Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat, 55398-55407 [2020-19577]

Download as PDF 55398 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules built-in belt-positioning seat.’’ The agency is denying the request because the language that the petitioner would introduce would unreasonably reduce safety by permitting designs that do not address the risks of submarining and abdominal injury that booster seats presently address. For these reasons and in accordance with 49 U.S.C. 30162 and 49 CFR part 552, the petition for rulemaking from Safeguard/IMMI and C.E. White is denied. Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95 and 501.8. Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.8. Raymond R. Posten, Associate Administrator for Rulemaking. [FR Doc. 2020–17595 Filed 9–4–20; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–HQ–ES–2019–0115; FF09E23000 FXES1111090FEDR 201] RIN 1018–BD84 Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat U.S. Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (FWS), propose to amend portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The proposed revisions set forth a process for excluding areas of critical habitat under section 4(b)(2) of the Act, which mandates our consideration of the impacts of designating critical habitat and permits exclusions of particular areas following a discretionary exclusion analysis. We want to articulate clearly when and how FWS will undertake an exclusion analysis, including identifying a nonexhaustive list of categories of potential impacts for FWS to consider. The proposed rulemaking would respond to applicable Supreme Court case law, reflect agency experience, codify some current agency practices, and make some modifications to current agency practice. The intended effect of this proposed rule is to provide greater transparency and certainty for the public and stakeholders. jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 We will accept comments from all interested parties until October 8, 2020. 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: http:// www.regulations.gov. In the Search box, enter FWS–HQ–ES–2019–0115, 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–2019– 0115; U.S. Fish and Wildlife Service, MS:JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041–3803. We request that you send comments only by the methods described above. We will post all comments on http:// 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: DOI, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240, telephone 202/208–4646. If you use a telecommunications device for the deaf, call the Federal Relay Service at 800/877–8339. SUPPLEMENTARY INFORMATION: DATES: 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 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 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 the National Marine Fisheries Service (NMFS) (collectively, the Services). Together, FWS and NMFS administer the Act via joint regulations in chapter IV of title 50 of the Code of Federal Regulations (CFR). In addition, each of the Services also has regulations specific to its own implementation of the Act (located at 50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS). Because this rulemaking, if finalized, would only apply to FWS, the regulatory requirements proposed in this rulemaking would not require NMFS to change its processes for consideration of exclusions under section 4(b)(2) of the Act. Since this rulemaking is solely applicable to FWS, when we refer to the Secretary, we mean the Secretary of the Interior. One of the tools that the Act provides to conserve species is the designation of critical habitat. The purpose of critical habitat is to identify the areas that are essential to the species’ conservation and recovery. When FWS lists a species, the Act requires that, to the maximum extent prudent and determinable, 16 U.S.C. 1533(a), the Secretary, acting through FWS, designate critical habitat after taking into consideration the economic impact, the impact on national security, and any other relevant impact, 16 U.S.C. 1533(b)(2). In section 3(5)(A) of the Act, Congress defined ‘‘critical habitat’’ as: (i) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act then provides the Secretary the authority to exclude any particular area from a critical habitat designation if the benefits of exclusion outweigh the benefits of inclusion for that area, so long as excluding it will not result in the extinction of the species: ‘‘The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking E:\FR\FM\08SEP1.SGM 08SEP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.’’ 16 U.S.C. 1533(b)(2). Our implementing regulations in 50 CFR part 424 set forth relevant definitions (50 CFR 424.02) and describe the standards and procedures for identifying critical habitat (50 CFR 424.12). On February 11, 2016, the Services issued a joint policy describing how they implement their authority to exclude areas from critical habitat designations. ‘‘Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act,’’ 81 FR 7226 (Policy). This proposed rule carries out Executive Order 13777, ‘‘Enforcing the Regulatory Reform Agenda,’’ and is part of a larger effort by DOI to identify regulations for repeal, replacement, or modification. Additionally, we decided to revisit certain language in the preamble of the Policy, as well as certain statements in the preamble to the 2013 rule that revised the regulations on the timing of our economic analyses at 50 CFR 424.19 (August 28, 2013; 78 FR 53058), to provide clarity to the FWS and the public in light of the Supreme Court’s recent decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018). At the time we developed the 2013 rule and Policy, the Services were guided by a line of cases in which courts had held that a decision by the Services not to exclude a particular area under section 4(b)(2) of the Act was committed to agency discretion by law and therefore not subject to judicial review. See, e.g., Bldg. Indus. Ass’n v. U.S. Dept. of Commerce, 792 F.3d 1027, 1035 (9th Cir. 2015)); Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 989 (9th Cir. 2015); Cape Hatteras Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29–30 (D.D.C. 2010). Thus, for example, we stated in the Policy that ‘‘[r]ecent court decisions have resoundingly upheld the discretionary nature of the Secretaries’ consideration of whether to exclude areas from critical habitat.’’ 81 FR 7226 and 7233 (February 11, 2016) (citing cases listed above). In our 2013 final rule, we cited Building Industry Ass’n of the Bay Area v. U.S. VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 Dep’t of Commerce, 2012 U.S. Dist. Lexis 170688 (N.D. Cal. Nov. 30, 2012) as case law that supported our conclusion that exclusions are discretionary and the discretion not to exclude an area is judicially unreviewable (78 FR 53072). We also stated in the Policy that ‘‘although the Services will explain their rationale for not excluding a particular area, that decision is committed to agency discretion.’’ Id. at 7234. The Supreme Court has now definitively held, to the contrary, that decisions not to exclude a particular area are judicially reviewable. Weyerhaeuser, 139 S. Ct. at 371 (noting that the challenge to the Service’s decision not to exclude a particular area was a ‘‘familiar one in administrative law that the agency did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion’’). Thus, the Court held that, although a decision not to exclude a particular area is discretionary, that decision may be reviewed by courts for abuse of discretion under section 706(2) of the Administrative Procedure Act (APA, 5 U.S.C 706(2)). 139 S. Ct. at 371. To provide transparency about how the Secretary intends to exercise his discretion regarding exclusions under section 4(b)(2), we are proposing this regulation, which would supersede the regulations at 50 CFR 424.19 and the Policy with respect to FWS’s implementation of the Act. The regulations at 50 CFR 424.19 and the Policy remain in effect with respect to NMFS’s implementation of the Act. In proposing the specific changes to the regulations in this document and setting out the accompanying clarifying discussion in this preamble, FWS is proposing prospective standards only. Nothing in these proposed regulations is intended to require (if this rule becomes final) that any proposed rules published prior to the effective date of any final regulation or any previously finalized critical habitat designations be reevaluated on the basis of the final regulations. We are proposing to redesignate 50 CFR part 17, subpart I, as subpart J, and to add new regulations in 50 CFR part 17, subpart I. Specifically, we propose to add a new § 17.90. Some aspects of new § 17.90 are carried over unchanged from the existing joint regulations at 50 CFR 424.19 and, accordingly, are not discussed further here. Other aspects of proposed § 17.90 reflect new regulatory language, and those aspects are the focus of the preamble discussion below. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 55399 Section 4(b)(2) of the Endangered Species Act As noted above, on February 11, 2016, the Services published the Policy. That policy provided direction regarding how the Services would exercise their discretion to exclude areas from critical habitat designations. Since issuance of the Policy, FWS has concluded that adding some elements of the policy to the implementing regulations would be more effective in guiding agency activities and would provide greater transparency and certainty to the public and stakeholders. In addition, the proposed regulations would put into effect some differences in our approach relative to what was outlined in the Policy, including an information standard for when we enter into a discretionary weighing analysis, a clarification of how considerations for exclusions will be conducted for Federal lands, and an approach to assigning the weight of the benefits of inclusion or exclusion of any particular areas designated as critical habitat. NMFS will continue to implement the Policy and regulations at 50 CFR. 424.19. In 1982, Congress added section 4(b)(2) to the Act, both to require the Secretaries to consider the relevant impacts of designating critical habitat and to provide a means for minimizing negative impacts of designation by excluding, in appropriate circumstances, particular areas from a designation. The first sentence of section 4(b)(2) sets out a mandatory requirement that the Secretaries consider the economic impact, impact on national security, and any other relevant impacts prior to designating an area as part of a critical habitat designation. As required by this sentence, FWS always considers those impacts, for every designation of critical habitat. The statute does not prescribe how FWS should take into consideration these impacts. This proposed rule provides the framework for the role that FWS’s consideration of the economic impact, impact on national security, and any other relevant impacts will play when identifying any potential exclusions from designations of critical habitat. Although the term ‘‘homeland security’’ was not in common usage in 1982, the Services concluded in the joint Policy that Congress intended that ‘‘national security’’ includes what we now refer to as ‘‘homeland security.’’ 81 FR 7227; 2016. The second sentence of section 4(b)(2) provides the authority for a process by which the Secretaries may elect to E:\FR\FM\08SEP1.SGM 08SEP1 55400 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS determine whether to exclude an area from the designation by performing an exclusion analysis. FWS’s consideration of impacts under the first sentence of section 4(b)(2) informs the decision whether to engage in the exclusion analysis under the second sentence of section 4(b)(2). Conducting an exclusion analysis under section 4(b)(2) involves balancing or weighing the benefits of excluding a particular area from a critical habitat designation against the benefits of including that area in the designation. The Act provides that if the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exclude the particular area, unless the Secretary determines that the exclusion will result in the extinction of the species concerned. Overview of Proposed Regulatory Provisions on Discretionary 4(b)(2) Exclusion Analyses The language of proposed § 17.90(a) carries over the two sentences in the existing interagency regulation at 50 CFR 424.19(a) without change. It then makes clear that, in addition to summarizing the draft economic analysis, the proposed rule will identify known national security and other relevant impacts of the proposed designation, and identify areas that the Secretary has reason to consider for exclusion and explain why. We also propose to include a nonexhaustive list of categories of potential impacts that the Secretary will identify, when known, at the proposed rule stage. We note that these impacts are the same as those that the Secretary will consider, as appropriate, when conducting the mandatory consideration of any other relevant impacts as expressed in the first sentence of section 4(b)(2) of the Act. Including this list of categories for consideration provides greater transparency and clarity to the public and stakeholders. Making clear to the public the areas that the Secretary has reason to consider excluding allows the public not only to submit comments on the benefits of exclusion and inclusion in general, but to focus their comments on those benefits as they relate to the specific areas most likely to be considered for exclusion. Additionally, the regulation makes clear that, at any time during the process of designating critical habitat, the Secretary may still consider additional exclusions, including areas that were not identified in the proposed rule. This codifies and makes transparent the Secretary’s existing practice and is intended to allow commenters to provide information VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 specific to those areas that the Secretary anticipates considering for exclusion. We propose to add § 17.90(b), which would carry over the language of the existing interagency regulation at 50 CFR 424.19(b) that already requires the Secretary to consider the probable economic, national security, and other relevant impacts of the designation. We propose to add § 17.90(c), which would carry over the language of the existing interagency regulation at 50 CFR 424.19(c) but modify the language to describe how the Secretary intends to exercise his discretion and articulate clearly the factors that will prompt the Secretary to enter into the discretionary exclusion analysis under section 4(b)(2). Including this provision in the regulations will clarify and codify the process and standards underlying exclusion analyses and decisions. In addition, codifying certain aspects of the nonbinding Policy into the regulations provides greater transparency and predictability by making those aspects of the Policy binding. Proposed paragraph (c)(1) reiterates that the Secretary has discretion whether to enter into an exclusion analysis under section 4(b)(2) of the Act. Proposed paragraph (c)(2) describes the two circumstances in which FWS will conduct an exclusion analysis for a particular area: Either (1) when a proponent of excluding the area has presented credible information in support of the request; or (2) where such information has not been presented, when the Secretary exercises his or her discretion to evaluate any particular area for potential exclusion. In Weyerhaeuser, the Supreme Court held that decisions not to exclude areas from critical habitat designations are judicially reviewable under the abuseof-discretion standard. The Court reasoned that, although the use of the word ‘‘may’’ in section 4(b)(2) clearly confers discretion, that ‘‘does not segregate’’ the decision not to exclude from the procedures mandated by the Act. Among those mandated procedures, the Court referred specifically to the requirement in section 4(b)(2) to consider relevant impacts and the APA requirement to consider all of the relevant factors. Because a decision not to undertake a discretionary exclusion analysis precludes the Secretary from excluding any areas from the designation, FWS therefore intends to document the rational basis for such decisions. FWS also intends that this documentation of the exclusion analysis will demonstrate compliance with mandated procedures. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 Proposed paragraph (d) describes how FWS would undertake an exclusion analysis once the Secretary exercises the discretion to enter into one. We recognize that assigning weights to different impacts or benefits requires expertise. Therefore, we propose to assign weights of benefits of inclusion and exclusion based on who has the relevant expertise. Proposed paragraphs (d)(1) through (d)(4) describe factors that FWS considers with respect to conservation plans or agreements, tribal implications, national-security implications, and Federal lands, in parallel to paragraphs 2 through 6 of the Policy. In proposed paragraph (e) the Secretary would exercise the broad discretion given under section 4(b)(2) by establishing as a principle that FWS will exclude areas whenever it determines that the benefits of exclusion outweigh the benefits of inclusion, as long as exclusion will not result in the extinction of the species. Framework for Considering an Exclusion and Conducting a Discretionary 4(b)(2) Exclusion Analysis When FWS concludes that a critical habitat designation is prudent and determinable for species listed under the Act, FWS must follow the statutory and regulatory provisions to designate critical habitat. The Act’s language makes clear that biological considerations drive the initial step of identifying critical habitat. Section 4(b)(2) expressly requires designations to be made based on the best scientific data available. In accordance with the Court’s decision in Weyerhaeuser, the process begins by identifying a species’ habitat. Next, the Act’s definition of ‘‘critical habitat’’ requires the Secretary to identify those areas of habitat occupied by the species at the time of listing that contain physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. FWS also identifies the specific areas of unoccupied habitat that are essential to the conservation (i.e., recovery) needs of the species. Implementing regulations at 50 CFR 424.12 specify the criteria for designation of critical habitat. If the Secretary enters into a discretionary 4(b)(2) exclusion analysis, the Secretary has broad discretion as to what factors to consider as benefits of inclusion and benefits of exclusion, and the weight to assign to each factor. In a 4(b)(2) exclusion analysis, we determine if the benefits of exclusion outweigh the benefits of inclusion for a particular area. If so, the statute provides the E:\FR\FM\08SEP1.SGM 08SEP1 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS Secretary with discretion to exclude that area, unless the Secretary determines on the basis of the best scientific and commercial data available that failure to designate the area as critical habitat will result in the extinction of the species concerned. 16 U.S.C. 1533(b)(2). Proposed Approach To Determining Whether To Conduct a Discretionary Exclusion Analysis We have not previously articulated our general approach to determining whether to exercise the discretion afforded under the statute to undertake the optional weighing process under the second sentence of 4(b)(2) of the Act. Although the Policy identified specific factors to consider if a discretionary exclusion analysis is conducted, it stopped short of articulating more generally how we approach the determination to undertake that analysis. We now propose to describe specifically what ‘‘other relevant impacts’’ may include and articulate how we approach determining whether we will undertake the discretionary exclusion analysis. We therefore propose paragraph (b) as set forth in the rule portion of this document. Consistent with the first sentence of section 4(b)(2), proposed paragraph (b) sets out a mandatory requirement that FWS consider the economic impact, impact on national security, and any other relevant impacts prior to designating an area as part of a critical habitat designation. These economic impacts may include, for example, the economy of a particular area, productivity, and creation or elimination of jobs, opportunity costs potentially arising from critical habitat designation, and potential benefits from a potential designation such as outdoor recreation or ecosystem services. The proposed regulations would provide categories of ‘‘other relevant impacts’’ that we may consider, including: Public health and safety; community interests; and the environment (such as increased risk of wildfire or pest and invasive species management). This list is not an exhaustive list of the types of impacts that may be relevant in a particular case; rather, it provides additional clarity by identifying some additional types of impacts that may be relevant. Our discussion of proposed new paragraph (d), below, describes specific considerations related to Tribes, States, and local governments; national security; conservation plans, agreements, or partnerships; and Federal lands. After we consider the relevant impacts, we must determine whether to undertake a discretionary exclusion VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 analysis. We propose paragraph (c) to provide clarity and transparency about how the Secretary intends to exercise his discretion regarding when he will enter into the discretionary exclusion analysis under section 4(b)(2). Proposed paragraph (c)(1) states the Secretary has discretion to enter into a discretionary exclusion analysis subject to the provisions of proposed paragraph (c)(2). Under proposed paragraph (c)(2), we propose to always enter into a discretionary exclusion analysis to compare the benefits of inclusion and the benefits of exclusion of particular areas for which credible information supporting exclusion is presented. As part of the public notice-and-comment process, FWS routinely receives information from the public regarding any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation and the benefits of including or excluding areas that exhibit these impacts. The term ‘‘credible information’’ refers to information that constitutes a reasonably reliable indication regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for a particular area. In evaluating whether a proponent has provided ‘‘credible information’’ in support of a claim that an area should be excluded, we look at two factors— whether the proponent has provided factual information in support of the claimed impacts and whether the claimed impacts may be meaningful for purposes of an exclusion analysis. The information provided by submitters or proponents could address either the benefits of exclusion, or the benefits of inclusion, and we do not expect proponents to conduct a comparison of the impacts relative to the conservation value of the specific area. The ‘‘credible information’’ standard would be relevant only to the question of whether to undertake an analysis—meeting this standard would not indicate that the area will in fact be excluded from the designation. The second pathway to an exclusion analysis for a particular area would be if the Secretary decides to exercise his or her discretion to do so. See proposed paragraph (c)(2)(ii) in the rule portion of this document. In either case, FWS intends to document the basis for any decision not to undertake an exclusion analysis. An explanation of the decision not to undertake an exclusion analysis for a particular area will be included in the final determination regarding critical habitat for the species. PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 55401 Proposed Approach To Conducting Discretionary Exclusion Analyses We propose to add a new paragraph (d) as set forth in the proposed regulatory text. Under proposed paragraph (d), we describe how FWS will undertake an exclusion analysis once the Secretary exercises the discretion to conduct that analysis. We recognize that assigning weight to different impacts or benefits requires expertise. Therefore, we propose to assign weights of benefits of inclusion and exclusion based on who has the relevant expertise (e.g., a commenter on the proposed designation of critical habitat or FWS). Quantification of benefits, if appropriate and feasible, will be conducted and explained on a caseby-case basis in individual critical habitat rulemakings. With respect to benefits that are outside FWS’ expertise and as described in proposed paragraph (d)(1), the Secretary would assign weights to benefits consistent with expert or firsthand information, unless the Secretary has knowledge or material evidence that rebuts that information. Expert or firsthand information should describe the implications of designating a particular area as critical habitat and include supporting documentation of the nature, scope, and magnitude of the impacts and the degree to which designation or exclusion would affect interested parties. Additionally, the impacts described must be attributable to the incremental effect of the designation of critical habitat, not attributable to the listing of the species. Under paragraph (a), if finalized, FWS would continue to make available for public comment the draft economic analysis of the critical habitat designation at the time of the proposed critical habitat designation. This information may be used in weighing the benefits of including or excluding a particular area. However, in some instances the Secretary may have knowledge or material evidence that rebuts the information provided by experts or sources with firsthand knowledge. This information could include FWS’ expert judgment about the likely effects of designating critical habitat upon the need to engage in, or outcomes of, consultations under section 7 of the Act, or other information available to FWS, such as the information in the economic analysis, as informed by public input. The Service will continue to base critical habitat designations on the best available information. Therefore, if the Secretary has additional knowledge or material evidence that qualifies as the E:\FR\FM\08SEP1.SGM 08SEP1 55402 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules best information available, the Secretary would assign weights of the benefits of inclusion or exclusion consistent with the available information from experts, firsthand knowledge, and the best available information that the Secretary may have to rebut that information. Proposed subparagraphs in paragraph (d)(1) identify a non-exhaustive list of categories of impacts that are outside the scope of FWS’ expertise. Even though some of the categories on this list refer to ‘‘nonbiological impacts,’’ we recognize that many sources outside FWS also have information and expertise regarding biological impacts. FWS would consider that information or expertise in the weighing of benefits of inclusion or exclusion of particular areas. jbell on DSKJLSW7X2PROD with PROPOSALS Tribal Lands Proposed paragraph (d)(1)(i) addresses nonbiological impacts identified by federally recognized Indian Tribes. Executive Orders, Secretarial Orders, and policies guide how FWS works with federally recognized Indian Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct FWS to consult with Tribes on a government-togovernment basis. Secretarial Order 3206, American Indian Tribal Rights, Federal–Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In light of this order, we would undertake a discretionary 4(b)(2) exclusion analysis of any Tribal lands included in a potential designation prior to finalizing a designation of critical habitat and would consider all relevant available information, including Tribal expertise, firsthand information, and traditional ecological knowledge. Neither S.O. 3206 nor these proposed revisions preclude FWS from designating Tribal lands or waters as critical habitat. State and Local Governments Proposed paragraph (d)(1)(ii) addresses nonbiological impacts identified by State or local governments. It has been the experience of FWS that in some cases a designation of critical habitat may affect State or local government operations in a material way. For example, a State or local VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 government may be in the planning stages of a public-works project such as a hospital or school and may have concerns that a designation of critical habitat would delay or preclude their project. This proposed regulatory provision specifically recognizes that, because these projects and the importance they may have to the community are not within FWS’s expertise, the weight that the Secretary assigns to the benefits of designating or excluding specific areas based on impacts to these projects or plans should be consistent with the information provided by the State or local government, unless we have rebutting knowledge or material information. Additionally, State and local governments may have credible information regarding potential economic or employment losses from a proposed critical habitat designation. The FWS will consider such information as part of any proposed critical habitat exclusion. Impacts on National Security and Homeland Security Proposed paragraph (d)(1)(iii) addresses impacts based on nationalsecurity or homeland-security implications identified by the Department of Defense, Department of Homeland Security, or any other Federal agency responsible for national security or homeland security. Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as revised in 2003, provides: The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. Section 4(a)(3)(B)(i) of the Act does not cover all DoD lands or areas that are subject to national-security concerns (e.g., activities on lands not owned or managed by DoD;. When designating critical habitat under section 4(b)(2) of the Act, the Secretary is required to consider impacts on national security on lands or areas not covered by section 4(a)(3)(B)(i). Federal Lands Proposed paragraph (d)(1)(iv) addresses Federal lands where there are non-Federal entities that have a permit, lease, contract, or other authorization for use. While we continue to recognize PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 that Federal land managers have unique obligations under the Act, we are reversing the 2016 Policy’s prior position that we generally do not exclude Federal lands from designations of critical habitat. We recognize that first, Congress declared its policy that ‘‘all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act’’ (section 2(c)(1)). Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure that their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of designated critical habitat. However, there is nothing in the Act that states that Federal lands shall be exempted from the consideration of a discretionary 4(b)(2) analysis simply because land is managed by the Federal government. Thus, proposed paragraph (d)(1)(iv) allows for consideration of an exclusion analysis on lands managed by the Federal government. With regard to consideration of an exclusion based on economic or other relevant considerations, under the Act, the costs that a critical habitat designation may impose on Federal agencies can be divided into two types: (1) The additional administrative or transactional costs associated with the consultation process with a Federal agency, and (2) the costs to Federal agencies and other affected parties, including applicants for Federal authorizations (e.g., permits, licenses, leases, contracts), of any project modifications necessary to avoid destruction or adverse modification of critical habitat. In contrast to the Policy, we now will consider the avoidance of the administrative or transactional costs as a benefit of exclusion of a particular area of Federal land. We did acknowledge then, and restate now, that we will consider the extent to which consultation would produce an outcome that has economic or other impacts, such as by requiring project modifications and additional conservation measures by the Federal agency or other affected parties. While we acknowledge that Federal lands are important areas to the conservation of species habitat, we do not wish to foreclose the potential to exclude areas under Federal ownership. Therefore, we will now consider whether to exclude (and depending on the outcome of that analysis, may exclude) Federal lands on which non-Federal entities have a E:\FR\FM\08SEP1.SGM 08SEP1 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS permit, lease, contract or other authorization for use where the benefits of exclusion outweigh the benefits of inclusion, so long as the exclusion of a particular area does not cause extinction of a species. Economic Impacts and Other Relevant Impacts Proposed paragraph (d)(2) addresses economic impacts or other relevant impacts as identified in proposed paragraph (b). Economic impacts may play an important role in the discretionary 4(b)(2) exclusion analysis under the second sentence of section 4(b)(2). FWS always considers the probable incremental economic impacts of the designation of critical habitat. When undertaking a discretionary 4(b)(2) exclusion analysis with respect to a particular area, FWS would weigh the economic benefits of exclusion (and any other benefits of exclusion) against any benefits of inclusion (primarily the conservation value of designating the area). The nature of the probable incremental economic impacts, and not necessarily a particular threshold level, should trigger considerations of exclusions based on probable incremental economic impacts. For example, if an economic analysis indicates high probable incremental impacts of designating a particular critical habitat unit of lesser conservation value (relative to other areas potentially included in the designation), FWS may consider excluding that particular unit. Other relevant impacts may also result in exclusions. In some circumstances, the Secretary may exclude particular areas based on specific ‘‘community impacts’’ as a result of the designation of critical habitat. FWS wants to ensure, through weighing the benefits of exclusion against the benefits of inclusion, that the designation of critical habitat in areas where community development projects are expected or planned to occur does not unnecessarily disrupt those projects. We would consider excluding from a proposed critical habitat designation a particular area where there is a planned community development project, such as a school or hospital, if the benefits of exclusion outweigh the benefits of inclusion. In this instance, the benefits of exclusion may include avoidance of additional permitting requirements, time delays, or additional cost requirements to the community development project (which may in turn delay or diminish the benefits attributable to the project) due to the designation of critical habitat. When analyzing whether to exclude such an VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 area, the Secretary will weigh such impacts relative to the conservation value of that area. For benefits of inclusion or exclusion based on impacts that fall within the scope of FWS’s expertise, the Secretary will assign the weight given to those benefits in light of FWS’s expertise. FWS’s expertise includes, but is not limited to, implementation and enforcement of the Act; identification of the biological needs of species; identification of threats to species and their habitats; identification of important or essential components of habitat; species protection measures; and the process and outcomes of interagency consultations under section 7 of the Act. Conservation Plans or Agreements and Partnerships, in General FWS sometimes excludes specific areas from critical habitat designations based on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when the benefits of exclusion outweigh the benefits of inclusion. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat and may include actions to minimize or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no involvement of the FWS, or in partnership with FWS. In the case of a habitat conservation plan (HCP), safe harbor agreement (SHA), or a candidate conservation agreement with assurances (CCAA), a plan or agreement is developed in partnership with FWS for the purposes of obtaining a permit under section 10 of the Act to authorize any take of listed species caused incidentally by the activities described in the plan or agreement. Conservation Plans Related to Permits Under Section 10 of the Act Proposed paragraph (d)(3) addresses particular areas covered by conservation plans, agreements, or partnerships that have been permitted under section 10 of the Act. HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with nonFederal entities to minimize and mitigate impacts to listed species and their habitat. In most cases, HCP permittees commit to do more for the conservation of the species and their habitats on their non-Federal lands than designation of critical habitat would provide alone. We place great value on PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 55403 the partnerships that are developed during the preparation and implementation of HCPs. CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on nonFederal lands, participating property owners are covered by an ‘‘enhancement of survival’’ permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition at the conclusion of the agreement. FWS’s expertise includes anticipating the extent to which permitted CCAAs, SHAs, and HCPs provide for the conservation of the species. When we undertake a discretionary 4(b)(2) exclusion analysis, we will always consider whether to exclude areas covered by a permitted CCAA/SHA/ HCP, and we anticipate consistently excluding such areas from a designation of critical habitat if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the CCAA/SHA/HCP meets all of the following conditions: 1. The permittee is properly implementing the conservation plan or agreement and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is, and has been, fully implementing the commitments and provisions in the CCAA/SHA/HCP, Implementing Agreement, and permit. 2. The species for which critical habitat is being designated is a covered species in the conservation plan or agreement, or very similar in its habitat requirements to a covered species. The recognition that FWS extends to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species. 3. The conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area. We will undertake a case-by-case analysis to determine whether these conditions are met and, as with other conservation plans, whether the benefits of exclusion outweigh the benefits of inclusion. The benefits of excluding lands with CCAAs, SHAs, or properly implemented E:\FR\FM\08SEP1.SGM 08SEP1 jbell on DSKJLSW7X2PROD with PROPOSALS 55404 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules HCPs that have been permitted under section 10 of the Act include relieving landowners, communities, and counties of any additional regulatory burdens that might be imposed as a result of the critical habitat designation. A related benefit of exclusion is the unhindered, continued ability to maintain existing partnerships, as well as the opportunity to seek new partnerships with potential plan participants, including States, counties, local jurisdictions, conservation organizations, and private landowners. Together, these entities can implement conservation actions that FWS would be unable to accomplish without their participation. These partnerships can lead to additional CCAAs, SHAs, and HCPs. This is particularly important because HCPs often cover a wide range of species, including listed plant species (for which there is no general take prohibition under section 9 of the Act), and species that are not federally listed. Neither of these categories of species are likely to be protected from development or other impacts in the absence of HCPs. As is the case with conservation plans generally, the protections that a CCAA, SHA, or HCP provides to habitat can reduce the benefits of including the covered area in the critical habitat designation. However, even in light of such reduction, there may still be significant benefits of critical habitat designation. As such, FWS will weigh the benefits of inclusion against the benefits of exclusion (usually the maintenance or fostering of partnerships that provide existing conservation benefits or may result in future conservation actions). If a CCAA, SHA, or HCP is still under development when we undertake a discretionary 4(b)(2) exclusion analysis, we will evaluate these draft plans under the framework of general plans and partnerships (see Conservation Plans Not Related to Permits Under Section 10 of the Act, below). In other words, we will consider factors, such as partnerships that have been developed during the preparation of draft CCAAs, SHAs, and HCPs, and broad public benefits, such as encouraging the continuation of current, and development of future, conservation efforts with non-Federal partners, as possible benefits of exclusion. However, we will generally give little weight to unrealized promises of future conservation actions in draft CCAAs, SHAs, and HCPs that have not been permitted. Therefore, we anticipate finding that such promises will not reduce the benefits of inclusion in the discretionary 4(b)(2) exclusion analysis, even if such promises could, if realized, VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 benefit the species for which a critical habitat designation is proposed. Conservation Plans Not Related to Permits Under Section 10 of the Act Proposed paragraph (d)(4) addresses particular areas covered by conservation plans, agreements, or partnerships that have not been authorized by a permit under section 10 of the Act. We evaluate a variety of factors to determine how the benefits of exclusion and the benefits of inclusion of a particular area are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary 4(b)(2) exclusion analysis. FWS’ expertise includes anticipating the extent to which the conservation plans, agreements, or partnerships provide protection or conservation value for the species. The list below is intended to illustrate the types of factors that FWS will use when evaluating non-permitted plans. This list is not exclusive or absolute. Not all factors may apply to every instance of evaluating a plan or partnership; and the listed factors are not requirements for plans or partnerships to be considered for exclusion. i. The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of benefits expected from the plan, agreement, or partnerships; ii. The extent of public participation in the development of the conservation plan; iii. The degree to which agency review and required determinations (e.g., State regulatory requirements) have been completed, as necessary and appropriate; iv. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) reviews or similar reviews occurred, and the nature of any such reviews; v. The demonstrated implementation and success of the chosen mechanism; vi. The degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species; vii. Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented; and viii. Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 can be modified in the future in response to new information. FWS will typically consider whether a plan or agreement has previously been subjected to public comment, agency review, and NEPA review or similar review processes, because these kinds of processes may indicate the degree of critical analysis the plan or agreement has already received. For example, if a particular plan was developed by a county-level government pursuant to environmental review processes provided by State law or regulation, FWS would likely give greater weight to that plan in its evaluation. 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 http://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 http:// 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 http:// www.regulations.gov. Because we will consider all comments and information received during the comment period, our final regulation may differ from this proposal in light of our experience in administering the Act, consistent with legal requirements. Required Determinations Regulatory Planning and Review— Executive Orders 12866 and 13563 Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is significant. 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 E:\FR\FM\08SEP1.SGM 08SEP1 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 further emphasizes 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 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.’’ jbell on DSKJLSW7X2PROD with PROPOSALS Executive Order 13771 This proposed rule is not expected to be subject to the requirements of E.O. 13771 because this proposed rule is expected to result in no more than de minimis costs. 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 impact on a substantial number of small entities. The following discussion explains our rationale. This rulemaking responds to applicable Supreme Court case law and revises and clarifies procedures for FWS regarding designating critical habitat under the Endangered Species Act to reflect agency experience and, with minor changes, codifies current agency VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 practices. The proposed changes to these regulations, if finalized, are unlikely to result in any critical habitat designation having a larger scope. FWS is the only entity that is directly affected by this rule because FWS is the only entity that will be designating critical habitat under the Endangered Species Act in accordance with this portion of the CFR. No external entities, including any small businesses, small organizations, or small governments, will experience any economic impacts directly 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 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 use of the land or aquatic resources and it would substantially advance a legitimate government interest (conservation and recovery of endangered species and threatened species) and would not present a barrier PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 55405 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 designation of critical habitat under the Endangered Species 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 Executive Order 12988. This proposed rule would clarify factors for 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,’’ and the Department of the Interior’s manual at 512 DM 2, we are considering possible effects of this proposed rule on federally recognized Indian Tribes. FWS has reached a preliminary conclusion that the changes to these implementing regulations are general in nature and do not directly affect specific species or Tribal lands. These proposed regulations modify certain aspects of the critical habitat designation processes that we have been implementing in accordance with previous guidance and policies, including the 2008 DOI SOL M-opinion and the final Policy. These regulatory revisions directly affect only FWS, and with or without these revisions FWS would be obligated to continue to designate critical habitat based on the best available data. Therefore, we conclude that these proposed regulations do not have ‘‘tribal implications’’ under section 1(a) of E.O. 13175, and therefore formal government-to-government consultation is not required by E.O. 13175 and related policies of the Department of the Interior. We will continue to collaborate with Tribes on issues related to federally listed species and their habitats and work with them as we implement the provisions of the Act. See Secretarial Order 3206 (‘‘American Indian Tribal Rights, Federal-Tribal E:\FR\FM\08SEP1.SGM 08SEP1 55406 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules 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. 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 jbell on DSKJLSW7X2PROD with PROPOSALS 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), and the Department of the Interior Manual (516 DM 8). This proposed rulemaking in part responds to applicable Supreme Court case law and revises procedures for FWS regarding designating critical habitat under the Endangered Species Act. As a result, 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 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.’’ However, as a result of public comments received, the final rule may differ from this proposed rule and our analysis under NEPA may also differ from the proposed rule. We invite public comment regarding our initial determination under NEPA and we will complete our analysis, in compliance with NEPA, before finalizing this regulation. 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 believe 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 you believe are unclearly written, identify any sections or sentences that you believe are too long, and identify the sections where you believe lists or tables would be useful. 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 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation For the reasons discussed in the preamble, the U.S. Fish and Wildlife Service proposes to amend part 17 of chapter I, title 50 of the Code of Federal Regulations as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. Energy Supply, Distribution or Use (E.O. 13211) Subpart J—[Redesignated as Subpart K] 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 a not a significant energy action, and no Statement of Energy Effects is required. ■ VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 2. Subpart J, consisting of §§ 17.100 through 17.199, is redesignated as subpart K. Subpart I—[Redesignated as Subpart J] 3. Subpart I, consisting of §§ 17.94 through 17.99, is redesignated as subpart J. ■ PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 4. New subpart I, consisting of § 17.90, is added to read as follows: ■ Subpart I—Considerations of Impacts and Exclusions from Critical Habitat § 17.90 Impact analysis and exclusions from critical habitat. (a) At the time of publication of a proposed rule to designate critical habitat, the Secretary will make available for public comment the draft economic analysis of the designation. The draft economic analysis will be summarized in the Federal Register notice of the proposed designation of critical habitat. The Secretary will also identify any national security or other relevant impacts that the Secretary determines are contained in a particular area of proposed designation. Based on the best information available regarding economic, national security, and other relevant impacts, the proposed designation of critical habitat will identify the areas that the Secretary has reason to consider for exclusion and explain why. The identification of areas in the proposed rule that the Secretary has reason to consider for exclusion is neither binding nor exhaustive. ‘‘Economic impacts’’ may include, but are not limited to, the economy of a particular area, productivity, jobs, and any opportunity costs arising from the critical habitat designation (such as those anticipated from reasonable and prudent alternatives that may be identified through a section 7 consultation) as well as possible benefits and transfers (such as outdoor recreation and ecosystem services). ‘‘Other relevant impacts’’ may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), federal lands, and conservation plans, agreements, or partnerships. The Secretary will consider impacts at a scale that the Secretary determines to be appropriate and will compare the impacts with and without the designation. Impacts may be qualitatively or quantitatively described. (b) Prior to finalizing the designation of critical habitat, the Secretary will consider the probable economic, national security, and other relevant impacts of the designation upon proposed or ongoing activities. (c)(1) Subject to paragraph (c)(2) of this section, the Secretary has discretion as to whether to conduct an exclusion analysis under 16 U.S.C. 1533(b)(2). (2) The Secretary will conduct an exclusion analysis when: E:\FR\FM\08SEP1.SGM 08SEP1 Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS (i) The proponent of excluding a particular area (including but not limited to permittees, lessees or others with a permit, lease or contract on federally managed lands) has presented credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion for that particular area; or (ii) The Secretary otherwise decides to exercise discretion to evaluate any particular area for possible exclusion. (d) When the Secretary conducts a discretionary exclusion analysis pursuant to paragraph (c) of this section, the Secretary shall weigh the benefits of including or excluding particular areas in the designation of critical habitat, according to the following principles: (1) When analyzing the benefits of including or excluding any particular area based on impacts identified by experts in, or by sources with firsthand knowledge of, areas that are outside the scope of the Service’s expertise, the Secretary will assign weight to those benefits consistent with the expert or firsthand information, unless the Secretary has knowledge or material evidence that rebuts that information. Impacts that are outside the scope of the Service’s expertise include, but are not limited to: (i) Nonbiological impacts identified by federally recognized Indian Tribes, consistent with all applicable Executive and Secretarial orders; (ii) Nonbiological impacts identified by State or local governments; and (iii) Impacts based on national security or homeland security implications identified by the Department of Defense, Department of Homeland Security, or any other Federal agency responsible for national security or homeland security; (iv) Nonbiological impacts identified by a permittee, lessee, or contractor applicant for a permit, lease, or contract on Federal lands. VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 (2) When analyzing the benefit of including or excluding any particular area based on economic impacts or other relevant impacts described in paragraph (b) of this section, the Secretary will weigh such impacts relative to the conservation value of that particular area. For benefits of inclusion or exclusion based on impacts that fall within the scope of the Service’s expertise, the Secretary will assign weight to those benefits in light of the Service’s expertise. (3) When analyzing the benefits of including or excluding particular areas covered by conservation plans, agreements, or partnerships that have been authorized by a permit under section 10 of the Act, the Secretary will consider the following factors: (i) Whether the permittee is properly implementing the conservation plan or agreement; (ii) Whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and (iii) Whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area. (4) When analyzing the benefits of including or excluding particular areas covered by conservation plans, agreements, or partnerships that have not been authorized by a permit under section 10 of the Act, factors that the Secretary may consider include, but are not limited to: (i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of the benefits expected from the plan, agreement, or partnership. (ii) The extent of public participation in the development of the conservation plan. PO 00000 Frm 00020 Fmt 4702 Sfmt 9990 55407 (iii) The degree to which agency review and required determinations (e.g., State regulatory requirements) have been completed, as necessary and appropriate. (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) reviews or similar reviews occurred, and the nature of any such reviews. (v) The demonstrated implementation and success of the chosen mechanism. (vi) The degree to which the plan or agreement provides for the conservation of the physical or biological features that are essential to the conservation of the species. (vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented. (viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information. (e) If the Secretary conducts an exclusion analysis under paragraph (c) of this section, and if the Secretary determines that the benefits of excluding a particular area from critical habitat outweigh the benefits of specifying that area as part of the critical habitat, then the Secretary shall exclude that area, unless the Secretary determines, based on the best scientific and commercial data available, that the failure to designate that area as critical habitat will result in the extinction of the species concerned. George Wallace, Assistant Secretary for Fish and Wildlife and Parks Department of the Interior. [FR Doc. 2020–19577 Filed 9–4–20; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\08SEP1.SGM 08SEP1

Agencies

[Federal Register Volume 85, Number 174 (Tuesday, September 8, 2020)]
[Proposed Rules]
[Pages 55398-55407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19577]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-HQ-ES-2019-0115; FF09E23000 FXES1111090FEDR 201]
RIN 1018-BD84


Endangered and Threatened Wildlife and Plants; Regulations for 
Designating Critical Habitat

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS), propose to amend 
portions of our regulations that implement section 4 of the Endangered 
Species Act of 1973, as amended (Act). The proposed revisions set forth 
a process for excluding areas of critical habitat under section 4(b)(2) 
of the Act, which mandates our consideration of the impacts of 
designating critical habitat and permits exclusions of particular areas 
following a discretionary exclusion analysis. We want to articulate 
clearly when and how FWS will undertake an exclusion analysis, 
including identifying a non-exhaustive list of categories of potential 
impacts for FWS to consider. The proposed rulemaking would respond to 
applicable Supreme Court case law, reflect agency experience, codify 
some current agency practices, and make some modifications to current 
agency practice. The intended effect of this proposed rule is to 
provide greater transparency and certainty for the public and 
stakeholders.

DATES: We will accept comments from all interested parties until 
October 8, 2020. 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: http://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2019-0115, 
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-2019-0115; U.S. Fish and Wildlife 
Service, MS:JAO/1N, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://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: DOI, U.S. Fish and Wildlife Service, 
Department of the Interior, Washington, DC 20240, telephone 202/208-
4646. If you use a telecommunications device for the deaf, call the 
Federal Relay Service at 800/877-8339.

SUPPLEMENTARY INFORMATION:

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 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 the National Marine Fisheries Service 
(NMFS) (collectively, the Services). Together, FWS and NMFS administer 
the Act via joint regulations in chapter IV of title 50 of the Code of 
Federal Regulations (CFR). In addition, each of the Services also has 
regulations specific to its own implementation of the Act (located at 
50 CFR part 17 for FWS and at 50 CFR parts 222 through 226 for NMFS). 
Because this rulemaking, if finalized, would only apply to FWS, the 
regulatory requirements proposed in this rulemaking would not require 
NMFS to change its processes for consideration of exclusions under 
section 4(b)(2) of the Act. Since this rulemaking is solely applicable 
to FWS, when we refer to the Secretary, we mean the Secretary of the 
Interior.
    One of the tools that the Act provides to conserve species is the 
designation of critical habitat. The purpose of critical habitat is to 
identify the areas that are essential to the species' conservation and 
recovery. When FWS lists a species, the Act requires that, to the 
maximum extent prudent and determinable, 16 U.S.C. 1533(a), the 
Secretary, acting through FWS, designate critical habitat after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impact, 16 U.S.C. 1533(b)(2).
    In section 3(5)(A) of the Act, Congress defined ``critical 
habitat'' as: (i) The specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the provisions of section 4 of this Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of this Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species.
    Section 4(b)(2) of the Act then provides the Secretary the 
authority to exclude any particular area from a critical habitat 
designation if the benefits of exclusion outweigh the benefits of 
inclusion for that area, so long as excluding it will not result in the 
extinction of the species: ``The Secretary shall designate critical 
habitat, and make revisions thereto, under subsection (a)(3) on the 
basis of the best scientific data available and after taking

[[Page 55399]]

into consideration the economic impact, the impact on national 
security, and any other relevant impact, of specifying any particular 
area as critical habitat. The Secretary may exclude any area from 
critical habitat if he determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless he determines, based on the best scientific and 
commercial data available, that the failure to designate such area as 
critical habitat will result in the extinction of the species 
concerned.'' 16 U.S.C. 1533(b)(2).
    Our implementing regulations in 50 CFR part 424 set forth relevant 
definitions (50 CFR 424.02) and describe the standards and procedures 
for identifying critical habitat (50 CFR 424.12). On February 11, 2016, 
the Services issued a joint policy describing how they implement their 
authority to exclude areas from critical habitat designations. ``Policy 
Regarding Implementation of Section 4(b)(2) of the Endangered Species 
Act,'' 81 FR 7226 (Policy).
    This proposed rule carries out Executive Order 13777, ``Enforcing 
the Regulatory Reform Agenda,'' and is part of a larger effort by DOI 
to identify regulations for repeal, replacement, or modification.
    Additionally, we decided to revisit certain language in the 
preamble of the Policy, as well as certain statements in the preamble 
to the 2013 rule that revised the regulations on the timing of our 
economic analyses at 50 CFR 424.19 (August 28, 2013; 78 FR 53058), to 
provide clarity to the FWS and the public in light of the Supreme 
Court's recent decision in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 
(2018). At the time we developed the 2013 rule and Policy, the Services 
were guided by a line of cases in which courts had held that a decision 
by the Services not to exclude a particular area under section 4(b)(2) 
of the Act was committed to agency discretion by law and therefore not 
subject to judicial review. See, e.g., Bldg. Indus. Ass'n v. U.S. Dept. 
of Commerce, 792 F.3d 1027, 1035 (9th Cir. 2015)); Bear Valley Mut. 
Water Co. v. Jewell, 790 F.3d 977, 989 (9th Cir. 2015); Cape Hatteras 
Access Preservation Alliance v. DOI, 731 F. Supp. 2d 15, 29-30 (D.D.C. 
2010). Thus, for example, we stated in the Policy that ``[r]ecent court 
decisions have resoundingly upheld the discretionary nature of the 
Secretaries' consideration of whether to exclude areas from critical 
habitat.'' 81 FR 7226 and 7233 (February 11, 2016) (citing cases listed 
above). In our 2013 final rule, we cited Building Industry Ass'n of the 
Bay Area v. U.S. Dep't of Commerce, 2012 U.S. Dist. Lexis 170688 (N.D. 
Cal. Nov. 30, 2012) as case law that supported our conclusion that 
exclusions are discretionary and the discretion not to exclude an area 
is judicially unreviewable (78 FR 53072). We also stated in the Policy 
that ``although the Services will explain their rationale for not 
excluding a particular area, that decision is committed to agency 
discretion.'' Id. at 7234.
    The Supreme Court has now definitively held, to the contrary, that 
decisions not to exclude a particular area are judicially reviewable. 
Weyerhaeuser, 139 S. Ct. at 371 (noting that the challenge to the 
Service's decision not to exclude a particular area was a ``familiar 
one in administrative law that the agency did not appropriately 
consider all of the relevant factors that the statute sets forth to 
guide the agency in the exercise of its discretion''). Thus, the Court 
held that, although a decision not to exclude a particular area is 
discretionary, that decision may be reviewed by courts for abuse of 
discretion under section 706(2) of the Administrative Procedure Act 
(APA, 5 U.S.C 706(2)). 139 S. Ct. at 371. To provide transparency about 
how the Secretary intends to exercise his discretion regarding 
exclusions under section 4(b)(2), we are proposing this regulation, 
which would supersede the regulations at 50 CFR 424.19 and the Policy 
with respect to FWS's implementation of the Act. The regulations at 50 
CFR 424.19 and the Policy remain in effect with respect to NMFS's 
implementation of the Act.
    In proposing the specific changes to the regulations in this 
document and setting out the accompanying clarifying discussion in this 
preamble, FWS is proposing prospective standards only. Nothing in these 
proposed regulations is intended to require (if this rule becomes 
final) that any proposed rules published prior to the effective date of 
any final regulation or any previously finalized critical habitat 
designations be reevaluated on the basis of the final regulations.
    We are proposing to redesignate 50 CFR part 17, subpart I, as 
subpart J, and to add new regulations in 50 CFR part 17, subpart I. 
Specifically, we propose to add a new Sec.  17.90. Some aspects of new 
Sec.  17.90 are carried over unchanged from the existing joint 
regulations at 50 CFR 424.19 and, accordingly, are not discussed 
further here. Other aspects of proposed Sec.  17.90 reflect new 
regulatory language, and those aspects are the focus of the preamble 
discussion below.

Section 4(b)(2) of the Endangered Species Act

    As noted above, on February 11, 2016, the Services published the 
Policy. That policy provided direction regarding how the Services would 
exercise their discretion to exclude areas from critical habitat 
designations. Since issuance of the Policy, FWS has concluded that 
adding some elements of the policy to the implementing regulations 
would be more effective in guiding agency activities and would provide 
greater transparency and certainty to the public and stakeholders. In 
addition, the proposed regulations would put into effect some 
differences in our approach relative to what was outlined in the 
Policy, including an information standard for when we enter into a 
discretionary weighing analysis, a clarification of how considerations 
for exclusions will be conducted for Federal lands, and an approach to 
assigning the weight of the benefits of inclusion or exclusion of any 
particular areas designated as critical habitat. NMFS will continue to 
implement the Policy and regulations at 50 CFR. 424.19.
    In 1982, Congress added section 4(b)(2) to the Act, both to require 
the Secretaries to consider the relevant impacts of designating 
critical habitat and to provide a means for minimizing negative impacts 
of designation by excluding, in appropriate circumstances, particular 
areas from a designation. The first sentence of section 4(b)(2) sets 
out a mandatory requirement that the Secretaries consider the economic 
impact, impact on national security, and any other relevant impacts 
prior to designating an area as part of a critical habitat designation. 
As required by this sentence, FWS always considers those impacts, for 
every designation of critical habitat. The statute does not prescribe 
how FWS should take into consideration these impacts. This proposed 
rule provides the framework for the role that FWS's consideration of 
the economic impact, impact on national security, and any other 
relevant impacts will play when identifying any potential exclusions 
from designations of critical habitat. Although the term ``homeland 
security'' was not in common usage in 1982, the Services concluded in 
the joint Policy that Congress intended that ``national security'' 
includes what we now refer to as ``homeland security.'' 81 FR 7227; 
2016.
    The second sentence of section 4(b)(2) provides the authority for a 
process by which the Secretaries may elect to

[[Page 55400]]

determine whether to exclude an area from the designation by performing 
an exclusion analysis. FWS's consideration of impacts under the first 
sentence of section 4(b)(2) informs the decision whether to engage in 
the exclusion analysis under the second sentence of section 4(b)(2).
    Conducting an exclusion analysis under section 4(b)(2) involves 
balancing or weighing the benefits of excluding a particular area from 
a critical habitat designation against the benefits of including that 
area in the designation. The Act provides that if the benefits of 
exclusion outweigh the benefits of inclusion, the Secretary may exclude 
the particular area, unless the Secretary determines that the exclusion 
will result in the extinction of the species concerned.

Overview of Proposed Regulatory Provisions on Discretionary 4(b)(2) 
Exclusion Analyses

    The language of proposed Sec.  17.90(a) carries over the two 
sentences in the existing interagency regulation at 50 CFR 424.19(a) 
without change. It then makes clear that, in addition to summarizing 
the draft economic analysis, the proposed rule will identify known 
national security and other relevant impacts of the proposed 
designation, and identify areas that the Secretary has reason to 
consider for exclusion and explain why.
    We also propose to include a non-exhaustive list of categories of 
potential impacts that the Secretary will identify, when known, at the 
proposed rule stage. We note that these impacts are the same as those 
that the Secretary will consider, as appropriate, when conducting the 
mandatory consideration of any other relevant impacts as expressed in 
the first sentence of section 4(b)(2) of the Act. Including this list 
of categories for consideration provides greater transparency and 
clarity to the public and stakeholders.
    Making clear to the public the areas that the Secretary has reason 
to consider excluding allows the public not only to submit comments on 
the benefits of exclusion and inclusion in general, but to focus their 
comments on those benefits as they relate to the specific areas most 
likely to be considered for exclusion. Additionally, the regulation 
makes clear that, at any time during the process of designating 
critical habitat, the Secretary may still consider additional 
exclusions, including areas that were not identified in the proposed 
rule. This codifies and makes transparent the Secretary's existing 
practice and is intended to allow commenters to provide information 
specific to those areas that the Secretary anticipates considering for 
exclusion.
    We propose to add Sec.  17.90(b), which would carry over the 
language of the existing interagency regulation at 50 CFR 424.19(b) 
that already requires the Secretary to consider the probable economic, 
national security, and other relevant impacts of the designation.
    We propose to add Sec.  17.90(c), which would carry over the 
language of the existing interagency regulation at 50 CFR 424.19(c) but 
modify the language to describe how the Secretary intends to exercise 
his discretion and articulate clearly the factors that will prompt the 
Secretary to enter into the discretionary exclusion analysis under 
section 4(b)(2). Including this provision in the regulations will 
clarify and codify the process and standards underlying exclusion 
analyses and decisions. In addition, codifying certain aspects of the 
nonbinding Policy into the regulations provides greater transparency 
and predictability by making those aspects of the Policy binding.
    Proposed paragraph (c)(1) reiterates that the Secretary has 
discretion whether to enter into an exclusion analysis under section 
4(b)(2) of the Act. Proposed paragraph (c)(2) describes the two 
circumstances in which FWS will conduct an exclusion analysis for a 
particular area: Either (1) when a proponent of excluding the area has 
presented credible information in support of the request; or (2) where 
such information has not been presented, when the Secretary exercises 
his or her discretion to evaluate any particular area for potential 
exclusion. In Weyerhaeuser, the Supreme Court held that decisions not 
to exclude areas from critical habitat designations are judicially 
reviewable under the abuse-of-discretion standard. The Court reasoned 
that, although the use of the word ``may'' in section 4(b)(2) clearly 
confers discretion, that ``does not segregate'' the decision not to 
exclude from the procedures mandated by the Act. Among those mandated 
procedures, the Court referred specifically to the requirement in 
section 4(b)(2) to consider relevant impacts and the APA requirement to 
consider all of the relevant factors. Because a decision not to 
undertake a discretionary exclusion analysis precludes the Secretary 
from excluding any areas from the designation, FWS therefore intends to 
document the rational basis for such decisions. FWS also intends that 
this documentation of the exclusion analysis will demonstrate 
compliance with mandated procedures.
    Proposed paragraph (d) describes how FWS would undertake an 
exclusion analysis once the Secretary exercises the discretion to enter 
into one. We recognize that assigning weights to different impacts or 
benefits requires expertise. Therefore, we propose to assign weights of 
benefits of inclusion and exclusion based on who has the relevant 
expertise. Proposed paragraphs (d)(1) through (d)(4) describe factors 
that FWS considers with respect to conservation plans or agreements, 
tribal implications, national-security implications, and Federal lands, 
in parallel to paragraphs 2 through 6 of the Policy.
    In proposed paragraph (e) the Secretary would exercise the broad 
discretion given under section 4(b)(2) by establishing as a principle 
that FWS will exclude areas whenever it determines that the benefits of 
exclusion outweigh the benefits of inclusion, as long as exclusion will 
not result in the extinction of the species.

Framework for Considering an Exclusion and Conducting a Discretionary 
4(b)(2) Exclusion Analysis

    When FWS concludes that a critical habitat designation is prudent 
and determinable for species listed under the Act, FWS must follow the 
statutory and regulatory provisions to designate critical habitat. The 
Act's language makes clear that biological considerations drive the 
initial step of identifying critical habitat. Section 4(b)(2) expressly 
requires designations to be made based on the best scientific data 
available. In accordance with the Court's decision in Weyerhaeuser, the 
process begins by identifying a species' habitat. Next, the Act's 
definition of ``critical habitat'' requires the Secretary to identify 
those areas of habitat occupied by the species at the time of listing 
that contain physical or biological features that are essential to the 
conservation of the species and that may require special management 
considerations or protection. FWS also identifies the specific areas of 
unoccupied habitat that are essential to the conservation (i.e., 
recovery) needs of the species. Implementing regulations at 50 CFR 
424.12 specify the criteria for designation of critical habitat.
    If the Secretary enters into a discretionary 4(b)(2) exclusion 
analysis, the Secretary has broad discretion as to what factors to 
consider as benefits of inclusion and benefits of exclusion, and the 
weight to assign to each factor. In a 4(b)(2) exclusion analysis, we 
determine if the benefits of exclusion outweigh the benefits of 
inclusion for a particular area. If so, the statute provides the

[[Page 55401]]

Secretary with discretion to exclude that area, unless the Secretary 
determines on the basis of the best scientific and commercial data 
available that failure to designate the area as critical habitat will 
result in the extinction of the species concerned. 16 U.S.C. 
1533(b)(2).

Proposed Approach To Determining Whether To Conduct a Discretionary 
Exclusion Analysis

    We have not previously articulated our general approach to 
determining whether to exercise the discretion afforded under the 
statute to undertake the optional weighing process under the second 
sentence of 4(b)(2) of the Act. Although the Policy identified specific 
factors to consider if a discretionary exclusion analysis is conducted, 
it stopped short of articulating more generally how we approach the 
determination to undertake that analysis. We now propose to describe 
specifically what ``other relevant impacts'' may include and articulate 
how we approach determining whether we will undertake the discretionary 
exclusion analysis. We therefore propose paragraph (b) as set forth in 
the rule portion of this document.
    Consistent with the first sentence of section 4(b)(2), proposed 
paragraph (b) sets out a mandatory requirement that FWS consider the 
economic impact, impact on national security, and any other relevant 
impacts prior to designating an area as part of a critical habitat 
designation. These economic impacts may include, for example, the 
economy of a particular area, productivity, and creation or elimination 
of jobs, opportunity costs potentially arising from critical habitat 
designation, and potential benefits from a potential designation such 
as outdoor recreation or ecosystem services. The proposed regulations 
would provide categories of ``other relevant impacts'' that we may 
consider, including: Public health and safety; community interests; and 
the environment (such as increased risk of wildfire or pest and 
invasive species management). This list is not an exhaustive list of 
the types of impacts that may be relevant in a particular case; rather, 
it provides additional clarity by identifying some additional types of 
impacts that may be relevant. Our discussion of proposed new paragraph 
(d), below, describes specific considerations related to Tribes, 
States, and local governments; national security; conservation plans, 
agreements, or partnerships; and Federal lands.
    After we consider the relevant impacts, we must determine whether 
to undertake a discretionary exclusion analysis. We propose paragraph 
(c) to provide clarity and transparency about how the Secretary intends 
to exercise his discretion regarding when he will enter into the 
discretionary exclusion analysis under section 4(b)(2).
    Proposed paragraph (c)(1) states the Secretary has discretion to 
enter into a discretionary exclusion analysis subject to the provisions 
of proposed paragraph (c)(2).
    Under proposed paragraph (c)(2), we propose to always enter into a 
discretionary exclusion analysis to compare the benefits of inclusion 
and the benefits of exclusion of particular areas for which credible 
information supporting exclusion is presented. As part of the public 
notice-and-comment process, FWS routinely receives information from the 
public regarding any probable economic, national security, or other 
relevant impacts of designating any area that may be included in the 
final designation and the benefits of including or excluding areas that 
exhibit these impacts. The term ``credible information'' refers to 
information that constitutes a reasonably reliable indication regarding 
the existence of a meaningful economic or other relevant impact 
supporting a benefit of exclusion for a particular area. In evaluating 
whether a proponent has provided ``credible information'' in support of 
a claim that an area should be excluded, we look at two factors--
whether the proponent has provided factual information in support of 
the claimed impacts and whether the claimed impacts may be meaningful 
for purposes of an exclusion analysis. The information provided by 
submitters or proponents could address either the benefits of 
exclusion, or the benefits of inclusion, and we do not expect 
proponents to conduct a comparison of the impacts relative to the 
conservation value of the specific area. The ``credible information'' 
standard would be relevant only to the question of whether to undertake 
an analysis--meeting this standard would not indicate that the area 
will in fact be excluded from the designation.
    The second pathway to an exclusion analysis for a particular area 
would be if the Secretary decides to exercise his or her discretion to 
do so. See proposed paragraph (c)(2)(ii) in the rule portion of this 
document. In either case, FWS intends to document the basis for any 
decision not to undertake an exclusion analysis. An explanation of the 
decision not to undertake an exclusion analysis for a particular area 
will be included in the final determination regarding critical habitat 
for the species.

Proposed Approach To Conducting Discretionary Exclusion Analyses

    We propose to add a new paragraph (d) as set forth in the proposed 
regulatory text. Under proposed paragraph (d), we describe how FWS will 
undertake an exclusion analysis once the Secretary exercises the 
discretion to conduct that analysis. We recognize that assigning weight 
to different impacts or benefits requires expertise. Therefore, we 
propose to assign weights of benefits of inclusion and exclusion based 
on who has the relevant expertise (e.g., a commenter on the proposed 
designation of critical habitat or FWS). Quantification of benefits, if 
appropriate and feasible, will be conducted and explained on a case-by-
case basis in individual critical habitat rulemakings.
    With respect to benefits that are outside FWS' expertise and as 
described in proposed paragraph (d)(1), the Secretary would assign 
weights to benefits consistent with expert or firsthand information, 
unless the Secretary has knowledge or material evidence that rebuts 
that information. Expert or firsthand information should describe the 
implications of designating a particular area as critical habitat and 
include supporting documentation of the nature, scope, and magnitude of 
the impacts and the degree to which designation or exclusion would 
affect interested parties. Additionally, the impacts described must be 
attributable to the incremental effect of the designation of critical 
habitat, not attributable to the listing of the species. Under 
paragraph (a), if finalized, FWS would continue to make available for 
public comment the draft economic analysis of the critical habitat 
designation at the time of the proposed critical habitat designation. 
This information may be used in weighing the benefits of including or 
excluding a particular area.
    However, in some instances the Secretary may have knowledge or 
material evidence that rebuts the information provided by experts or 
sources with firsthand knowledge. This information could include FWS' 
expert judgment about the likely effects of designating critical 
habitat upon the need to engage in, or outcomes of, consultations under 
section 7 of the Act, or other information available to FWS, such as 
the information in the economic analysis, as informed by public input. 
The Service will continue to base critical habitat designations on the 
best available information. Therefore, if the Secretary has additional 
knowledge or material evidence that qualifies as the

[[Page 55402]]

best information available, the Secretary would assign weights of the 
benefits of inclusion or exclusion consistent with the available 
information from experts, firsthand knowledge, and the best available 
information that the Secretary may have to rebut that information.
    Proposed subparagraphs in paragraph (d)(1) identify a non-
exhaustive list of categories of impacts that are outside the scope of 
FWS' expertise. Even though some of the categories on this list refer 
to ``nonbiological impacts,'' we recognize that many sources outside 
FWS also have information and expertise regarding biological impacts. 
FWS would consider that information or expertise in the weighing of 
benefits of inclusion or exclusion of particular areas.

Tribal Lands

    Proposed paragraph (d)(1)(i) addresses nonbiological impacts 
identified by federally recognized Indian Tribes. Executive Orders, 
Secretarial Orders, and policies guide how FWS works with federally 
recognized Indian Tribes. These guidance documents generally confirm 
our trust responsibilities to Tribes, recognize that Tribes have 
sovereign authority to control Tribal lands, emphasize the importance 
of developing partnerships with Tribal governments, and direct FWS to 
consult with Tribes on a government-to-government basis.
    Secretarial Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 
1997) (S.O. 3206), is the most comprehensive of the various guidance 
documents related to Tribal relationships and Act implementation, and 
it provides the most detail directly relevant to the designation of 
critical habitat. In light of this order, we would undertake a 
discretionary 4(b)(2) exclusion analysis of any Tribal lands included 
in a potential designation prior to finalizing a designation of 
critical habitat and would consider all relevant available information, 
including Tribal expertise, firsthand information, and traditional 
ecological knowledge. Neither S.O. 3206 nor these proposed revisions 
preclude FWS from designating Tribal lands or waters as critical 
habitat.

State and Local Governments

    Proposed paragraph (d)(1)(ii) addresses nonbiological impacts 
identified by State or local governments. It has been the experience of 
FWS that in some cases a designation of critical habitat may affect 
State or local government operations in a material way. For example, a 
State or local government may be in the planning stages of a public-
works project such as a hospital or school and may have concerns that a 
designation of critical habitat would delay or preclude their project. 
This proposed regulatory provision specifically recognizes that, 
because these projects and the importance they may have to the 
community are not within FWS's expertise, the weight that the Secretary 
assigns to the benefits of designating or excluding specific areas 
based on impacts to these projects or plans should be consistent with 
the information provided by the State or local government, unless we 
have rebutting knowledge or material information. Additionally, State 
and local governments may have credible information regarding potential 
economic or employment losses from a proposed critical habitat 
designation. The FWS will consider such information as part of any 
proposed critical habitat exclusion.

Impacts on National Security and Homeland Security

    Proposed paragraph (d)(1)(iii) addresses impacts based on national-
security or homeland-security implications identified by the Department 
of Defense, Department of Homeland Security, or any other Federal 
agency responsible for national security or homeland security. Section 
4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)), as revised in 
2003, provides: The Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense (DoD), or designated for its use, that are 
subject to an integrated natural resources management plan (INRMP) 
prepared under section 101 of the Sikes Act Improvement Act of 1997 (16 
U.S.C. 670a), if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation. Section 4(a)(3)(B)(i) of the Act does not 
cover all DoD lands or areas that are subject to national-security 
concerns (e.g., activities on lands not owned or managed by DoD;. When 
designating critical habitat under section 4(b)(2) of the Act, the 
Secretary is required to consider impacts on national security on lands 
or areas not covered by section 4(a)(3)(B)(i).

Federal Lands

    Proposed paragraph (d)(1)(iv) addresses Federal lands where there 
are non-Federal entities that have a permit, lease, contract, or other 
authorization for use. While we continue to recognize that Federal land 
managers have unique obligations under the Act, we are reversing the 
2016 Policy's prior position that we generally do not exclude Federal 
lands from designations of critical habitat. We recognize that first, 
Congress declared its policy that ``all Federal departments and 
agencies shall seek to conserve endangered species and threatened 
species and shall utilize their authorities in furtherance of the 
purposes of this Act'' (section 2(c)(1)). Second, all Federal agencies 
have responsibilities under section 7 of the Act to carry out programs 
for the conservation of listed species and to ensure that their actions 
are not likely to jeopardize the continued existence of listed species 
or result in the destruction or adverse modification of designated 
critical habitat. However, there is nothing in the Act that states that 
Federal lands shall be exempted from the consideration of a 
discretionary 4(b)(2) analysis simply because land is managed by the 
Federal government. Thus, proposed paragraph (d)(1)(iv) allows for 
consideration of an exclusion analysis on lands managed by the Federal 
government.
    With regard to consideration of an exclusion based on economic or 
other relevant considerations, under the Act, the costs that a critical 
habitat designation may impose on Federal agencies can be divided into 
two types: (1) The additional administrative or transactional costs 
associated with the consultation process with a Federal agency, and (2) 
the costs to Federal agencies and other affected parties, including 
applicants for Federal authorizations (e.g., permits, licenses, leases, 
contracts), of any project modifications necessary to avoid destruction 
or adverse modification of critical habitat.
    In contrast to the Policy, we now will consider the avoidance of 
the administrative or transactional costs as a benefit of exclusion of 
a particular area of Federal land. We did acknowledge then, and restate 
now, that we will consider the extent to which consultation would 
produce an outcome that has economic or other impacts, such as by 
requiring project modifications and additional conservation measures by 
the Federal agency or other affected parties. While we acknowledge that 
Federal lands are important areas to the conservation of species 
habitat, we do not wish to foreclose the potential to exclude areas 
under Federal ownership. Therefore, we will now consider whether to 
exclude (and depending on the outcome of that analysis, may exclude) 
Federal lands on which non-Federal entities have a

[[Page 55403]]

permit, lease, contract or other authorization for use where the 
benefits of exclusion outweigh the benefits of inclusion, so long as 
the exclusion of a particular area does not cause extinction of a 
species.

Economic Impacts and Other Relevant Impacts

    Proposed paragraph (d)(2) addresses economic impacts or other 
relevant impacts as identified in proposed paragraph (b). Economic 
impacts may play an important role in the discretionary 4(b)(2) 
exclusion analysis under the second sentence of section 4(b)(2). FWS 
always considers the probable incremental economic impacts of the 
designation of critical habitat. When undertaking a discretionary 
4(b)(2) exclusion analysis with respect to a particular area, FWS would 
weigh the economic benefits of exclusion (and any other benefits of 
exclusion) against any benefits of inclusion (primarily the 
conservation value of designating the area). The nature of the probable 
incremental economic impacts, and not necessarily a particular 
threshold level, should trigger considerations of exclusions based on 
probable incremental economic impacts. For example, if an economic 
analysis indicates high probable incremental impacts of designating a 
particular critical habitat unit of lesser conservation value (relative 
to other areas potentially included in the designation), FWS may 
consider excluding that particular unit.
    Other relevant impacts may also result in exclusions. In some 
circumstances, the Secretary may exclude particular areas based on 
specific ``community impacts'' as a result of the designation of 
critical habitat. FWS wants to ensure, through weighing the benefits of 
exclusion against the benefits of inclusion, that the designation of 
critical habitat in areas where community development projects are 
expected or planned to occur does not unnecessarily disrupt those 
projects. We would consider excluding from a proposed critical habitat 
designation a particular area where there is a planned community 
development project, such as a school or hospital, if the benefits of 
exclusion outweigh the benefits of inclusion. In this instance, the 
benefits of exclusion may include avoidance of additional permitting 
requirements, time delays, or additional cost requirements to the 
community development project (which may in turn delay or diminish the 
benefits attributable to the project) due to the designation of 
critical habitat. When analyzing whether to exclude such an area, the 
Secretary will weigh such impacts relative to the conservation value of 
that area.
    For benefits of inclusion or exclusion based on impacts that fall 
within the scope of FWS's expertise, the Secretary will assign the 
weight given to those benefits in light of FWS's expertise. FWS's 
expertise includes, but is not limited to, implementation and 
enforcement of the Act; identification of the biological needs of 
species; identification of threats to species and their habitats; 
identification of important or essential components of habitat; species 
protection measures; and the process and outcomes of interagency 
consultations under section 7 of the Act.

Conservation Plans or Agreements and Partnerships, in General

    FWS sometimes excludes specific areas from critical habitat 
designations based on the existence of private or other non-Federal 
conservation plans or agreements and their attendant partnerships when 
the benefits of exclusion outweigh the benefits of inclusion. A 
conservation plan or agreement describes actions that are designed to 
provide for the conservation needs of a species and its habitat and may 
include actions to minimize or mitigate negative effects on the species 
caused by activities on or adjacent to the area covered by the plan. 
Conservation plans or agreements can be developed by private entities 
with no involvement of the FWS, or in partnership with FWS. In the case 
of a habitat conservation plan (HCP), safe harbor agreement (SHA), or a 
candidate conservation agreement with assurances (CCAA), a plan or 
agreement is developed in partnership with FWS for the purposes of 
obtaining a permit under section 10 of the Act to authorize any take of 
listed species caused incidentally by the activities described in the 
plan or agreement.

Conservation Plans Related to Permits Under Section 10 of the Act

    Proposed paragraph (d)(3) addresses particular areas covered by 
conservation plans, agreements, or partnerships that have been 
permitted under section 10 of the Act. HCPs for incidental take permits 
under section 10(a)(1)(B) of the Act provide for partnerships with non-
Federal entities to minimize and mitigate impacts to listed species and 
their habitat. In most cases, HCP permittees commit to do more for the 
conservation of the species and their habitats on their non-Federal 
lands than designation of critical habitat would provide alone. We 
place great value on the partnerships that are developed during the 
preparation and implementation of HCPs.
    CCAAs and SHAs are voluntary agreements designed to conserve 
candidate and listed species, respectively, on non-Federal lands. In 
exchange for actions that contribute to the conservation of species on 
non-Federal lands, participating property owners are covered by an 
``enhancement of survival'' permit under section 10(a)(1)(A) of the 
Act, which authorizes incidental take of the covered species that may 
result from implementation of conservation actions, specific land uses, 
and, in the case of SHAs, the option to return to a baseline condition 
at the conclusion of the agreement.
    FWS's expertise includes anticipating the extent to which permitted 
CCAAs, SHAs, and HCPs provide for the conservation of the species. When 
we undertake a discretionary 4(b)(2) exclusion analysis, we will always 
consider whether to exclude areas covered by a permitted CCAA/SHA/HCP, 
and we anticipate consistently excluding such areas from a designation 
of critical habitat if incidental take caused by the activities in 
those areas is covered by the permit under section 10 of the Act and 
the CCAA/SHA/HCP meets all of the following conditions:
    1. The permittee is properly implementing the conservation plan or 
agreement and is expected to continue to do so for the term of the 
agreement. A CCAA/SHA/HCP is properly implemented if the permittee is, 
and has been, fully implementing the commitments and provisions in the 
CCAA/SHA/HCP, Implementing Agreement, and permit.
    2. The species for which critical habitat is being designated is a 
covered species in the conservation plan or agreement, or very similar 
in its habitat requirements to a covered species. The recognition that 
FWS extends to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    3. The conservation plan or agreement specifically addresses the 
habitat of the species for which critical habitat is being designated 
and meets the conservation needs of the species in the planning area.
    We will undertake a case-by-case analysis to determine whether 
these conditions are met and, as with other conservation plans, whether 
the benefits of exclusion outweigh the benefits of inclusion.
    The benefits of excluding lands with CCAAs, SHAs, or properly 
implemented

[[Page 55404]]

HCPs that have been permitted under section 10 of the Act include 
relieving landowners, communities, and counties of any additional 
regulatory burdens that might be imposed as a result of the critical 
habitat designation. A related benefit of exclusion is the unhindered, 
continued ability to maintain existing partnerships, as well as the 
opportunity to seek new partnerships with potential plan participants, 
including States, counties, local jurisdictions, conservation 
organizations, and private landowners. Together, these entities can 
implement conservation actions that FWS would be unable to accomplish 
without their participation. These partnerships can lead to additional 
CCAAs, SHAs, and HCPs. This is particularly important because HCPs 
often cover a wide range of species, including listed plant species 
(for which there is no general take prohibition under section 9 of the 
Act), and species that are not federally listed. Neither of these 
categories of species are likely to be protected from development or 
other impacts in the absence of HCPs.
    As is the case with conservation plans generally, the protections 
that a CCAA, SHA, or HCP provides to habitat can reduce the benefits of 
including the covered area in the critical habitat designation. 
However, even in light of such reduction, there may still be 
significant benefits of critical habitat designation. As such, FWS will 
weigh the benefits of inclusion against the benefits of exclusion 
(usually the maintenance or fostering of partnerships that provide 
existing conservation benefits or may result in future conservation 
actions).
    If a CCAA, SHA, or HCP is still under development when we undertake 
a discretionary 4(b)(2) exclusion analysis, we will evaluate these 
draft plans under the framework of general plans and partnerships (see 
Conservation Plans Not Related to Permits Under Section 10 of the Act, 
below). In other words, we will consider factors, such as partnerships 
that have been developed during the preparation of draft CCAAs, SHAs, 
and HCPs, and broad public benefits, such as encouraging the 
continuation of current, and development of future, conservation 
efforts with non-Federal partners, as possible benefits of exclusion. 
However, we will generally give little weight to unrealized promises of 
future conservation actions in draft CCAAs, SHAs, and HCPs that have 
not been permitted. Therefore, we anticipate finding that such promises 
will not reduce the benefits of inclusion in the discretionary 4(b)(2) 
exclusion analysis, even if such promises could, if realized, benefit 
the species for which a critical habitat designation is proposed.

Conservation Plans Not Related to Permits Under Section 10 of the Act

    Proposed paragraph (d)(4) addresses particular areas covered by 
conservation plans, agreements, or partnerships that have not been 
authorized by a permit under section 10 of the Act. We evaluate a 
variety of factors to determine how the benefits of exclusion and the 
benefits of inclusion of a particular area are affected by the 
existence of private or other non-Federal conservation plans or 
agreements and their attendant partnerships when we undertake a 
discretionary 4(b)(2) exclusion analysis. FWS' expertise includes 
anticipating the extent to which the conservation plans, agreements, or 
partnerships provide protection or conservation value for the species. 
The list below is intended to illustrate the types of factors that FWS 
will use when evaluating non-permitted plans. This list is not 
exclusive or absolute. Not all factors may apply to every instance of 
evaluating a plan or partnership; and the listed factors are not 
requirements for plans or partnerships to be considered for exclusion.
    i. The degree to which the record of the plan, or information 
provided by proponents of an exclusion, supports a conclusion that a 
critical habitat designation would impair the realization of benefits 
expected from the plan, agreement, or partnerships;
    ii. The extent of public participation in the development of the 
conservation plan;
    iii. The degree to which agency review and required determinations 
(e.g., State regulatory requirements) have been completed, as necessary 
and appropriate;
    iv. Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 
et seq.) reviews or similar reviews occurred, and the nature of any 
such reviews;
    v. The demonstrated implementation and success of the chosen 
mechanism;
    vi. The degree to which the plan or agreement provides for the 
conservation of the physical or biological features that are essential 
to the conservation of the species;
    vii. Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented; and
    viii. Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    FWS will typically consider whether a plan or agreement has 
previously been subjected to public comment, agency review, and NEPA 
review or similar review processes, because these kinds of processes 
may indicate the degree of critical analysis the plan or agreement has 
already received. For example, if a particular plan was developed by a 
county-level government pursuant to environmental review processes 
provided by State law or regulation, FWS would likely give greater 
weight to that plan in its evaluation.

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 http://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 http://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 http://www.regulations.gov.
    Because we will consider all comments and information received 
during the comment period, our final regulation may differ from this 
proposal in light of our experience in administering the Act, 
consistent with legal requirements.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget will review all significant rules. OIRA has determined that 
this rule is significant.
    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

[[Page 55405]]

achieving regulatory ends. E.O. 13563 directs agencies to consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice for the public where these approaches are relevant, 
feasible, and consistent with regulatory objectives. E.O. 13563 further 
emphasizes 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 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.''

Executive Order 13771

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 because this proposed rule is expected to 
result in no more than de minimis costs.

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 
impact on a substantial number of small entities. The following 
discussion explains our rationale.
    This rulemaking responds to applicable Supreme Court case law and 
revises and clarifies procedures for FWS regarding designating critical 
habitat under the Endangered Species Act to reflect agency experience 
and, with minor changes, codifies current agency practices. The 
proposed changes to these regulations, if finalized, are unlikely to 
result in any critical habitat designation having a larger scope.
    FWS is the only entity that is directly affected by this rule 
because FWS is the only entity that will be designating critical 
habitat under the Endangered Species Act in accordance with this 
portion of the CFR. No external entities, including any small 
businesses, small organizations, or small governments, will experience 
any economic impacts directly 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 
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 use of the land or aquatic resources and it 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 designation 
of critical habitat under the Endangered Species 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 
Executive Order 12988. This proposed rule would clarify factors for 
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,'' and the Department of 
the Interior's manual at 512 DM 2, we are considering possible effects 
of this proposed rule on federally recognized Indian Tribes. FWS has 
reached a preliminary conclusion that the changes to these implementing 
regulations are general in nature and do not directly affect specific 
species or Tribal lands. These proposed regulations modify certain 
aspects of the critical habitat designation processes that we have been 
implementing in accordance with previous guidance and policies, 
including the 2008 DOI SOL M-opinion and the final Policy. These 
regulatory revisions directly affect only FWS, and with or without 
these revisions FWS would be obligated to continue to designate 
critical habitat based on the best available data. Therefore, we 
conclude that these proposed regulations do not have ``tribal 
implications'' under section 1(a) of E.O. 13175, and therefore formal 
government-to-government consultation is not required by E.O. 13175 and 
related policies of the Department of the Interior. We will continue to 
collaborate with Tribes on issues related to federally listed species 
and their habitats and work with them as we implement the provisions of 
the Act. See Secretarial Order 3206 (``American Indian Tribal Rights, 
Federal-Tribal

[[Page 55406]]

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. 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), and the 
Department of the Interior Manual (516 DM 8). This proposed rulemaking 
in part responds to applicable Supreme Court case law and revises 
procedures for FWS regarding designating critical habitat under the 
Endangered Species Act.
    As a result, 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 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.'' However, as a 
result of public comments received, the final rule may differ from this 
proposed rule and our analysis under NEPA may also differ from the 
proposed rule. We invite public comment regarding our initial 
determination under NEPA and 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 a 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 believe 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 you believe are unclearly written, identify any sections or 
sentences that you believe are too long, and identify the sections 
where you believe lists or tables would be useful.

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 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons discussed in the preamble, the U.S. Fish and 
Wildlife Service proposes to amend part 17 of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

Subpart J--[Redesignated as Subpart K]

0
2. Subpart J, consisting of Sec. Sec.  17.100 through 17.199, is 
redesignated as subpart K.

Subpart I--[Redesignated as Subpart J]

0
3. Subpart I, consisting of Sec. Sec.  17.94 through 17.99, is 
redesignated as subpart J.
0
4. New subpart I, consisting of Sec.  17.90, is added to read as 
follows:

Subpart I--Considerations of Impacts and Exclusions from Critical 
Habitat


Sec.  17.90  Impact analysis and exclusions from critical habitat.

    (a) At the time of publication of a proposed rule to designate 
critical habitat, the Secretary will make available for public comment 
the draft economic analysis of the designation. The draft economic 
analysis will be summarized in the Federal Register notice of the 
proposed designation of critical habitat. The Secretary will also 
identify any national security or other relevant impacts that the 
Secretary determines are contained in a particular area of proposed 
designation. Based on the best information available regarding 
economic, national security, and other relevant impacts, the proposed 
designation of critical habitat will identify the areas that the 
Secretary has reason to consider for exclusion and explain why. The 
identification of areas in the proposed rule that the Secretary has 
reason to consider for exclusion is neither binding nor exhaustive. 
``Economic impacts'' may include, but are not limited to, the economy 
of a particular area, productivity, jobs, and any opportunity costs 
arising from the critical habitat designation (such as those 
anticipated from reasonable and prudent alternatives that may be 
identified through a section 7 consultation) as well as possible 
benefits and transfers (such as outdoor recreation and ecosystem 
services). ``Other relevant impacts'' may include, but are not limited 
to, impacts to Tribes, States, local governments, public health and 
safety, community interests, the environment (such as increased risk of 
wildfire or pest and invasive species management), federal lands, and 
conservation plans, agreements, or partnerships. The Secretary will 
consider impacts at a scale that the Secretary determines to be 
appropriate and will compare the impacts with and without the 
designation. Impacts may be qualitatively or quantitatively described.
    (b) Prior to finalizing the designation of critical habitat, the 
Secretary will consider the probable economic, national security, and 
other relevant impacts of the designation upon proposed or ongoing 
activities.
    (c)(1) Subject to paragraph (c)(2) of this section, the Secretary 
has discretion as to whether to conduct an exclusion analysis under 16 
U.S.C. 1533(b)(2).
    (2) The Secretary will conduct an exclusion analysis when:

[[Page 55407]]

    (i) The proponent of excluding a particular area (including but not 
limited to permittees, lessees or others with a permit, lease or 
contract on federally managed lands) has presented credible information 
regarding the existence of a meaningful economic or other relevant 
impact supporting a benefit of exclusion for that particular area; or
    (ii) The Secretary otherwise decides to exercise discretion to 
evaluate any particular area for possible exclusion.
    (d) When the Secretary conducts a discretionary exclusion analysis 
pursuant to paragraph (c) of this section, the Secretary shall weigh 
the benefits of including or excluding particular areas in the 
designation of critical habitat, according to the following principles:
    (1) When analyzing the benefits of including or excluding any 
particular area based on impacts identified by experts in, or by 
sources with firsthand knowledge of, areas that are outside the scope 
of the Service's expertise, the Secretary will assign weight to those 
benefits consistent with the expert or firsthand information, unless 
the Secretary has knowledge or material evidence that rebuts that 
information. Impacts that are outside the scope of the Service's 
expertise include, but are not limited to:
    (i) Nonbiological impacts identified by federally recognized Indian 
Tribes, consistent with all applicable Executive and Secretarial 
orders;
    (ii) Nonbiological impacts identified by State or local 
governments; and
    (iii) Impacts based on national security or homeland security 
implications identified by the Department of Defense, Department of 
Homeland Security, or any other Federal agency responsible for national 
security or homeland security;
    (iv) Nonbiological impacts identified by a permittee, lessee, or 
contractor applicant for a permit, lease, or contract on Federal lands.
    (2) When analyzing the benefit of including or excluding any 
particular area based on economic impacts or other relevant impacts 
described in paragraph (b) of this section, the Secretary will weigh 
such impacts relative to the conservation value of that particular 
area. For benefits of inclusion or exclusion based on impacts that fall 
within the scope of the Service's expertise, the Secretary will assign 
weight to those benefits in light of the Service's expertise.
    (3) When analyzing the benefits of including or excluding 
particular areas covered by conservation plans, agreements, or 
partnerships that have been authorized by a permit under section 10 of 
the Act, the Secretary will consider the following factors:
    (i) Whether the permittee is properly implementing the conservation 
plan or agreement;
    (ii) Whether the species for which critical habitat is being 
designated is a covered species in the conservation plan or agreement; 
and
    (iii) Whether the conservation plan or agreement specifically 
addresses the habitat of the species for which critical habitat is 
being designated and meets the conservation needs of the species in the 
planning area.
    (4) When analyzing the benefits of including or excluding 
particular areas covered by conservation plans, agreements, or 
partnerships that have not been authorized by a permit under section 10 
of the Act, factors that the Secretary may consider include, but are 
not limited to:
    (i) The degree to which the record of the plan, or information 
provided by proponents of an exclusion, supports a conclusion that a 
critical habitat designation would impair the realization of the 
benefits expected from the plan, agreement, or partnership.
    (ii) The extent of public participation in the development of the 
conservation plan.
    (iii) The degree to which agency review and required determinations 
(e.g., State regulatory requirements) have been completed, as necessary 
and appropriate.
    (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) reviews or similar reviews occurred, and the nature of 
any such reviews.
    (v) The demonstrated implementation and success of the chosen 
mechanism.
    (vi) The degree to which the plan or agreement provides for the 
conservation of the physical or biological features that are essential 
to the conservation of the species.
    (vii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    (e) If the Secretary conducts an exclusion analysis under paragraph 
(c) of this section, and if the Secretary determines that the benefits 
of excluding a particular area from critical habitat outweigh the 
benefits of specifying that area as part of the critical habitat, then 
the Secretary shall exclude that area, unless the Secretary determines, 
based on the best scientific and commercial data available, that the 
failure to designate that area as critical habitat will result in the 
extinction of the species concerned.

George Wallace,
Assistant Secretary for Fish and Wildlife and Parks Department of the 
Interior.
[FR Doc. 2020-19577 Filed 9-4-20; 8:45 am]
BILLING CODE 4333-15-P