “critical habitat.” The quality of habitat varies along a continuum, and species, and individuals within a species, often use habitats with variable quality over the course of their life histories. Some individuals of a listed species may use degraded or suboptimal areas, whereas other individuals may not. Including those areas in critical habitat designations, where appropriate, may be essential for the conservation of some species and is consistent with the Services' practice prior to the final rule becoming effective in January 2021. To hold otherwise would lead to the illogical result that the more a species' habitat has been degraded, the less ability there is to attempt to recover the species. While we acknowledged in the final rule that we have the ability to revise critical habitat after resources and conditions within a specific area change ( e.g., the area is restored or naturally improves), Congress required the Services to identify unoccupied areas that are “essential for the conservation” of the species when designating critical habitat. Identifying and protecting those areas when we determine they are essential, rather than delaying until an arbitrary point in time when conditions that are not required under the Act's definition are realized, better fulfills the conservation purposes of the Act and ensures that important areas of habitat are protected in section 7 consultations from destruction or adverse modification. Moreover, designating as critical habitat areas of habitat that are unoccupied but essential for the conservation of the species may guide future habitat-restoration efforts and make them more efficient and effective. Therefore, we find that some of the language included in the preamble to the final rule reflects an unnecessarily limiting interpretation of the Act that effectively hinders its stated purpose, and that the better reading of the Act is that an area should not be precluded from qualifying as habitat because some management or restoration is necessary for it to provide for a species' recovery.

In addition, our attempt to codify a single, one-size-fits-all definition of “habitat” under the Act that would cover a wide array of species' habitat requirements and also satisfy the underlying need that the definition be broad enough to include areas that could meet the Act's definition of unoccupied critical habitat resulted in the use of overly vague terminology in the definition. The resulting definition was one that neither stemmed from the scientific literature nor had a clear relationship with the statutory definition of “critical habitat.” We had reviewed and considered definitions from the ecological literature ( e.g., Odum 1971, Kearney 2006) and found there is inconsistent use of the term “habitat” ( e.g., Hall et al. 1987). We also received many suggestions for definitions of habitat from public comments on the proposed rule. Some were ecological-based definitions; others were revisions of our definition in the proposed rule; and others introduced concepts that were either in tension with the ecological principles or the definition of “critical habitat” in the Act. We rejected the available ecological definitions for use as our regulatory definition because we determined they were either too broad or too narrow to guide designation of areas that could qualify under the statute as unoccupied critical habitat. In addition, because the scientific literature evolves over time, and there is currently some ambiguity in the use of the term “habitat” (cf. Bamford and Calver 2014), codifying a single definition in regulation could constrain the Services' ability to incorporate the best available ecological science in the future.

The Act clearly indicates critical habitat should be determined on the best available science and provides a definition for the term “critical habitat.” Upon reconsideration, the separate regulatory definition of “habitat” could conflict with this mandate by shaping or limiting how the Services can consider what areas meet the definition of “critical habitat.” Rather, we find relying on the best available scientific data as specified in the Act, including species-specific ecological information, is the best way to determine whether areas constitute habitat and meet the definition of critical habitat for a species. We had also deliberately avoided using terminology from the statutory definition of “critical habitat” because we wanted to make clear that “habitat” is logically and necessarily broader than “ critical habitat.” So, for example, we avoided use of the phrase “physical or biological features.” However, we now find that in doing so, we resorted to terminology that is unclear and has no established meaning in the statute or our prior regulations or practices ( i.e., the phrases “biotic and abiotic setting” and “resources and conditions”). Thus, after reevaluating the 2020 rule, we now find that, despite our efforts to promulgate a definition that was both sufficiently broad and clear, the resulting definition is not only insufficiently clear, but also confusing.

Further, the definition of “habitat” was developed specifically for use in the context of critical habitat designations under the Act. As the Services expressed at the time we adopted the rule, the addition of this definition to the Code of Federal Regulations was not intended to create an additional step in the process of designating critical habitat for any species (85 FR 81411, December 16, 2020). Rather, the intent was that this definition would act as a regulatory standard that would be relevant in only a limited set of cases where questions arose as to whether an area was in fact “habitat” for a particular species. As the Services explained, for areas that are within the occupied range of the species, a determination that those areas meet the statutory definition of “critical habitat” (at 16 U.S.C. 1532(5)(A)(i)) inherently validates that the area is in fact “habitat” (85 FR 81411, December 16, 2020) because the area must: (1) Be part of the geographical area occupied by the species; and (2) contain physical or biological features essential to the conservation of the species. Thus, as we explained in our final rule, the applicability of the definition of “habitat” is limited only to designations with unoccupied areas and further to a subset of those where “genuine questions” might exist as to whether areas are habitat for a species (85 FR 81411, December 16, 2020; p. 81414). However, we now recognize that the approach of codifying a regulatory definition of “habitat” with a limited application, which was not intended to be applied regularly in the course of designating critical habitat, is inherently confusing.

As noted, we intended the definition to apply only to the process of designating critical habitat under the Act and therefore included the phrase, “For purposes of designation of critical habitat only” in the definition. However, even with the specific limitation of the definition's applicability, we understand that there is continuing concern that a definition of “habitat” may appear to conflict, or create inconsistencies, with other Federal agency statutory authorities or programs that also have definitions or understandings of habitat. Having multiple definitions and interpretations of what constitutes habitat that varies based on the application is confusing.

Finally, although adoption of the regulation was in part intended to be a response to the Supreme Court's decision in Weyerhaeuser Co. v. U.S.F.W.S., 139 S. Ct. 361, 372 (2018) ( Weyerhaeuser ), that decision did not require that the Services adopt a regulatory definition for “habitat.” Rather, the Court remanded the case to the lower court to consider whether the particular record supported a finding that the area disputed in the litigation was habitat for the particular species at issue (the dusky gopher frog). Similarly, we find after reconsidering the Court's decision that we can adequately address, on a case-by-case basis and on the basis of the best scientific data available, any concerns that may arise in future designations as to whether unoccupied areas are habitat for a particular species.

Having reconsidered the definition in light of E.O. 13990 and the issues discussed above, we now find that it would be more appropriate to return to implementing the statute as we had done for decades prior to January 2021, when the Services did not have a codified definition of “habitat.” Therefore, we propose to remove this definition from 50 CFR 424.02.

Public Comments

We are soliciting public comment on this proposal. All relevant information will be considered prior to making a final determination regarding the regulatory definition of “habitat.” You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES . Comments must be submitted to https://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES . We will not consider mailed comments that are not postmarked by the date specified in DATES .

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

Required Determinations

Regulatory Planning and Review (E.O.s 12866 and 13563)

Executive Order 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.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and encourage use of 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 and emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas.

We have developed this proposed rule in a manner consistent with the requirements of E.O. 13563, and in particular with the requirement of retrospective analysis of existing rules designed “to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency, or their designee, certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NMFS and FWS are the only entities that are directly affected by this rule because we are the only entities that designate critical habitat under the Act. No other entities, including any small businesses, small organizations, or small governments, will experience any direct economic impacts from this rule. Therefore, we certify that, if adopted as proposed, this rule would not have a significant economic effect on a substantial number of small entities.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. )

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

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

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

Takings (E.O. 12630)

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

Federalism (E.O. 13132)

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

Civil Justice Reform (E.O. 12988)

This proposed rule does not unduly burden the judicial system and meets the applicable standards provided in sections 3(a) and 3(b)(2) of E.O. 12988. This proposed rule pertains only to designation of critical habitat under the Act.

Government-to-Government Relationship With Tribes

In accordance with E.O. 13175, “Consultation and Coordination with Indian Tribal Governments,” the Department of the Interior's manual at 512 DM 2, the Department of Commerce Tribal Consultation and Coordination Policy (May 21, 2013), the Department of Commerce Departmental Administrative Order (DAO) 218-8 (April 2012), and the National Oceanic and Atmospheric Administration (NOAA) Administrative Order (NAO) 218-8 (April 2012), we considered the possible effects of this proposed rule on federally recognized Indian Tribes. This proposed rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. This regulation, if finalized, would remove the definition of “habitat” from 50 CFR 424.02, which only has a direct effect on the Services. With or without the regulatory definition of “habitat,” the Services would be obligated to continue to designate critical habitat based on the best available data and would continue to coordinate and consult as appropriate with Indian Tribes and Alaska Native corporations on critical habitat designations, per our longstanding practice. Therefore, we preliminarily 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 Departments of Commerce and the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with the Tribes as we implement the provisions of the Act. See Joint Secretarial Order 3206 (“American Indian Tribal Rights, Federal Tribal Trust Responsibilities, and the Endangered Species Act”, June 5, 1997).

Paperwork Reduction Act

This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (45 U.S.C. 3501 et seq. ). In accordance with the PRA, we may not conduct or sponsor a collection of information, and you are not required to respond to a collection of information, unless it displays a currently valid OMB control number.

National Environmental Policy Act

We are analyzing this proposed regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), the Department of the Interior Manual (516 DM 8), the NOAA Administrative Order 216-6A, and the NOAA Companion Manual (CM), “Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities” (effective January 13, 2017). We have made an initial determination that a detailed statement under the NEPA is not required because the proposed rule is covered by a categorical exclusion. At 43 CFR 46.210(i), the Department of the Interior has found that the following categories of actions would not individually or cumulatively have a significant effect on the human environment and are, therefore, categorically excluded from the requirement for completion of an environmental assessment or environmental impact statement: “Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” We have also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

NOAA's NEPA procedures include a similar categorical exclusion for “preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature” (Categorical Exclusion G7, at CM Appendix E). This proposed rule does not involve any of the extraordinary circumstances provided in NOAA's NEPA procedures, and therefore does not require further analysis to determine whether the action may have significant effects (CM at 4.A).

As a result, we anticipate that the categorical exclusion found at 43 CFR 46.210(i) and in the NOAA CM applies to the proposed regulation rescission, and neither Service has identified any extraordinary circumstances that would preclude this categorical exclusion. We will review any comments submitted prior to completing our analysis or finalizing this action, in accordance with applicable NEPA regulations.

Energy Supply, Distribution or Use (E.O. 13211)

Executive Order 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. The proposed rescission of the regulatory definition of “habitat” is not expected to affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action, and no statement of energy effects is required.

Clarity of the Rule

We are required by E.O.s 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

If you believe that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES .

Authority

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

List of Subjects in 50 CFR Part 424

• Administrative practice and procedure
• Endangered and threatened species

Shannon A. Estenoz

Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior.

Samuel D. Rauch, III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service, National Oceanic and Atmospheric Administration.

Proposed Regulation Promulgation

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

PART 424—LISTING ENDANGERED AND THREATENED SPECIES AND DESIGNATING CRITICAL HABITAT

1. The authority citation for part 424 continues to read as follows:

Authority: 16 U.S.C. 1531 et seq.

§ 424.02

[Amended]

2. Amend § 424.02 by removing the definition for “Habitat”.