[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]



Fish and Wildlife Service


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 

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

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 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.



    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 
    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 

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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.


    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 

Shannon A. Estenoz
Assistant Secretary for Fish and Wildlife and Parks, Department of the 
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:


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

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

Sec.  424.02  [Amended]

2. Amend Sec.  424.02 by removing the definition for ``Habitat''.
[FR Doc. 2021-23214 Filed 10-26-21; 8:45 am]