[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Proposed Rules]
[Pages 59353-59357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23214]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 424
[Docket No. FWS-HQ-ES-2020-0047, FF09E23000 FXES1111090FEDR 212; Docket
No. 211007-0205]
RIN 1018-BE69; 0648-BJ44
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.
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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 703/358-2171; or Angela
Somma, National Marine Fisheries Service, Office of Protected
Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone
301/427-8403. 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
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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
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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.
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(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:
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(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
0
1. The authority citation for part 424 continues to read as follows:
Authority: 16 U.S.C. 1531 et seq.
Sec. 424.02 [Amended]
0
2. Amend Sec. 424.02 by removing the definition for ``Habitat''.
[FR Doc. 2021-23214 Filed 10-26-21; 8:45 am]
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