Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81411 

(3) When payment is for legal or other 

professional services rendered in 

connection with the case; or 

(4) When payment is expressly 

authorized by statute or regulation, 

including restitution and forfeiture. 

(d) This policy applies to all civil and 

criminal cases litigated under the 

direction of the Attorney General and 

includes civil settlement agreements, cy 

pres agreements or provisions, plea 

agreements, non-prosecution 

agreements, and deferred prosecution 

agreements. 

Dated: December 4, 2020. 

William P. Barr, 

Attorney General. 

[FR Doc. 2020–27189 Filed 12–15–20; 8:45 am] 

BILLING CODE 4410–BB–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2020–0047, 

FF09E23000 FXES1111090FEDR 212; 

Docket No. 201210–0335] 

RIN 1018–BE69; 0648–BJ44 

Endangered and Threatened Wildlife 

and Plants; Regulations for Listing 

Endangered and Threatened Species 

and Designating Critical Habitat 

AGENCY: U.S. Fish and Wildlife Service, 

Interior; National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(collectively referred to as the 

‘‘Services’’ or ‘‘we’’), add a definition of 

‘‘habitat’’ to our regulations that 

implement section 4 of the Endangered 

Species Act of 1973, as amended (Act). 

This rulemaking responds to Supreme 

Court case law regarding the designation 

of critical habitat and provides 

transparency, clarity, and consistency 

for stakeholders. 

DATES: 

Effective date: This final regulation is 

effective on January 15, 2021. 

Applicability date: This revised 

regulation applies to critical habitat 

rulemakings for which a proposed rule 

is published after January 15, 2021. 

ADDRESSES: Public comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this final regulation, are available on 

the internet at http://

www.regulations.gov in Docket No. 

FWS–HQ–ES–2020–0047. 

FOR FURTHER INFORMATION CONTACT: Gary 

Frazer, U.S. Fish and Wildlife Service, 

Department of the Interior, Washington, 

DC 20240, telephone (202) 208–4646; or 

Samuel D. Rauch, III, National Marine 

Fisheries Service, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910, telephone 

(301) 427–8403. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Relay Service 

(FRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

On August 5, 2020, the Services 

published a proposed regulatory 

definition of ‘‘habitat’’ in the Federal 

Register (85 FR 47333); the definition 

would be added to title 50 of the Code 

of Federal Regulations in part 424 (50 

CFR part 424). In that proposed rule, we 

provided the background for our 

proposed definition in terms of the 

statute, legislative history, and case law. 

In this final rule, we focus our 

discussion on changes from the 

proposed rule based on comments we 

received during the comment period 

and our further consideration of the 

issues raised. For background on the 

statutory and legislative history and 

case law relevant to this regulation, we 

refer the reader to the proposed rule (85 

FR 47333, August 5, 2020). 

In finalizing the specific changes to 

the regulation in this document and 

setting out the accompanying clarifying 

discussion in this preamble, the 

Services are establishing a prospective 

standard only. Although this regulation 

is effective 30 days from the date of 

publication as indicated in DATES above, 

it will apply only to relevant 

rulemakings for which the proposed 

rule is published after that date. Thus, 

the prior version of the regulations at 50 

CFR part 424 will continue to apply to 

any rulemakings for which a proposed 

rule was published before the effective 

date of this rule. Nothing in this final 

revised regulation is intended to require 

that any previously completed critical 

habitat designation be reevaluated on 

the basis of this final regulation. 

Discussion of Changes From the 

Proposed Rule 

In this section, we discuss changes 

between the proposed regulatory 

definition and the definition we are 

finalizing for the term ‘‘habitat,’’ as that 

term is used in the context of critical 

habitat designations and which will be 

set forth in the implementing 

regulations at 50 CFR 424.02. 

We proposed a regulatory definition 

of ‘‘habitat’’ as that term is used in the 

context of critical habitat designations 

under the Act. In addition to the 

proposed definition, we also sought 

comment on an alternative definition. 

The Act defines ‘‘critical habitat’’ in 

section 3(5)(A), establishing separate 

criteria depending on whether the 

relevant area is within or outside of the 

geographical area occupied by the 

species at the time of listing, but it does 

not define the broader term ‘‘habitat.’’ 

See 16 U.S.C. 1532(5)(A). The Services 

have not previously adopted a 

definition of the term ‘‘habitat’’ through 

regulations or policy; rather, we have 

traditionally applied the criteria from 

the definition of ‘‘critical habitat’’ based 

on the implicit premise that any specific 

area satisfying that definition was 

habitat. 

However, the Supreme Court recently 

held that an area must logically be 

‘‘habitat’’ in order for that area to meet 

the narrower category of ‘‘critical 

habitat’’ as defined in the Act 

Weyerhaeuser Co. v. U.S. FWS, 139 S. 

Ct. 361 (2018). The Court stated: ‘‘. . . 

Section 4(a)(3)(A)(i) does not authorize 

the Secretary to designate [an] area as 

critical habitat unless it is also habitat 

for the species.’’ Id. at 368; see id. at 369 

n.2 (‘‘we hold that an area is eligible for 

designation as critical habitat under 

section 4(a)(3)(A)(i) only if it is habitat 

for the species’’). Given this holding in 

the Supreme Court’s opinion in 

Weyerhaeuser, we are adding a 

regulatory definition of ‘‘habitat.’’ 

Under the text and logic of the statute, 

the definition of ‘‘habitat’’ must 

inherently be at least as broad as the 

statutory definition of ‘‘critical habitat.’’ 

To give effect to all of section 3(5)(A), 

the definition of ‘‘habitat’’ we are 

finalizing is broad enough to include 

both occupied areas and unoccupied 

areas, because the statute defines 

‘‘critical habitat’’ to include both 

occupied and unoccupied areas. 139 S. 

Ct. at 369 (‘‘[h]abitat can, of course, 

include areas where the species does 

not currently live, given that the statute 

defines critical habitat to include 

unoccupied areas’’). 

We received numerous comments that 

the proposed and alternative definitions 

lacked clarity, were ambiguous, and 

used terms that needed to be defined 

further. Additionally, commenters 

identified specific issues with some of 

the terms used in the proposed and 

alternative definitions and were 


khammond on DSKJM1Z7X2PROD with RULES
81412 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

concerned overall that the definition 

could have unintended consequences 

on implementation of other parts of the 

Act or on other Federal programs 

involving habitat. In response to these 

comments and upon further 

consideration, the Services have revised 

the regulatory definition of ‘‘habitat’’ to 

be added to 50 CFR 424.02 to read as 

follows: 

For the purposes of designating critical 

habitat only, habitat is the abiotic and biotic 

setting that currently or periodically contains 

the resources and conditions necessary to 

support one or more life processes of a 

species. 

By reducing the definition to a single 

sentence, this structure is more logical, 

and eliminates any apparent 

contradiction between the first sentence 

and the second sentence of both the 

proposed and alternative definitions on 

which we sought comment in the 

proposed rule. 

We added an introductory phrase to 

the final definition (‘‘For the purposes 

of designating critical habitat only’’) that 

explicitly limits the scope of 

applicability to the designation of 

critical habitat. We added this explicit 

statement in response to public 

comments that raised concerns about 

the potential for the definition to apply 

to other sections of the Act or other 

Federal programs that use the term 

‘‘habitat’’ and thus have unintended 

consequences on implementation of 

these other sections and programs. This 

addition provides clarity that the 

definition applies only to the process of 

designating critical habitat. 

We replaced the phrase ‘‘physical 

places’’ with the phrase ‘‘abiotic and 

biotic setting.’’ Abiotic means derived 

from non-living sources such as soil, 

water, temperature, or physical 

processes. Biotic means derived from 

living sources such as a plant 

community type or prey species. We 

intend for the word ‘‘setting’’ to have its 

common meaning, such as the time, 

place, and circumstances in which 

something occurs or develops. The 

addition of this phrase responds to 

comments that habitat is more than 

simply a physical location. As we stated 

in the proposed rule, we intentionally 

chose not to use the statutory phrase 

‘‘physical or biological features’’ to 

avoid conflating the statutory language 

regarding occupied critical habitat with 

that of the broader definition of 

‘‘habitat’’ promulgated here. However, 

we consider ‘‘abiotic and biotic setting’’ 

to be inclusive of ‘‘physical or biological 

features.’’ Additionally, it addresses the 

concerns raised by commenters that 

natural spatial and temporal variations 

in habitat were not encompassed in the 

proposed definition. Finally, this use of 

the phrase ‘‘abiotic and biotic setting’’ 

avoids the undefined term ‘‘attributes,’’ 

which commenters found to be vague, 

poorly defined, or confusing. 

We included the phrase ‘‘resources 

and conditions’’ to make clear that the 

definition of ‘‘habitat’’ is inclusive of all 

qualities of an area that can make that 

area important to the species. We intend 

for the word ‘‘resources’’ to describe the 

common ecological concept—which in 

general is a source or supply from 

which a benefit is produced and that 

has some utility. Likewise, we intend 

the word ‘‘condition’’ to describe a 

particular state that something is in. 

Examples of resources and conditions 

can include dynamic processes (e.g., 

riverine sand bar formation or fire 

disturbance), a set of environmental 

conditions (e.g., temperature, pH, and 

salinity), or any characteristics that can 

satisfy life-history needs (e.g., food, 

shelter). Additionally, this plain 

language takes the place of the phrase 

‘‘existing attributes’’ that commenters 

stated was vague, unclear, and 

confusing. 

We solicited comments on whether 

the phrase ‘‘depend upon’’ or the word 

‘‘use’’ better describes the relationship 

between a species and its habitat. We 

received many comments on these 

phrases. We chose to use the phrase 

‘‘necessary to support’’ to replace the 

phrase ‘‘depend upon to carry out’’ from 

the proposed definition or the phrase 

‘‘use to carry out’’ from the alternative 

definition. Many commenters stated that 

both ‘‘depend upon’’ and ‘‘use’’ were 

too broad and would encompass areas 

that should not be considered habitat, or 

were too narrow and would leave areas 

out that should be considered habitat. 

We intend that the phrase ‘‘necessary to 

support’’ applies to areas needed for one 

or more of a species’ life processes. 

Inclusion of this phrase is plain 

language, and we intend for this phrase 

to convey its common meaning. 

We adopted the phrases ‘‘resources 

and conditions,’’ ‘‘necessary to 

support,’’ and currently or periodically 

contains.’’ As discussed in the preamble 

to the proposed rule, we intend the 

definition of ‘‘habitat’’ to include 

ephemeral habitats—areas that ‘‘may be 

variable, both temporally and spatially, 

such as beach overwash areas, earlysuccessional riparian communities, or 

riverine sandbars.’’ 85 FR at 47335. 

Therefore, we included ‘‘periodically’’ 

to clarify that habitat includes 

ephemeral habitat, which are areas 

where the resources and conditions are 

not consistently present but appear at 

certain times. 

We have retained the phrase ‘‘one or 

more life processes’’ from the proposed 

definition for similar reasons, in that we 

intend for habitat to include areas used 

during a particular season (e.g., for 

migratory species) or at a particular 

phase in the species’ life cycle (e.g., 

fresh-water spawning habitat versus 

adult marine habitat). We intend this 

phrase to have the common biological 

meaning, that is, to include a series of 

functions—such as movement, 

respiration, growth, reproduction, 

excretion, and nutrition—that are 

essential to sustain a living being. 

Retaining this phrase is consistent with 

terms that commenters suggested should 

be included in the definition—such as 

‘‘reproduction,’’ ‘‘recruitment,’’ or 

‘‘survival’’—but avoids limiting the 

definition to a particular set of lifehistory needs that may not be applicable 

to all species. 

We removed the second sentence of 

the proposed definition because we 

incorporated some of its concepts (e.g., 

attributes) into the first sentence and the 

remainder of the sentence is now 

unnecessary. As discussed earlier, the 

addition of the phrase ‘‘resources and 

conditions’’ to the first sentence clarifies 

and takes the place of the phrase 

‘‘existing attributes,’’ which commenters 

stated was vague, unclear, and 

confusing. The inclusion of ‘‘or 

periodically’’ addresses the clarification 

in the second sentence that ‘‘habitat’’ 

includes ephemeral habitat. In the 

preamble to the proposed definition, we 

described ephemeral habitat as habitat 

that ‘‘may be variable, both temporally 

and spatially, such as beach overwash 

areas, early-successional riparian 

communities, or riverine sandbars. For 

example, the sand bars that interior least 

terns use in a river may develop during 

particular times of the year correlating 

to changes in flow rates of a stream or 

river system.’’ In light of that 

description, defining ‘‘habitat’’ as 

settings that ‘‘currently or periodically 

contains the resources and conditions’’ 

includes ephemeral habitat because, 

although we are not able to predict 

exactly where within the general setting 

a specific attribute or feature will form, 

we know that the area contains the 

resources and conditions for the 

attribute or feature to form within that 

general setting. Similarly, as long as the 

area currently or periodically contains 

the ‘‘resources and conditions necessary 

to support one or more life processes’’ 

of the species, the term ‘‘existing’’ 

attributes from the second sentence does 

not add meaning. At the same time, 

notwithstanding the inclusion of 

ephemeral and seasonal habitat in the 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81413 

definition, the definition excludes areas 

that do not currently or periodically 

contain the requisite resources and 

conditions, even if such areas could 

meet this requirement in the future after 

restoration activities or other changes 

occur. 

We note that this understanding of 

‘‘habitat’’ is consistent with the 

interpretive requirement that any 

conception of ‘‘habitat’’ in this context 

be broad enough to include currently 

unoccupied areas that nonetheless meet 

the definition of ‘‘critical habitat.’’ For 

example, a species may be extirpated in 

a particular area due to overexploitation, disease, or a stochastic 

event. If that area nonetheless provides 

‘‘the abiotic and biotic setting that 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of a 

species,’’ it will remain ‘‘habitat’’ for the 

species despite the absence of the 

species. 

Summary of Comments and Responses 

In our proposed rule published on 

August 5, 2020 (85 FR 47333), we 

requested public comments on a 

proposed definition of ‘‘habitat’’ and an 

alternative definition, with the intention 

of adding a definition of this term to our 

implementing regulations in 50 CFR 

part 424. In particular, we requested 

comment on whether either definition is 

too broad or narrow or otherwise proper 

or improper. We also sought public 

comment on specific terms and phrases 

in the proposed definition and 

alternative definition, such as ‘‘depend 

upon’’ or ‘‘use,’’ and whether the phrase 

‘‘where the necessary attributes to 

support the species presently exist’’ 

expressly limits what could qualify as 

unoccupied critical habitat for a species. 

During the public comment period, we 

received several requests for public 

hearings. Public hearings are not 

required for regulation revisions of this 

type, and we elected not to hold public 

hearings. After considering several 

requests for extensions of the public 

comment period beyond the original 30- 

day public comment period, we also 

decided not to extend the public 

comment period. 

The APA does not specify a minimum 

number of days for a comment period, 

but the comment period must be long 

enough to afford the public a 

meaningful opportunity to comment, 

which usually leads agencies to allow a 

comment period of at least 60 days. 

Consistent with this principle, courts 

give broad discretion to agencies in 

determining the reasonableness of a 

comment period. Courts have frequently 

upheld comment periods that were 

shorter than 60 days. See, e.g., 

Connecticut Light & Power Co. v. 

Nuclear Regulatory Comm’n, 673 F.2d 

525, 534 (D.C. Cir. 1982) (upholding a 

30-day comment period and stating that 

‘‘neither statute nor regulation mandates 

that the agency do more’’). In addition 

to the length of a comment period, 

courts consider the number of 

comments received and whether 

comments had an effect on an agency’s 

final rule, in assessing whether the 

public had a meaningful opportunity to 

comment. Although the comment 

period here was shorter than 60 days, 

the public had a meaningful 

opportunity to comment on the 

proposed rule. The Services received 

more than 48,000 public submissions 

representing more than 167,000 

individual commenters. Among the 

submissions were multiple letters from 

organizations signed by thousands of 

individuals expressing general 

opposition to the rule. Although many 

of the other individual comments were 

non-substantive in nature, expressing 

either general support for, or opposition 

to, the proposed rule with no supporting 

information or analysis, we also 

received many detailed substantive 

comments with specific rationales for 

support of, or opposition to, specific 

portions of the proposed rule, and many 

commenters also provided unique 

revised definitions for our consideration 

in the final rule. In addition, the 

Services were responsive to the received 

comments by making revisions to the 

definition in the final rule to address 

them. Below, we summarize the 

significant, substantive public 

comments sent by the September 4, 

2020, deadline and indicate where we 

made revisions to the definition in 

response to those comments. 

Comment 1: The Services received 

comments stating that the proposed 

definition contradicted the intent of the 

Act, providing varied reasons. Many 

commenters cited to the purposes of the 

Act (16 U.S.C. 1531(b)) and provisions 

regarding critical habitat (id. §§ 1532(5), 

1533) to support their views that any 

definition must be broad enough to 

serve the long-term conservation of the 

species. Commenters stated that the 

proposed and alternative definitions 

would significantly limit the areas 

eligible for critical habitat designations 

and, as a result, run counter to 

Congressional intent that critical habitat 

designations identify areas essential to a 

species’ survival and recovery. 

Other commenters argued that the 

proposed and alternative definitions 

were too broad and ran contrary to the 

spirit of the definition of ‘‘habitat’’ most 

widely accepted among the scientific 

community. Some commenters stated 

that the text of the Act and the 

Weyerhaeuser decision both use present 

tense; therefore, the definition should 

require all attributes to be present. 

Those commenters argued the proposed 

and alternative definitions have the 

potential to contradict Congress’s 

legislative intent and engage in 

regulatory overreach. 

Response: The Supreme Court 

recently held that an area must logically 

be ‘‘habitat’’ before that area could meet 

the narrower category of ‘‘critical 

habitat’’ as defined in the Act. 

Weyerhaeuser Co. v. U.S. FWS, 139 S. 

Ct. 361 (2018). Given the need to 

address this particular holding from the 

Supreme Court’s opinion in 

Weyerhaeuser, we decided to develop a 

regulatory definition of ‘‘habitat.’’ Under 

the text and logic of the statute, the 

definition of ‘‘habitat’’ must inherently 

be at least as broad as the statutory 

definition of ‘‘critical habitat.’’ To give 

effect to all of section 3(5)(A), the 

definition of ‘‘habitat’’ we are finalizing 

today is sufficiently broad to include 

both the occupied areas and unoccupied 

areas described in the statutory 

definition of ‘‘critical habitat’’; 

therefore, it is consistent with the 

legislative intent and the statute 

regarding the role of critical habitat in 

achieving the Act’s purpose of species 

conservation. Furthermore, the revised 

definition is consistent with the 

Weyerhaeuser opinion (see 139 S. Ct. at 

369 (‘‘[h]abitat can, of course, include 

areas where the species does not 

currently live, given that the statute 

defines critical habitat to include 

unoccupied areas’’)). Finally, because 

the scope of the final definition is 

necessary to encompass the full 

definition of ‘‘critical habitat’’ under the 

statute, it is not regulatory overreach. 

Comment 2: Many commenters 

requested the Services make clear that 

the definition of ‘‘habitat’’ applies only 

to critical habitat designations. They 

noted the term ‘‘habitat’’ is used 

multiple times in the Act and is not 

limited to critical habitat. Some 

commenters expressed concern 

regarding unintended consequences of 

applying this definition to other 

provisions of the Act, stating that the 

proposed rule did not address potential 

impacts of the ‘‘habitat’’ definition to 

other Act-based actions such as 

conservation planning, species and 

habitat restoration, permitting, 

mitigation, enforcement, and recovery 

implementation. 

Commenters also expressed concern 

that the definition of ‘‘habitat’’ could 

have impacts beyond the Endangered 

Species Act, including a number of 


khammond on DSKJM1Z7X2PROD with RULES
81414 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

other Federal and State programs to 

conserve and enhance wildlife habitats. 

One State expressed concern about the 

impact of this definition on their State 

endangered species act. Multiple 

commenters stated that a regulatory 

definition should not be used in any 

federal grant program to restrict the 

allocation, or to use federal funds, for 

the restoration or creation of new 

habitat in areas of non-habitat. 

Response: Although the Services 

indicated in the preamble of the 

proposed rule that our intent was to 

limit the definition of ‘‘habitat’’ to the 

designation of critical habitat, it was not 

explicitly stated in the regulatory 

definition. Thus, we have revised the 

definition to explicitly limit it to the 

context of designating (or revising) 

critical habitat. We did this by adding 

‘‘For the purposes of designating critical 

habitat only’’ to the beginning of the 

definition. The addition of this phrase 

will make clear that the definition of 

‘‘habitat’’ only applies in the context of 

critical habitat designations and will 

avoid any unforeseen or unintended 

consequences of the definition being 

applied in situations where it is not 

appropriate. 

Comment 3: Multiple commenters 

stated that application of this regulation 

should not be limited to cases in which 

‘‘genuine questions exist’’ (as we stated 

in the proposed rule), and that this 

regulation should instead establish a 

required procedural step in which the 

Services first determine whether an area 

is habitat before proceeding to a 

determination that the area meets the 

requirements for designation as critical 

habitat. These commenters stated that 

we cannot rely on the statutory 

definition of ‘‘critical habitat’’ to fulfill 

the requirement of ensuring an area is 

habitat for the species, and some 

explained that this is a necessary step 

because even areas within the occupied 

range of the species do not all 

necessarily qualify as habitat. However, 

other commenters agreed with the 

position taken in the proposed rule that 

this regulation should not be used to 

create an additional regulatory 

procedure or step. Some commenters 

noted that the proposed rule’s claim that 

this definition would apply only in 

limited cases was unclear because the 

rule would establish a regulatory 

definition for all habitat and would 

therefore apply to all cases. 

Response: In response to these and 

other comments, we have further 

clarified in this final rule that the 

regulatory definition of ‘‘habitat’’ will 

not be used to create a new procedural 

step or regulatory process, nor will it 

result in any new regulatory burdens for 

landowners or other parties. As 

indicated by the revised wording of the 

definition, this regulatory definition is 

applicable only within the context of a 

critical habitat designation or revision, 

and it does not create a new category or 

type of regulated area. Therefore, this 

rule has no bearing on, and will not 

affect, other habitat programs or habitatmanagement activities. 

As we discussed in the proposed rule, 

if an area is occupied by the listed 

species, then as a matter of logic and 

rational inference, the area must also be 

habitat for the species. Similarly, given 

the more exacting criteria set forth in 

the regulations for designating 

unoccupied areas as critical habitat (see 

50 CFR 424.12(b)(2)), which were 

recently revised to address the Supreme 

Court’s decision in Weyerhaeuser, 

questions regarding whether an 

unoccupied area qualifies as habitat are 

far less likely to occur. Those 

regulations, which were revised in 2019 

(see 84 FR 54020, August 27, 2019), 

indicate that unoccupied critical habitat 

will be considered for designation only 

if (1) the occupied areas are not 

adequate to ensure the conservation of 

the species and (2) there is a reasonable 

certainty both that the unoccupied areas 

will contribute to the species’ 

conservation and that the unoccupied 

areas contain one or more of the 

physical or biological features essential 

to the conservation of the species (50 

CFR 424.12(b)(2)). This is not to say, as 

was asserted by some commenters, that 

we are using or intend to use the 

statutory definition of ‘‘critical habitat’’ 

to define what is habitat for a species. 

We are instead stating that an added 

step of first assessing whether an area 

meets the regulatory definition of 

‘‘habitat’’ before assessing whether it 

meets the definition of and criteria for 

‘‘critical habitat’’ will, in most cases, be 

an unnecessary step. Therefore, we do 

not agree with comments that we should 

use this rule to institute a new 

procedure or process through which all 

areas must first be evaluated to 

determine whether or not the areas are 

in fact habitat for a species before we 

determine whether they meet the 

narrower definition and criteria for 

critical habitat. 

Comment 4: Commenters stated that 

the Services should state that any 

identification of ‘‘habitat’’ for a 

particular species will not impose 

additional regulatory consequences for 

landowners, project proponents, or 

other affected parties. The identification 

of ‘‘habitat’’ should be a purely 

administrative action in preparation for 

critical habitat designation. 

Response: The Services have clarified 

that the revised regulatory definition of 

‘‘habitat’’ will be applicable only in the 

context of critical habitat designation 

and revision. The definition does not 

create a new procedural or regulatory 

process, nor will it impose any 

additional regulatory consequences for 

landowners, project proponents, or 

other affected parties. 

Comment 5: Multiple commenters 

stated we should clarify that this rule 

will not affect projects that are already 

pending approval when this rule 

becomes effective. Some commenters 

noted this rule should apply to future 

critical habitat designations, as well as 

future revisions of existing critical 

habitat. Several commenters had the 

converse view and stated that, following 

conclusion of this rulemaking, we 

should review previously designated 

critical habitats and revise them as 

appropriate to ensure that only existing 

habitat is designated as critical habitat. 

Response: As stated in the proposed 

rule, the regulatory definition of 

‘‘habitat’’ will apply only to critical 

habitat rules that are proposed after the 

effective date of this final rule. Thus, it 

does not apply to critical habitat that 

was designated or proposed for 

designation prior to the effective date of 

this rule. This final rule will not have 

a bearing on consultations under section 

7 for any projects with a Federal nexus 

unless the project may affect areas for 

which a critical habitat designation or 

revision was proposed after the effective 

date of this rule. After this rule becomes 

effective, we do not intend to conduct 

a systematic review of all previous 

critical habitat designations. The Act 

provides a process by which designated 

critical habitat may be revised, and we 

will continue to employ that process. 

Lastly, as indicated in the proposed 

rule, in the vast majority of cases, we 

expect application of this definition of 

‘‘habitat’’ to be unnecessary because 

most designations include occupied 

areas only, and we conclude that the 

occupancy of the species confirms that 

the areas constitute habitat for that 

species. 

Comment 6: Some commenters stated 

that the proposed rule represents a 

departure from the Act’s requirement to 

rely on the best scientific data available. 

Commenters stated that the concept of 

habitat is species-specific and should be 

defined based on the best available 

science for that species, not by a set of 

regulatory standards. Commenters 

asserted that application of a regulatory 

definition of ‘‘habitat’’ would 

unnecessarily constrain what qualifies 

as habitat. 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81415 

Response: Section 4(b)(2) of the Act 

requires that we designate, and make 

revisions to, critical habitat on the basis 

of the best scientific data available and 

after taking into consideration the 

economic, national security, and other 

relevant impacts of specifying any 

particular area as critical habitat. We 

will continue to apply this statutory 

requirement when designating critical 

habitat, and we will also apply the best 

scientific data available when 

determining what areas meet the 

regulatory definition of ‘‘habitat.’’ 

Furthermore, because this regulatory 

definition of ‘‘habitat’’ is intentionally 

broad enough to encompass both 

occupied and unoccupied critical 

habitat as defined in section 3 of the Act 

and as further detailed in the 

implementing regulations in 50 CFR 

424.12, application of this definition 

will not constrain the application of the 

best scientific data available to which 

areas qualify as critical habitat and are 

ultimately designated as critical habitat 

under the Act. We see no tension 

between the final definition and the 

requirements of the Act and the 

implementing regulations. 

Comment 7: We received numerous 

comments that provided various 

alternative definitions of the term 

‘‘habitat.’’ Some were wholesale rewrites of the definitions; others used 

many of the same terms used in the 

proposed and alternative definitions 

from the proposed rule but with slight 

variations; some referred to dictionary 

definitions or definitions in published 

relevant ecological or conservationbiology literature; and some used 

different terms and phrases from the 

ones used in the proposed rule. Some 

commenters provided multiple 

variations in the same comment letter. 

Response: We considered the various 

alternative definitions provided and 

have revised the definition of ‘‘habitat’’ 

accordingly. After considering the 

substantive comments, we made the 

changes summarized in the preamble to 

arrive at the final definition in this rule. 

In short, our edits relative to the 

proposed and alternative definitions in 

the proposed rule were focused on 

making the final definition clearer by 

using more commonly understood 

words. We also explain certain words 

and phrases (e.g., ‘‘support’’) later in 

this response-to-comments section, 

again to help where additional clarity 

was requested. We have explained more 

fully the relationship between our final 

definition and those of published 

definitions of ‘‘habitat’’ that we 

considered (see the relevant comment 

and response below). We determined 

that our final definition could not be 

identical to these published definitions 

because it has to fit within the 

regulatory framework of the Act. This 

concept is explained further in our 

response to the comment below 

regarding the relationship of our 

definition to those in the scientific 

literature. 

Comment 8: Multiple commenters 

requested to review the scientific 

literature that the Services used in 

developing the proposed and alternate 

definitions of habitat. Commenters also 

requested that we further explain our 

rationale by providing an analysis of the 

literature relative to the final rule’s 

definition and by describing why other 

existing definitions of ‘‘habitat’’ were 

insufficient for our regulatory 

framework. The commenters also 

provided examples of existing literature 

that describes definitions of ‘‘habitat’’ 

used within the conservation biology 

community, as well as a recently 

developed definition of ‘‘habitat’’ for 

use within a regulatory context 

(Rylander et. al 2020). 

Response: In developing our final 

regulatory definition of ‘‘habitat,’’ we 

considered several published 

definitions from the ecological and 

conservation-biology literature. 

Two definitions that we considered in 

detail were Odum’s (1971) definition, 

‘‘the place where an organism lives, or 

the place where one would go to find 

it,’’ and Kearney’s (2006) definition, ‘‘a 

description of a physical place, at a 

particular scale of space and time, 

where an organism either actually or 

potentially lives.’’ Neither these nor 

other definitions in the scientific 

literature are well-suited to our 

particular purpose here, which is to 

define the term within the legal 

framework for designation of critical 

habitat under the Act. The Act defines 

‘‘critical habitat’’ not just in terms of 

where a species may be found, but also 

in terms of which areas provide 

resources that further the species’ 

conservation. Further, we find that none 

of the existing definitions clearly 

incorporate areas that are not currently 

occupied by the species but that may 

still satisfy the requirements to be 

considered unoccupied critical habitat. 

Our definition includes unoccupied 

areas, and therefore complies with the 

intent of the Act, which requires the 

Secretaries to designate as critical 

habitat not only areas that are occupied 

by the species, but also those areas that 

are ‘‘outside the geographical area 

occupied by the species at the time it is 

listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species’’ (16 

U.S.C. 1532(3)). 

We also considered the definition 

used by Canada’s Species at Risk Act 

(SARA; Canada § 2(1)). Under SARA, 

‘‘habitat’’ is defined as ‘‘(a) in respect of 

aquatic species, spawning grounds and 

nursery, rearing, food supply, migration 

and any other areas on which aquatic 

species depend directly or indirectly in 

order to carry out their life processes, or 

areas where aquatic species formerly 

occurred and have the potential to be 

reintroduced; and (b) in respect of other 

wildlife species, the area or type of site 

where an individual or wildlife species 

naturally occurs or depends on directly 

or indirectly in order to carry out its life 

processes or formerly occurred and has 

the potential to be reintroduced.’’ Our 

definition has similar concepts as 

SARA’s without differentiating between 

aquatic species and other wildlife. 

Specifically, both definitions include 

currently unoccupied areas along with 

occupied habitat, and both definitions 

take into account the potential for 

habitat to be suitable for a species only 

some of the time. Both definitions are 

also based on the ecological conditions 

a species needs to survive. In the case 

of SARA, these are described as ‘‘the 

areas on which . . . species depend 

directly or indirectly in order to carry 

out its life processes.’’ In our definition, 

it is ‘‘the abiotic and biotic setting that 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of a 

species.’’ One difference is that we 

altered the final definition from our 

proposed definition to avoid the use of 

the word ‘‘depend,’’ which commenters 

stated was vague (see specific response 

to these comments below). 

Comment 9: Commenters stated that 

many of the terms used in both the 

proposed and alternative definition 

were ambiguous, unclear, and 

undefined. Commenters stated that the 

lack of clarity or of clear definitions of 

the terms used in both the proposed and 

alternative definition could lead to 

confusion in implementation, increased 

regulatory uncertainty, and increased 

litigation. Commenters recommended 

that we clearly define the terms that are 

used in the definition in the final rule. 

Response: In response to these and 

other comments, we have revised the 

definition of ‘‘habitat’’ in this final rule. 

These changes are described in the 

preamble to this regulation and 

throughout this responses-to-comments 

section. Changes include removal of 

words or terms, the substitution of new 

wording to reduce ambiguity, and the 

description of intended meanings of 

particular words used in the final 

definition. For example, we removed 

both ‘‘depend upon’’ and ‘‘use,’’ words 


khammond on DSKJM1Z7X2PROD with RULES
81416 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

which generated many comments both 

in favor of and opposed to their 

inclusion, and replaced them with 

‘‘necessary to support,’’ which describes 

the ‘‘resources and conditions’’ in 

question. 

We further describe (below, in 

another response to comment) that our 

intent is for the meaning of ‘‘support’’ 

to be consistent with the purposes of the 

Act to recover listed species to the point 

at which they no longer need the 

protections of the Act. The ‘‘resources 

and conditions’’ in question must 

contribute to this outcome, at least 

incrementally. 

Other changes made to the proposed 

definition in light of commenters’ 

requests for increased clarity include 

the deletion of the words ‘‘attributes’’ 

and ‘‘physical places’’ from the final 

definition. ‘‘Physical places’’ was 

removed from the definition and 

replaced with ‘‘biotic and abiotic 

setting’’ because the substituted phrase 

captures a broader set of characteristics, 

conditions, and processes and addresses 

the concern raised by multiple 

commenters that natural spatial and 

temporal variations in habitat were not 

encompassed in the proposed 

definition. ‘‘Attributes’’ was removed in 

favor of the plain-language terminology 

‘‘resources and conditions necessary to 

support one or more life processes of a 

species,’’ which is further described in 

a separate comment below. 

Wording of the Proposed Definition 

Comment 10: Commenters’ views on 

the terms ‘‘depend upon’’ and ‘‘use’’ 

within the definition of ‘‘habitat’’ varied 

greatly. Some commenters expressed 

support for using ‘‘depend upon’’ 

instead of ‘‘use,’’ whereas other 

commenters expressed the opposite 

view. Some commenters supported 

inclusion of both terms within the 

definition because this construction 

would capture the ideas both that the 

species relies on the area and that 

individuals are in fact using the area. 

Other commenters discussed how both 

of these closely related terms were too 

vague and could be interpreted in 

various ways, narrowly as well as 

broadly, with some commenters 

suggesting that both terms be used in 

the definition, and other commenters 

suggesting that one or both of the terms 

be replaced with other, clearer 

terminology—such as ‘‘supports the 

species.’’ 

Commenters in favor of using 

‘‘depend upon’’ stated that this phrasing 

more accurately reflects the relationship 

between species and their habitat and is 

consistent with the well-established 

principle in the scientific literature that 

habitat is more than just areas that a 

species physically uses. Some 

commenters also asserted that ‘‘depend 

upon’’ is preferable to ‘‘use’’ because it 

is consistent with the language in 

section 2 of the Act stating that the 

purpose of the Act is to provide a means 

by which the ecosystems that 

endangered species and threatened 

species depend upon may be conserved. 

Some commenters noted that ‘‘use’’ is 

vague and may imply that a negligible 

level of reliance on an area or incidental 

use of an area is sufficient for the area 

to qualify as habitat, or it may be 

interpreted to refer to concepts of 

habitat use or resource use rather than 

what constitutes habitat. 

In contrast, commenters in favor of 

the word ‘‘use’’ or ‘‘may use’’ stated that 

‘‘depend upon’’ could be applied too 

narrowly in that it may imply obligate 

use (restricted to one) , and it is too 

similar in meaning to the word 

‘‘essential’’ in the statutory definition of 

‘‘critical habitat.’’ Other commenters 

stated that ‘‘use’’ is preferable because it 

more accurately describes the 

relationship between species and their 

environments. Some commenters 

preferred ‘‘use’’ because it 

acknowledges that habitat may include 

areas where the species does not 

currently exist. 

Response: Given the large number of 

comments for and against using each of 

the two terms—‘‘depend upon’’ and 

‘‘use’’—in the regulatory definition of 

‘‘habitat,’’ we have revised the final 

definition to eliminate use of these 

terms altogether. Based on the public 

comments, we have replaced these 

terms with other, plain-language words 

that more clearly indicate the intended 

meaning of the term ‘‘habitat’’ and avoid 

the types of ambiguity and 

misinterpretations discussed by the 

commenters. Specifically, we have 

focused the definition on the abiotic and 

biotic setting that provides resources 

and conditions ‘‘necessary to support’’ 

one or more life processes of the 

species. What is considered ‘‘necessary 

to support’’ the species will be 

grounded in the best available science 

for the particular species and the 

common-sense application of ecological 

principles. We also find that this 

phrasing better demonstrates how the 

definition of ‘‘habitat’’ is inclusive of 

both areas that would qualify as 

occupied critical habitat and areas that 

would qualify as unoccupied critical 

habitat. 

Comment 11: Commenters found the 

phrase ‘‘capacity to support’’ to be 

ambiguous and subject to 

misinterpretation, and requested that 

the Services provide a definition to 

clarify this ambiguity, especially with 

respect to how ‘‘capacity to support’’ 

relates to either ‘‘depend upon’’ or 

‘‘use.’’ Some of their concern related to 

how the word ‘‘capacity’’ could be 

interpreted—whether narrowly, to 

exclude marginal-quality habitat 

because it refers only to areas that 

contain all necessary attributes to 

support the species, or broadly, to 

include areas of any quality because it 

includes areas that have or could 

develop some attributes that could 

support the species if restored. 

Commenters also expressed uncertainty 

as to whether ‘‘support’’ only means 

that the species can survive, or whether 

the habitat can sustain the species into 

the future. 

Response: As discussed earlier, we 

have removed the second sentence from 

the definition because the changes to 

the first sentence have made it 

unnecessary. Therefore, the term 

‘‘capacity’’ no longer appears in the 

definition or raises these questions. The 

term ‘‘support’’ remains in the 

definition, but now appears in the first 

sentence. We use that term consistent 

with the intent of the Act—to further the 

conservation of listed species. 

Specifically, to ‘‘support’’ a listed 

species’ life processes, resources and 

conditions must contribute, at least 

incrementally, to bringing the species 

‘‘to the point at which the measures 

provided pursuant to . . . [the Act] . . . 

are no longer necessary’’ (16 U.S.C. 

1532(3)). This approach is also 

consistent with our recent revisions to 

the procedures used to designate critical 

habitat (50 CFR 424.12(b)(2); 84 FR 

45020, August 27, 2019), which specify 

that the Secretary must determine, in 

part, that there is a reasonable certainty 

that the area will contribute to the 

conservation of the species. 

Comment 12: A number of 

commenters expressed concern that the 

proposed and alternative definitions 

focus too narrowly on ‘‘physical places’’ 

and do not recognize habitat is the 

resources and conditions found in those 

physical places that provide for the 

needs of the species. Some suggested 

the definition of ‘‘habitat’’ should 

emphasize the biotic and abiotic 

components that comprise a species’ 

habitat and noted that it is not a static 

location on a map. At least one 

commenter that supported the use of 

‘‘physical places’’ suggested that we use 

‘‘types of places’’ to provide a broader 

application that reflects habitat linkages 

and the principle that unoccupied areas 

can be habitat. 

Response: We have removed the 

words ‘‘physical places’’ from the 

definition. The definition now refers to 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81417 

the ‘‘biotic and abiotic setting,’’ which 

captures a broader set of characteristics, 

conditions, and processes, and 

accomplishes the intent that the 

comment sought to accomplish. 

Comment 13: Commenters stated that 

the definition should not just consider 

attributes that are present. Areas where 

attributes are absent because a given 

location simply cannot support any or 

all of the necessary attributes needed by 

a species, or because human activity or 

a natural event has altered one or more 

attributes, should be considered habitat 

if the site is capable of providing the 

attributes. Commenters stated that using 

‘‘presently’’ makes the definition too 

narrow and does not include enough 

areas that have the capacity to support 

the species. Additionally, commenters 

believe the terms ‘‘existing attributes’’ 

and ‘‘necessary attributes’’ are vague 

and should be clarified. Other 

commenters stated that the definition 

should include ‘‘all necessary 

attributes’’ and the definition should 

focus on attributes that can support 

populations rather than individuals. 

Response: We have added the phrase 

‘‘resources and conditions necessary to 

support one or more life processes of a 

species’’ to the definition. This revision 

removes the term ‘‘existing attributes’’ 

that commenters criticized as being 

vague and unclear. Resources and 

conditions allow for the inclusion of the 

aspects of habitat that are important to 

the species, including dynamic 

processes (e.g., riverine sandbar 

formation or fire disturbance) or a set of 

environmental conditions (e.g., 

temperature, pH, and salinity). By 

avoiding inclusion of areas that cannot 

currently or periodically support the 

species, this simplified phrasing 

addresses commenters’ concerns that 

the final definition would be overly 

broad. 

Comment 14: Commenters expressed 

various concerns that both the proposed 

and alternative definitions of habitat 

emphasized ‘‘individuals of the species’’ 

as a frame of reference and noted that 

it could be interpreted as something 

more or less than intended. Some 

commenters felt this phrasing could be 

applied to limit habitat protections in 

smaller areas that supported some 

individuals but that were not 

sufficiently large to support recovery of 

the species, whereas other commenters 

felt that this phrasing could be applied 

to include areas where only a single 

member of the species was present 

without considering the ecological 

relationship between the individual and 

the particular setting. Some commenters 

stated that, for an area to qualify as 

habitat, the species as a whole must use 

and need the area. These commenters 

stated that reference to the ‘‘species’’ is 

consistent with the Act, existing 

regulations, and the Supreme Court 

opinion in Weyerhaeuser. In contrast, 

some commenters stated that habitat 

must also include areas that support 

even a single individual of a listed 

species. These commenters stated that 

such an interpretation is consistent with 

the plain meaning and dictionary 

definitions of ‘‘habitat’’ in that there is 

no requirement that the area support an 

entire population or species in order to 

qualify as habitat. These commenters 

recommended that, to avoid 

misinterpretation and misapplication of 

the definition, we clarify that the term 

‘‘habitat’’ encompasses all areas that 

support the species, populations, or 

individuals of the species. 

Response: Both the proposed and 

alternative definitions provided in the 

proposed rule defined habitat in terms 

of areas that ‘‘individuals of the 

species’’ depend upon or use. The 

phrase ‘‘individuals of the species’’ was 

not intended to artificially restrict what 

qualifies as habitat to something less 

than what would be necessary to sustain 

the species, nor was it intended to 

artificially expand what qualifies as 

habitat to areas where, for example, only 

vagrant individuals are present. We 

agree that what qualifies as habitat for 

a given species should be based on the 

ecology of that species so that it reflects 

the specific relationship between the 

environment and individuals, 

populations, and the species as a whole. 

Because this phrase received extensive 

public comments indicating an 

unintended ambiguity, we have 

removed this phrase from the definition 

of ‘‘habitat’’ provided in this final rule. 

The final definition is instead oriented 

around life processes of the species and 

the setting that supports those life 

processes. We find that this revised 

definition removes the potential 

confusion identified by the commenters 

and is sufficiently broad to encompass 

what would constitute habitat at the 

relevant and appropriate biological 

scale—i.e., individual members of a 

species, populations, and the species as 

a whole. 

While the word ‘‘species’’ still occurs 

in the final definition, it is not used in 

a manner that constrains the definition 

of ‘‘habitat’’ to a single biological level, 

such as the whole species. Rather, this 

term is used as an inclusive term in the 

context of the definition. In other words, 

use of the term ‘‘species’’ does not 

preclude consideration of the necessary 

ecological linkages between individuals, 

populations, and metapopulations when 

assessing what constitutes habitat for a 

species. 

Other Topics 

Comment 15: Commenters stated that 

the definition should neither require 

occupancy nor limit critical habitat 

designations to occupied habitat. Some 

commenters noted that habitat should 

not be limited to occupied areas because 

occupancy can be difficult to determine 

for certain species. Other commenters 

stated a concern that designating habitat 

where a species does not exist (i.e., 

unoccupied habitat) has significant 

impacts to private property rights and 

the ability to engage in economic 

activities. 

Response: The revised regulatory 

definition of ‘‘habitat’’ must be 

sufficiently broad to encompass both 

occupied and unoccupied areas that 

satisfy the definition of ‘‘critical 

habitat’’ in section 3 of the Act. 

Application of this definition will not 

constrain what qualifies as critical 

habitat because it complements the 

existing regulations at 50 CFR 424.12, 

which prescribe when and how the 

Services will consider designating, and 

ultimately designate, unoccupied areas 

as critical habitat under the Act. The 

definition does not create a new 

procedural or regulatory process, nor 

will it result in any additional 

regulatory consequences for 

landowners, project proponents, or 

other affected parties. 

Comment 16: Commenters stated that 

the proposed definition was too narrow, 

in particular that it may not account for 

all geographic areas that are or could be 

suitable across a species’ entire range, or 

all sites that a species may use, because 

of the limitation of the phrase ‘‘existing 

attributes.’’ Conversely, other 

commenters stated that the proposed 

definition of ‘‘habitat’’ should be limited 

to specific geographic areas, and that the 

Services should clarify the relationship 

between the range, habitat, and critical 

habitat of a species. 

Response: As noted in the preamble 

above, the text and logic of the statute 

inherently require that the definition of 

‘‘habitat’’ must be at least as broad as 

the statutory definition of ‘‘critical 

habitat.’’ We have therefore created this 

definition to be sufficiently broad to 

include both occupied and unoccupied 

areas. As for the relationship between 

range and habitat, the current range of 

a species is the general geographic area 

within which a species can be found. 

Therefore, depending on the facts 

surrounding a given species, the areas 

that constitute occupied habitat for the 

species are a subset of, or are the same 

as, its current range. 


khammond on DSKJM1Z7X2PROD with RULES
81418 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

Comment 17: Commenters noted that 

the proposed definition, including the 

phrase ‘‘existing attributes,’’ may 

preclude identifying as habitat areas 

that experience rapid changes in 

ecology driven by habitat loss and 

fragmentation or areas that may develop 

over time, as a result of changing or 

shifting conditions due to climate 

change, to the point that they can 

support the species. Additionally, other 

commenters noted that the effects of 

climate change may make some current 

habitat unsuitable for species while over 

time other areas that are not currently 

suitable habitat may become suitable. 

Conversely, some commenters stated 

that the Services must determine 

whether areas qualify as habitat based 

on current conditions, not on the 

expected future ability of an area to 

become habitat as a result of climate 

change. 

Response: Consistent with our 

longstanding practice, we will consider 

the best scientific data available, 

including data regarding changing 

climate, in determining what areas 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of the 

species. We must evaluate a species’ 

habitat use and requirements on a caseby-case and species-specific basis 

because we must take into account the 

particular species’ life history and 

ecology, including factors such as 

mobility, adaptability, resilience, 

phenology (the timing of recurring 

natural events), and home-range sizes. 

As noted previously (see response to 

Comment 13), the Services have 

removed the words ‘‘existing attributes’’ 

from the final definition. 

For areas that are outside the 

geographical area occupied by the 

species at the time of listing, we 

evaluate whether the best available 

scientific data indicate that an area 

currently or periodically contains the 

resources and conditions necessary to 

support life history needs of the 

particular species. We recognize that, 

due to varying levels of uncertainty 

regarding effects of climate change and 

the complexity of biotic and abiotic 

interactions within a given ecosystem, it 

may not always be possible to make 

reasonable predictions regarding how 

habitat is changing in response. Even if 

areas are initially determined not to be 

habitat, they may be subsequently 

determined to be habitat; however, there 

is not an automatic assumption that 

those areas would be considered to be 

critical habitat. If, in the future, 

conditions change or new information 

becomes available indicating that areas 

that were not previously considered to 

be habitat have the necessary resources 

and conditions at that time in the future, 

critical habitat can be revised. 

Comment 18: Some commenters 

stated that restoration of marginal or 

degraded areas is a necessary and 

proven recovery strategy for many 

species, and because the proposed 

definition seemingly precludes 

identification of areas needing 

restoration, the definition of ‘‘habitat’’ is 

contrary to the conservation purposes of 

the Act. In particular, they believe this 

limitation would prohibit the Services 

from protecting areas that are currently 

unoccupied but may become necessary 

to the survival and recovery of a species. 

Commenters provided examples of 

circumstances in which currently 

unoccupied areas may become 

necessary for the conservation of the 

species, including: (1) The species’ 

current habitat becomes degraded or 

destroyed, or is insufficient for recovery; 

(2) those currently unoccupied areas 

(including formerly occupied habitat) 

are restored; or (3) the areas are likely 

to become suitable in the future as a 

result of ecological processes such as 

succession. Other commenters stated 

that the definition must include areas 

that may require some restoration 

because, if remaining habitat were 

enough for a species, it is likely the 

species would not have been listed as an 

endangered or threatened species. 

Other commenters took the opposing 

view, stating that any definition of 

‘‘habitat’’ must not include areas that 

need even a de minimis amount of 

habitat restoration because that would 

stretch the scientific understanding of 

the definition of ‘‘habitat’’ too far. These 

commenters stated that, if intentional 

restoration is required for an area, then 

it should not qualify as habitat. 

Response: The Services agree that 

some unoccupied areas may be essential 

to the conservation of the species; 

however, we disagree that the definition 

of ‘‘habitat’’ precludes the designation 

of such areas as critical habitat. 

However, habitat, whether occupied or 

unoccupied, must still have (currently 

or periodically) the resources and 

conditions necessary to support one of 

the life processes for the species. 

As noted above, the definition of 

‘‘habitat’’ we are finalizing today is 

consistent with the legislative intent 

and the statute regarding the role of 

critical habitat in achieving the Act’s 

purpose of species conservation. The 

definition respects the statutory text by 

distinguishing between habitat and 

areas that are not habitat (but can 

become habitat in the future, whether by 

virtue of restoration activities or because 

of other changes). As further noted 

above, even if areas are initially 

determined not to be habitat, they may 

be subsequently determined to be 

habitat. In addition, we note that in 

addition to designating areas as critical 

habitat, other tools and mechanisms are 

available to the Services and our 

partners to identify or protect areas in 

need of restoration to support the 

conservation of a species. The Services 

also note, as indicated in the preamble 

and in responses to comments, that we 

have clarified that ‘‘habitat’’ is defined 

here for the purposes of designating 

critical habitat and would not be used 

in other contexts. 

Comment 19: The Services received 

comments stating that the proposed 

definition violates the Administrative 

Procedure Act because it failed to 

provide a reasoned explanation or 

rational basis for the proposed 

definitions. Commenters stated that 

referring to the need to address the 

Supreme Court’s decision in 

Weyerhaeuser is not a reasoned 

explanation because nothing in that 

decision required that the Services 

define ‘‘habitat,’’ encouraged the 

Services to adopt a restrictive definition, 

or even took issue with the Services’ 

long-standing approach of defining 

habitat in accordance with the life 

history and ecology of each species. 

Response: Although the Supreme 

Court’s opinion in Weyerhaeuser did 

not require promulgation of a definition 

of ‘‘habitat,’’ given the Court’s holding 

that the Act does not give the 

Secretaries the authority to designate an 

area as critical habitat unless it is also 

habitat for the species, we proposed to 

define the term to ‘‘provide 

transparency, clarity, and consistency 

for stakeholders.’’ See 85 FR at 47334, 

August 5, 2020. In the proposed rule, we 

identified our objectives in developing 

the proposed and alternative definitions 

(sufficient breadth to include both 

occupied and unoccupied areas and to 

accommodate the wide variety of abiotic 

and biotic attributes that the vast array 

of species need) and how we went about 

developing them (incorporation of 

useful concepts from the ecological 

literature while adding concepts to 

ensure sufficient breadth based on the 

statute and our experience) (id.). The 

proposed rule also sought comments 

from the public on specific terms and 

phrases in the definitions, and our 

comment responses above provide a 

detailed and reasoned explanation of 

why the specific terminology in the 

definition accomplishes the purposes of 

the definition and the conservation 

goals of the Act. Therefore, we have 

provided a reasoned explanation and 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81419 

rational basis for our action as required 

by the Administrative Procedure Act. 

Comment 20: The Services received 

comments stating that the proposal 

violated the Administrative Procedure 

Act because the absence of a rational 

explanation for the proposed definitions 

deprived the public of a meaningful 

opportunity to comment. In particular, 

commenters stated that the proposed 

rule did not disclose specifically what 

information we did consider, or provide 

citations to the ecological literature that 

formed the basis for the proposal or to 

studies showing how the proposed or 

alternative definition reflects the 

principle that a species’ habitat is based 

on its ecology. 

Response: Contrary to what these 

comments suggest, the public had a 

meaningful opportunity to comment on 

the proposed and alternative 

definitions. The proposed rule 

transparently communicated that, 

although concepts from ecological 

literature provided a starting point for 

the Services’ definitions, ‘‘no preexisting definition was adequate to 

address the particular regulatory 

framework.’’ As a result, the proposed 

rule did not provide citations to specific 

studies because the Services had not 

relied on specific studies, but instead 

‘‘incorporated useful concepts from the 

literature to the extent appropriate and 

added concepts based on our decades of 

expertise.’’ The public thus was 

provided with a meaningful opportunity 

to comment in light of the explanation 

in the proposed rule, combined with the 

specific questions for which the 

proposed rule sought comment. 

Comment 21: Several commenters 

supported invoking the NEPA 

categorical exclusion for ‘‘[p]olicies, 

directives, regulations, and guidelines: 

that are of an administrative, financial, 

legal, technical, or procedural nature’’ 

under the Services’ NEPA implementing 

regulations (43 CFR 46.210(i) and 

NOAA NEPA Manual at Appendix E, 

Categorical Exclusion G7). Commenters 

maintained that the definition does not 

establish any new requirements that 

may change the scope of critical habitat 

designations, or impose any additional 

procedural steps for designating critical 

habitat, and some suggested that the fact 

that the Services are developing the 

definition in response to the Supreme 

Court’s decision in Weyerhaeuser also 

supports the conclusion that the 

categorical exclusion applies. 

Alternatively, we also received 

comments opposing the invocation of a 

categorical exclusion for the proposed 

definitions of ‘‘habitat.’’ Some asserted 

that the definition would constitute a 

major substantive change in the law and 

would likely cause significant, negative 

environmental impacts to imperiled 

species and their habitat (for example, 

by undercutting both habitat and 

species recovery and restoration efforts). 

Others stated that the specific 

categorical exclusion that we invoked 

(43 CFR 46.210(i) and Categorical 

Exclusion G7 from NOAA NEPA 

Manual at Appendix E) does not apply 

to this rulemaking and that we did not 

explain why any of the Services’ 

categorical exclusions applies to this 

rulemaking. 

Response: We conclude that the 

categorical exclusion for ‘‘[p]olicies, 

directives, regulations, and guidelines: 

that are of an administrative, financial, 

legal, technical, or procedural nature’’ 

(43 CFR 46.210(i) and NOAA NEPA 

Manual, Appendix E, Categorical 

Exclusion G7) applies to this 

rulemaking. As we made clear in the 

proposed rule, the objective of this 

rulemaking is to ‘‘provide transparency, 

clarity, and consistency for 

stakeholders’’ because the Weyerhaeuser 

decision may raise questions in some 

instances as to whether areas of 

unoccupied critical habitat are 

‘‘habitat.’’ Adoption of the final 

definition would not create a new 

procedural step that the Services would 

need to undertake every time we 

designate critical habitat because in the 

vast majority of cases there is no 

question that the areas that qualify as 

critical habitat are ‘‘habitat.’’ The 

question of whether areas within a 

critical habitat definition qualify as 

‘‘habitat’’ would arise only in the 

relatively rare situations when there is 

a question as to whether any of the 

unoccupied areas that we are 

considering designating as critical 

habitat qualifies as ‘‘habitat.’’ In such a 

situation, the Weyerhaeuser opinion 

would require the Services to undertake 

the analysis reflected in this definition, 

that is, to determine—based on concepts 

in the ecological literature, combined 

with the Services’ regulatory and 

scientific experience and expertise— 

whether the unoccupied areas meet the 

definition of ‘‘habitat.’’ The result of 

promulgating this definition, therefore, 

is merely to inform the public and the 

Services’ employees of the mechanics of 

how that consideration will work, so 

that the process of designating critical 

habitat is more straightforward, more 

efficient, and more transparent. 

Accordingly, this rulemaking is of a 

technical nature. 

Comment 22: Several commenters 

stated that, even if the proposed 

definition fell within a potential 

categorical exclusion, it would be 

inappropriate to invoke the categorical 

exclusion because one or more 

‘‘extraordinary circumstances’’ are 

present under FWS’s NEPA regulations 

and NMFS’s NEPA Manual. For 

example, commenters asserted that the 

definition could have significant 

impacts on ecologically significant or 

critical areas, migratory birds, species 

listed or proposed for listing under the 

Endangered Species Act, or Tribal 

lands; violate Tribal law requirements 

imposed for protection of the 

environment (such as by limiting 

ceremonial use of Indian sacred sites); 

be subject to public controversy; or have 

highly controversial effects and highly 

uncertain and potentially significant 

environmental effects. In addition, the 

definition could have a significant 

impact on areas designated as critical 

habitat both for future designations and 

for review of current designations. 

Response: We conclude that none of 

the ‘‘extraordinary circumstances’’ 

apply in this situation. First, this 

definition is limited to the context of 

designating critical habitat. Second, 

promulgating this definition does not 

alter the outcomes for any species or 

critical habitat designations because 

even before we finalize this definition, 

the Weyerhaeuser decision already 

required the Services to ensure that 

areas they designate as critical habitat 

qualify as ‘‘habitat.’’ Moreover, this final 

definition incorporates concepts from 

ecological literature, with adaptations 

that the Services put in place in light of 

the statutory context and their 

regulatory and technical expertise. The 

adaptations we have made are designed 

to ensure that the definition is 

sufficiently broad to apply to both 

occupied and unoccupied areas under 

consideration for designation as critical 

habitat and to the vast array of species 

and their life histories that may need 

protection under the Act. Even without 

promulgating this definition, the 

Services would undertake this analysis 

and would adopt and adapt the 

concepts from the ecological literature 

in designating critical habitat. 

Promulgating the definition through 

rulemaking merely makes the analysis 

express and transparent, and it therefore 

does not have an impact upon any 

species, critical habitat, or area of land. 

Finally, because the definition is pulled 

from concepts in ecological literature 

and the Services’ practical regulatory 

experience, promulgating this definition 

is technical or administrative in nature 

and does not have any uncertain 

impacts on any species, critical habitat, 

or area of land. 


khammond on DSKJM1Z7X2PROD with RULES
81420 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

Required Determinations 

Regulatory Planning and Review— 

Executive Orders 12866 and 13563 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. This rule is 

consistent with Executive Order 13563, 

and in particular with the requirement 

of retrospective analysis of existing 

rules, designed ‘‘to make the agency’s 

regulatory program more effective or 

less burdensome in achieving the 

regulatory objectives.’’ 

Executive Order 13771 

This final rule is an Executive Order 

13771 ‘‘other’’ action. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) of 1996; 5 U.S.C. 601 et seq.), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency, or his designee, certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended the Regulatory Flexibility Act 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

This rulemaking responds to 

applicable Supreme Court case law 

regarding designating critical habitat 

under the Endangered Species Act and 

provides transparency, clarity, and 

consistency for stakeholders. The 

changes to these regulations do not alter 

the reach of designations of critical 

habitat. 

NMFS and FWS are the only entities 

that are directly affected by this rule 

because we are the only entities that 

designate critical habitat under the 

Endangered Species Act. No external 

entities, including any small businesses, 

small organizations, or small 

governments, will experience any 

economic impacts from this rule. At the 

proposed rule stage, we certified that 

this rule would not have a significant 

economic effect on a substantial number 

of small entities. Nothing in this final 

rule changes that conclusion. 

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 final 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 this final rule would not place 

additional requirements on any city, 

county, or other local municipalities. 

(b) This 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 final rule is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

This rule would impose no obligations 

on State, local, or Tribal governments. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, this rule would not have 

significant takings implications. This 

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 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 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 

rule would have significant federalism 

effects and have determined that a 

federalism summary impact statement is 

not required. This rule pertains only to 

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 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 

rule pertains only to designation of 

critical habitat under the Endangered 

Species Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175 ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ the 

Department of the Interior’s manual at 

512 DM 2, and the Department of 

Commerce (DOC) ‘‘Tribal Consultation 

and Coordination Policy’’ (May 21, 

2013), DOC Departmental 

Administrative Order (DAO) 218–8, and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we have considered 

possible effects of this final rule on 

federally recognized Indian Tribes. The 

following Tribes and Tribal entities 

stated that Government-to-Government 

consultation is required or requested 

Government-to-Government 

consultation: Jamestown S’Klallam 

Tribe, Northwest Indian Fisheries 

Commission, Port Gamble S’Klallam 

Tribe, Skokomish Tribe, Confederated 

Tribes of the Chehalis Reservation, 

Spokane Tribe of Indians, Point No 

Point Treaty Council, Confederated 

Tribes of the Colville Reservation Fish 

and Wildlife, Confederated Tribes of the 

Colville Reservation, Yurok Tribe, 

Kootenai Tribe of Idaho, Miccosukee 

Tribe of Indians of Florida, National 

Congress of American Indians, 

Confederated Tribes of the Umatilla 

Indian Reservation, and the Upper 

Snake River Tribes Foundation, Inc. The 

Services have reviewed these comments 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81421 

from the Tribes and conclude that the 

changes to these implementing 

regulations make general changes to the 

Act’s implementing regulations and do 

not directly affect specific species or 

Tribal lands or interests. This regulation 

defines the term ‘‘habitat’’ as it is 

applied to designating critical habitat 

and directly affect only the Services. 

With or without these regulatory 

revisions, the Services would be 

obligated to continue to list species and 

to designate critical habitat based on the 

best available data. Therefore, we 

conclude that this regulation does not 

have ‘‘tribal implications’’ under section 

1(a) of E.O. 13175, and formal 

government-to-government consultation 

is not required by the executive order 

and related policies of the Departments 

of Commerce and the Interior. We will 

continue to collaborate with Tribes on 

issues related to federally listed species 

and their habitats and work with them 

as we implement the provisions of the 

Act. See Joint Secretarial Order 3206 

(‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act,’’ June 

5, 1997). 

Paperwork Reduction Act 

This rule does not contain any new 

collections of information that require 

approval by the OMB under the 

Paperwork Reduction Act and does not 

alter the existing collection of 

information approved under OMB 

Control Number 1018–0165. 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 analyzed this final rule in 

accordance with the criteria of the 

National Environmental Policy Act 

(NEPA), the Department of the Interior 

regulations on Implementation of the 

National Environmental Policy Act (43 

CFR 46.10–46.450), the Department of 

the Interior Manual (516 DM 8), the 

NOAA Administrative Order 216–6A, 

and the NOAA Companion Manual 

(CM), ‘‘Policy and Procedures for 

Compliance with the National 

Environmental Policy Act and Related 

Authorities’’ (effective January 13, 

2017). This rulemaking responds to 

recent Supreme Court case law. 

As a result, we conclude that the 

categorical exclusion found at 43 CFR 

46.210(i) applies to this regulation. At 

43 CFR 46.210(i), the Department of the 

Interior has found that the following 

category of actions would not have a 

significant effect on the human 

environment and, therefore, that these 

actions are categorically excluded from 

the requirement for completion of an 

environmental assessment or 

environmental impact statement: 

‘‘Policies, directives, regulations, and 

guidelines: that are of an administrative, 

financial, legal, technical, or procedural 

nature.’’ 

NOAA’s NEPA procedures include a 

similar categorical exclusion for 

‘‘preparation of policy directives, rules, 

regulations, and guidelines of an 

administrative, financial, legal, 

technical, or procedural nature.’’ 

(Categorical Exclusion G7, at CM 

Appendix E). 

We have considered the extent to 

which this regulation has a significant 

impact on the human environment and 

determined that it falls within one of the 

categorical exclusions for actions that 

have no effect on the quality of the 

human environment. 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. This regulation is not expected 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy, and it has not been otherwise 

designated by the Administrator of 

OIRA as a significant energy action. 

Therefore, this action is a not a 

significant energy action, and no 

Statement of Energy Effects is required. 

Authority 

We issue this final rule under the 

authority of the Endangered Species 

Act, as amended (16 U.S.C. 1531 et 

seq.). 

List of Subjects in 50 CFR Part 424 

Administrative practice and 

procedure, Endangered and threatened 

species. 

George Wallace, 

Assistant Secretary for Fish and Wildlife and 

Parks, Department of the Interior. 

Christopher Wayne Oliver, 

Assistant Administrator, National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration. 

Regulation Promulgation 

For the reasons set out in the 

preamble, we hereby amend part 424, 

subchapter A of chapter IV, title 50 of 

the Code of Federal Regulations, as set 

forth below: 

PART 424—LISTING ENDANGERED 

AND THREATENED SPECIES AND 

DESIGNATING CRITICAL HABITAT 

■ 1. The authority citation for part 424 

continues to read as follows: 

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

■ 2. Amend § 424.02 by adding a 

definition for ‘‘Habitat’’ in alphabetical 

order to read as follows: 

§ 424.02 Definitions. 

* * * * * 

Habitat. For the purposes of 

designating critical habitat only, habitat 

is the abiotic and biotic setting that 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of a 

species. 

* * * * * 

[FR Doc. 2020–27693 Filed 12–15–20; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 201209–0332; RTID 0648– 

XX064] 

Fisheries of the Northeastern United 

States; Atlantic Bluefish Fishery; 2021 

Bluefish Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues final 

specifications for the 2021 Atlantic 

bluefish fishery. This action is necessary 

to establish allowable harvest levels to 

prevent overfishing, consistent with the 

most recent scientific information, as 

required by the Magnuson-Stevens 

Fishery Conservation and Management 

Act and the Atlantic Bluefish Fishery 

Management Plan. This rule also 

informs the public of the final fishery 

specifications for the 2021 fishing year. 

DATES: Effective on January 1, 2021. 

ADDRESSES: The Mid-Atlantic Fishery 

Management Council prepared a 

Supplemental Information Report (SIR) 

for these specifications that describes 

the action and any changes from the 

original environmental assessment (EA) 

and analyses for the revised 2020 and 

2021 specifications action. Copies of the 

SIR, original EA, and other supporting 

documents for this action, are available 

upon request from Dr. Christopher M. 


khammond on DSKJM1Z7X2PROD with RULES