Endangered and Threatened Wildlife and Plants; Revision of the Regulations for Listing Species and Designating Critical Habitat, 35193-35201 [2018-15810]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration
• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Proposed Rules]
[Pages 35193-35201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15810]


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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-2018-0006; Docket No. 180202112-8112-01; 
4500030113]
RIN 1018-BC88; 0648-BH42


Endangered and Threatened Wildlife and Plants; Revision of the 
Regulations for Listing Species and Designating Critical Habitat

AGENCIES: 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) (collectively referred to as the 
``Services'' or ``we''), propose to revise portions of our regulations 
that implement section 4 of the Endangered Species Act of 1973, as 
amended (Act). The proposed revisions to the regulations clarify, 
interpret, and implement portions of the Act concerning the procedures 
and criteria used for listing or removing species from the Lists of 
Endangered and Threatened Wildlife and Plants and designating critical 
habitat. We also propose to make multiple technical revisions to update 
existing sections or to refer appropriately to other sections.

DATES: We will accept comments from all interested parties until 
September 24, 2018. 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 this 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-2018-0006, 
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 Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-HQ-ES-2018-0006; U.S. Fish & Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 or 
National Marine Fisheries Service, Office of Protected Resources, 1315 
East-West Highway, Silver Spring, MD 20910.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (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 Samuel D. 
Rauch, III, 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 Information Relay Service (FIRS) at 800/877-
8339.

SUPPLEMENTARY INFORMATION: 

[[Page 35194]]

Background

    The Endangered Species Act of 1973, as amended (``Act''; 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 listed species depend, to 
develop 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 the Federal Government will seek to conserve threatened and 
endangered species, and use its authorities to further the purposes of 
the Act. 16 U.S.C. 1531(c)(1).
    The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species ``that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' 16 U.S.C. 1532(6); (20). 
The Act requires the Services to determine whether species meet either 
of these definitions. 16 U.S.C. 1533(a); 1532(15). Section 4 of the Act 
and its implementing regulations in Title 50 of the Code of Federal 
Regulations at 50 CFR part 424 set forth the procedures for adding, 
removing, or reclassifying species to the Federal Lists of Endangered 
and Threatened Wildlife and Plants (lists). The lists are in 50 CFR 
17.11(h) (wildlife) and 17.12(h) (plants). Section 4(a)(1) of the Act 
sets forth the factors that we evaluate when we issue rules for species 
to list (adding a species to one of the lists), delist (removing a 
species from one of the lists), and reclassify (changing a species' 
classification or its status).
    One of the tools provided by the Act to conserve species is the 
designation of critical habitat. The purpose of critical habitat is to 
identify the areas that are essential to the conservation of the 
species. The Act generally requires that the Services, to the maximum 
extent prudent and determinable, designate critical habitat when 
determining that a species is either an endangered species or a 
threatened species. 16 U.S.C. 1533(a)(3)(A).
    The Secretaries of the Interior and Commerce (the ``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 FWS and by the Secretary of Commerce to the 
Assistant Administrator for NMFS.

Proposed Regulatory Revisions

    In carrying out Executive Order 13777, ``Enforcing the Regulatory 
Reform Agenda,'' the Department of the Interior (DOI) published a 
document with the title ``Regulatory Reform'' in the Federal Register 
of June 22, 2017 (82 FR 28429). The document requested public comment 
on how DOI can improve implementation of regulatory reform initiatives 
and policies and identify regulations for repeal, replacement, or 
modification. This proposed rule addresses comments that DOI has 
received in response to the regulatory reform docket.
    As part of implementing E.O. 13777, the National Oceanic and 
Atmospheric Administration (NOAA) published a notice entitled, 
``Streamlining Regulatory Processes and Reducing Regulatory Burden'' 
(82 FR 31576, July 7, 2017). The notice requested public comments on 
how NOAA could continue to improve the efficiency and effectiveness of 
current regulations and regulatory processes. This proposed rule 
addresses comments NOAA received from the public.
    This proposed rule is one of three related proposed rules, two of 
which are joint between the Services, that are publishing in today's 
Federal Register. All of these documents propose revisions to various 
regulations that implement the ESA.
    Beyond the specific revisions to the regulations highlighted in 
this proposed rule, the Services are comprehensively reconsidering the 
processes and interpretations of statutory language set out in part 
424. Thus, this rulemaking should be considered as applying to all of 
part 424, and as part of the rulemaking initiated today, the Services 
will consider whether additional modifications to the regulations 
setting out procedures and criteria for listing or delisting species 
and designating critical habitat would improve, clarify, or streamline 
the administration of the Act. We seek public comments recommending, 
opposing, or providing feedback on specific changes to any provisions 
in part 424 of the regulations, including but not limited to revising 
or adopting as regulations existing practices or policies, or 
interpreting terms or phrases from the Act. In particular, we seek 
public comment on whether we should consider modifying the definitions 
of ``geographical area occupied by the species'' or ``physical or 
biological features'' in section 424.02. Based on comments received and 
on our experience in administering the Act, the final rule may include 
revisions to any provisions in part 424 that are a logical outgrowth of 
this proposed rule, consistent with the Administrative Procedure Act.
    In proposing the specific changes to the regulations in this rule 
and setting out the accompanying clarifying discussion in this 
preamble, the Services are proposing prospective standards only. 
Nothing in these proposed revisions to the regulations is intended to 
require (at such time as this rule becomes final) that any prior final 
listing, delisting, or reclassification determinations or previously 
completed critical habitat designations be reevaluated on the basis of 
any final regulations.

Section 424.11--Factors for Listing, Delisting, or Reclassifying 
Species

Economic Impacts

    We propose to remove the phrase, ``without reference to possible 
economic or other impacts of such determination'', from paragraph (b) 
to more closely align with the statutory language. Section 4(b)(1)(A) 
of the Act requires the Secretary to make determinations based ``solely 
on the basis of the best scientific and commercial data available after 
conducting a review of the status of the species''. The word ``solely'' 
was added in the 1982 amendments to the Act (Pub. L. 97-304, 96 Stat. 
1411) to clarify that the determination of endangered or threatened 
status was intended to be made ``solely upon biological criteria and to 
prevent non-biological considerations from affecting such decisions.'' 
In making the clarification, Congress expressed concerns with the 
requirements of the Regulatory Flexibility Act, Paperwork Reduction 
Act, and E.O. 12291 potentially introducing economic and other factors 
into the basis for determinations under the Act (H.R. Rep. No. 97-567 
at 19-20, May 17, 1982).
    In removing the phrase, the Services will continue to make 
determinations based solely on biological considerations. However, 
there may be circumstances where referencing economic, or other impacts 
may be informative to the public. For example, the Environmental 
Protection Agency conducts benefits and costs analyses of each proposed 
or revised National Ambient Air Quality Standard. These regulatory 
impact analyses are designed to inform the public and state, local, and 
tribal governments about the potential costs and benefits of 
implementation; however, the regulatory impact analyses are not a part 
of the standard selection

[[Page 35195]]

process. While Congress precluded consideration of economic and other 
impacts from being the basis of a listing determination, it did not 
prohibit the presentation of such information to the public. Since 
1982, Congress has consistently expressed support for informing the 
public as to the impacts of regulations in subsequent amendments to 
statutes and executive orders governing the rulemaking process.
    In removing the phrase, ``without reference to possible economic or 
other impacts of such determination'', the Services are not suggesting 
that all listing determinations will include a presentation of economic 
or other impacts. Rather, there may be circumstances where such impacts 
are referenced while ensuring that biological considerations remain the 
sole basis for listing determinations. The Services seek comment on 
this modification.

Foreseeable Future

    We propose to add to section 424.11 a new paragraph (d) that sets 
forth a framework for how the Services will consider the foreseeable 
future. Section 3(20) of the Act defines a ``threatened species'' as 
``any species which is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range.'' The term ``foreseeable future'' is not further described 
within either the Act or the Services' current implementing 
regulations. Guidance addressing the concept of the foreseeable future 
within the context of determining the status of species is articulated 
in a 2009 opinion from the Department of the Interior, Office of the 
Solicitor (M-37021, January 16, 2009). The Services have found the 
reasoning and conclusions expressed in this document to be well-
founded, and this guidance has been widely applied by both Services. We 
are proposing to amend section 424.11 to include a framework that sets 
out how the Services will determine what constitutes the foreseeable 
future when determining the status of species.
    Specifically, we propose the following framework: In determining 
whether a species is a threatened species, the Services must analyze 
whether the species is likely to become an endangered species within 
the foreseeable future. The term foreseeable future extends only so far 
into the future as the Services can reasonably determine that the 
conditions potentially posing a danger of extinction in the foreseeable 
future are probable. The Services 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. The Services need not identify the ``foreseeable future'' 
in terms of a specific period of time, but may instead explain the 
extent to which they can reasonably determine that both the future 
threats and the species' responses to those threats are probable.
    As stated above, under the proposed section 424.11(d), as under 
current practice, the foreseeable future will be described on a case-
by-case basis. Congress did not set a uniform timeframe for the 
Secretary's consideration of whether a species was likely to become an 
endangered species, nor did Congress intend that the Secretary set a 
uniform timeframe. For each species considered for listing, the 
Services must review the best scientific and commercial data available 
regarding the likelihood of extinction over time, and then determine, 
with each status review, whether the species meets the definition of an 
endangered species or a threatened species. The foreseeable future is 
uniquely related to the particular species, the relevant threats, and 
the data available. Courts have expressly endorsed the Services' 
approach of tailoring analysis of the foreseeable future to each 
listing determination and considering the foreseeability of each key 
threat and the species' likely response. See, e.g., In Re Polar Bear 
Endangered Species Act Listing and Section 4(d) Rule Litigation, 709 
F.3d 1, 15-16 (D.C. Cir. 2013) (noting that FWS ``determines what 
constitutes the `foreseeable' future on a case-by-case basis in each 
listing decision'' based on how far into the future the available data 
allow for reliable prediction of effects to the species from key 
threats), cert. denied sub nom. Safari Club Intern. v. Jewell, 134 S. 
Ct. 310 (2013).
    The analysis of the foreseeable future should, to the extent 
practicable, account for any relevant environmental variability, such 
as hydrological cycles or oceanographic cycles, which may affect the 
reliability of projections. Analysis of the foreseeable future should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    Under proposed section 424.11(d), as under current practice, the 
foreseeable future for a particular status determination extends only 
so far as predictions about the future are reliable. ``Reliable'' does 
not mean ``certain''; it means sufficient to provide a reasonable 
degree of confidence in the prediction. ``Reliable predictions'' is 
also used here in a non-technical, ordinary sense and not necessarily 
in a statistical sense.
    As outlined in section 4(b)(1)(A) of the Act, status determinations 
must be based on the best scientific and commercial data available. By 
extension, in the context of determining whether a species meets the 
definition of a threatened species, the foreseeable future must also be 
based on the best scientific and commercial data available. The 
Services assess the data concerning each threat and the degree to which 
reliable predictions can be made. In many instances, the amount or 
quality of data available is likely to vary with respect to the 
relevant issues evaluated in a particular status determination; 
consequently, the Services may find varying degrees of foreseeability 
with respect to the multiple threats and their effects on a particular 
species. Although the Secretary's analysis as to the future status of a 
species may be based on reliable predictions with respect to multiple 
trends and threats over different periods of time or even threats 
without specific time periods associated with them, the final 
conclusion is a synthesis of that information. Thus, the foreseeable 
future is not necessarily reducible to a particular number of years. 
Nevertheless, if the information or data are susceptible to such 
precision, it may be helpful to identify the time scale used.
    Depending on the nature and quality of the available data, 
predictions regarding the future status of a particular species may be 
based on analyses that range in form from quantitative population-
viability models and modelling of threats to qualitative analyses 
describing how threats will affect the status of the species. In some 
circumstances, such analyses may include reliance on the exercise of 
professional judgment by experts where appropriate. In cases where the 
available data allow for quantitative modelling or projections, the 
time horizon presented in these analyses does not necessarily dictate 
what constitutes the ``foreseeable future'' or set the specific 
threshold for determining when a species may be in danger of 
extinction. Rather, the foreseeable future can extend only as far as 
the Services can reasonably depend

[[Page 35196]]

on the available data to formulate a reliable prediction and avoid 
speculation and preconception. Regardless of the type of data available 
underlying the Service's analysis, the key to any analysis is a clear 
articulation of the facts, the rationale, and conclusions regarding 
foreseeability. Ultimately, to determine that a species is likely to 
become an endangered species in the foreseeable future, the Services 
must be able to determine that the conditions potentially posing a 
danger of extinction in the future are probable. The Services will 
avoid speculating as to what is hypothetically possible.

Factors Considered in Delisting Species

    In section 424.11, we propose to redesignate current paragraph (d) 
as paragraph (e) and revise it to clarify that we determine whether a 
species is a threatened species or an endangered species using the same 
standards regardless of whether a species is or is not listed at the 
time of that determination. After identifying a ``species'' as defined 
under the Act and conducting a review of the species' status 
considering the factors under section 4(a)(1) of the Act, the Services 
determine if the species meets the definition of a threatened species 
or an endangered species. If the species does not meet either 
definition, the species should not be listed (if it is not already), or 
should be delisted (if it is currently listed). The standard for a 
decision to delist a species is the same as the standard for a decision 
not to list it in the first instance. This is consistent with the 
statute, under which the five-factor analysis in section 4(a)(1) and 
the definitions of ``endangered species'' and ``threatened species'' in 
sections 3(6) and 3(20) establish the parameters for both listing and 
delisting determinations without distinguishing between them.
    Additionally, we propose to modify the current regulatory text to 
clarify the situations in which it would not be appropriate for species 
to remain on the lists of endangered and threatened species. The 
current regulatory language was intended to provide examples of when a 
species should be removed from the lists; however, the language in the 
current regulations has been, in some instances, misinterpreted as 
establishing criteria for delisting. This proposed change is consistent 
with the Services' longstanding practice and the decision in Friends of 
Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012). That decision 
confirms that, when reviewing whether a listed species should be 
delisted, the Services must apply the factors in section 4(a) of the 
Act. 691 F.3d at 433 (upholding FWS's decision to delist the West 
Virginia northern flying squirrel because the agency was not required 
to demonstrate that all of the recovery plan criteria had been met 
before it could delist the species and it was reasonable to construe 
the recovery plan as predictive of the delisting analysis rather than 
controlling it). In that case, the court held that ``Section 4(a)(1) of 
the Act provides the Secretary `shall' consider the five statutory 
factors when determining whether a species is endangered, and section 
4(c) makes clear that a decision to delist `shall be made in 
accordance' with the same five factors.'' Id. at 432.
    To more clearly align section 424.11 with section 4(a) of the Act 
we are proposing to streamline it. As is currently the case, any 
determination to remove a species from the lists because it is has 
become extinct is subject to the Act's requirement that any 
determination as to the species' status must be based on the best 
scientific and commercial data available. Thus, we are proposing to 
retain text at the beginning of the new section 424.11(e) that states; 
``The Secretary will delist a species if the Secretary finds that, 
after conducting a status review based on the best scientific and 
commercial data available:''
    Secondly, to align more closely with the Act, we are proposing to 
replace the current section 424.11(d)(1) with a new section 
424.11(e)(1) that simply states the first reason for delisting a 
species as, ``The species is extinct.'' Our conclusion that a species 
is extinct will be based on the best scientific and commercial data 
available, as required under section 4(b)(1)(A), which may include 
survey data and information regarding the period of time since the last 
detection (e.g., documented occurrence or sighting) of the species. It 
is unnecessary, and potentially confusing in the context of particular 
determinations, to specifically address these matters in the regulatory 
text. Our evaluations will be conducted on a case-by-case basis, 
considering the species-specific biological evidence for species 
extinction.
    Third, we are replacing current section 424.11(d)(2), which 
referred to ``recovery,'' with language in new section 424.11(e)(2) 
that aligns with the statutory definitions of an endangered species or 
a threatened species. Although we are proposing to remove the word 
``recovery'' from the current section 424.11(d)(2), we intend the 
proposed language to continue to refer, among other things, to species 
that have been recovered, because species that have been recovered no 
longer meet the definition of either an endangered species or a 
threatened species.
    Fourth, we are proposing to add a new provision, section 
424.11(e)(3), clarifying that listed entities will be delisted if they 
do not meet the definition of ``species'' as set forth in the Act. This 
could occur if new information, or new analysis of existing 
information, leads the Secretary to determine that a currently listed 
entity is neither a taxonomic species or subspecies, nor a ``distinct 
population segment.'' For example, where, after the time of listing, 
the Services conclude that a species or subspecies should no longer be 
recognized as a valid taxonomic entity, the listed entity would be 
removed from the list because it no longer meets the definition of a 
``species.'' In other instances, new data could indicate that a 
particular listed distinct population segment does not meet the 
criteria of the Services' Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act (``DPS 
Policy''; 61 FR 4722, February 7, 1996). In either circumstance, the 
entity would not meet the definition of a ``species'' and would not 
qualify for listing under the Act.
    Fifth, we are proposing to remove current section 424.11(d)(3), 
which specifies that delisting could be due to error in the original 
data that the Services relied upon when adding species to the lists. 
This language is unnecessary because any circumstance in which a 
species was listed in error would be covered by new section 
424.11(e)(2) or (e)(3).
    Lastly, we are proposing technical changes to the existing 
regulations that remain in place to accommodate the proposed revisions 
discussed above. We are proposing to modify current section 424.11(b) 
to include a reference to the proposed section 424.11(d) regarding the 
foreseeable future and the proposed section 424.11(e) regarding 
delisting. We are proposing to modify current section 424.11(c) by 
adding minor clarifying language to specify that this paragraph refers 
to the statutory definitions of an endangered species and a threatened 
species.

Section 424.12--Criteria for Designating Critical Habitat

Not Prudent Determinations

    We propose to revise section 424.12(a)(1) to set forth a non-
exhaustive list of circumstances in which the Services may find it is 
not prudent to designate critical habitat as contemplated in section 
4(a)(3)(A) of the

[[Page 35197]]

Act. Under the clarifications that we propose in this revision, the 
Services would have the authority but would not be required to find 
that designation would not be prudent in the enumerated circumstances. 
This is a change from the current framework, which sets forth two 
situations in which critical habitat is not prudent. We anticipate that 
not-prudent determinations would continue to be rare. While this 
provision is intended to reduce the burden of regulation in rare 
circumstances in which designation of critical habitat does not 
contribute to the conservation of the species, the Services recognize 
the value of critical habitat as a conservation tool and expect to 
designate it in most cases.
    We propose to retain the circumstance described in the longstanding 
language of current section 424.12(a)(1)(i), which is that the species 
is threatened by taking or other human activity and identification of 
critical habitat can be expected to increase the degree of such threat 
to the species.
    We propose to remove the language in section 424.12(a)(1)(ii) 
indicating that it would not be prudent to designate critical habitat 
when ``designation of critical habitat would not be beneficial to the 
species.'' In a number of cases, courts have remanded not-prudent 
findings to the Service(s) because the courts construed ``would not be 
beneficial'' in ways the Services had not intended. For example, a 
number of courts have held that it was unreasonable for FWS to make a 
not-prudent determination simply because most or all of the areas that 
would be designated would not be subject to consultations under ESA 
section 7. E.g., Natural Resources Defense Council v. U.S. Dept. of 
Interior, 113 F.3d 1121 (9th Cir. 1997); Conservation Council for 
Hawaii v. Babbitt, 2 F. Supp. 2d 1280 (D. Haw. 1998). In Conservation 
Council, the court concluded that FWS had not determined that 
designation would ``not be beneficial to the species'' because 
designating critical habitat could bring other benefits to the species 
beyond consultation, such as informational benefits. 2 F. Supp. 2d at 
1288. In NRDC, the court held that determining critical habitat to be 
not prudent because the majority of the areas that would be designated 
as critical habitat would not be subject to consultation was based on 
an improper interpretation of the regulatory phrase ``not beneficial to 
the species'' to mean ``not beneficial to most of the species.'' 113 
F.3d 1125-16. The existing regulatory language is not in the statute, 
and the Services consider the language unnecessary and difficult to 
understand and apply.
    Basing determinations on whether particular circumstances are 
present, rather than on whether a designation would be beneficial, 
provides an interpretation of the statute that is clearer, more 
transparent, and more straightforward. In some situations, the Services 
may conclude, after a review of the best available scientific data, 
that a designation would nevertheless be prudent even in the enumerated 
circumstances. Conversely, the Services may find in some circumstances 
that are not enumerated in the proposed language that a designation of 
critical habitat would otherwise be not prudent.
    We propose a number of circumstances in which designation of 
critical habitat would generally be not prudent, including some 
circumstances that were already captured in the current regulations at 
section 424.12(a)(1)(ii) and some additional circumstances that we have 
identified based on our experience in designating critical habitat. We 
propose to retain and move into new section 424.12(a)(1)(iv) the 
circumstance described in current section 424.12(a)(1)(ii), which is 
that no areas meet the definition of critical habitat. It is not 
possible for us to designate critical habitat when no areas meet the 
definition of critical habitat in the Act; therefore, in these cases, 
designation is not prudent. We also propose to retain and expand the 
concept of current section 424.12(a)(1)(ii) regarding the lack of 
habitat-based threats to the species.
    In our 2016 revision of section 424.12(a)(1)(ii) (81 FR 7414, 
February 11, 2016), we clarified that, in determining whether 
designation may not be prudent, the Services could consider whether the 
present or threatened destruction, modification, or curtailment of a 
species' habitat or range (i.e., considerations under section 
4(a)(1)(A) of the Act (Factor A)) is not a threat to the species. In 
the 2016 revision, we provided an example of a designation that would 
not be prudent due to the lack of habitat-based threats: A species is 
threatened primarily by disease, but the habitat upon which it relies 
remains intact without threat and would support conservation of the 
species if not for the threat of disease. Since then, we have 
encountered situations in which threats to the species' habitat stem 
solely from causes that cannot be addressed by management actions that 
may be identified through consultation under section 7(a)(2) of the 
Act. In those situations, a designation could create a regulatory 
burden without providing any conservation value to the species 
concerned. Examples would include species experiencing threats stemming 
from melting glaciers, sea level rise, or reduced snowpack but no other 
habitat-based threats. In such cases, a critical habitat designation 
and any resulting section 7(a)(2) consultation, or conservation effort 
identified through such consultation, could not prevent glaciers from 
melting, sea levels from rising, or increase the snowpack. Thus, we 
propose in section 424.12(a)(1)(ii) that designation of critical 
habitat in these cases may not be prudent because it would not serve 
its intended function to conserve the species.
    We also propose to add as an additional circumstance under section 
424.12(a)(1)(iii) situations where critical habitat areas under the 
jurisdiction of the United States provide negligible conservation value 
for a species that primarily occurs in areas outside of U.S. 
jurisdiction. In our 2016 revision of these regulations, we noted in 
the preamble that this could be a basis for determining that critical 
habitat designation would be not prudent; however, we find it is 
clearer to add this consideration directly to the regulatory text. We 
would apply this determination only to species that primarily occur 
outside U.S. jurisdiction, and where no areas under U.S. jurisdiction 
contain features essential to the conservation of the species. The 
circumstances when a critical habitat designation would provide 
negligible conservation value for a species will be determined on a 
case-by-case basis and may consider such factors as threats to the 
species or habitat and the species needs.

Designating Unoccupied Areas

    On February 11, 2016, the Services published a final rule revising 
the regulations at section 424.12, which establish criteria for 
designating critical habitat (81 FR 7439). One of the revisions we made 
was to eliminate the following paragraph (e): ``The Secretary shall 
designate as critical habitat outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species.'' 
The Services explained in the preamble to the final rule that we had 
concluded that the ``rigid step-wise approach'' prescribed in that 
prior regulatory language may not be the best conservation strategy for 
the species and in some circumstances may result in a designation that 
is geographically larger, but less efficient as a conservation tool (81 
FR 7415). Nonetheless, we are aware of continued perceptions that, by 
eliminating this provision, the Services

[[Page 35198]]

intended to designate as critical habitat expansive areas of unoccupied 
habitat. To address this concern, the Services propose to revise 
section 424.12(b)(2) by restoring the requirement that the Secretary 
will first evaluate areas occupied by the species. We also propose to 
clarify when the Secretary may determine unoccupied areas are essential 
for the conservation of the species.
    In the Act, the term ``geographical area occupied by the species'' 
is further modified by the clause ``at the time it is listed.'' 
However, if critical habitat is not designated concurrently with 
listing, or is revised years after the species was listed, it can be 
difficult to discern what was occupied at the time of listing. The 
known distribution of a species can change after listing for many 
reasons, such as discovery of additional localities, extirpation of 
populations, or emigration of individuals to new areas. In many cases, 
information concerning a species' distribution, particularly on private 
lands, is limited because surveys are not routinely carried out on 
private lands. Although surveys may be performed as part of an 
environmental analysis for a particular development proposal, such 
surveys typically focus on listed rather than non-listed species. Thus, 
our knowledge of a species' distribution at the time of listing in 
these areas is often limited and the information in our listing rule 
may not detail all areas occupied by the species at that time.
    Thus, while some of these changes in a species' known distribution 
reflect changes in the actual distribution of the species, some reflect 
only changes in the quality of our information concerning distribution. 
In these circumstances, the determination of which geographic areas 
were occupied at the time of listing may include data developed since 
the species was listed. This interpretation was supported by the 
court's decision, Otay Mesa Property L.P. v. DOI, 714 F. Supp. 2d 73 
(D.D.C. 2010), rev'd on other grounds, 646 F.3d 914 (D.C. Cir. 2011) 
(San Diego fairy shrimp). In that decision, the judge noted that the 
clause ``occupied at the time of listing'' allows FWS to make a post-
listing determination of occupancy based on the currently known 
distribution of the species in some circumstances. Although the D.C. 
Circuit disagreed with the district court that the record contained 
sufficient data to support the FWS' determination of occupancy in that 
case, the D.C. Circuit did not express disagreement with (or otherwise 
address) the district court's underlying conclusion that the Act allows 
FWS to make a post-listing determination of occupancy if based on 
adequate data. The Services acknowledge that to make a post-listing 
determination of occupancy we must distinguish between actual changes 
to species occupancy and changes in available information.
    The Act defines unoccupied critical habitat in terms of a 
determination that such areas are essential for the conservation of the 
species. The proposed section 424.12(b)(2) specifies how the Services 
would determine whether unoccupied areas are essential. The proposed 
language states the Services would only consider unoccupied areas to be 
essential in two situations: When a critical habitat designation 
limited to geographical areas occupied would (1) be inadequate to 
ensure the conservation of the species, or (2) result in less-efficient 
conservation for the species. The proposed changes will provide 
additional predictability to the process of determining when 
designating unoccupied habitat may be appropriate. For example, the 
Services could consider unoccupied habitat to be essential when a 
designation limited to occupied habitat would result in a 
geographically larger but less effective designation.
    There are situations where a designation focused on occupied 
critical habitat would result in less efficient conservation for the 
species than a designation that includes a mix of occupied and 
unoccupied critical habitat. In these cases, the designation of some 
unoccupied areas would result in the same or greater conservation for 
the species but would do so more efficiently. Efficient conservation 
for the species refers to situations where the conservation is 
effective, societal conflicts are minimized, and resources expended are 
commensurate with the benefit to the species. The flexibility to 
include unoccupied areas in a designation where limiting the 
designation to occupied areas would have resulted in less-efficient 
conservation of the species will allow the Services to focus agency 
resources thoughtfully in both designating critical habitat and 
conducting future consultations on the critical habitat.
    In addition, we propose to further clarify when the Secretary may 
determine that an unoccupied area may be essential for the conservation 
of the species. In order for an unoccupied area to be considered 
essential, the Secretary must determine that there is a reasonable 
likelihood that the area will contribute to the conservation of the 
species. In making a determination as to whether such a reasonable 
likelihood exists, the Services will continue to take into account the 
best available science regarding species-specific and area-specific 
factors. This could include such factors as: (a) Whether the area is 
currently or is likely to become usable habitat for the species; (b) 
the likelihood that interagency consultation under Section 7 will be 
triggered, i.e., whether any federal agency actions are likely to be 
proposed with respect to the area; and, (c) how valuable the potential 
contributions of the area are to the biological needs of the species.
    When the Services evaluate if an area is now, or is likely to 
become, usable habitat for the species we would take into account, 
among other things, the current state of the area and extent to which 
extensive restoration would be needed for the area to become usable. 
For example, the Services might conclude that an area is unlikely to 
contribute to the conservation of the species where it would require 
extensive affirmative restoration that does not seem likely to occur 
such as when a non-federal landowner or necessary partners are 
unwilling to undertake or allow such restoration. Although the 
expressed intentions of such landowners or partners will not 
necessarily be determinative, the Services would consider those 
intentions in light of the mandatory duties and conservation purposes 
of the Act.
    When the Services evaluate the likelihood that interagency 
consultation under section 7 will be triggered, we would consider 
whether there are any federal agency actions likely to be proposed 
within the area (i.e., federal nexus). Because the only regulatory 
effect of a designation of critical habitat is the requirement that 
federal agencies avoid authorizing, funding, or undertaking actions 
that may destroy or adversely modify such habitat, the likelihood that 
an area will contribute to conservation is, in most cases, greater for 
public lands and lands for which such federal actions can be reasonably 
anticipated than for other types of land.
    However, the Services would continue to consider the conservation 
purposes of the Act in determining how valuable the potential 
contributions of the area are to the biological needs of the species. 
In practice, this means that, in the rare instance where the potential 
contribution of the unoccupied area to the conservation of the listed 
species is extremely valuable, a lower threshold than ``likely'' may be 
appropriate. For example, where an area represents the only potential 
habitat of its type (i.e., is uniquely able to support certain life 
functions of the species), the Services

[[Page 35199]]

may reasonably classify that area as essential even in the face of a 
low likelihood that the area would contribute to species conservation. 
Conversely, a greater showing of likelihood may be required for an area 
that provides less significant conservation value.

Public Comments

    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 hand-
delivered comments that we do not receive, or mailed comments that are 
not postmarked, by the date specified in DATES.
    We will post your entire comment-- including your personal 
identifying information--on https://www.regulations.gov. 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. 
Comments and materials we receive, as well as supporting documentation 
we used in preparing this proposed rule, will be available for public 
inspection on https://www.regulations.gov.

Required Determinations

Regulatory Planning and Review--Executive Orders 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, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order 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 rule in a manner consistent 
with these requirements. This proposed rule is consistent with 
Executive Order 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.''

Executive Order 13771

    This proposed rule is expected to be an Executive Order 13771 
deregulatory action.

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 his 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. We certify that, if adopted as 
proposed, this proposed rule would not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking revises and clarifies requirements for NMFS and FWS 
regarding factors for listing, delisting, or reclassifying species and 
designating critical habitat under the Endangered Species Act to 
reflect agency experience and to codify current agency practices. The 
proposed changes to these regulations do not expand the reach of 
species protections or designations of critical habitat.
    NMFS and FWS are the only entities that are directly affected by 
this rule because we are the only entities that list species and 
designate critical habitat under the Endangered Species Act. No 
external entities, including any small businesses, small organizations, 
or small governments, will experience any economic impacts from this 
rule.

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 above, 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; that is, 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 Executive Order 12630, this proposed rule would 
not have significant takings implications. This proposed rule would not 
pertain to ``taking'' of private property interests, nor would it 
directly affect private property. A takings implication assessment is 
not required because this proposed rule (1) would not effectively 
compel a property owner to suffer a physical invasion of property and 
(2) would not deny all economically beneficial or productive use of the 
land or aquatic resources. This proposed rule would substantially 
advance a legitimate government interest (conservation and recovery of 
endangered species and threatened species) and would not present a 
barrier to all reasonable and expected beneficial use of private 
property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule would have significant Federalism effects 
and have determined that a federalism summary impact statement is not 
required. This proposed rule pertains only to factors for listing, 
delisting, or reclassifying species and designation of critical habitat 
under the Endangered Species Act, and would not

[[Page 35200]]

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 
Executive Order 12988. This proposed rule would clarify factors for 
listing, delisting, or reclassifying species and designation of 
critical habitat under the Endangered Species Act.

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' the Department of the 
Interior's manual at 512 DM 2, and the Department of Commerce (DOC) 
Tribal Consultation and Coordination Policy (May 21, 2013), DOC 
Departmental Administrative Order (DAO) 218-8 (April 2012), and NOAA 
Administrative Order (NAO) 218-8 (April 2012), we are considering 
possible effects of this proposed rule on federally recognized Indian 
Tribes. We will continue to collaborate/coordinate with tribes on 
issues related to federally listed species and their habitats. 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 OMB under the Paperwork 
Reduction Act. This proposed rule will not impose recordkeeping or 
reporting requirements on State, local, or Tribal governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    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 anticipate that the categorical exclusion found at 43 CFR 
46.210(i) likely applies to the proposed regulation changes. At 43 CFR 
46.210(i), the Department of the Interior has found that the following 
category 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.''
    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).
    We invite the public to comment on the extent to which this 
proposed regulation may have a significant impact on the human 
environment, or fall within one of the categorical exclusions for 
actions that have no individual or cumulative effect on the quality of 
the human environment. We will complete our analysis, in compliance 
with NEPA, before finalizing this regulation.

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 revised 
regulations are not expected to affect energy supplies, distribution, 
and use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Clarity of the Rule

    We are required by Executive Orders 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 feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

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.

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.

0
2. Amend Sec.  424.11 by revising paragraphs (b) through (f) and adding 
a new paragraph (g) to read as follows:


Sec.  424.11   Factors for listing, delisting, or reclassifying 
species.

* * * * *
    (b) The Secretary shall make any determination required by 
paragraphs (c), (d), and (e) of this section solely on the basis of the 
best available scientific and commercial information regarding a 
species' status.
    (c) A species shall be listed or reclassified if the Secretary 
determines, on the basis of the best scientific and commercial data 
available after conducting a review of the species' status, that the 
species meets the definition of an endangered species or a threatened 
species because of any one or a combination of the following factors:
    (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (2) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (3) Disease or predation;
    (4) The inadequacy of existing regulatory mechanisms; or
    (5) Other natural or manmade factors affecting its continued 
existence.
    (d) In determining whether a species is a threatened species, the 
Services

[[Page 35201]]

must analyze whether the species is likely to become an endangered 
species within the foreseeable future. The term foreseeable future 
extends only so far into the future as the Services can reasonably 
determine that the conditions potentially posing a danger of extinction 
in the foreseeable future are probable. The Services 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. The Services need not identify the 
foreseeable future in terms of a specific period of time, but may 
instead explain the extent to which they can reasonably determine that 
both the future threats and the species' responses to those threats are 
probable.
    (e) The Secretary will delist a species if the Secretary finds 
that, after conducting a status review based on the best scientific and 
commercial data available:
    (1) The species is extinct;
    (2) The species does not meet the definition of an endangered 
species or a threatened species. In making such a determination, the 
Secretary shall consider the same factors and apply the same standards 
set forth in paragraph (c) of this section regarding listing and 
reclassification; or
    (3) The listed entity does not meet the statutory definition of a 
species.
    (f) The fact that a species of fish, wildlife, or plant is 
protected by the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (see part 23 of this title 50) or a 
similar international agreement on such species, or has been identified 
as requiring protection from unrestricted commerce by any foreign 
nation, or to be in danger of extinction or likely to become so within 
the foreseeable future by any State agency or by any agency of a 
foreign nation that is responsible for the conservation of fish, 
wildlife, or plants, may constitute evidence that the species is 
endangered or threatened. The weight given such evidence will vary 
depending on the international agreement in question, the criteria 
pursuant to which the species is eligible for protection under such 
authorities, and the degree of protection afforded the species. The 
Secretary shall give consideration to any species protected under such 
an international agreement, or by any State or foreign nation, to 
determine whether the species is endangered or threatened.
    (g) The Secretary shall take into account, in making determinations 
under paragraphs (c) or (e) of this section, those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species, whether by 
predator control, protection of habitat and food supply, or other 
conservation practices, within any area under its jurisdiction, or on 
the high seas.
0
3. Amend Sec.  424.12 by revising paragraphs (a)(1) and (b)(2) to read 
as follows:


Sec.  424.12   Criteria for designating critical habitat.

    (a) * * *
    (1) The Secretary may, but is not required to, determine that a 
designation would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) After analyzing the best scientific data available, the 
Secretary otherwise determines that designation of critical habitat 
would not be prudent.
* * * * *
    (b) * * *
    (2) The Secretary will designate as critical habitat, at a scale 
determined by the Secretary to be appropriate, specific areas outside 
the geographical area occupied by the species only upon a determination 
that such areas are essential for the conservation of the species. When 
designating critical habitat, the Secretary will first evaluate areas 
occupied by the species. The Secretary will only consider unoccupied 
areas to be essential where a critical habitat designation limited to 
geographical areas occupied would be inadequate to ensure the 
conservation of the species or would result in less efficient 
conservation for the species. Efficient conservation for the species 
refers to situations where the conservation is effective, societal 
conflicts are minimized, and resources expended are commensurate with 
the benefit to the species. In addition, for an unoccupied area to be 
considered essential, the Secretary must determine that there is a 
reasonable likelihood that the area will contribute to the conservation 
of the species.
* * * * *

    Dated: July 18, 2018
Ryan K. Zinke,
Secretary, Department of the Interior.

    Dated: July 16, 2018.
Wilbur Ross,
Secretary, Department of Commerce.
[FR Doc. 2018-15810 Filed 7-24-18; 8:45 am]
 BILLING CODE 4333-15-P; 3510-22-P