Endangered and Threatened Wildlife and Plants; Regulations for Designating Critical Habitat
| Published date | 08 September 2020 |
| Citation | 85 FR 55398 |
| Record Number | 2020-19577 |
| Section | Proposed rules |
| Court | Fish And Wildlife Service |
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
AGENCY
: U.S. Fish and Wildlife Service,
Interior.
ACTION
: Proposed rule.
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55399
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.
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.
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55400
Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules
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 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 § 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 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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55401
Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
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.
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55403
Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 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,
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55405
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.’’
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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
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
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
■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]
■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.
■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:
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
55407
Federal Register / Vol. 85, No. 174 / Tuesday, September 8, 2020 / Proposed Rules
(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
VerDate Sep<11>2014 16:00 Sep 04, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4702 Sfmt 9990 E:\FR\FM\08SEP1.SGM 08SEP1
jbell on DSKJLSW7X2PROD with PROPOSALS
