[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Proposed Rules]
[Pages 59346-59353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23011]
[[Page 59346]]
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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 212]
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: The U.S. Fish and Wildlife Service (``the Service'') proposes
to rescind the final rule titled ``Endangered and Threatened Wildlife
and Plants; Regulations for Designating Critical Habitat'' that
published on December 18, 2020, and became effective January 19, 2021
(``the Final Rule''). The proposed rescission, if finalized, would
remove the regulations established by that rule.
DATES: We will accept comments from all interested parties until
November 26, 2021. Please note that if you are using the Federal
eRulemaking Portal (see ADDRESSES below), the deadline for submitting
an electronic comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-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.''
(2) By hard copy: Submit by U.S. mail: Public Comments Processing,
Attn: FWS-HQ-ES-2019-0115; U.S. Fish and Wildlife Service, MS:JAO (PRB/
3W), 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 https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments below for more information).
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, U.S. Fish and Wildlife
Service, Division of Conservation and Classification, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703/358-2171. If you use a
telecommunications device for the deaf, call the Federal Relay Service
at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Background
Title 50 of the Code of Federal Regulations (CFR) pertains to
Wildlife and Fisheries. Chapter I, which consists of parts 1 through
199, includes regulations administered by the Service. The implementing
regulations for the designation of critical habitat for listed species
are located in 50 CFR part 424. Relevant definitions are at 50 CFR
424.02, and the standards and procedures for identifying critical
habitat are at 50 CFR 424.12. These regulations are jointly
administered by the Service and the National Marine Fisheries Service
(NMFS) (collectively, the Services). On February 11, 2016, the Services
issued a joint policy describing how they implement the authority to
exclude areas from critical habitat designations (Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act, 81 FR
7226; ``the Policy'').
On December 18, 2020, the Service (``we'' or ``our'') amended
portions of our regulations that implement section 4 of the Endangered
Species Act of 1973, as amended (codified at 16 U.S.C. 1531 et seq.)
(``the Act''). The final regulation (85 FR 82376 (``the Final Rule''))
was incorporated into 50 CFR part 17 (at Sec. 17.90) because the rule
applied solely to critical habitat designated by the U.S. Fish and
Wildlife Service. The Final Rule set forth a process for implementing
section 4(b)(2) of the Act, which requires us to consider the impacts
of designating critical habitat and allows us to exclude particular
areas following a discretionary exclusion analysis subject to certain
limitations (16 U.S.C. 1533(b)(2)). The Final Rule also summarized and
responded to numerous public comments that we received on the proposed
rule, which was published on September 5, 2020, (85 FR 55398). That
proposed rule provided the background for proposed revisions in terms
of the statute, legislative history, and case law.
Section 4(b)(2) of the Act requires that the Service consider the
economic impact, the impact on national security, and any other
relevant impact of designating any particular areas as critical
habitat. It provides that the Service then may engage in a further
discretionary consideration and exclude particular areas from the
designation if the benefits of exclusion outweigh the benefits of
inclusion and exclusion would not result in extinction of the species.
In the Final Rule, we discussed our desire to articulate clearly when
and how we will undertake such an exclusion analysis under section
4(b)(2), including identifying a non-exhaustive list of categories of
potential impacts for the Service to consider (85 FR at 82376; December
18, 2020).
The Final Rule revisited certain language in the preamble of the
Policy, as well as certain statements in the preamble to a 2013 rule
that had revised the regulations on the timing of our economic analyses
at 50 CFR 424.19 (78 FR 53058, August 28, 2013) (``the 2013 Rule'')).
Our goal for the Final Rule was to clarify, based on agency experience,
how the Service considers impacts caused by critical habitat
designations and conducts our discretionary exclusion analyses,
partially in light of the Supreme Court's recent decision in
Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018) (Weyerhaeuser). The
Final Rule also stated that the Service's implementation of the 2016
Policy would be superseded by implementation of the regulations at 50
CFR 17.90.
Rationale for Rescission
On January 20, 2021, the President issued Executive Order 13990 (86
FR 7037; ``the E.O.''), which, among other things, required all
agencies to review agency actions issued between January 20, 2017 and
January 20, 2021 to determine consistency with the purposes articulated
in section 1 of the E.O. A ``Fact Sheet'' supporting the E.O. set forth
a non-exhaustive list of specific agency actions that agencies were
required to review. One of the agency actions included on the Fact
Sheet was the December 18, 2020 Final Rule. Pursuant to the direction
in the E.O., we have reviewed the Final Rule to assess whether to keep
the rule in place or to revise any aspects of it. Our review included
evaluating the benefits or drawbacks of the rule, the necessity of the
rule, its consistency with applicable case law, its inconsistency with
NMFS's process for applying section 4(b)(2) of the Act, and other
factors. Based on our evaluation, we propose to rescind the Final Rule.
If we make a final decision to rescind the Final Rule, the 2016 Policy
will no longer be superseded, and we will resume full implementation of
the Policy and the regulations at 50 CFR 424.19. 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 this proposed
rescission is intended to require (if this rule becomes final) that
[[Page 59347]]
any previously finalized critical habitat designations be reevaluated
on the basis of the final decision.
In the preamble to the Final Rule, we explained that, in light of
the Supreme Court's decision in Weyerhaeuser, we needed to revisit
certain language in the preambles for the 2013 Rule and the Policy that
asserted that exclusion decisions are committed to agency discretion
and therefore judicially unreviewable. For example, in the preamble to
the 2013 Rule, the Services had cited case law that supported their
conclusion that exclusions are wholly discretionary and that the
discretion not to exclude an area is judicially unreviewable (78 FR
53072; August 28, 2013). The Services also stated in the preamble to
the Policy that then-recent court decisions resoundingly upheld the
discretionary nature of the Secretaries' consideration of whether to
exclude areas from critical habitat (81 FR 7226, 7233; February 11,
2016), and that, although the Services will explain their rationale for
not excluding a particular area, that decision is judicially
unreviewable because it is committed to agency discretion (id. at
7234).
The Supreme Court's opinion in Weyerhaeuser rendered inaccurate
prior statements regarding judicial reviewability. Although the word
``may'' in the second sentence of section 4(b)(2) indicates
discretionary authority, such that the Secretary is not required to
exclude areas in any particular circumstances (16 U.S.C. 1533(b)(2)),
the Court in Weyerhaeuser held that decisions not to exclude areas 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. In response, we stated in our December 18, 2020, Final Rule that
the ruling in Weyerhaeuser underscored the importance of being
deliberate and transparent about how the Service goes about making
exclusion decisions, such that we were proposing regulations to provide
that ``transparency, clarity, and certainty to the public and other
stakeholders'' (85 FR 82385).
During the comment period for the proposed rule, we received
numerous public comments that provided both support and opposition for
many of the provisions included in the proposed rule. At that time, we
considered all of the comments and decided that finalization of the
Final Rule was an appropriate policy decision. In issuing the Final
Rule, we concluded that the criticisms brought forth by commenters were
not sufficient to change our approach in that rulemaking.
We acknowledge that we are now adopting many of those criticisms as
support for rescinding the Final Rule. Upon our reconsideration, we are
now changing our view of the best way to provide a balance between
transparency and predictability on the one hand, and flexibility and
discretion on the other. We explain below why we have concluded that
this changed approach is preferable to the Final Rule. We now find that
the Final Rule is problematic because it unduly constrained the
Service's discretion in administering the Act, potentially limiting or
undermining the Service's role as the expert agency and its ability to
further the conservation of endangered and threatened species through
designation of their critical habitats. Our specific rationale for why
we now find that the Final Rule does not achieve its stated goals or
further the conservation of species is set forth below.
First, the Final Rule potentially limits or undermines the
Service's role as the expert agency responsible for administering the
Act because it potentially gives undue weight to outside parties in
guiding the Secretary's statutory authority to exclude areas from
critical habitat designations. Through the Secretary, Congress
delegated the authority to designate critical habitat for listed
species to the Service. Performance of parts of these responsibilities
is outlined in section 4(b)(2) of the Act and includes evaluating
information about the impacts of designating particular areas as
critical habitat on economic, national security, and other
considerations; determining which among competing data on potential
impacts is the ``best available''; comparing the impacts of designation
against the benefits of designating those areas and determining the
weight that each should receive in the analysis; and making exclusion
decisions based on the best scientific data available. The Final Rule
potentially limits the Service from fulfilling aspects of this role by
giving parties other than the Service, including proponents of
particular exclusions, an outsized role in determining whether and how
the Secretary will conduct exclusion analyses. This undue reliance on
outside, directly affected parties in certain aspects of the process
interferes with the Secretary's authority to evaluate and weigh the
information provided by those parties, when determining what specific
areas to designate as critical habitat for a species.
Second, the Final Rule employs a rigid ruleset in all situations
regardless of the specific facts as to when and how the Secretary will
exercise the discretion to exclude areas from critical habitat
designations. Although the preamble and response to comments in the
Final Rule refers to using the best available information and based on
the case-specific information to support exclusions analyses, the
regulatory text mandates a rigid process for when the Secretary will
enter into an exclusion analysis, how weights are assigned to impacts,
and when an area is excluded. Therefore, implementing the Final Rule
undermines the Service's ability to further the conservation of the
species because the ruleset applies in all situations regardless of the
specific facts at issue or the conservation outcomes. We now recognize
that keeping the Final Rule would result in competing and potentially
conflicting legal requirements when we undertake an exclusion analysis
and could increase our legal vulnerability. Prior to the Final Rule, we
implemented the Policy and 2013 Rule--neither of which set forth a
rigid ruleset regarding the level of information needed for us to
consider excluding areas, the weight we would assign to the information
about impacts of designation, or any requirement to exclude areas under
certain circumstances. In the Service's view, this approach achieved
the balance that Congress sought when it enacted section 4(b)(2): It
furthered the conservation of the species while still allowing for
exclusions of particular areas when the benefits of exclusion
outweighed the benefits of inclusion.
Finally, we find that the Final Rule does not accomplish the goal
of providing clarity and transparency. Section 4(b)(2) requires the
Service to consider relevant information provided by other Federal
agencies, Tribes, States, and other potentially affected stakeholders
and members of the public about the economic, national security, and
other relevant impacts of critical habitat designations. This
responsibility makes it particularly important that potentially
affected entities and other relevant stakeholders have a clear
understanding of what information is relevant to the Secretary's
evaluation of impacts of critical habitat designations and of how that
information fits into the exclusion process. Thus, in this context it
is preferable for the Service's section 4(b)(2) processes and standards
to be consistent with those of NMFS. Having different regulations from
those NMFS applies (i.e., 50 CFR 424.19) could result in different
outcomes in analogous circumstances or for species where the Services
share jurisdiction and therefore
[[Page 59348]]
poses a significant risk of confusing other Federal agencies, Tribes,
States, other potentially affected stakeholders and members of the
public, and agency staff responsible for drafting critical habitat
designations. We have not identified a science- or mission-based reason
for separate regulations that would outweigh that risk. Thus, we find
that the previous approach--in which both agencies follow the joint
implementing regulations at 50 CFR 424.19 and the Policy--provides
greater clarity for the public and Service staff. The Weyerhaeuser
decision made clear that we now need to explain decisions not to
exclude areas from critical habitat. Therefore, we will always explain
our decisions not to exclude, with or without the Final Rule. Although
we stated in the Final Rule that Weyerhaeuser was, in part, its
impetus, even without the Final rule, and implementing the Final policy
and 50 CFR 424.19, we will always explain our decisions not to exclude.
We did not issue the final rule solely because of that decision.
Rather, our intent was to provide greater clarity and transparency
about the analyses we undertake and explain decisions not to exclude.
However, the Policy and the regulations at 50 CFR 424.19 already
provided that, and we have now concluded that the Final Rule was
unnecessary and that it increased confusion and decreased clarity by
articulating an approach that differed from both NMFS's approach and
the jointly promulgated Policy. For these reasons, the Service now
concludes that rescinding the Final Rule and resuming implementation of
the 2013 Rule and the Policy will better enable the Service to ensure
conservation of endangered and threatened species and the ecosystems on
which they depend, as mandated by the Act. In addition to this
overarching rationale, we explain below our basis for rescinding each
of the primary substantive provisions contained in the Final Rule: The
mandate to undertake a discretionary exclusion analysis whenever a
proponent of an exclusion provides credible information supporting the
exclusion; the generic prescription for weighing impacts; the mandate
to exclude areas from a critical habitat designation whenever the
benefits of exclusion outweigh the benefits of inclusion; the treatment
of Federal lands; and the enumeration of factors to consider under
section 4(b)(2).
Credible Information
The Final Rule commits the Secretary to conduct a discretionary
exclusion analysis whenever a proponent of an exclusion presents
``credible information'' regarding the existence of a meaningful
economic or other relevant impact supporting a benefit of exclusion for
that particular area (85 FR at 82388; December 18, 2020). The preamble
describes ``credible information'' as information that constitutes a
``reasonably reliable indication'' regarding the impact, and stated
that, in determining what constitutes ``credible information,'' we will
look at whether the proponent presents factual information in support
of the claimed impact (85 FR at 82380; December 18, 2020).
We find that the ``credible information'' standard is vague and
does not accomplish the stated goal of improving transparency about
what information will or will not trigger an exclusion analysis,
potentially resulting in inefficiencies and wasting the Service's
limited resources. A requirement to always undertake an exclusion
analysis when this standard is met does not accomplish its stated goal
of providing transparency and clarity as to when the Service would
conduct an exclusion analysis because the standard is not clear. In the
Final Rule, we did not define ``meaningful impact,'' but we stated our
intention for the phrase to mean only more than a de minimis impact.
The Act requires us to take into consideration the best available data
about the impacts of specifying particular areas as critical habitat,
including information that any proponents of exclusions provide about
the impacts of the designation (See 16 U.S.C. 1533(b)(2)). In addition,
the Supreme Court's opinion in Weyerhaeuser already made clear that
decisions not to exclude areas from critical habitat designation are
judicially reviewable for abuse of discretion. 139 S. Ct. at 371. In
light of that opinion, and regardless of the Final Rule, we must
provide an explanation and support for our decisions to exclude any
particular area, as well as decisions not to exclude (where a request
with specific and relevant information has been made), as part of our
critical habitat designations. Regardless of the Final Rule, the
statutory requirement to designate critical habitat on the basis of the
best scientific data available requires the Service to consider any
information submitted by the public, including proponents of
exclusions. Moreover, multiple court decisions have outlined standards
and requirements to guide the Service's compliance with the best-
scientific-data-available requirement; these court decisions provide
the Service with sufficient guidance on this topic. For example, the
courts have held that, to comply with the requirement to designate
critical habitat on the basis of the best scientific data available,
the Service cannot ignore evidence just because it falls short of
scientific certainty. Additionally, courts have held that, to comply
with the requirement to designate critical habitat on the basis of the
best scientific data available, the Service (1) must provide
substantial evidence to support its designations of critical habitat,
Otay Mesa Property v. U.S. DOI, 646 F.3d 914, 916-17 (D.C. Cir. 2011)
(conclusion that San Diego fairy shrimp occupied an area at the time of
listing was held to be invalid because it was not supported by
substantial evidence); (2) may use flawed studies or data if the agency
acknowledges and explains the limitations, In re Polar Bear ESA Listing
and Section 4(d) Rule Litigation, 709 F.3d 1, 13 (D.C. Cir. 2013)
(listing of the polar bear was valid even though it relied on flawed
climate models because the Service explained the methodology of the
models, acknowledged their limitations, and only used the models for
the limited purpose of confirming the ``general direction and
magnitude'' of the population trends; but (3) may reject studies if
they are not reliable, Home Builders Ass'n of Cal. v. U.S. FWS, 529 F.
Supp. 2d 1110, 1121 (N.D. Cal. 2007) (listing of the California tiger
salamander, after rejecting a population estimate study as not being
the best scientific data available, was valid because FWS had evaluated
the study and founds its methodology to be flawed to the point of not
being reliable), aff'd, 321 Fed. Appx. 704 (9th Cir. 2009); and (4)
cannot ignore information if it is in some way better than the evidence
on which it relies, Kern County Farm Bureau v. Allen, 450 F.3d 1072,
1080-81 (9th Cir. 2006) (listing of the Buena Vista lake shrew was
valid because the agency did not ignore three studies that were
inconsistent with the final rule and instead evaluated and incorporated
the studies into its analysis); (5) even if the information falls short
of scientific certainty, Alabama-Tombigbee Rivers Coal. v. Kempthorne,
477 F.3d 1250, 1260 (11th Cir. 2007) (listing of Alabama sturgeon as an
endangered species was valid despite taxonomic uncertainty as to
whether it is a separate species from the shovelnose sturgeon; ``[w]hen
specialists express conflicting views, an agency must have discretion
to rely on the reasonable opinions of its own qualified experts''). The
``credible information'' provision is not necessary for improving
clarity, and, to the contrary, it creates confusion by
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deviating from both the statutory standard and the Service's
longstanding approach and practice.
Prior to the Final Rule, under the Policy, the Service always
considered requests for exclusion; in fact, in a response to a comment
on the Policy, the Services stated that if a commenter provided a
reasoned rationale for an exclusion, including measures undertaken to
conserve species and habitat on the land at issue (such that the
benefit of inclusion is reduced), the Services would consider exclusion
of those lands. However, that provision retained the Secretaries'
discretion to decide not to conduct exclusion analyses in appropriate
circumstances. The Final Rule, on the other hand, makes a commitment to
undertake exclusion analyses whenever proponents of an exclusion submit
``credible information'' of a meaningful impact. This commitment
reduces the Secretary's discretion not to conduct exclusion analyses in
individual circumstances, even in situations in which it is clear to
the Service, in its expert judgment and experience, that the benefits
of exclusions are not going to outweigh the benefits of inclusion,
thereby likely leading to unnecessary and time-consuming analyses.
Because Congress appropriates a finite amount of funding for completing
listing and critical habitat actions to protect endangered and
threatened species, any resources that the Service expends on
undertaking, and then potentially defending, unnecessary exclusion
analyses for one species will reduce the Service's capacity to make
listing and critical habitat decisions to protect other species.
Furthermore, NMFS applies the Policy to guide the exercise of the
Secretary's discretion in implementation of section 4(b)(2) of the Act.
This significant difference in implementation of the same provision of
the Act is likely to be confusing to other Federal agencies, Tribes,
States, and other potentially affected stakeholders and members of the
public, particularly in situations where fact patterns are largely
similar. Implementing the Policy instead of the Final Rule would
provide for a consistent approach between the Service and NMFS as to
when we undertake an exclusion analysis at the request of a landowner,
land manager, or other entity without compromising transparency or
clarity in our implementation of section 4(b)(2) of the Act.
Assigning Weights According to Who Has the Expertise
The Final Rule (85 FR 82380) states that, for impacts outside the
scope of the Service's expertise, which was narrowly defined to extend
only to biological issues, the Secretary will assign weights to the
benefits of inclusion or exclusion consistent with the available
information from experts and parties with firsthand knowledge, unless
the Secretary has knowledge or material evidence that rebuts that
information. ``Impacts that are outside the scope of the Service's
expertise,'' according to the Final Rule, expressly include
nonbiological impacts identified by States or local governments.
After reconsidering the Final Rule, we find the provision to
automatically assign weights based on the nonbiological impacts
identified by entities outside the agency does not advance the
conservation goals of the Act. Not only does it unduly constrain our
authority and responsibility as the agency with the expert judgment in
implementation of the Act, but it could also be at odds with the Act's
mandate to base designations on the best scientific data available.
Although the preamble and response to comments in the Final Rule
addressed this concern by pointing out that we would make exclusion
decisions on a case-by-case basis using the best available information,
the regulatory text mandates a rigid process for how weights are
assigned to impacts. We now recognize that keeping the Final Rule would
result in competing and potentially conflicting legal requirements when
we undertake an exclusion analysis and could increase our legal
vulnerability. In section 4(b)(2) of the Act, Congress vested in the
Secretary the authority and responsibility to assign weights to the
impacts of designating particular areas as critical habitat.
Automatically assigning weights based on information from parties other
than the Secretary or their chain of command, including to parties that
may have direct economic or other interests in the outcome of the
exclusion analysis, regardless of whether those parties have expert or
firsthand information, is in tension with Congress's decision to place
that authority with the Secretary. Furthermore, the requirement that,
unless we have rebutting information, the Secretary must assign weights
to non-biological impacts based strictly on information from those
entities constrains the Secretary's discretion to use their expert
judgment and mandate to base designations on the best scientific data
available.
In addition, the requirement to assign weights consistent with
expert or firsthand information submitted by proponents of exclusions
was unnecessary. Even without that provision, the Service was already
required to, and did, take into consideration expert and firsthand
information submitted by proponents when it assigned weights to the
impacts of designation. The Service applied the Policy, which states
that the Secretary will assign weights to the benefits of inclusion and
exclusion when conducting an exclusion analysis. Without the Final
Rule, our consideration of impacts, including the weights we assigned
to the impacts and identification of the best available data, would
still be subject to judicial review under the APA's ``abuse of
discretion'' standard. See Weyerhaeuser 139 S. Ct. at 371. The Policy
would again guide the Service to consider relevant information provided
by commenters without creating presumptions in tension with the
statute's requirement that we designate critical habitat. Therefore, in
applying the Policy (if this proposed rule were finalized), we would
continue to consider information submitted by proponents of exclusions,
as we did before the Final Rule was promulgated.
We now find that the significant constraints that the Final Rule
places on the Secretary's discretion undermine our role in undertaking
an impartial evaluation of the relevant data, including information
that proponents of exclusions provide, and hinders our ability to
designate critical habitat based on the scientific data available as
required by the statute and to provide for conservation of species.
Federal Lands
The Policy states we would generally not exclude Federal lands from
a designation of critical habitat because of the unique obligations of
Federal land managers under the Act to conserve listed species and
their habitats. The Final Rule states that the standards for evaluating
Federal and non-Federal lands are the same and provided that our
consideration of nonbiological impacts to permittees, lessees, or
others with a permit, lease, or contract would be the same regardless
of land ownership. It also states that the Secretary will assign
weights to nonbiological impacts consistent with information provided
by permittees, lessees, or contractor applicants for permits, leases,
or contracts on Federal lands.
[[Page 59350]]
Some commenters in the rulemaking process for the Final Rule
asserted that the change in policy with respect to considering
exclusion of Federal lands was arbitrary and capricious because we did
not adequately explain the basis for the change or elaborate on any
changed circumstances. The reasoning that the preamble described for
making this change in the Final Rule was that we did not wish to
foreclose the potential to exclude areas under Federal ownership in
cases where the benefits of exclusion outweigh the benefits of
inclusion. We find that the reasoning that the preamble describes for
this change was incomplete because it overlooked some key context
underscoring the benefits of focusing critical habitat designations on
Federal lands.
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.'' (U.S.C 1531(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 their actions are not likely to jeopardize the continued
existence of listed species or result in the destruction or adverse
modification of critical habitat. Federal agencies should use their
authorities to further the purposes of the Act, and Federal lands are
often important to the recovery of listed species. To the extent
possible, we intend to focus designation of critical habitat on Federal
lands in an effort to avoid the real or perceived regulatory burdens on
non-Federal lands.
Finally, while the Final Rule acknowledges a change in the
consideration of Federal lands from the Policy, it fails to recognize
that the Policy does not prohibit exclusions of Federal lands, nor does
it prohibit consideration of information provided by permittees,
lessees, or contractors on Federal lands when the Secretary assigns
weights to impacts under section 4(b)(2) of the Act. Thus, if this
proposed rule were finalized, consistent with the Policy, the Secretary
would retain their discretion to exclude Federal lands when the factual
circumstances merit it. We find that the approach in the Policy better
equips the Service with the flexibility necessary to account for the
wide variability of circumstances in which the Secretary makes
exclusion decisions--variability in the needs of the species, in the
geography and quality of critical habitat areas, and of land ownership
arrangements. For example, while the transactional costs of
consultation with Federal agencies tend to be a relatively minor cost
in most situations, and while activities on Federal lands automatically
have a Federal nexus (which usually would require consultation and thus
increase the potential for conservation benefits if those lands are
designated), we have found that in some instances the benefits of
exclusion nevertheless outweigh the benefits of designating those
areas. In those situations when the benefits of excluding Federal lands
outweigh the benefits of designating them as critical habitat, the
Policy provides sufficient discretion for the Secretary to exclude
Federal lands. Therefore, we find that it is unwise to constrain the
Secretary's discretion in the regulations. Further, resuming the
implementation of the Policy would realign our implementation of
section 4(b)(2) of the Act with that of NMFS.
``Shall Exclude''
The Final Rule states that the Secretary ``shall'' exclude an area
where the benefits of exclusion outweigh those of inclusion, so long as
the exclusion will not result in the extinction of the species
concerned. Using the phrase ``shall exclude'' requires exclusion of the
area when a balancing analysis finds the benefits of exclusion
outweighs those of inclusion. Although, as we stated in the preamble to
the Final Rule, adding this requirement to the regulations was an
exercise of the Secretary's discretion, we now find that exercising the
Secretary's discretion in this way interferes with the statute's
conservation goals by making a binding rule that ties the hands of
current and future Secretaries in a particular way in all situations,
regardless of the case-specific facts or the conservation outcomes. We
recognize this change may result in a decrease in the exclusion
proponent's sense of predictability in the ultimate outcome of an
exclusion analysis. However, we find that advancing the conservation
goals of the statute and providing a rational basis for our decision
are more important than providing increased predictability, and the
statute's conservation goals will be better achieved if we rescind the
Final Rule and resume the implementation of the provisions of the
Policy, under which the Secretary would retain discretion not to
exclude an area when the benefits of exclusion outweigh those of
inclusion. Although the Policy does not require exclusion when the
benefits of exclusion outweigh the benefits of inclusion, it states
that we would generally exclude an area in those circumstances. One
difference is that the Policy acknowledges that we cannot anticipate
all possible fact patterns; thus, it preserves the Secretary's
discretion on exclusions regardless of the outcome of the balancing.
Regardless of implementation of the Final Rule, or the Policy, when the
Secretary undertakes an exclusion analysis, Weyerhaeuser requires us to
be transparent and provide a rational basis to support the decision.
Therefore, our explanation will make the basis of our decision clear to
proponents of an exclusion and to the general public. We find that the
``shall exclude'' language in the Final Rule is an unnecessarily broad
constraint on the Secretary's discretion. Moreover, in light of the
numerous possible fact patterns regarding the relationship between
critical habitat and conservation of a particular species, we find that
preserving the Secretary's discretion regarding whether or not to
exclude areas when the benefits of exclusion outweigh the benefits of
inclusion is most consistent with the Supreme Court's characterization
of the Act as representing ``a policy [of] `institutionalized caution.'
'' Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).
Other Regulatory Provisions of the Final Regulations
The Final Rule contains other provisions identifying factors for
the Secretary to consider when conducting exclusion analyses that
involve particular categories of impacts. For example, 50 CFR 17.90(a)
includes non-exhaustive lists of the types of impacts that the terms
``economic impacts'' and ``other relevant impacts'' may include.
Because these lists are examples of possible factors to be considered,
and are neither mandatory nor exhaustive, with or without the Final
Rule the Secretary can consider whatever factors on or off of those
lists that they determine appropriate given the specific facts of a
designation and its impacts. As a result, removing them, if this
proposed rule is made final, will not affect the Service's
implementation. Similarly, 50 CFR 17.90(d) identifies factors for the
Secretary to consider in evaluating impacts related to economics,
national and homeland security, and conservation plans that are or are
not permitted under section 10 of the Act. These factors are mostly the
same as the factors identified in the Policy. Therefore, we find that
it is unnecessary to include these provisions in the regulations and
that, if the Final Rule is rescinded, resuming the
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implementation of the Policy would not alter our implementation of
section 4(b)(2) of the Act with respect to these factors.
The one change in the Final Rule as compared to the Policy is the
fourth factor for evaluating non-permitted plans and partnerships. The
fourth factor in the Policy is whether compliance with the National
Environmental Policy Act (NEPA) (codified at 42 U.S.C. 4321 et seq.) is
required, but the Final Rule adds language to make clear that we may
consider plans that have had reviews similar to NEPA review even if the
reviews were not technically completed under NEPA. However, that
language was unnecessary because the Policy specifies that the factors
it identifies for evaluating nonpermitted plans are not exclusive. As a
result, even without that added language under the fourth factor in the
Final Rule, we may consider plans that have had reviews similar to NEPA
review, but no NEPA reviews. In short, we find that it is unnecessary
to include in the regulations the additional language regarding reviews
of nonpermitted plans that are similar to NEPA reviews, and that, if
the Final Rule is rescinded, resuming the implementation of the Policy
would not substantially change our implementation of section 4(b)(2) of
the Act with respect to evaluating nonpermitted plans.
Public Comments
We are soliciting public comment on this proposal and supporting
material. All relevant information will be considered prior to making a
final determination regarding the regulations for exclusions from
critical habitat. You may submit your comments and materials concerning
the proposed rule by one of the methods listed in ADDRESSES. Comments
must be submitted to https://www.regulations.gov (Docket FWS-HQ-ES-
2019-0115) before 11:59 p.m. (Eastern Time) on the date specified in
DATES. We will not consider mailed comments that are not postmarked by
the date specified in DATES.
We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us. If you provide personal identifying information in your comment,
you may request at the top of your document that we withhold this
information from public review. However, we cannot guarantee that we
will be able to do so.
Required Determinations
Regulatory Planning and Review (E.O.s 12866 and 13563)
Executive Order 12866 (``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 (``E.O. 13563'') reaffirms the principles of
E.O. 12866 while calling for improvements in the nation's regulatory
system to promote predictability, to reduce uncertainty, and to use the
best, most innovative, and least burdensome tools for achieving
regulatory ends. E.O. 13563 directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives and 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 proposed 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.''
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 that person's 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 proposes to rescind a rule that outlines Service
procedures regarding exclusion of areas from designations of critical
habitat under the Act. If finalized, the Service would resume the
implementation of the 2013 Rule and the Policy jointly with NMFS.
As discussed above, resuming the implementation of the 2013 Rule
and the Policy will not substantially alter our implementation of
section 4(b)(2) of the Act. To the extent that the Final Rule differs
from the Policy, it is limited to identifying specific factors for
consideration that the Policy already authorizes the Service to
consider in weighing the benefits of excluding areas against the
benefits of including them, but in a more general sense. Moreover, the
Service is the only entity that would be directly affected by this rule
because the Service is the only entity that was implementing the final
regulations under 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 because the Service would continue to take into consideration the
relevant impacts of designating specific areas as critical habitat and
retain the ability to apply the factors identified in the Final Rule.
In addition, our decisions to exclude or not exclude areas (where a
specific request has been made) based on this consideration of impacts
will continue to be judicially reviewable in accordance with the
Supreme Court's opinion in Weyerhaeuser.
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 proposed 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,
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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 E.O. 12630, this proposed rule would not have
significant takings implications. This proposed rule would not directly
affect private property, nor would it cause a physical or regulatory
taking. It would not result in a physical taking because it would not
effectively compel a property owner to suffer a physical invasion of
property. Further, the proposed rule would not result in a regulatory
taking because it would not deny all economically beneficial or
productive 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 E.O. 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 Act and would not have substantial direct effects on
the States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
Civil Justice Reform (E.O. 12988)
This proposed rule does not unduly burden the judicial system and
meets the applicable standards provided in sections 3(a) and 3(b)(2) of
E.O. 12988. This proposed rule would rescind a rule that was solely
focused on exclusions from critical habitat under the Act.
Government-to-Government Relationship With Tribes
In accordance with E.O. 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. The Service 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. This proposed rule would rescind the December
18, 2020 Final Rule that modified certain aspects of the critical
habitat designation processes that we have been implementing in
accordance with previous guidance and policies. If finalized, we would
resume the implementation of the 2013 Rule and the Policy jointly with
NMFS. Further, the 2013 Rule and the Policy are almost identical to the
treatment of Tribal lands under the Final Rule and will not have Tribal
implications. These proposed regulatory revisions directly affect only
the Service, and with or without these revisions the Service 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 Trust Responsibilities,
and the Endangered Species Act'' (June 5, 1997).
Paperwork Reduction Act
This proposed rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (45 U.S.C. 3501
et seq.). We may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
We are analyzing this proposed regulation in accordance with the
criteria of the 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). The
effect of this proposed rulemaking would be to rescind the Service-only
procedures for considering exclusion of areas from a designation of
critical habitat under the Act and return to implementing the 2013 Rule
and the Policy jointly with NMFS. As we discussed earlier, resuming the
implementation of the Policy will not substantially alter our
implementation of section 4(b)(2) of the Act, and to the extent the
Final Rule differs from the Policy, it is limited to identifying
specific factors for consideration that the Policy already authorizes
the Service to consider in weighing the benefits of excluding areas
against the benefits of including them, but in a more general sense.
As a result, we anticipate, similar to our conclusion stated in the
Final Rule, that the categorical exclusion found at 43 CFR 46.210(i)
likely applies to the proposed regulation changes. In 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 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
regulation is not expected to affect energy supplies, distribution, and
use. Therefore, this action is a not a significant energy action, and
no Statement of Energy Effects is required.
Clarity of the Rule
We are required by 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
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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 I [Removed]
0
2. Remove subpart I, consisting of Sec. 17.90.
Subpart J [Redesignated as Subpart I]
0
3. Redesignate subpart J, consisting of Sec. Sec. 17.94 through 17.99,
as subpart I.
Subpart K [Redesignated as Subpart J]
0
4. Redesignate subpart K, consisting of Sec. Sec. 17.100 through
17.199, as subpart J.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2021-23011 Filed 10-26-21; 8:45 am]
BILLING CODE 4333-15-P