82376 Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–HQ–ES–2019–0115; 

FF09E23000 FXES1111090FEDR 212] 

RIN 1018–BD84 

Endangered and Threatened Wildlife 

and Plants; Regulations for 

Designating Critical Habitat 

AGENCY: U.S. Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS or Service), 

amend portions of our regulations that 

implement section 4 of the Endangered 

Species Act of 1973, as amended (Act). 

The 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. These regulations 

outline when and how the Service will 

undertake an exclusion analysis, 

including identifying a non-exhaustive 

list of categories of potential impacts 

that we will consider. This rule, reflects 

agency experience, codifies some 

current agency practices, makes some 

modifications to current agency 

practice, and responds to applicable 

Supreme Court case law. The intended 

effect of this rule is to provide greater 

transparency and certainty for the 

public and stakeholders. 

DATES: 

Effective date: This final regulation is 

effective on January 19, 2021. 

Applicability date: This revised 

regulation applies to critical habitat 

rules for which a proposed rule is 

published after January 19, 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–2019–0115. 

FOR FURTHER INFORMATION CONTACT: Gary 

Frazer, 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 (TDD), call the Federal 

Relay Service (FRS) at 800/877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 8, 2020, we proposed 

to amend portions of our regulations 

that implement section 4 of the 

Endangered Species Act of 1973, as 

amended (hereafter ‘‘Act’’; 16 U.S.C. 

1531 et seq.). In that proposed rule (85 

FR 55398), we provided the background 

for our proposed revisions in terms of 

the statute, legislative history, and case 

law; a brief description of the proposed 

rule follows: 

The implementing regulations for the 

designation of critical habitat for listed 

species are located in part 424 of title 50 

of the Code of Federal Regulations. 

Relevant definitions are at 50 CFR 

424.02, and the standards and 

procedures for identifying critical 

habitat are at 50 CFR 424.12. These 

regulations are jointly administered 

between the Service and the National 

Marine Fisheries Service (NMFS) 

(referred to hereafter as the ‘‘Services’’). 

On February 11, 2016, the Services 

issued a joint policy describing how we 

implement the authority to exclude 

areas from critical habitat designations 

(‘‘Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act,’’ 81 FR 7226; hereafter the 

‘‘2016 Policy’’). 

The proposed revisions in our 

September 8, 2020, proposed rule (85 

FR 55398) 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. 

Section 4(b)(2) of the Act requires us 

first to consider the relevant impacts of 

designating critical habitat and 

authorizes us then to exclude particular 

areas from the designation based on our 

discretionary exclusion analysis. We 

wanted to articulate clearly when and 

how we will undertake an exclusion 

analysis, including identifying a nonexhaustive list of categories of potential 

impacts for us to consider. 

In the proposed rule, we revisited 

certain language in the preamble of the 

2016 Policy, as well as certain 

statements in the preamble to a 2013 

rule that revised the regulations on the 

timing of our economic analyses at 50 

CFR 424.19 (August 28, 2013, 78 FR 

53058). This 2013 rule is discussed 

below in this document and is referred 

to hereafter as the ‘‘Final 424.19 Rule.’’ 

Our goal in the proposed rule was to 

provide clarity to the Service and the 

public in light of agency experience and 

current practices, and to respond to the 

Supreme Court’s recent decision in 

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

Ct. 361 (2018). 

In this final rule, we focus our 

discussion on the comments we 

received during the comment period 

and our 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 

55398, September 8, 2020). 

Effects of the Final Rule 

After consideration of the information 

provided through the public comment 

process, we are finalizing this rule as 

proposed, but have provided 

clarification to questions and concerns 

below in the responses to public 

comments. 

In finalizing the specific changes to 

the current regulations in the rule 

portion of this document and setting out 

the accompanying clarifying discussion 

in this preamble, we are establishing 

prospective standards 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 Service will continue to 

apply the 2016 Policy and the 

regulations at 50 CFR part 424 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. 

For critical habitat designations or 

revisions that FWS proposes after the 

effective date of this rulemaking action, 

we will not apply the 2016 Policy or the 

Final 424.19 Rule. These regulations 

primarily adopt and deepen the 

provisions in the 2016 Policy and Final 

424.19 Rule, and, therefore, supersede 

the 2016 Policy and Final 424.19 Rule 

with respect to FWS. However, NMFS 

will continue to implement the 2016 

Policy and Final 424.19 Rule for 

purposes of their critical habitat 

rulemaking actions. For critical habitat 

designations or revisions that FWS 

proposed prior to the effective date of 

these regulations, FWS will apply the 

2016 Policy and the Final 424.19 Rule. 

Summary of Comments and Responses 

In our proposed rule published on 

September 8, 2020 (85 FR 55398), we 

requested public comments on the 

provisions of the proposed rule. 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 


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extensions of the public comment 

period beyond the original 30-day 

public comment period, we also 

decided not to extent 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 28,600 public submissions 

representing more than 107,600 

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 rationale for 

support of, or opposition to, specific 

portions of the proposed rule. Below, 

we summarize the substantive public 

comments sent by the October 8, 2020, 

deadline. 

Comment 1: Some commenters 

supported adding a requirement that the 

Service always exclude areas from 

critical habitat when the costs of 

designation outweigh the benefits of 

critical habitat, while others said that 

the proposed process would prioritize 

economic gains over species protection. 

Some were concerned the proposed 

process for analyzing potential 

exclusions would base critical habitat 

exclusions on analyses of incomparable 

ecological and economic costs and 

benefits. Additionally, others requested 

that we determine the monetary value of 

species and habitats according to the 

ecosystem services they provide as a 

way to directly compare the economic 

costs of designation with biological 

benefits. 

Response: When identifying the areas 

that meet the definition of ‘‘critical 

habitat,’’ Congress expressly prohibited 

the Secretaries from using anything 

other than the best scientific data 

available. However, Congress also 

expressly required the Secretaries to 

consider economic impacts, nationalsecurity impacts, and other relevant 

impacts before finalizing the critical 

habitat designation. Thus, Congress 

intended us to consider both the 

biological needs of a species and 

economic considerations when 

designating critical habitat. 

As described in the proposed rule, 

once the Secretary has identified and 

considered economic and other relevant 

impacts, he has discretion in how to 

determine whether the benefits of 

excluding a particular area from the 

designation outweigh the benefits of 

including that area in the designation 

(see also M–37016,’’The Secretary’s 

Authority to Exclude Areas from a 

Critical Habitat Designation under 

Section 4(b)(2) of the Endangered 

Species Act’’, October 3, 2008). The 

regulation states that the Secretary shall 

exclude any area where the benefits of 

exclusion outweigh those of inclusion; 

benefits of exclusion may include 

avoidance of economic, national 

security, and other relevant impacts 

while benefits of inclusion may include 

ecological or conservation benefits. 

When the Service undertakes the 

mandatory consideration of economic 

costs and benefits of each critical habitat 

designation, we are guided by the Final 

424.19 Rule. That rule codified the 

approach of evaluating the incremental 

impacts when conducting impact 

analyses, including economic analyses, 

for critical habitat designations. The 

preamble to the Final 424.19 Rule 

provided the numerous legal authorities 

that support the use of an incrementalimpacts analysis, including the Office of 

Management and Budget’s (OMB’s) 

Circular A–4, which provides guidance 

and best practices for consideration of 

impacts of regulatory actions. 

Additionally, this final rule incorporates 

the incremental-impacts language from 

the Final 424.19 Rule without change, 

including the first two sentences of 

paragraph (a) and all of paragraph (b). 

As part of this process, we consider the 

best available information regarding the 

anticipated impacts of exclusion, either 

positive or negative, and may include 

valuation or monetization of ecosystem 

services provided by species and 

ecosystems if the information is 

available. 

Comment 2: Several commenters 

requested that we include all economic 

impacts of a listing in our economic 

assessment following the coextensive 

approach, rather than limiting it to the 

incremental effects of critical habitat 

designation. Commenters also requested 

that the regulation include a definition 

of ‘‘meaningful’’ economic impacts and 

a description of their scope, along with 

a requirement to use a quantitative 

economic assessment whenever 

possible. Additionally, some 

commenters requested that only 

economic impacts in a defined area and 

only those tied to Federal actions 

should be considered. 

Response: Our Final 424.19 Rule 

codified the use of the incremental 

method for conducting impact analyses, 

including economic analyses, for critical 

habitat designations. That final rule 

contains responses to public comments 

that clearly lay out the Services’ 

rationale for using the incremental 

method. Evaluating incremental impacts 

that result from a regulation being 

promulgated, rather than considering 

coextensive impacts that may be 

ascribed to various previous regulations, 

is further supported by Executive Order 

12866, as applied by OMB Circular A– 

4. In addition, a recent court decision 

addressing this question confirmed the 

validity of evaluating incremental 

impacts of critical habitat designations 

even in the Tenth Circuit, which used 

to require coextensive analysis. 

Northern N.M. Stockman’s Ass’n v. 

U.S.F.W.S., No. 18–1138 JB/JFR, slip op. 

136–37, 140–78 (D.N.M. Oct. 13, 2020) 

(concluding that the Service’s 

incremental impacts approach was 

permissible in light of regulatory 

changes that post-dated Tenth Circuit 

decision that had required coextensive 

approach). 

We do not define ‘‘meaningful,’’ as we 

intend it to have its plain-language 

meaning. We included the word to 

indicate that evidence of de minimis 

economic impacts of a proposed 

designation will not trigger an exclusion 

analysis. Our consideration of economic 

impacts includes an assessment of the 

probable economic impacts of a 

designation. We evaluate specific land 

uses or activities and projects that may 

occur in the area of the critical habitat. 

In conducting economic analyses, we 

follow the guidance and best practices 

set out in Executive Orders (E.O.s) 

12866 and 13563, as well as OMB’s 

Circular A–4. Those guidelines direct 

Federal agencies to assess the costs and 

benefits of available regulatory 

alternatives in quantitative (to the extent 


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feasible, including monetization) and 

qualitative terms. As part of our 

analysis, we consider the types of 

economic activities that are likely to 

occur within the areas likely affected by 

the critical habitat designation. 

Comment 3: Many commenters 

support inclusion of a non-exhaustive 

list of categories of potential impacts 

described in the proposed rule. 

Commenters stated that lists would 

provide clarity and would allow focused 

public comments while being adaptable 

to the needs of affected areas. 

Additionally, many commenters 

suggested that we add to or elaborate on 

the potential impacts listed in the 

proposed regulations, including that we 

add both direct and indirect impacts to 

the list. 

Response: The text of the regulation is 

clear that the examples or categories 

provided in the regulation are not 

exhaustive. Based on the specific facts 

in particular critical habitat 

designations, there may be other 

impacts identified, and we would 

consider those impacts. We develop and 

share a draft economic analysis that 

considers categories of potential 

economic impacts at the time we 

propose critical habitat for a species. 

When available, we also describe 

exclusions we are considering and 

solicit public comments on specific 

information that may inform those 

potential exclusions and other potential 

impacts not known to us at the time of 

the proposed designation. We are 

required to evaluate the direct and 

indirect costs of the designation of 

critical habitat under the provisions of 

Executive Order 12866, and we do so 

through the draft economic analyses of 

the designation. 

Comment 4: Some commenters stated 

that the Service should engage with 

appropriate State and other authorities 

while developing a non-exhaustive list 

of categories of potential impacts prior 

to publishing a draft critical habitat 

designation. Regulations should include 

a process for consulting with and 

considering input of State fish and 

wildlife agencies, local governments, 

and Tribal governments to identify 

economic and other relevant impacts. 

Response: We routinely coordinate 

with State and Federal partners during 

the development of a species status 

assessment for evaluation of whether to 

list a species, and with Federal agencies 

during the development of the draft 

economic analysis of a proposed critical 

habitat rule. Through these coordination 

efforts, we typically receive information 

from State and Federal agencies 

regarding potentially relevant impacts of 

a designation of critical habitat early in 

our development of a critical habitat 

designation. Additionally, during the 

public comment period for a proposed 

critical habitat designation, we receive 

information regarding other potentially 

relevant economic or other impacts from 

State agencies, local governments, and 

Tribal governments that we consider 

when finalizing the designation. We 

conclude that our current process 

provides for coordination with States 

and other authorities, and it is 

unnecessary to codify our process in 

regulation. 

Comment 5: Some commenters 

indicated that the list of economic 

impacts and ‘‘other relevant impacts’’ is 

unlawfully broad, such as including 

‘‘community impacts.’’ They believed 

such items were far-reaching and 

speculative, and definitions could 

conceivably apply to all but the least 

substantiated information submissions 

and to nearly every proposed critical 

habitat designation, rendering what was 

a discretionary analysis mandatory 

under the proposed rule. Such broad 

lists would place a heavy burden on the 

Service to evaluate claims of impacts 

even if evidence is weak. Some 

commenters suggested we clarify terms 

such as ‘‘community impacts.’’ 

Response: The phrase ‘‘other relevant 

impacts’’ in the statute gives the 

Secretary broad discretion to determine 

what those other relevant impacts might 

be. This discretion is thoroughly 

described in Solicitor’s Memorandum 

Opinion M–37016, ‘‘The Secretary’s 

Authority to Exclude Areas from a 

Critical Habitat Designation under 

Section 4(b)(2) of the Endangered 

Species Act,’’ (October 3, 2008, p. 12), 

and the list provided in the proposed 

rule and in this final rule illustrates the 

types of information we may consider. 

We do not agree with comments that 

state that the elaboration of the types of 

other relevant impacts is overly broad 

and therefore would lead us to conduct 

exclusion analyses for every 

designation, thereby rendering those 

analyses ‘‘mandatory.’’ The credibleinformation threshold states that an 

economic or other relevant impact must 

be meaningful to support a benefit of 

exclusion. Therefore, with the 

application of the credible-information 

threshold, we anticipate that we will not 

be in a position where every submission 

by a proponent of an exclusion would 

meet the standard of having a 

meaningful impact and thereby trigger 

an exclusion analysis. Regarding the 

phrase ‘‘community impacts,’’ the 

proposed rule provides a few examples 

of this phrase; however, we will 

evaluate on a case-by-case basis any 

information that is submitted by a 

proponent of an exclusion to determine 

whether credible information regarding 

whether there is an impact to a 

community is presented. 

Comment 6: Commenters stated that 

the proposed rule does not address the 

impacts of excluding an area necessary 

to the recovery of a species, nor does it 

address the mechanisms through which 

benefits will accrue for the species if 

critical habitat were to be designated. 

Impacts on recovery should be 

addressed, because the goal of the Act 

is ultimately to recover and delist the 

species. Additionally, we should 

consider all relevant factors—including 

how designating critical habitat is likely 

to affect the species’ risk of extinction 

and how potential exclusion of areas 

would affect the recovery of the 

species—before granting exclusions. 

Response: We consider the potential 

effects to species’ recovery when we 

enter into an exclusion analysis under 

section 4(b)(2) of the Act. In giving 

weights to the benefits of including and 

excluding particular areas, we evaluate 

the conservation value of the area, 

including the current function of the 

area for the species and the future 

recovery value of the area to the species. 

Benefits of including or excluding an 

area from critical habitat are considered 

for each designation and are factspecific to each species. We note that 

critical habitat is one of many tools 

available to recover species, and the 

exclusion of an area from a critical 

habitat designation does not mean that 

it no longer contributes to recovery. In 

fact, FWS has excluded many areas 

because they are already being managed 

for the conservation of the species 

thereby reducing the benefits of 

including those areas within a critical 

habitat designation. Further, many areas 

that are excluded from critical habitat 

designation but are not being managed 

for conservation of the species still 

contribute to the recovery of the species. 

Comment 7: Some commenters stated 

that we should allow comment on the 

draft economic analysis and on our 

evaluation of any relevant impact of 

including or excluding areas from the 

critical habitat. The public may have 

significant non-economic concerns. 

Therefore, commenters recommended 

we expand this rule to allow the public 

to comment on any relevant factor 

regarding a designation, not just the 

economic analysis. The commenters 

opined that doing so is consistent with 

congressional intent and would 

minimize judicial challenge. 

Response: We routinely seek 

comment on proposed designations of 

critical habitat regarding a wide range of 

issues, including biological factors that 


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support the proposed designation and 

non-biological considerations that may 

inform potential exclusions from the 

final designation. We do not limit the 

scope of public comment to noneconomic considerations; all relevant 

substantive comments are considered 

when developing a final designation of 

critical habitat. We make the draft 

economic analysis of the proposed 

designation of critical habitat available 

concurrent with publication of the 

proposed rule to designate critical 

habitat. During the public comment 

period for a proposed designation, the 

public has ample opportunity to review 

and comment on the economic analysis, 

as well as on any other relevant impacts 

from the designation of critical habitat. 

Because we already request public 

comment on all areas of the rulemaking 

whenever we propose to designate 

critical habitat, modifying this 

regulation to require the Service to 

request comments on non-economic 

impacts is duplicative and unnecessary. 

Comment 8: Commenters stated that 

the proposed rule’s non-exhaustive list 

of ‘‘other relevant impacts’’ and 

economic impacts is heavily weighted 

toward negative impacts of designating 

critical habitat on the community and 

other stakeholders. It does not consider 

the potential economic and community 

benefits (e.g., socio-economic benefits), 

or cultural or other ecological benefits 

or co-benefits (such as protection of 

other species), that may be distinct from 

the ‘‘conservation value of the area.’’ 

Historically, the Service considered a 

broad array of direct and indirect 

economic benefits from critical habitat 

designations. The list of categories of 

potential impacts largely focuses on 

costs and fails to provide transparency 

about benefits that the Service should 

consider. 

Response: We are not limited to 

considering the relevant impact 

examples included in this rule. If the 

specific facts indicate that there are 

economic benefits from including a 

particular area in the designation, we 

would consider those benefits, where 

appropriate. In situations where 

economic benefits are relevant, we 

generally describe two broad categories 

of benefits of inclusion of particular 

areas of critical habitat: (1) Those 

associated with the primary goal of 

species conservation and recovery, and 

(2) those that derive from the habitat 

conservation measures to achieve this 

primary goal. In the rare cases where 

there are incremental impacts beyond 

administrative impacts from designating 

critical habitat, we may lack specific 

information to quantify the use or nonuse benefits associated with critical 

habitat designations such as recreation, 

wildlife viewing, or ecosystem services 

that may result from critical habitat 

designations, but discuss them 

qualitatively, as permitted by OMB 

Circular A–4. As a result, we focus our 

analysis of benefits of inclusion 

qualitatively to describe the 

conservation value of the particular area 

of critical habitat as weighed against the 

benefits of exclusion. 

Comment 9: Commenters stated that it 

is not clear how the text in proposed 

§ 17.90(a) differs from the 

‘‘consider[ation of] probable economic, 

national security, and other relevant 

impacts’’ referred to in § 17.90(b). 

Response: The difference in these two 

paragraphs is procedural; in § 17.90, 

paragraph (a) describes the information 

we will provide in the proposed rule, 

while paragraph (b) describes our 

considerations in finalizing the rule. 

Paragraph (a) explains that the proposed 

critical habitat designation 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. 

Additionally, we explain that at the 

proposed rule stage the Secretary will 

identify, to the extent known, the 

categories of potential impacts. We 

noted in the proposed rule 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 

and in § 17.90(b). Including this list of 

categories as described in § 17.90(a) for 

consideration provides greater 

transparency and clarity to the public 

and stakeholders by providing 

information at the proposed rule stage to 

better inform public comment. 

Comment 10: Commenters cite the 

statutory requirement that the 

appropriate scale of analysis is of the 

‘‘particular area’’ of a proposed critical 

habitat designation and note that this is 

in conflict with the proposed rule 

allowing the Secretary to determine the 

appropriate scale for the consideration 

of impacts from a critical habitat 

designation. The commenters ask the 

Service to establish a consistent scale of 

analysis for all designations, or specify 

in the regulation that the scale of 

analysis applies to the ‘‘particular area’’ 

or otherwise clarify that the exclusion 

analysis will only evaluate impacts at a 

scale that considers the ‘‘particular 

areas’’ of a designation. Commenters 

state that the proposed rule, as written, 

would allow the Secretary to select the 

scale used in the exclusion analysis and 

assess impacts without regard to the 

‘‘particular areas’’ of a proposed 

designation. Other commenters suggest 

that the Secretary should retain the 

discretion to determine exclusions at 

whatever scale he deems to be 

appropriate, to specifically state what 

that scale is in the proposed rule when 

making a critical habitat designation, 

and to take into full consideration the 

economic impacts at that scale. Another 

commenter suggested that the scale of 

the analysis should be tied to the 

probability of a Federal nexus. 

Response: Each critical habitat 

designation is different in terms of 

determining the area that meets the 

definition of critical habitat, the scope 

of the applicable Federal actions, 

economic activity, and the scales for 

which data are available, and each is 

very fact-specific. Therefore, the Service 

must have flexibility to evaluate these 

‘‘particular areas’’ of critical habitat in 

whatever way is most meaningful and at 

whatever scale is appropriate in each 

situation. For example, for a narrowly 

distributed endemic species, a critical 

habitat proposal may cover a small area; 

in contrast, for a wide-ranging species, 

a critical habitat proposal may cover an 

area that is orders of magnitude greater. 

The appropriate scale of the impact 

analysis for these two species may not 

be the same. For the endemic species, it 

may be possible to conduct an impact 

analysis at a very fine scale with a great 

level of detail. In contrast, an impact 

analysis for the wide-ranging species, 

which may cover wide expanses of land 

or water, may use a coarser scale of 

analysis, due to the sheer size of the 

proposed designation. Each critical 

habitat proposal includes a description 

of the scope of the area being proposed 

and the ‘‘particular areas’’ that are being 

considered for exclusion, and uses the 

scale of analysis appropriate to that 

situation. Furthermore, while we will 

evaluate the likely effects of designating 

critical habitat upon the need to engage 

in, or outcomes of, consultations under 

section 7 of the Act, the scale of the 

analysis will be at the appropriate scale 

as determined by the Secretary. Because 

the scale is dependent on the data 

available and is very fact-specific, it will 

not be necessarily determined by the 

potential for section 7 consultations. 

Comment 11: Commenters requested 

that the rule clarify or provide a 

definition for ‘‘credible information’’ 

and outline a clear process for soliciting 

this information. They suggested 

clarifying what information should be 

submitted, when to submit, and how the 

Service will evaluate the information to 

determine whether it constitutes 

credible information. 


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Response: As stated in the proposed 

rule, ‘‘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 each proposed designation of critical 

habitat, we solicit information regarding 

the biological basis for the designation, 

as well as any probable impact resulting 

from it. In addition to soliciting public 

comments on the proposed designation, 

we also share a draft economic analysis 

of the designation and solicit comments 

on that analysis. In determining what 

constitutes ‘‘credible information,’’ we 

will look at whether the proponent has 

provided factual information in support 

of the claimed impacts. We will 

typically use our economic analysis of 

the proposed critical habitat designation 

to help identify any information that 

does not meet the credible information 

standard or to confirm or rebut 

information that is provided by a 

proponent of an exclusion. Whether the 

claimed impacts support a benefit of 

exclusion that could potentially 

outweigh the benefits of inclusion may 

therefore be meaningful for the purposes 

of an exclusion analysis. 

Comment 12: Some commenters 

asserted that their information, such as 

from the States or other regulated 

entities, should always be considered 

credible, whereas other commenters 

stated that assuming information is 

credible unless the Service has rebutting 

information allows non-FWS entities to 

drive exclusions of critical habitat. 

Response: We will evaluate any 

information provided from outside 

entities on a case-by-case basis and will 

decide whether to conduct an exclusion 

analysis based on whether the 

proponent of an exclusion has presented 

credible information regarding a 

meaningful impact supporting a benefit 

of exclusion. We decline to institute a 

list of entities whose information 

automatically qualifies as credible 

information. All information submitted 

to us in support of exclusion will be 

subject to the credible-information 

standard. 

Comment 13: One commenter asserts 

that the credible-information standard 

would prioritize non-biological impacts 

when considering whether to conduct 

an exclusion analysis because the 

commenter anticipates that the most 

common credible information the 

Service is likely to receive will be 

information about non-biological 

impacts of designations of critical 

habitat. 

Response: As stated in the proposed 

rule, the credible-information standard 

applies equally to biological and nonbiological information, and the number 

of either category of comments that we 

receive that meet the ‘‘credibleinformation standard’’ is likely to differ 

from one designation to another. It is 

unknown if the Service will receive 

more comments about non-biological 

impacts or whether comments about 

non-biological impacts are more likely 

to meet the credible-information 

standard; we stress that each analysis 

will be done on a case-by-case basis. 

However, because the Act mandates our 

consideration of the impact to three 

broad categories of non-biological 

impacts prior to designating critical 

habitat, we conclude the inclusion of 

the broad array of non-biological 

considerations detailed in this rule is 

consistent with the Act. 

Comment 14: Commenters provided 

both support for and opposition to the 

provision to assign weights of benefits 

of inclusion or exclusion based on who 

has the expertise. Commenters stated 

that it is unclear how the Service will 

determine if someone is an expert or 

what constitutes firsthand knowledge. 

They suggested that the Service should 

provide more clarity on how the 

expertise will be determined and how 

the weights will be assigned. They 

further stated that, without this 

information, the rule would establish a 

process that is less transparent and 

vague, would lead to inconsistent 

application, and is contrary to the 

conservation goals of the Act. 

Commenters expressed concern that this 

provision would inappropriately 

presume the validity of such 

information, which could include 

speculative economic analyses because 

the rule incentivizes inclusion of 

impacts provided by self-interested 

parties, and thereby allow non-FWS 

entities to drive critical habitat 

designations. Commenters expressed 

concern that deferring to information 

from outside experts would 

inappropriately delegate expert 

judgment and authority to third parties 

who are not statutorily authorized to 

perform these duties. 

Alternatively, other commenters 

provided support for this provision 

because it allows for engagement from 

the public and stakeholders that will 

allow them to be part of the process and 

provide their firsthand knowledge. 

Commenters anticipated that allowing 

this stakeholder involvement will 

increase trust and would ensure we 

receive the best information. Some 

commenters supported the provision to 

weigh non-biological impacts in 

accordance with information provided 

by State or local governments because 

these entities have special expertise that 

should be included in an exclusion 

analysis. Further, some commenters 

suggested that the rule include a 

mandatory consultation process for 

States to ensure that the correct weights 

of benefits of exclusion are incorporated 

in the exclusion analysis, because States 

have had the responsibility of managing 

these species before FWS. Other 

commenters expressed support for 

allowing outside entities to provide 

information on economic impacts of the 

designation of critical habitat because 

the information from outside entities 

would improve FWS’s economic 

analyses, which do not provide enough 

granularity to allow the public to 

understand the impacts. 

Response: As stated in the proposed 

rule, we will give weight to benefits of 

inclusion or exclusion based on who 

has the relevant expertise. We will base 

critical habitat designations on the best 

available information, evaluate the 

information provided from outside 

entities on a case-by-case basis, and give 

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. We do not 

consider speculative or unsupported 

information to be the best available 

information and will use our best 

professional judgment to evaluate all 

information critically before 

incorporating it into any exclusion 

analysis. Further, the list of categories 

included in paragraph (d)(1) is nonexhaustive, and if we receive 

information that is credible and outside 

the scope of our expertise, we will 

consider that information on a case-bycase basis as appropriate. We routinely 

coordinate with outside entities, such as 

State fish and wildlife agencies, during 

the development of a species status 

assessment for evaluation of whether to 

list a species and when necessary, we 

continue this coordination during the 

development of a designation of critical 

habitat. We conclude that our current 

process is sufficient to coordinate with 

States and other authorities, and it is 

unnecessary to codify any additional 

consultation process in regulation. 

Comment 15: Some commenters 

stated that the Service should expand 

§ 17.90(d)(1)(i) to include assigning 

weights consistent with expert or 

firsthand information from Tribes 

regarding economic impacts. 

Response: We consider any economic 

impact information submitted by a Tribe 

when we undertake exclusion analyses. 

The weights we give to economic 

impacts identified by Tribes will be 


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consistent with the information the 

Tribes provide unless we have 

knowledge or material evidence 

information that rebuts that information. 

Thus, no changes were needed to 

address the intent of these comments. 

Comment 16: A number of 

commenters stated that the regulation 

should include provisions requiring the 

Service to invite Tribal participation in 

the process for designating critical 

habitat or in establishing standards for 

designating Tribal lands as critical 

habitat. For example, some commenters 

stated that the regulations should 

require the Service to consult with 

affected Indian Tribes when designating 

critical habitat, while others stated that 

the regulations should establish a 

rebuttable presumption that Tribal lands 

either would be excluded from 

designations of critical habitat, or would 

not be considered for designations. 

Response: We are committed to 

honoring and strengthening our unique 

legal relationship with Indian Tribal 

governments. When we designate 

critical habitat, we follow the applicable 

laws and policies setting out principles 

and requirements for ensuring 

meaningful and timely input by Tribal 

entities. This includes consulting with 

affected Tribes in accordance with both 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments,’’ 65 FR 67249 (Nov. 9, 

2000), and Secretarial Order 3206, 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (June 

5, 1997) (S.O. 3206), among other 

authorities. Because we are already 

required to consult with affected Tribes 

under these authorities when we 

designate critical habitat, we did not 

make any changes to the regulation in 

response to these comments. 

We do not have the authority to 

establish a standard making all Tribal 

lands ineligible for designation as 

critical habitat, or to establish a 

rebuttable presumption that Tribal lands 

would be excluded. The Act requires 

that critical habitat be designated on the 

basis of the best scientific data available; 

therefore, if Tribal lands meet the 

definition of critical habitat, those areas 

will be proposed as critical habitat. Our 

authority to exclude areas from critical 

habitat is limited to situations in which 

the benefits of excluding an area 

outweigh the benefits of including the 

area in the critical habitat designation 

where exclusion will not result in 

extinction of the species. We will give 

weight to the benefits of excluding 

Tribal areas consistent with Tribes’ 

firsthand or expert knowledge, in 

accordance with economic and other 

information provided by affected Tribes. 

However, there may be times when we 

determine the benefits of including 

Tribal lands outweigh the benefits of 

excluding those areas. Therefore, we 

cannot establish a rebuttable 

presumption that Tribal lands will be 

excluded from critical habitat 

designations. In this regulation, we do 

not make a determination about whether 

Tribal lands meet the definition of 

‘‘critical habitat’’ in the first instance 

because that would fall within the first 

step in designating critical habitat and 

is therefore outside the scope of this 

rulemaking. 

Comment 17: Some commenters 

stated that § 17.90(d)(1)(i) specifying 

that the Service will assign weights 

consistent with non-biological impacts 

of inclusion or exclusion identified by 

federally recognized Indian Tribes is too 

narrow. For example, the provision 

should include assigning weights 

consistent with expert or firsthand 

information from Tribes regarding 

biological impacts or impacts on natural 

resources, including traditional 

ecological knowledge. 

Response: As stated in the proposed 

rule, whenever we undertake a 

discretionary exclusion analysis, we 

comply with Secretarial Order 3206, 

‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act’’ (June 

5, 1997) (S.O. 3206), prior to finalizing 

the designation of critical habitat. The 

exclusion analysis therefore includes 

consideration of the impacts to any 

Tribal lands included in, or resources 

affected by, a potential designation, and 

we would consider all relevant available 

information (whether non-biological or 

biological), including Tribal expertise, 

firsthand information, and traditional 

ecological knowledge. 

Comment 18: We received comments 

stating that the regulation should 

include impacts on Alaska Nativeowned lands in the list of ‘‘other 

relevant impacts’’ that the Service must 

consider. Some commenters also stated 

that the Service should assign weights 

consistent with impacts identified by 

Alaska Native Corporations and other 

Alaska Native organizations, because 

those entities also have expert and 

firsthand knowledge about impacts of 

critical habitat designations to Tribes, 

their natural resources, and their 

economies. 

Response: Impacts on Alaska Nativeowned lands qualify as ‘‘other relevant 

impacts’’ under section 4(b)(2), and we 

intend to address those impacts when 

we designate critical habitat. Similarly, 

non-biological impacts identified by any 

Tribal organizations, including Alaska 

Native Corporations and Alaska Native 

organizations, are outside the scope of 

the Service’s expertise; therefore, we 

would give weights to those impacts in 

accordance with the firsthand 

information or expert knowledge those 

organizations provide. We conclude that 

it is not necessary to change the text of 

the final rule because both of the lists 

that the comment references are 

expressly non-exhaustive. Section 

17.90(a) states that ‘‘ ‘[o]ther relevant 

impacts’ may include, but are not 

limited to, impacts to’’ a variety of 

entities and values. Similarly, 

§ 17.90(d)(1) states, ‘‘Impacts that are 

outside the scope of the Service’s 

expertise include, but are not limited 

to’’ several categories of impacts 

(emphasis added). 

Comment 19: Some commenters 

pointed to Tribal treaties that give 

Tribes property or other rights with 

regard to their fisheries; these 

commenters stated that the proposed 

rule would put these Tribal rights 

further at risk by broadening the scope 

of critical habitat exclusions. 

Response: We do not anticipate that 

the proposed rule would increase risks 

to any land or resources. To the extent 

an Indian Tribe is concerned that 

designating an area as critical habitat or 

excluding an area from a critical habitat 

designation could affect their treaty or 

other rights, under § 17.90(d)(1)(i) of 

these final regulations, those concerns 

would be an important part of the 

discretionary exclusion analysis. 

Impacts to Tribal rights concerning their 

land and fisheries fall within the 

category of impacts that are outside the 

scope of the Service’s expertise. As a 

result, if any Tribe provides information 

indicating that its rights would be 

adversely affected by either including or 

excluding a particular area from a 

critical habitat designation, the Service 

would give a weight to those impacts in 

accordance with the Tribe’s 

information. 

Comment 20: Several commenters 

requested a clear definition for 

‘‘national security’’ and ‘‘homeland 

security’’ with predetermined activities 

to avoid the use of open-ended terms. 

Other commenters made the case that 

water projects and related infrastructure 

and domestic petroleum production 

should be considered for exclusion due 

to homeland-security and nationalsecurity implications. 

Response: As we stated in the 

proposed rule, we will rely on the 

expertise of the Department of Defense, 

Department of Homeland Security, or 

affiliated agencies to make a 

determination as to what constitutes an 

impact to national or homeland 


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security. The Service is not an expert 

agency in determining all the activities 

or projects that may have nationalsecurity implications; therefore, we 

decline to produce a list or further 

define ‘‘national security’’ or ‘‘homeland 

security’’ in these regulations. We will 

continue to rely on the expert judgment 

of the agencies responsible for national 

security and homeland security and any 

reasonably detailed justification of the 

potential impacts that they provide 

regarding a designation of critical 

habitat to inform our discretionary 

exclusion analysis. 

Comment 21: One commenter 

suggested project developers and private 

contractors who work for the Federal 

Government should be contributors 

toward the analysis of non-biological 

impacts to critical habitat. 

Response: As captured in the 

proposed rule and explained in the 

preamble, § 17.90(d)(1) provides a list of 

entities that may have specific 

knowledge that is outside the scope of 

the Service’s expertise and would 

therefore be considered in an exclusion 

analysis if deemed to meet the credible 

information standard. That list is 

expressly non-exhaustive. Regarding 

submissions from project developers or 

private contractors working for another 

Federal agency, we would anticipate 

submissions of information to be made 

‘‘on behalf of’’ or in their ‘‘official 

capacity representing’’ a Federal agency. 

Therefore, it is unnecessary to add 

categories of experts or sources to that 

list. 

Comment 22: Commenters both 

supported and opposed the provision 

clarifying when the Service will 

consider excluding Federal lands. Those 

that expressed opposition to the 

proposed provision cited the statutory 

provision of sections 2(c) and 7 of the 

Act, which both generally state that 

Federal agencies shall seek to conserve 

listed species and use their authorities 

to further the purposes of the Act. 

Furthermore, commenters stated that, 

because section 7 of the Act requires 

consultation by Federal agencies to 

ensure their actions do not jeopardize 

listed species or destroy or adversely 

modify their critical habitat, Federal 

lands are important locations for species 

recovery, especially in light of ongoing 

habitat fragmentation and climatechange effects. Other commenters noted 

that the potential increase in exclusions 

of Federal lands could be a negative 

signal to private landowners regarding 

the commitment of Federal land 

managers to species recovery and 

section 7 consultation. Commenters 

stated that the change in position from 

the 2016 Policy to this proposed rule 

was not adequately explained, there 

were no changes in circumstances that 

apparently prompted this change, and 

they therefore believe this provision is 

arbitrary and capricious. Commenters 

also noted that, combined with nationalsecurity exclusions and exemptions, 

additional exclusion of Federal lands 

could skew critical habitat designations 

to State and private lands and in turn 

could potentially pose an economic 

disadvantage to State and private lands, 

especially in Western States. 

Commenters further stated that 

administrative or transactional costs 

tend to be minor and should not be a 

basis for exclusion. 

Other commenters expressed support 

for the approach to Federal lands in the 

proposed rule and asked that additional 

provisions be added to the final rule, 

such as specifically including 

consideration of more than section 7 

transactional costs (for example, 

considering impacts on the private 

property of a lessee or permittee). 

Commenters asked for additional 

specificity in the types of Federal lands, 

minerals, and oil and gas activities to be 

considered for exclusion; whether 

federally withdrawn lands on which 

non-Federal entities are conducting 

activities could be considered; and 

whether exclusion could apply only 

with the project footprint or would 

extend to adjacent areas on Federal land 

where there may be an effect from the 

project. 

Response: The Act is clear in section 

2(c)(1) and section 7(a)(1) that Federal 

agencies shall use their authorities to 

further the purposes of the Act and 

carry out programs for the conservation 

of endangered and threatened species, 

and in section 7(a)(2) that Federal 

agencies must ensure their actions do 

not jeopardize the continued existence 

of listed species or result in destruction 

or adverse modification of their critical 

habitat. However, section 4(b)(2) of the 

Act does not provide for a different 

standard for exclusions on Federal lands 

relative to other lands. This final 

regulation does not change the 

obligations of Federal agencies or our 

implementation of those provisions of 

the Act. 

Our change in consideration of 

exclusions of Federal lands from the 

2016 Policy recognizes that Federal 

agencies are required to avoid jeopardy 

of listed species and destruction or 

adverse modification of critical habitat 

through section 7 consultation. While 

the standards for evaluating Federal and 

non-Federal lands are the same, 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, on a 

case-by-case basis. Additionally, we 

expect to evaluate the types of activities 

that are being permitted or the types of 

leases and activities being conducted on 

Federal land, any economic benefits 

associated with those leases and 

activities, any potential impacts that 

designating the lands as critical habitat 

could have on those economic benefits, 

and the conservation value of the areas 

that qualify as critical habitat, including 

whether the areas are occupied or 

unoccupied. Regardless of inclusion or 

exclusion of Federal lands from a 

designation of critical habitat, we 

consider Federal lands an important 

piece of species recovery efforts. 

In any exclusion analysis for Federal 

lands, we will consider not only the 

transactional costs associated with 

consultation with a Federal agency, but 

also any potential costs to affected 

parties, including applicants for Federal 

authorizations (e.g., permits, licenses, 

leases, contracts), that would stem from 

any project modifications that may be 

required to avoid destruction or adverse 

modification of critical habitat. While 

we agree that the transactional costs of 

consultation with Federal agencies tend 

to be a relatively minor cost, we do not 

wish to foreclose the potential to 

exclude areas under Federal ownership 

in cases where the benefits of exclusion 

outweigh the benefits of inclusion. 

Consideration of other Federal agency 

transactional costs and other costs, 

including those to a permittee or lessee, 

will be considered on a case-by-case 

basis. 

Comment 23: Several commenters 

shared concerns over the exclusion of 

lands under an agreement through 

section 10 of the Act. Comments 

included concern over the non-binding 

nature of habitat conservation plans 

(HCPs), changing conservation measures 

over time, the finite nature of the 

agreements, the question of whether the 

lands are in a currently acceptable state 

for the listed entity, the lack of 

protective measures compared to a 

designation, and an overall concern 

regarding the durability of agreements 

compared to a critical habitat 

designation. 

Response: As stated in the proposed 

rule in paragraph (d)(3) and associated 

preamble text, we place great value on 

the partnerships that are developed 

during the preparation and 

implementation of plans, agreements, or 

partnerships that have been permitted 

under section 10 of the Act. We 

anticipate consistently excluding areas 


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covered by plans, agreements, or 

partnerships as long as the conditions in 

paragraphs (d)(3)(i)–(iii) are met. 

Because section 10 permits authorize 

take of covered species that would 

otherwise be unlawful, permittees are 

incentivized to continue the 

implementation of the measures 

contained in the conservation plan and 

required by the associated permit 

following the exclusion of the covered 

area. Therefore, the benefits of inclusion 

are generally less than the benefits of 

exclusion. We further noted in the 

proposed rule that this is not the same 

fact pattern for draft plans or 

agreements, and we thus would 

generally give little weight to these draft 

agreements or unrealized promises of 

future conservation actions in a 

discretionary section 4(b)(2) exclusion 

analysis. The Service will always 

consider the plans, agreements, or 

partnerships that have been permitted 

under section 10 of the Act on a caseby-case basis to determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. We have been 

applying these concepts formally 

following the finalization of the 2016 

Policy, and our experience is that they 

work well and provide the clarity 

needed for landowners and partners to 

meet the exclusion requirements. 

Comment 24: Commenters requested 

that the Service provide a clear and 

simple set of metrics for section 10 

permitted plans to meet the 

requirements for areas covered by the 

plans to be excluded from critical 

habitat. Commenters stated that setting 

out these metrics would bolster the 

confidence of landowners, as well as 

incentivize participation in permitted 

plans. Some commenters suggested that 

the language in the final rule should 

include a presumption that areas 

covered by such plans would be 

excluded, and others suggested that the 

Service automatically exclude lands 

under section 10 agreements, or 

undertake a single comprehensive 

analysis to cover all section 10 

agreements, similar to State wildlife 

plans, and thereby reduce workload of 

private landowners and Service 

employees. 

Response: When we undertake a 

discretionary section 4(b)(2) exclusion 

analysis, we will always consider 

whether to exclude areas covered by a 

permitted HCP or candidate 

conservation agreement with assurances 

(CCAA) or safe harbor agreement (SHA), 

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, or HCP 

meets all of the conditions set forth in 

the final regulation. We have been 

applying these concepts formally 

following the finalization of the 2016 

Policy, and our experience is that they 

work well and provide the clarity 

needed for landowners and partners to 

meet the exclusion requirements. 

Additionally, since finalization of the 

2016 Policy, we are aware of at least one 

instance where a landowner holding a 

section 10 permit requested not to be 

excluded from a designation of critical 

habitat; this experience underscores that 

exclusion should not be an automatic 

conclusion for permitted plans such as 

CCAAs, SHAs, or HCPs so as not to 

negatively impact our relationship with 

permittees conducting voluntary 

conservation. Because every plan is 

unique, as are the specific needs of 

every species, it is difficult to offer an 

automatic exclusion and/or a single 

comprehensive analysis to cover all 

conservation agreements. For this 

reason, the Service has set out general 

conditions in the final regulation and 

conducts case-by-case analyses to 

determine whether to exclude areas 

covered by permitted plans. 

Comment 25: Commenters stated 

concerns that the Service would provide 

little weight to draft voluntary 

agreements and emphasized that 

analysis of each agreement should be 

based on the past successes, on the 

strength of existing relationships, and 

on the stage of the process (e.g., whether 

the draft is an early version or a late 

version). Commenters agreed that a 

party must demonstrate that the 

voluntary conservation plan is being 

implemented consistent with its terms. 

However, the requirement to 

demonstrate ‘‘success’’ of the chosen 

mechanism is overbroad and would 

place an unreasonable threshold for 

appropriate recognition of voluntary 

conservation measures. Instead of 

attempting to measure ‘‘success,’’ the 

Service should instead consider 

whether the party is meeting or 

exceeding the metrics or goals identified 

within the applicable plan. 

Commenters stated that nonpermitted plans should receive a 

heavier weight than the regulation 

implies. In the view of some 

commenters, the regulations make it too 

difficult to exclude areas covered by 

non-permitted plans because the 

proposed regulation requires the 

Service’s involvement in developing the 

plans and the factors set out in 

paragraphs (d)(4)(i)–(viii) that the 

Service considers in evaluating whether 

to exclude areas covered by nonpermitted plans are too onerous. 

Commenters stated that the regulation 

should also provide clear and simple 

procedures to meet the exclusion 

threshold. The Service should take the 

necessary steps to promote conservation 

plans and bring more attention to them, 

not disincentivize their use. 

Additionally, some commenters stated 

that the presumption of exclusion 

should extend to agreements not 

permitted under section 10 of the Act. 

They stated that the language is only 

found in the preamble and should be 

restated in the regulation. 

Response: Adding this provision 

(which was also in our section 4(b)(2) 

policy) to our regulations is intended to 

incentivize and recognize voluntary 

conservation efforts that provide 

conservation benefits to listed species 

and other species at risk. When we 

consider plans, agreements, or 

partnerships that have not been 

authorized by a permit under section 10 

of the Act, we evaluate a variety of 

factors. Paragraphs (d)(4)(i)–(viii) of the 

rule provide a non-exhaustive list of 

these factors. We use these 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 section 4(b)(2) 

exclusion analysis. The considerations 

that commenters suggested are already 

included within the factors that the 

Service will consider when evaluating 

plans that have not been authorized by 

a permit under section 10 of the Act; 

therefore, no changes are necessary. 

We have been applying these 

concepts formally following the 

finalization of the 2016 Policy, and our 

experience is that they work well. 

Further, as described in the preamble to 

the proposed rule, the Service is not 

required to be part of a non-permitted 

plan or agreement in order to consider 

the area for exclusion based on that 

plan. Evaluation of the success of a nonpermitted plan or agreement directly 

relates to the benefits of exclusion of 

specific areas. We value the 

collaboration and conservation value 

provided by voluntary private or nonFederal conservation plans or 

agreements. It is in that context that we 

included in paragraphs (d)(4)(i)–(viii) 

descriptions of how we will consider 

these plans in a discretionary section 

4(b)(2) exclusion analysis. Exclusions 

are not automatic and are determined on 

a case-by-case basis in light of the 

particular facts of each situation. 

Comment 26: Commenters stated that 

the requirement of public participation, 

agency review, and review under the 


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National Environmental Policy Act 

(NEPA) for plans, agreements, or 

partnerships that have not been 

authorized by a permit under section 10 

of the Act will unnecessarily hinder 

meaningful and qualified private 

voluntary conservation measures or 

programs. While public review and 

comment are appropriate procedures for 

governmental programs, it is 

inappropriate to obligate private entities 

to meet these standards as a prerequisite 

for exclusion. They stated that to the 

extent that the Service believes public 

review and comment is necessary for 

the application of an exclusion, such 

process of review and comment can be 

addressed through the notice-andcomment process on the critical habitat 

designation. Specifically, as part of its 

development of a draft critical-habitat 

proposal, it is within our discretion to 

solicit public comments on areas that 

should be excluded from the critical 

habitat. Further, concurrent with the 

issuance of the proposed critical-habitat 

designation, we can likewise identify 

any areas that we already anticipate 

excluding and request public comment 

on whether we should exclude those or 

any other areas. Such a process allows 

for public participation in the exclusion 

process, as well as providing for an 

open and transparent process. 

Response: As stated in the preamble 

to the proposed rule, a non-permitted 

plan or agreement is not required to go 

through agency review, NEPA review, or 

similar processes for lands covered by 

the plan or agreement to qualify for 

exclusion. However, completion of 

those processes in development of a 

plan or agreement does indicate that the 

plan or agreement has already received 

a high degree of critical analysis and 

further bolster the case for exclusion. 

Additionally, as stated in paragraph (a) 

of the proposed rule, we will identify 

areas in the proposed critical-habitat 

designation that the Secretary has 

reason to consider for exclusion. As part 

of the normal critical-habitat 

designation, the Service requests public 

input and comment on specific areas 

considered for exclusion and any other 

areas that should be considered for 

exclusion. 

Comment 27: Some commenters 

interpreted the proposed rule as creating 

a provision that requires the Secretary to 

waive his discretion on whether to 

conduct the exclusion analysis given the 

presence of the ‘‘credible information’’ 

trigger to enter into an exclusion 

analysis. 

Response: Under this rule, the 

Secretary will conduct an exclusion 

analysis when credible information 

triggers that analysis. The rule does not 

waive the Secretary’s discretion; 

instead, the regulation constitutes the 

Secretary’s decision on how to exercise 

his discretion under the statute on a 

consistent comprehensive basis instead 

of a case-by-case basis. 

Comment 28: Some commenters 

expressed concern that the proposed 

rule would reduce the Secretary’s 

discretion as to whether to conduct an 

exclusion analysis because it would 

collapse the second step (the 

discretionary exclusion analysis) of the 

critical habitat designation process into 

the first step (the requirement to take 

into consideration economic and other 

relevant impacts). Other commenters 

took the contrary view, stating for 

example that the rule should narrow the 

Secretary’s discretion to undertake an 

exclusion analysis by specifying when 

and how he will exercise that 

discretion. Some of the commenters 

went so far as to request that the rule 

should eliminate the Secretary’s 

discretion on this issue by requiring the 

Secretary to always conduct an 

exclusion analysis to determine if the 

benefits of exclusion outweigh the 

benefits of inclusion. The commenters 

disagreed that the Secretary has 

discretion as to whether to undertake an 

exclusion analysis, because section 

4(b)(2) requires the Secretary to take 

economic and other relevant impacts 

into consideration and the balancing of 

impacts in the exclusion analysis is part 

of that consideration. Therefore, in the 

view of these commenters, the 

Secretary’s discretion is much 

narrower—the only part of section 

4(b)(2) that is left to the Secretary’s 

discretion is the ultimate decision 

whether or not to exclude areas. 

Response: The structure of section 

4(b)(2) makes clear that the exclusion 

analysis is discretionary. The authorities 

in section 4(b)(2) are split between two 

sentences: The first sentence is framed 

in mandatory terms (‘‘shall designate 

critical habitat . . . after taking into 

consideration . . . relevant impacts’’), 

and the second sentence is framed in 

discretionary terms (‘‘may exclude any 

area . . . if the benefits of such 

exclusion outweigh’’) (emphasis added). 

Consideration of relevant impacts 

appears in the first sentence, which is 

the sentence framed in mandatory 

terms. The decision to enter into the 

exclusion analysis and the weighing of 

benefits of exclusion and inclusion 

appear in the second sentence, which is 

the sentence framed in discretionary 

terms. The proposed rule neither alters 

this structure of section 4(b)(2) nor 

collapses the two sentences together—it 

just describes how and when the 

Secretary will exercise the discretion to 

undertake an exclusion analysis and to 

exclude a particular area from the 

critical habitat designation. This 

framework facilitates the transparent 

and consistent implementation of the 

statute. 

Comment 29: Some commenters 

stated that the proposed rule would give 

too much discretion to the Secretary in 

assigning weights and deciding on 

exclusions in certain outcomes, which 

would contradict congressional intent to 

afford imperiled species ‘‘the highest of 

priorities.’’ Some commenters were 

concerned that the broad discretion that 

the proposed rule gives to the Secretary 

in assigning weights to experts in nonbiological fields of knowledge runs the 

risk of placing disproportionate weight 

on the expertise of entities with private 

interests whose ultimate goal may not 

be conservation. Other commenters took 

the opposite view, stating that the 

proposed rule would cede the 

Secretary’s discretion as to whether to 

undertake an exclusion analysis by 

deferring to regulated entities, lessees, 

and private landowners on the weighing 

of costs. Some commenters found it 

reasonable for experts to provide 

information about what costs and 

benefits are, but wanted to make sure 

that the Service ultimately retained the 

discretion to reject questionable claims 

by critical habitat opponents, as well as 

to ‘‘assign the weights’’ that result in the 

balance achieved by a particular 

decision meeting legal requirements. 

Some commenters went further and 

stated that only the Service has the 

expertise to determine the weights of 

costs and benefits. 

Response: Rather than ceding the 

Secretary’s discretion, the proposed rule 

enhances implementation by 

establishing a transparent and balanced 

approach in exercising it. Congress gave 

the authority to undertake exclusion 

analyses to the Secretary, and the 

Secretary delegated that authority to the 

Director of the Service, because the 

Service has the expertise to evaluate the 

impact that excluding particular areas 

from a critical habitat designation 

would have on an endangered or 

threatened species. Other relevant 

impacts of excluding or including 

particular areas in a critical habitat 

designation may not be within the 

Service’s expertise. As some of the 

commenters pointed out, it is reasonable 

for the Secretary to seek input from 

experts regarding those other relevant 

impacts that are outside the scope of the 

Service’s expertise. The proposed rule 

strikes that balance by providing for the 

Service to seek that input from experts 

and give weights to particular impacts 

in accordance with that input, while 


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also making clear that the Service 

ultimately retains the discretion to reject 

or adjust that input to the extent it is 

rebutted by the best information 

available to the Service. By retaining 

that discretion for the Service, the rule 

avoids putting disproportionate weight 

on the expertise of entities whose 

ultimate goal may not be conservation. 

Comment 30: Some commenters 

requested that the rule clarify whether 

the Secretary intends to delegate his 

authority to undertake an exclusion 

analysis to the Director of the Service. 

Response: The Departmental Manual 

provides that the Secretary has 

delegated his authority to undertake 

leadership and coordination 

responsibilities under the Act to the 

Assistant Secretary for Fish and Wildlife 

and Parks and has further delegated 

those responsibilities, in part, to the 

Director of the Fish and Wildlife Service 

(632 DM 1). This includes 

responsibilities for all aspects of 

designating critical habitat for 

endangered species and threatened 

species. 

Comment 31: We received comments 

that both supported and opposed the 

inclusion of the phrase ‘‘shall exclude’’ 

in § 17.90(e). Specifically, commenters 

supported the conclusion that the 

Service will always exclude the areas 

where the benefits of exclusion 

outweigh the benefits of inclusion, as 

long as exclusion will not result in the 

extinction of the listed species. 

Commenters stated that the proposed 

provision would create a clear standard 

and encourage consistent and 

transparent application of section 

4(b)(2) of the Act. In addition, in the 

view of some commenters, once the 

exclusion analysis is completed, there 

are no further considerations because if 

the benefits of exclusion outweighed the 

benefits of inclusion, including that area 

in the designation of critical habitat 

would be arbitrary and capricious, lack 

a rational basis, and run counter to the 

evidence evaluated by the Service. 

Alternatively, other commenters 

opposed using the words ‘‘shall 

exclude’’ in § 17.90(e) because those 

words would be more restrictive and 

would require us to automatically 

exclude an area from critical habitat if 

we determine that the benefits of 

exclusion outweigh the benefits of 

inclusion, regardless of the 

circumstances. Some commenters 

expressed concern that use of the word 

‘‘shall’’ constituted an arbitrary and 

capricious change in agency practice 

without justification, citing the language 

in the 2016 Policy (i.e., that ‘‘the 

decision to exclude is always 

discretionary,’’ and, ‘‘[u]nder no 

circumstances is exclusion required 

under the second sentence of section 

4(b)(2)’’) (81 FR 7226, 7229; Feb. 11, 

2016). Commenters expressed concern 

that this approach would result in more 

exclusions and contradict the purpose 

of the Act and Congress’s intent that the 

Secretary retain discretion in 

determining whether to exclude 

particular areas from critical habitat. 

Commenters also expressed concern 

that requiring that the Secretary exclude 

areas whenever the benefits of exclusion 

outweigh the benefits of inclusion 

would allow for detrimental impacts to 

a listed species’ habitat as long as the 

species does not go completely extinct. 

Response: As described in the 

proposed rule, this rulemaking directly 

adopts some aspects of the 2016 Policy 

and alters other aspects. Using the 

phrase ‘‘shall exclude’’ in this 

rulemaking is not inconsistent with the 

statements that the commenters cite 

from the 2016 Policy. The commenters’ 

excerpts from the 2016 Policy make 

clear that decisions to exclude areas 

from critical habitat are discretionary 

under the structure and language of the 

statute. The regulation does not change 

or contravene that fact. Rather, this 

rulemaking is an exercise of the 

discretion referenced in those excerpts. 

As we discussed in the proposed rule, 

the Secretary is choosing to exercise his 

discretion in this way to provide for 

transparency and certainty. Under the 

statute, the Secretary could have elected 

to undertake exclusion analyses on a 

case-by-case basis and exclude areas 

every time the benefits of exclusion 

outweigh the benefits of inclusion. 

However, the approach finalized here 

would provide greater transparency and 

certainty because it creates an advance 

understanding of how the Secretary will 

proceed when the benefits of exclusion 

outweigh the benefits of inclusion. 

As we explained in the proposed rule, 

section 4(b)(2) of the Act gives the 

Secretary the discretion to exclude areas 

from critical habitat designations when 

certain criteria have been met. Using the 

phrase ‘‘shall exclude’’ in the regulation 

indicates how the Secretary is choosing 

to exercise his discretion, and making 

this choice is neither unlawful nor 

contrary to the purposes of the Act. 

Even with the words ‘‘shall exclude’’ in 

the regulation, under the statute the 

Secretary could exclude areas only if the 

Secretary determines that the benefits of 

exclusion outweigh the benefits of 

inclusion after considering the 

conservation value or benefit of 

inclusion of the area weighed against 

the impacts of the designation or 

benefits of exclusion, and the Secretary 

determines that exclusion will not lead 

to extinction of the species. 

Comment 32: Some commenters 

identified circumstances in which the 

Secretary should retain the discretion to 

include a particular area in a 

designation even though the benefits of 

exclusion outweigh the benefits of 

inclusion. These included where the 

benefits of exclusion are equal or very 

near to the benefits of inclusion; or 

where permittees in areas covered by 

conservation plans, agreements, or 

partnerships may prefer to have the area 

included in the critical habitat 

designation. 

Response: These circumstances are 

already addressed within the process 

that the regulation describes for 

analyzing potential exclusions. In 

determining whether the benefits of 

excluding an area outweigh the benefits 

of including it in the critical habitat 

designation, we take into consideration 

numerous factors, perspectives, and 

impacts, including, for example, the 

views of permittees. As part of the 

exclusion analysis, we thoroughly 

evaluate the impacts based on credible 

information and Service knowledge and 

give weight to the various impacts based 

on the relevant expertise and best 

available information. Further, the 

regulation requires exclusion of 

particular areas only if the benefits of 

exclusion outweigh those of inclusion; 

if they are equal, it would not require 

(and the statute would not allow) 

exclusion. 

Comment 33: Many commenters 

stated that the proposed regulation 

violates the Administrative Procedure 

Act because we failed to provide a 

reasoned explanation or rational basis 

for the proposed changes in process for 

conducting a discretionary section 

4(b)(2) exclusion analysis. 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 Service 

promulgate a regulation on the 

procedure for exclusion analyses under 

section 4(b)(2) of the Act. Further, they 

state that the U.S. Supreme Court did 

not, and, indeed, could not, authorize 

the Service to abdicate its statutory 

authority and discretion regarding 

whether and how to conduct a critical 

habitat exclusion analysis under section 

4(b)(2) of the Act in the first instance. 

Additionally, they stated that we failed 

to explain departure from our 2016 

Policy. 

Response: To provide transparency, 

clarity, and certainty to the public and 

other stakeholders about how the 

Secretary intends to exercise his 


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discretion regarding exclusions under 

section 4(b)(2), we are finalizing this 

regulation, which would supersede the 

regulations at 50 CFR 424.19 and the 

2016 Policy with respect to the Service’s 

implementation of the Act. In the 

proposed rule, we explained our 

rationale for the amendments and 

changes from the 2016 Policy. The 

proposed rule also sought comments 

from the public on the provisions of the 

regulation, 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 rational basis 

for our action as required by the APA. 

In addition, regarding Weyerhaeuser, 

although the Supreme Court’s opinion 

did not require promulgation of 

regulations on the procedure for 

exclusion analyses under section 4(b)(2) 

of the Act, it did establish that decisions 

not to exclude a particular area of 

critical habitat 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’’). In light of the Court’s 

holding that decisions not to exclude 

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)), the Service is of the view 

that the Court’s decision underscores 

the importance of being deliberate and 

transparent about how the Service goes 

about making decisions about whether 

to exclude areas from designations of 

critical habitat. 

Comment 34: The Service received 

comments stating that invoking the 

NEPA categorical exclusion at 43 CFR 

46.210(i) is contrary to the requirements 

of NEPA and its implementing 

regulations, further asserting that the 

regulation would have significant, 

adverse environmental impacts on 

endangered and threatened species. 

That categorical exclusions applies to 

‘‘[p]olicies, directives, regulations, and 

guidelines: That are of an 

administrative, financial, legal, 

technical, or procedural nature’’ under 

the Service’s NEPA implementing 

regulations. Commenters stated that we 

violate NEPA by failing to consider the 

impacts of this proposed rule in 

combination with the August 5, 2020, 

proposal that would add a new 

definition of ‘‘habitat’’ to our regulations 

for making critical habitat designations 

under section 4 of the Act (see 85 FR 

47333, Aug. 5, 2020) (Endangered and 

Threatened Wildlife and Plants; 

Regulations for Listing Endangered and 

Threatened Species and Designating 

Critical Habitat; Proposed Rule). They 

state that if we proceed with this 

rulemaking, an environmental impact 

statement should be prepared and 

circulated for public review and 

comment that considers the cumulative 

environmental impacts of both the 

proposed rule and the proposed 

definition of ‘‘habitat.’’ 

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)) applies to this 

rulemaking. As we made clear in the 

proposed rule, the objective of this 

rulemaking is to ‘‘provide greater 

transparency and certainty for the 

public and stakeholders’’ because the 

Weyerhaeuser decision may raise 

questions about the process the Service 

will use when conducting an exclusion 

analysis for particular areas of critical 

habitat. The result of promulgating this 

regulation is to inform the public and 

the Service’s employees of the 

mechanics of how the process for 

excluding areas from critical habitat 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 35: Commenters requested 

that we coordinate with NMFS to assist 

in the development of corresponding 

regulations implementing section 4(b)(2) 

of the Act for species under NMFS’s 

jurisdiction. 

Response: NMFS will continue to 

implement the 2016 Policy for 

exclusions from critical habitat for 

species in their jurisdiction. The Service 

and NMFS will continue to comply with 

requirements of the Act and applicable 

regulations and policies when 

designating critical habitat for species in 

their respective jurisdictions. 

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 

(RFA) 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. 


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The Service is the only entity that is 

directly affected by this rule because we 

are the only entity that will designate 

critical habitat under this regulation. 

Small entities are not directly regulated 

by this rulemaking, as it only imposes 

requirements on the Service. No 

external entities, including any small 

businesses, small organizations, or small 

governments, will experience any direct 

economic impacts from this rule. There 

is no requirement under the RFA to 

evaluate the potential impacts to entities 

that are not directly regulated. 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. Therefore 

the Service once again certifies that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. 

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 (IEc 

2020). 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 

municipality. 

(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 any land or aquatic 

resources and it 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 

designations 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 designations 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 (December 1, 1995), we have 

considered possible effects of this final 

rule on federally recognized Indian 

Tribes. The following Tribes and Tribal 

entities stated that Government-toGovernment consultation is required or 

requested Government-to-Government 

consultation: Southern Ute Indian Tribe; 

Swinomish Indian Tribe; National 

Congress of American Indians; and 

Northwest Indian Fisheries Commission 

member Tribes including the Lummi, 

Nooksack, Swinomish, Upper Skagit, 

Sauk-Suiattle, Stillaguamish, Tulalip, 

Muckleshoot, Puyallup, Nisqually, 

Squaxin Island, Skokomish, Suquamish, 

Port Gamble S’Klallam, Jamestown 

S’Klallam, Lower Elwha Klallam, 

Makah, Quileute, Quinault, and Hoh. 

The Service has reviewed the 

comments from these Tribes and 

concludes 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 

interest. This regulation describes how 

we undertake our mandatory 

consideration of the impacts of 

designating critical habitat and our 

discretionary authority to exclude 

particular areas following a 

discretionary exclusion analysis as it is 

applied to designating critical habitat. 

Therefore, this rule directly affects only 

the Service. With or without these 

regulatory revisions, the Service must 

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-togovernment consultation is not required 

by the Executive order 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 will work with Tribes 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). 

We recognize that some commenters 

stated that government-to-government 

consultation is necessary because in 

their view the changes that the proposed 

rule would make would have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes.’’ 

However, these regulations primarily 

adopt and deepen the provisions in the 

2016 Policy, so they do not have any 

substantial direct effects of that nature. 

The 2016 Policy stated that the Service 

would always consider excluding Tribal 

lands and would give great weight to 

Tribal concerns in analyzing the 

benefits of exclusion. Because the final 

regulation provides for consideration of 

any exclusions for which proponents 

provide credible information, Tribes 

have the ability to ensure that the 

Service always considers excluding 

their lands if that is what they want. In 

addition, the 2016 Policy already stated 

that the Service would give great weight 

to Tribes’ concerns when it undertakes 

exclusion analyses. This regulation 

essentially does the same thing by 

stating that the weights the Service gives 

to the benefits of excluding or including 

areas that affect Tribal lands or 

resources will be consistent with the 

information provided by the affected 

Tribes. Therefore, this rule does not 

trigger the requirement to undertake 

government-to-government consultation 

because the provisions of the rule 

merely codify and strengthen the 

provisions of the 2016 Policy, and this 

regulation therefore does not ‘‘have 

substantial direct effects on one or more 


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Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes.’’ 

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 collections of 

information approved under OMB 

Control Numbers 1018–0093 and 1018– 

0094. 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), and the Department 

of the Interior Manual (516 DM 8). 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 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.’’ 

We have considered the extent to 

which this regulation has a significant 

impact on the human environment and 

determined 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 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

For the reasons discussed in the 

preamble, the U.S. Fish and Wildlife 

Service amends 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: 

(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 give weight to those 

benefits consistent with the expert or 

firsthand information, unless the 

Secretary has knowledge or material 


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Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Rules and Regulations 82389 

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; 

(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; and 

(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 give 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. 2020–28033 Filed 12–17–20; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 200227–0066] 

RTID 0648–XA724 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Ocean Perch 

in the Bering Sea Subarea of the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific ocean perch in the 

Bering Sea subarea of the Bering Sea 

and Aleutian Islands management area 

(BSAI). This action is necessary to 

prevent exceeding the 2020 Pacific 

Ocean perch total allowable catch (TAC) 

in the Bering Sea subarea of the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), December 16, 2020, 

through 2400 hrs, A.l.t., December 31, 

2020. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2020 Pacific ocean perch TAC in 

the Bering Sea subarea of the BSAI is 

12,043 metric tons (mt) as established 

by the final 2020 and 2021 harvest 

specifications for groundfish in the 

BSAI and groundfish reserve release (85 

FR 13553, March 9, 2020). 

The Regional Administrator has 

determined that the 2020 TAC for 

Pacific Ocean perch in the Bering Sea 

subarea of the BSAI will soon be 

reached. Therefore, the Regional 

Administrator is establishing a directed 

fishing allowance of 12,003 mt, and is 

setting aside the remaining 40 mt as 

bycatch to support other anticipated 

groundfish fisheries. Consequently, in 

accordance with § 679.20(d)(1)(iii), 


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