Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35193 

agency and the Service may enter into 

upon mutual agreement. To determine 

whether an action or a class of actions 

is appropriate for this type of 

consultation, the Federal agency and the 

Service shall consider the nature, size, 

and scope of the action or its anticipated 

effects on listed species or critical 

habitat and other relevant factors. 

Conservation actions whose primary 

purpose is to have beneficial effects on 

listed species will likely be considered 

appropriate for expedited consultation. 

(1) Upon agreement to use this 

expedited consultation process, the 

Federal agency and the Service shall 

establish the expedited timelines for the 

completion of this consultation process. 

(2) Federal agency responsibilities: To 

request initiation of expedited 

consultation, the Federal agency shall 

provide all the information required to 

initiate consultation under paragraph (c) 

of this section. To maximize efficiency 

and ensure that it develops the 

appropriate level of information, the 

Federal agency is encouraged to develop 

its initiation package in coordination 

with the Service. 

(3) Service responsibilities: In 

addition to the Service’s responsibilities 

under the provisions of this section, the 

Service will: 

(i) Provide relevant species 

information to the Federal agency and 

guidance to assist the Federal agency in 

completing its effects analysis in the 

initiation package; and 

(ii) Conclude the consultation and 

issue a biological opinion within the 

agreed-upon timeframes. 

* * * * * 

■ 4. Amend § 402.16 by: 

■ a. Revising the section heading; 

■ b. Redesignating paragraphs (a) 

through (d) as paragraphs (a)(1) through 

(a)(4); 

■ c. Designating the introductory text as 

paragraph (a) and revising the newly 

designated paragraph (a); and 

■ d. Adding a new paragraph (b). 

The revisions and addition read as 

follows: 

§ 402.16 Reinitiation of consultation. 

(a) Reinitiation of consultation is 

required and shall be requested by the 

Federal agency or by the Service, where 

discretionary Federal involvement or 

control over the action has been 

retained or is authorized by law and: 

* * * * * 

(b) An agency shall not be required to 

reinitiate consultation after the approval 

of a land management plan prepared 

pursuant to 43 U.S.C. 1712 or 16 U.S.C. 

1604 upon listing of a new species or 

designation of new critical habitat, 

provided that any authorized actions 

that may affect the newly listed species 

or designated critical habitat will be 

addressed through a separate actionspecific consultation. 

■ 5. Add § 402.17 to read as follows: 

§ 402.17 Other provisions. 

(a) Activities that are reasonably 

certain to occur. To be considered 

reasonably certain to occur, the activity 

cannot be speculative but does not need 

to be guaranteed. Factors to consider 

include, but are not limited to: 

(1) Past relevant experiences; 

(2) Any existing relevant plans; and 

(3) Any remaining economic, 

administrative, and legal requirements 

necessary for the activity to go forward. 

(b) The provisions in paragraph (a) of 

this section apply only to activities 

caused by but not included in the 

proposed action and activities 

considered under cumulative effects. 

§ 402.40 [Amended] 

■ 6. In § 402.40, amend paragraph (b) by 

removing ‘‘§ 402.14(c)(1)–(6)’’ and in its 

place adding ‘‘§ 402.14(c)’’. 

Dated: July 18, 2018. 

Ryan K. Zinke, 

Secretary, Department of the Interior. 

Dated: July 16, 2018. 

Wilbur Ross, 

Secretary, Department of Commerce. 

[FR Doc. 2018–15812 Filed 7–24–18; 8:45 am] 

BILLING CODE 3510–22–P; 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2018–0006; 

Docket No. 180202112–8112–01; 

4500030113] 

RIN 1018–BC88; 0648–BH42 

Endangered and Threatened Wildlife 

and Plants; Revision of the 

Regulations for Listing Species and 

Designating Critical Habitat 

AGENCIES: U.S. Fish and Wildlife 

Service, Interior; National Marine 

Fisheries Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(collectively referred to as the 

‘‘Services’’ or ‘‘we’’), propose to revise 

portions of our regulations that 

implement section 4 of the Endangered 

Species Act of 1973, as amended (Act). 

The proposed revisions to the 

regulations clarify, interpret, and 

implement portions of the Act 

concerning the procedures and criteria 

used for listing or removing species 

from the Lists of Endangered and 

Threatened Wildlife and Plants and 

designating critical habitat. We also 

propose to make multiple technical 

revisions to update existing sections or 

to refer appropriately to other sections. 

DATES: We will accept comments from 

all interested parties until September 

24, 2018. Please note that if you are 

using the Federal eRulemaking Portal 

(see ADDRESSES below), the deadline for 

submitting an electronic comment is 

11:59 p.m. Eastern Standard Time on 

this date. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–HQ–ES–2018–0006, which 

is the docket number for this 

rulemaking. Then, in the Search panel 

on the left side of the screen, under the 

Document Type heading, click on the 

Proposed Rules link to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–HQ–ES–2018– 

0006; U.S. Fish & Wildlife Service, MS: 

BPHC, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803 or National 

Marine Fisheries Service, Office of 

Protected Resources, 1315 East-West 

Highway, Silver Spring, MD 20910. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments below for more information). 

FOR FURTHER INFORMATION CONTACT: 

Bridget Fahey, U.S. Fish and Wildlife 

Service, Division of Conservation and 

Classification, 5275 Leesburg Pike, Falls 

Church, VA 22041–3803, telephone 

703/358–2171; or Samuel D. Rauch, III, 

National Marine Fisheries Service, 

Office of Protected Resources, 1315 

East-West Highway, Silver Spring, MD 

20910, telephone 301/427–8403. If you 

use a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800/877–8339. 

SUPPLEMENTARY INFORMATION: 


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35194 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

Background 

The Endangered Species Act of 1973, 

as amended (‘‘Act’’; 16 U.S.C. 1531 et 

seq.), states that the purposes of the Act 

are to provide a means to conserve the 

ecosystems upon which listed species 

depend, to develop a program for the 

conservation of listed species, and to 

achieve the purposes of certain treaties 

and conventions. 16 U.S.C. 1531(b). 

Moreover, the Act states that it is the 

policy of Congress that the Federal 

Government will seek to conserve 

threatened and endangered species, and 

use its authorities to further the 

purposes of the Act. 16 U.S.C. 

1531(c)(1). 

The Act defines an endangered 

species as any species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range’’ and a 

threatened species as any species ‘‘that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range.’’ 16 U.S.C. 1532(6); (20). The 

Act requires the Services to determine 

whether species meet either of these 

definitions. 16 U.S.C. 1533(a); 1532(15). 

Section 4 of the Act and its 

implementing regulations in Title 50 of 

the Code of Federal Regulations at 50 

CFR part 424 set forth the procedures 

for adding, removing, or reclassifying 

species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants (lists). The lists are in 50 CFR 

17.11(h) (wildlife) and 17.12(h) (plants). 

Section 4(a)(1) of the Act sets forth the 

factors that we evaluate when we issue 

rules for species to list (adding a species 

to one of the lists), delist (removing a 

species from one of the lists), and 

reclassify (changing a species’ 

classification or its status). 

One of the tools provided by the Act 

to conserve species is the designation of 

critical habitat. The purpose of critical 

habitat is to identify the areas that are 

essential to the conservation of the 

species. The Act generally requires that 

the Services, to the maximum extent 

prudent and determinable, designate 

critical habitat when determining that a 

species is either an endangered species 

or a threatened species. 16 U.S.C. 

1533(a)(3)(A). 

The Secretaries of the Interior and 

Commerce (the ‘‘Secretaries’’) share 

responsibilities for implementing most 

of the provisions of the Act. Generally, 

marine and anadromous species are 

under the jurisdiction of the Secretary of 

Commerce, and all other species are 

under the jurisdiction of the Secretary of 

the Interior. Authority to administer the 

Act has been delegated by the Secretary 

of the Interior to the Director of FWS 

and by the Secretary of Commerce to the 

Assistant Administrator for NMFS. 

Proposed Regulatory Revisions 

In carrying out Executive Order 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda,’’ the Department of the 

Interior (DOI) published a document 

with the title ‘‘Regulatory Reform’’ in 

the Federal Register of June 22, 2017 

(82 FR 28429). The document requested 

public comment on how DOI can 

improve implementation of regulatory 

reform initiatives and policies and 

identify regulations for repeal, 

replacement, or modification. This 

proposed rule addresses comments that 

DOI has received in response to the 

regulatory reform docket. 

As part of implementing E.O. 13777, 

the National Oceanic and Atmospheric 

Administration (NOAA) published a 

notice entitled, ‘‘Streamlining 

Regulatory Processes and Reducing 

Regulatory Burden’’ (82 FR 31576, July 

7, 2017). The notice requested public 

comments on how NOAA could 

continue to improve the efficiency and 

effectiveness of current regulations and 

regulatory processes. This proposed rule 

addresses comments NOAA received 

from the public. 

This proposed rule is one of three 

related proposed rules, two of which are 

joint between the Services, that are 

publishing in today’s Federal Register. 

All of these documents propose 

revisions to various regulations that 

implement the ESA. 

Beyond the specific revisions to the 

regulations highlighted in this proposed 

rule, the Services are comprehensively 

reconsidering the processes and 

interpretations of statutory language set 

out in part 424. Thus, this rulemaking 

should be considered as applying to all 

of part 424, and as part of the 

rulemaking initiated today, the Services 

will consider whether additional 

modifications to the regulations setting 

out procedures and criteria for listing or 

delisting species and designating critical 

habitat would improve, clarify, or 

streamline the administration of the Act. 

We seek public comments 

recommending, opposing, or providing 

feedback on specific changes to any 

provisions in part 424 of the regulations, 

including but not limited to revising or 

adopting as regulations existing 

practices or policies, or interpreting 

terms or phrases from the Act. In 

particular, we seek public comment on 

whether we should consider modifying 

the definitions of ‘‘geographical area 

occupied by the species’’ or ‘‘physical or 

biological features’’ in section 424.02. 

Based on comments received and on our 

experience in administering the Act, the 

final rule may include revisions to any 

provisions in part 424 that are a logical 

outgrowth of this proposed rule, 

consistent with the Administrative 

Procedure Act. 

In proposing the specific changes to 

the regulations in this rule and setting 

out the accompanying clarifying 

discussion in this preamble, the 

Services are proposing prospective 

standards only. Nothing in these 

proposed revisions to the regulations is 

intended to require (at such time as this 

rule becomes final) that any prior final 

listing, delisting, or reclassification 

determinations or previously completed 

critical habitat designations be 

reevaluated on the basis of any final 

regulations. 

Section 424.11—Factors for Listing, 

Delisting, or Reclassifying Species 

Economic Impacts 

We propose to remove the phrase, 

‘‘without reference to possible economic 

or other impacts of such 

determination’’, from paragraph (b) to 

more closely align with the statutory 

language. Section 4(b)(1)(A) of the Act 

requires the Secretary to make 

determinations based ‘‘solely on the 

basis of the best scientific and 

commercial data available after 

conducting a review of the status of the 

species’’. The word ‘‘solely’’ was added 

in the 1982 amendments to the Act 

(Pub. L. 97–304, 96 Stat. 1411) to clarify 

that the determination of endangered or 

threatened status was intended to be 

made ‘‘solely upon biological criteria 

and to prevent non-biological 

considerations from affecting such 

decisions.’’ In making the clarification, 

Congress expressed concerns with the 

requirements of the Regulatory 

Flexibility Act, Paperwork Reduction 

Act, and E.O. 12291 potentially 

introducing economic and other factors 

into the basis for determinations under 

the Act (H.R. Rep. No. 97–567 at 19–20, 

May 17, 1982). 

In removing the phrase, the Services 

will continue to make determinations 

based solely on biological 

considerations. However, there may be 

circumstances where referencing 

economic, or other impacts may be 

informative to the public. For example, 

the Environmental Protection Agency 

conducts benefits and costs analyses of 

each proposed or revised National 

Ambient Air Quality Standard. These 

regulatory impact analyses are designed 

to inform the public and state, local, and 

tribal governments about the potential 

costs and benefits of implementation; 

however, the regulatory impact analyses 

are not a part of the standard selection 


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Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35195 

process. While Congress precluded 

consideration of economic and other 

impacts from being the basis of a listing 

determination, it did not prohibit the 

presentation of such information to the 

public. Since 1982, Congress has 

consistently expressed support for 

informing the public as to the impacts 

of regulations in subsequent 

amendments to statutes and executive 

orders governing the rulemaking 

process. 

In removing the phrase, ‘‘without 

reference to possible economic or other 

impacts of such determination’’, the 

Services are not suggesting that all 

listing determinations will include a 

presentation of economic or other 

impacts. Rather, there may be 

circumstances where such impacts are 

referenced while ensuring that 

biological considerations remain the 

sole basis for listing determinations. The 

Services seek comment on this 

modification. 

Foreseeable Future 

We propose to add to section 424.11 

a new paragraph (d) that sets forth a 

framework for how the Services will 

consider the foreseeable future. Section 

3(20) of the Act defines a ‘‘threatened 

species’’ as ‘‘any species which is likely 

to become endangered within the 

foreseeable future throughout all or a 

significant portion of its range.’’ The 

term ‘‘foreseeable future’’ is not further 

described within either the Act or the 

Services’ current implementing 

regulations. Guidance addressing the 

concept of the foreseeable future within 

the context of determining the status of 

species is articulated in a 2009 opinion 

from the Department of the Interior, 

Office of the Solicitor (M–37021, 

January 16, 2009). The Services have 

found the reasoning and conclusions 

expressed in this document to be wellfounded, and this guidance has been 

widely applied by both Services. We are 

proposing to amend section 424.11 to 

include a framework that sets out how 

the Services will determine what 

constitutes the foreseeable future when 

determining the status of species. 

Specifically, we propose the following 

framework: In determining whether a 

species is a threatened species, the 

Services must analyze whether the 

species is likely to become an 

endangered species within the 

foreseeable future. The term foreseeable 

future extends only so far into the future 

as the Services can reasonably 

determine that the conditions 

potentially posing a danger of extinction 

in the foreseeable future are probable. 

The Services will describe the 

foreseeable future on a case-by-case 

basis, using the best available data and 

taking into account considerations such 

as the species’ life-history 

characteristics, threat-projection 

timeframes, and environmental 

variability. The Services need not 

identify the ‘‘foreseeable future’’ in 

terms of a specific period of time, but 

may instead explain the extent to which 

they can reasonably determine that both 

the future threats and the species’ 

responses to those threats are probable. 

As stated above, under the proposed 

section 424.11(d), as under current 

practice, the foreseeable future will be 

described on a case-by-case basis. 

Congress did not set a uniform 

timeframe for the Secretary’s 

consideration of whether a species was 

likely to become an endangered species, 

nor did Congress intend that the 

Secretary set a uniform timeframe. For 

each species considered for listing, the 

Services must review the best scientific 

and commercial data available regarding 

the likelihood of extinction over time, 

and then determine, with each status 

review, whether the species meets the 

definition of an endangered species or a 

threatened species. The foreseeable 

future is uniquely related to the 

particular species, the relevant threats, 

and the data available. Courts have 

expressly endorsed the Services’ 

approach of tailoring analysis of the 

foreseeable future to each listing 

determination and considering the 

foreseeability of each key threat and the 

species’ likely response. See, e.g., In Re 

Polar Bear Endangered Species Act 

Listing and Section 4(d) Rule Litigation, 

709 F.3d 1, 15–16 (D.C. Cir. 2013) 

(noting that FWS ‘‘determines what 

constitutes the ‘foreseeable’ future on a 

case-by-case basis in each listing 

decision’’ based on how far into the 

future the available data allow for 

reliable prediction of effects to the 

species from key threats), cert. denied 

sub nom. Safari Club Intern. v. Jewell, 

134 S. Ct. 310 (2013). 

The analysis of the foreseeable future 

should, to the extent practicable, 

account for any relevant environmental 

variability, such as hydrological cycles 

or oceanographic cycles, which may 

affect the reliability of projections. 

Analysis of the foreseeable future 

should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Under proposed section 424.11(d), as 

under current practice, the foreseeable 

future for a particular status 

determination extends only so far as 

predictions about the future are reliable. 

‘‘Reliable’’ does not mean ‘‘certain’’; it 

means sufficient to provide a reasonable 

degree of confidence in the prediction. 

‘‘Reliable predictions’’ is also used here 

in a non-technical, ordinary sense and 

not necessarily in a statistical sense. 

As outlined in section 4(b)(1)(A) of 

the Act, status determinations must be 

based on the best scientific and 

commercial data available. By 

extension, in the context of determining 

whether a species meets the definition 

of a threatened species, the foreseeable 

future must also be based on the best 

scientific and commercial data 

available. The Services assess the data 

concerning each threat and the degree to 

which reliable predictions can be made. 

In many instances, the amount or 

quality of data available is likely to vary 

with respect to the relevant issues 

evaluated in a particular status 

determination; consequently, the 

Services may find varying degrees of 

foreseeability with respect to the 

multiple threats and their effects on a 

particular species. Although the 

Secretary’s analysis as to the future 

status of a species may be based on 

reliable predictions with respect to 

multiple trends and threats over 

different periods of time or even threats 

without specific time periods associated 

with them, the final conclusion is a 

synthesis of that information. Thus, the 

foreseeable future is not necessarily 

reducible to a particular number of 

years. Nevertheless, if the information 

or data are susceptible to such 

precision, it may be helpful to identify 

the time scale used. 

Depending on the nature and quality 

of the available data, predictions 

regarding the future status of a 

particular species may be based on 

analyses that range in form from 

quantitative population-viability models 

and modelling of threats to qualitative 

analyses describing how threats will 

affect the status of the species. In some 

circumstances, such analyses may 

include reliance on the exercise of 

professional judgment by experts where 

appropriate. In cases where the 

available data allow for quantitative 

modelling or projections, the time 

horizon presented in these analyses 

does not necessarily dictate what 

constitutes the ‘‘foreseeable future’’ or 

set the specific threshold for 

determining when a species may be in 

danger of extinction. Rather, the 

foreseeable future can extend only as far 

as the Services can reasonably depend 


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35196 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

on the available data to formulate a 

reliable prediction and avoid 

speculation and preconception. 

Regardless of the type of data available 

underlying the Service’s analysis, the 

key to any analysis is a clear articulation 

of the facts, the rationale, and 

conclusions regarding foreseeability. 

Ultimately, to determine that a species 

is likely to become an endangered 

species in the foreseeable future, the 

Services must be able to determine that 

the conditions potentially posing a 

danger of extinction in the future are 

probable. The Services will avoid 

speculating as to what is hypothetically 

possible. 

Factors Considered in Delisting Species 

In section 424.11, we propose to 

redesignate current paragraph (d) as 

paragraph (e) and revise it to clarify that 

we determine whether a species is a 

threatened species or an endangered 

species using the same standards 

regardless of whether a species is or is 

not listed at the time of that 

determination. After identifying a 

‘‘species’’ as defined under the Act and 

conducting a review of the species’ 

status considering the factors under 

section 4(a)(1) of the Act, the Services 

determine if the species meets the 

definition of a threatened species or an 

endangered species. If the species does 

not meet either definition, the species 

should not be listed (if it is not already), 

or should be delisted (if it is currently 

listed). The standard for a decision to 

delist a species is the same as the 

standard for a decision not to list it in 

the first instance. This is consistent with 

the statute, under which the five-factor 

analysis in section 4(a)(1) and the 

definitions of ‘‘endangered species’’ and 

‘‘threatened species’’ in sections 3(6) 

and 3(20) establish the parameters for 

both listing and delisting 

determinations without distinguishing 

between them. 

Additionally, we propose to modify 

the current regulatory text to clarify the 

situations in which it would not be 

appropriate for species to remain on the 

lists of endangered and threatened 

species. The current regulatory language 

was intended to provide examples of 

when a species should be removed from 

the lists; however, the language in the 

current regulations has been, in some 

instances, misinterpreted as establishing 

criteria for delisting. This proposed 

change is consistent with the Services’ 

longstanding practice and the decision 

in Friends of Blackwater v. Salazar, 691 

F.3d 428 (D.C. Cir. 2012). That decision 

confirms that, when reviewing whether 

a listed species should be delisted, the 

Services must apply the factors in 

section 4(a) of the Act. 691 F.3d at 433 

(upholding FWS’s decision to delist the 

West Virginia northern flying squirrel 

because the agency was not required to 

demonstrate that all of the recovery plan 

criteria had been met before it could 

delist the species and it was reasonable 

to construe the recovery plan as 

predictive of the delisting analysis 

rather than controlling it). In that case, 

the court held that ‘‘Section 4(a)(1) of 

the Act provides the Secretary ‘shall’ 

consider the five statutory factors when 

determining whether a species is 

endangered, and section 4(c) makes 

clear that a decision to delist ‘shall be 

made in accordance’ with the same five 

factors.’’ Id. at 432. 

To more clearly align section 424.11 

with section 4(a) of the Act we are 

proposing to streamline it. As is 

currently the case, any determination to 

remove a species from the lists because 

it is has become extinct is subject to the 

Act’s requirement that any 

determination as to the species’ status 

must be based on the best scientific and 

commercial data available. Thus, we are 

proposing to retain text at the beginning 

of the new section 424.11(e) that states; 

‘‘The Secretary will delist a species if 

the Secretary finds that, after 

conducting a status review based on the 

best scientific and commercial data 

available:’’ 

Secondly, to align more closely with 

the Act, we are proposing to replace the 

current section 424.11(d)(1) with a new 

section 424.11(e)(1) that simply states 

the first reason for delisting a species as, 

‘‘The species is extinct.’’ Our conclusion 

that a species is extinct will be based on 

the best scientific and commercial data 

available, as required under section 

4(b)(1)(A), which may include survey 

data and information regarding the 

period of time since the last detection 

(e.g., documented occurrence or 

sighting) of the species. It is 

unnecessary, and potentially confusing 

in the context of particular 

determinations, to specifically address 

these matters in the regulatory text. Our 

evaluations will be conducted on a caseby-case basis, considering the speciesspecific biological evidence for species 

extinction. 

Third, we are replacing current 

section 424.11(d)(2), which referred to 

‘‘recovery,’’ with language in new 

section 424.11(e)(2) that aligns with the 

statutory definitions of an endangered 

species or a threatened species. 

Although we are proposing to remove 

the word ‘‘recovery’’ from the current 

section 424.11(d)(2), we intend the 

proposed language to continue to refer, 

among other things, to species that have 

been recovered, because species that 

have been recovered no longer meet the 

definition of either an endangered 

species or a threatened species. 

Fourth, we are proposing to add a 

new provision, section 424.11(e)(3), 

clarifying that listed entities will be 

delisted if they do not meet the 

definition of ‘‘species’’ as set forth in the 

Act. This could occur if new 

information, or new analysis of existing 

information, leads the Secretary to 

determine that a currently listed entity 

is neither a taxonomic species or 

subspecies, nor a ‘‘distinct population 

segment.’’ For example, where, after the 

time of listing, the Services conclude 

that a species or subspecies should no 

longer be recognized as a valid 

taxonomic entity, the listed entity 

would be removed from the list because 

it no longer meets the definition of a 

‘‘species.’’ In other instances, new data 

could indicate that a particular listed 

distinct population segment does not 

meet the criteria of the Services’ Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments Under 

the Endangered Species Act (‘‘DPS 

Policy’’; 61 FR 4722, February 7, 1996). 

In either circumstance, the entity would 

not meet the definition of a ‘‘species’’ 

and would not qualify for listing under 

the Act. 

Fifth, we are proposing to remove 

current section 424.11(d)(3), which 

specifies that delisting could be due to 

error in the original data that the 

Services relied upon when adding 

species to the lists. This language is 

unnecessary because any circumstance 

in which a species was listed in error 

would be covered by new section 

424.11(e)(2) or (e)(3). 

Lastly, we are proposing technical 

changes to the existing regulations that 

remain in place to accommodate the 

proposed revisions discussed above. We 

are proposing to modify current section 

424.11(b) to include a reference to the 

proposed section 424.11(d) regarding 

the foreseeable future and the proposed 

section 424.11(e) regarding delisting. 

We are proposing to modify current 

section 424.11(c) by adding minor 

clarifying language to specify that this 

paragraph refers to the statutory 

definitions of an endangered species 

and a threatened species. 

Section 424.12—Criteria for 

Designating Critical Habitat 

Not Prudent Determinations 

We propose to revise section 

424.12(a)(1) to set forth a nonexhaustive list of circumstances in 

which the Services may find it is not 

prudent to designate critical habitat as 

contemplated in section 4(a)(3)(A) of the 


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Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 35197 

Act. Under the clarifications that we 

propose in this revision, the Services 

would have the authority but would not 

be required to find that designation 

would not be prudent in the enumerated 

circumstances. This is a change from the 

current framework, which sets forth two 

situations in which critical habitat is not 

prudent. We anticipate that not-prudent 

determinations would continue to be 

rare. While this provision is intended to 

reduce the burden of regulation in rare 

circumstances in which designation of 

critical habitat does not contribute to 

the conservation of the species, the 

Services recognize the value of critical 

habitat as a conservation tool and expect 

to designate it in most cases. 

We propose to retain the circumstance 

described in the longstanding language 

of current section 424.12(a)(1)(i), which 

is that the species is threatened by 

taking or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species. 

We propose to remove the language in 

section 424.12(a)(1)(ii) indicating that it 

would not be prudent to designate 

critical habitat when ‘‘designation of 

critical habitat would not be beneficial 

to the species.’’ In a number of cases, 

courts have remanded not-prudent 

findings to the Service(s) because the 

courts construed ‘‘would not be 

beneficial’’ in ways the Services had not 

intended. For example, a number of 

courts have held that it was 

unreasonable for FWS to make a notprudent determination simply because 

most or all of the areas that would be 

designated would not be subject to 

consultations under ESA section 7. E.g., 

Natural Resources Defense Council v. 

U.S. Dept. of Interior, 113 F.3d 1121 (9th 

Cir. 1997); Conservation Council for 

Hawaii v. Babbitt, 2 F. Supp. 2d 1280 

(D. Haw. 1998). In Conservation 

Council, the court concluded that FWS 

had not determined that designation 

would ‘‘not be beneficial to the species’’ 

because designating critical habitat 

could bring other benefits to the species 

beyond consultation, such as 

informational benefits. 2 F. Supp. 2d at 

1288. In NRDC, the court held that 

determining critical habitat to be not 

prudent because the majority of the 

areas that would be designated as 

critical habitat would not be subject to 

consultation was based on an improper 

interpretation of the regulatory phrase 

‘‘not beneficial to the species’’ to mean 

‘‘not beneficial to most of the species.’’ 

113 F.3d 1125–16. The existing 

regulatory language is not in the statute, 

and the Services consider the language 

unnecessary and difficult to understand 

and apply. 

Basing determinations on whether 

particular circumstances are present, 

rather than on whether a designation 

would be beneficial, provides an 

interpretation of the statute that is 

clearer, more transparent, and more 

straightforward. In some situations, the 

Services may conclude, after a review of 

the best available scientific data, that a 

designation would nevertheless be 

prudent even in the enumerated 

circumstances. Conversely, the Services 

may find in some circumstances that are 

not enumerated in the proposed 

language that a designation of critical 

habitat would otherwise be not prudent. 

We propose a number of 

circumstances in which designation of 

critical habitat would generally be not 

prudent, including some circumstances 

that were already captured in the 

current regulations at section 

424.12(a)(1)(ii) and some additional 

circumstances that we have identified 

based on our experience in designating 

critical habitat. We propose to retain 

and move into new section 

424.12(a)(1)(iv) the circumstance 

described in current section 

424.12(a)(1)(ii), which is that no areas 

meet the definition of critical habitat. It 

is not possible for us to designate 

critical habitat when no areas meet the 

definition of critical habitat in the Act; 

therefore, in these cases, designation is 

not prudent. We also propose to retain 

and expand the concept of current 

section 424.12(a)(1)(ii) regarding the 

lack of habitat-based threats to the 

species. 

In our 2016 revision of section 

424.12(a)(1)(ii) (81 FR 7414, February 

11, 2016), we clarified that, in 

determining whether designation may 

not be prudent, the Services could 

consider whether the present or 

threatened destruction, modification, or 

curtailment of a species’ habitat or range 

(i.e., considerations under section 

4(a)(1)(A) of the Act (Factor A)) is not 

a threat to the species. In the 2016 

revision, we provided an example of a 

designation that would not be prudent 

due to the lack of habitat-based threats: 

A species is threatened primarily by 

disease, but the habitat upon which it 

relies remains intact without threat and 

would support conservation of the 

species if not for the threat of disease. 

Since then, we have encountered 

situations in which threats to the 

species’ habitat stem solely from causes 

that cannot be addressed by 

management actions that may be 

identified through consultation under 

section 7(a)(2) of the Act. In those 

situations, a designation could create a 

regulatory burden without providing 

any conservation value to the species 

concerned. Examples would include 

species experiencing threats stemming 

from melting glaciers, sea level rise, or 

reduced snowpack but no other habitatbased threats. In such cases, a critical 

habitat designation and any resulting 

section 7(a)(2) consultation, or 

conservation effort identified through 

such consultation, could not prevent 

glaciers from melting, sea levels from 

rising, or increase the snowpack. Thus, 

we propose in section 424.12(a)(1)(ii) 

that designation of critical habitat in 

these cases may not be prudent because 

it would not serve its intended function 

to conserve the species. 

We also propose to add as an 

additional circumstance under section 

424.12(a)(1)(iii) situations where critical 

habitat areas under the jurisdiction of 

the United States provide negligible 

conservation value for a species that 

primarily occurs in areas outside of U.S. 

jurisdiction. In our 2016 revision of 

these regulations, we noted in the 

preamble that this could be a basis for 

determining that critical habitat 

designation would be not prudent; 

however, we find it is clearer to add this 

consideration directly to the regulatory 

text. We would apply this determination 

only to species that primarily occur 

outside U.S. jurisdiction, and where no 

areas under U.S. jurisdiction contain 

features essential to the conservation of 

the species. The circumstances when a 

critical habitat designation would 

provide negligible conservation value 

for a species will be determined on a 

case-by-case basis and may consider 

such factors as threats to the species or 

habitat and the species needs. 

Designating Unoccupied Areas 

On February 11, 2016, the Services 

published a final rule revising the 

regulations at section 424.12, which 

establish criteria for designating critical 

habitat (81 FR 7439). One of the 

revisions we made was to eliminate the 

following paragraph (e): ‘‘The Secretary 

shall designate as critical habitat outside 

the geographical area presently 

occupied by a species only when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species.’’ The 

Services explained in the preamble to 

the final rule that we had concluded 

that the ‘‘rigid step-wise approach’’ 

prescribed in that prior regulatory 

language may not be the best 

conservation strategy for the species and 

in some circumstances may result in a 

designation that is geographically larger, 

but less efficient as a conservation tool 

(81 FR 7415). Nonetheless, we are aware 

of continued perceptions that, by 

eliminating this provision, the Services 


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intended to designate as critical habitat 

expansive areas of unoccupied habitat. 

To address this concern, the Services 

propose to revise section 424.12(b)(2) by 

restoring the requirement that the 

Secretary will first evaluate areas 

occupied by the species. We also 

propose to clarify when the Secretary 

may determine unoccupied areas are 

essential for the conservation of the 

species. 

In the Act, the term ‘‘geographical 

area occupied by the species’’ is further 

modified by the clause ‘‘at the time it is 

listed.’’ However, if critical habitat is 

not designated concurrently with 

listing, or is revised years after the 

species was listed, it can be difficult to 

discern what was occupied at the time 

of listing. The known distribution of a 

species can change after listing for many 

reasons, such as discovery of additional 

localities, extirpation of populations, or 

emigration of individuals to new areas. 

In many cases, information concerning 

a species’ distribution, particularly on 

private lands, is limited because surveys 

are not routinely carried out on private 

lands. Although surveys may be 

performed as part of an environmental 

analysis for a particular development 

proposal, such surveys typically focus 

on listed rather than non-listed species. 

Thus, our knowledge of a species’ 

distribution at the time of listing in 

these areas is often limited and the 

information in our listing rule may not 

detail all areas occupied by the species 

at that time. 

Thus, while some of these changes in 

a species’ known distribution reflect 

changes in the actual distribution of the 

species, some reflect only changes in the 

quality of our information concerning 

distribution. In these circumstances, the 

determination of which geographic 

areas were occupied at the time of 

listing may include data developed 

since the species was listed. This 

interpretation was supported by the 

court’s decision, Otay Mesa Property 

L.P. v. DOI, 714 F. Supp. 2d 73 (D.D.C. 

2010), rev’d on other grounds, 646 F.3d 

914 (D.C. Cir. 2011) (San Diego fairy 

shrimp). In that decision, the judge 

noted that the clause ‘‘occupied at the 

time of listing’’ allows FWS to make a 

post-listing determination of occupancy 

based on the currently known 

distribution of the species in some 

circumstances. Although the D.C. 

Circuit disagreed with the district court 

that the record contained sufficient data 

to support the FWS’ determination of 

occupancy in that case, the D.C. Circuit 

did not express disagreement with (or 

otherwise address) the district court’s 

underlying conclusion that the Act 

allows FWS to make a post-listing 

determination of occupancy if based on 

adequate data. The Services 

acknowledge that to make a post-listing 

determination of occupancy we must 

distinguish between actual changes to 

species occupancy and changes in 

available information. 

The Act defines unoccupied critical 

habitat in terms of a determination that 

such areas are essential for the 

conservation of the species. The 

proposed section 424.12(b)(2) specifies 

how the Services would determine 

whether unoccupied areas are essential. 

The proposed language states the 

Services would only consider 

unoccupied areas to be essential in two 

situations: When a critical habitat 

designation limited to geographical 

areas occupied would (1) be inadequate 

to ensure the conservation of the 

species, or (2) result in less-efficient 

conservation for the species. The 

proposed changes will provide 

additional predictability to the process 

of determining when designating 

unoccupied habitat may be appropriate. 

For example, the Services could 

consider unoccupied habitat to be 

essential when a designation limited to 

occupied habitat would result in a 

geographically larger but less effective 

designation. 

There are situations where a 

designation focused on occupied critical 

habitat would result in less efficient 

conservation for the species than a 

designation that includes a mix of 

occupied and unoccupied critical 

habitat. In these cases, the designation 

of some unoccupied areas would result 

in the same or greater conservation for 

the species but would do so more 

efficiently. Efficient conservation for the 

species refers to situations where the 

conservation is effective, societal 

conflicts are minimized, and resources 

expended are commensurate with the 

benefit to the species. The flexibility to 

include unoccupied areas in a 

designation where limiting the 

designation to occupied areas would 

have resulted in less-efficient 

conservation of the species will allow 

the Services to focus agency resources 

thoughtfully in both designating critical 

habitat and conducting future 

consultations on the critical habitat. 

In addition, we propose to further 

clarify when the Secretary may 

determine that an unoccupied area may 

be essential for the conservation of the 

species. In order for an unoccupied area 

to be considered essential, the Secretary 

must determine that there is a 

reasonable likelihood that the area will 

contribute to the conservation of the 

species. In making a determination as to 

whether such a reasonable likelihood 

exists, the Services will continue to take 

into account the best available science 

regarding species-specific and areaspecific factors. This could include such 

factors as: (a) Whether the area is 

currently or is likely to become usable 

habitat for the species; (b) the likelihood 

that interagency consultation under 

Section 7 will be triggered, i.e., whether 

any federal agency actions are likely to 

be proposed with respect to the area; 

and, (c) how valuable the potential 

contributions of the area are to the 

biological needs of the species. 

When the Services evaluate if an area 

is now, or is likely to become, usable 

habitat for the species we would take 

into account, among other things, the 

current state of the area and extent to 

which extensive restoration would be 

needed for the area to become usable. 

For example, the Services might 

conclude that an area is unlikely to 

contribute to the conservation of the 

species where it would require 

extensive affirmative restoration that 

does not seem likely to occur such as 

when a non-federal landowner or 

necessary partners are unwilling to 

undertake or allow such restoration. 

Although the expressed intentions of 

such landowners or partners will not 

necessarily be determinative, the 

Services would consider those 

intentions in light of the mandatory 

duties and conservation purposes of the 

Act. 

When the Services evaluate the 

likelihood that interagency consultation 

under section 7 will be triggered, we 

would consider whether there are any 

federal agency actions likely to be 

proposed within the area (i.e., federal 

nexus). Because the only regulatory 

effect of a designation of critical habitat 

is the requirement that federal agencies 

avoid authorizing, funding, or 

undertaking actions that may destroy or 

adversely modify such habitat, the 

likelihood that an area will contribute to 

conservation is, in most cases, greater 

for public lands and lands for which 

such federal actions can be reasonably 

anticipated than for other types of land. 

However, the Services would 

continue to consider the conservation 

purposes of the Act in determining how 

valuable the potential contributions of 

the area are to the biological needs of 

the species. In practice, this means that, 

in the rare instance where the potential 

contribution of the unoccupied area to 

the conservation of the listed species is 

extremely valuable, a lower threshold 

than ‘‘likely’’ may be appropriate. For 

example, where an area represents the 

only potential habitat of its type (i.e., is 

uniquely able to support certain life 

functions of the species), the Services 


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may reasonably classify that area as 

essential even in the face of a low 

likelihood that the area would 

contribute to species conservation. 

Conversely, a greater showing of 

likelihood may be required for an area 

that provides less significant 

conservation value. 

Public Comments 

You may submit your comments and 

materials concerning the proposed rule 

by one of the methods listed in 

ADDRESSES. Comments must be 

submitted to http://www.regulations.gov 

before 11:59 p.m. (Eastern Time) on the 

date specified in DATES. We will not 

consider hand-delivered comments that 

we do not receive, or mailed comments 

that are not postmarked, by the date 

specified in DATES. 

We will post your entire comment— 

including your personal identifying 

information—on http://

www.regulations.gov. If you provide 

personal identifying information in your 

comment, you may request at the top of 

your document that we withhold this 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. Comments and 

materials we receive, as well as 

supporting documentation we used in 

preparing this proposed rule, will be 

available for public inspection on http:// 

www.regulations.gov. 

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 proposed 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 proposed rule is expected to be 

an Executive Order 13771 deregulatory 

action. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(as amended by the Small Business 

Regulatory Enforcement Fairness Act 

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

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare, and make available for public 

comment, a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (i.e., small 

businesses, small organizations, and 

small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency, or his designee, certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. SBREFA 

amended the Regulatory Flexibility Act 

to require Federal agencies to provide a 

statement of the factual basis for 

certifying that a rule will not have a 

significant economic impact on a 

substantial number of small entities. We 

certify that, if adopted as proposed, this 

proposed rule would not have a 

significant economic effect on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

This rulemaking revises and clarifies 

requirements for NMFS and FWS 

regarding factors for listing, delisting, or 

reclassifying species and designating 

critical habitat under the Endangered 

Species Act to reflect agency experience 

and to codify current agency practices. 

The proposed changes to these 

regulations do not expand the reach of 

species protections or designations of 

critical habitat. 

NMFS and FWS are the only entities 

that are directly affected by this rule 

because we are the only entities that list 

species and designate critical habitat 

under the Endangered Species Act. No 

external entities, including any small 

businesses, small organizations, or small 

governments, will experience any 

economic impacts from this rule. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act 

(2 U.S.C. 1501 et seq.): 

(a) On the basis of information 

contained in the Regulatory Flexibility 

Act section above, this proposed rule 

would not ‘‘significantly or uniquely’’ 

affect small governments. We have 

determined and certify pursuant to the 

Unfunded Mandates Reform Act, 2 

U.S.C. 1502, that this rule would not 

impose a cost of $100 million or more 

in any given year on local or State 

governments or private entities. A Small 

Government Agency Plan is not 

required. As explained above, small 

governments would not be affected 

because the proposed rule would not 

place additional requirements on any 

city, county, or other local 

municipalities. 

(b) This proposed rule would not 

produce a Federal mandate on State, 

local, or tribal governments or the 

private sector of $100 million or greater 

in any year; that is, this proposed rule 

is not a ‘‘significant regulatory action’’’ 

under the Unfunded Mandates Reform 

Act. This proposed rule would impose 

no obligations on State, local, or tribal 

governments. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, this proposed rule would not 

have significant takings implications. 

This proposed rule would not pertain to 

‘‘taking’’ of private property interests, 

nor would it directly affect private 

property. A takings implication 

assessment is not required because this 

proposed rule (1) would not effectively 

compel a property owner to suffer a 

physical invasion of property and (2) 

would not deny all economically 

beneficial or productive use of the land 

or aquatic resources. This proposed rule 

would substantially advance a 

legitimate government interest 

(conservation and recovery of 

endangered species and threatened 

species) and would not present a barrier 

to all reasonable and expected beneficial 

use of private property. 

Federalism (E.O. 13132) 

In accordance with Executive Order 

13132, we have considered whether this 

proposed rule would have significant 

Federalism effects and have determined 

that a federalism summary impact 

statement is not required. This proposed 

rule pertains only to factors for listing, 

delisting, or reclassifying species and 

designation of critical habitat under the 

Endangered Species Act, and would not 


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35200 Federal Register / Vol. 83, No. 143 / Wednesday, July 25, 2018 / Proposed Rules 

have substantial direct effects on the 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

Civil Justice Reform (E.O. 12988) 

This proposed rule does not unduly 

burden the judicial system and meets 

the applicable standards provided in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. This proposed rule would 

clarify factors for listing, delisting, or 

reclassifying species and designation of 

critical habitat under the Endangered 

Species Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175, ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ the 

Department of the Interior’s manual at 

512 DM 2, and the Department of 

Commerce (DOC) Tribal Consultation 

and Coordination Policy (May 21, 2013), 

DOC Departmental Administrative 

Order (DAO) 218–8 (April 2012), and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we are considering 

possible effects of this proposed rule on 

federally recognized Indian Tribes. We 

will continue to collaborate/coordinate 

with tribes on issues related to federally 

listed species and their habitats. See 

Joint Secretarial Order 3206 (‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act,’’ June 5, 1997). 

Paperwork Reduction Act 

This proposed rule does not contain 

any new collections of information that 

require approval by the OMB under the 

Paperwork Reduction Act. This 

proposed rule will not impose 

recordkeeping or reporting requirements 

on State, local, or Tribal governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We are analyzing this proposed 

regulation in accordance with the 

criteria of the National Environmental 

Policy Act (NEPA), the Department of 

the Interior regulations on 

Implementation of the National 

Environmental Policy Act (43 CFR 

46.10–46.450), the Department of the 

Interior Manual (516 DM 8), the NOAA 

Administrative Order 216–6A, and the 

NOAA Companion Manual (CM), 

‘‘Policy and Procedures for Compliance 

with the National Environmental Policy 

Act and Related Authorities’’ (effective 

January 13, 2017). 

We anticipate that the categorical 

exclusion found at 43 CFR 46.210(i) 

likely applies to the proposed regulation 

changes. At 43 CFR 46.210(i), the 

Department of the Interior has found 

that the following category of actions 

would not individually or cumulatively 

have a significant effect on the human 

environment and are, therefore, 

categorically excluded from the 

requirement for completion of an 

environmental assessment or 

environmental impact statement: 

‘‘Policies, directives, regulations, and 

guidelines: that are of an administrative, 

financial, legal, technical, or procedural 

nature.’’ 

NOAA’s NEPA procedures include a 

similar categorical exclusion for 

‘‘preparation of policy directives, rules, 

regulations, and guidelines of an 

administrative, financial, legal, 

technical, or procedural nature.’’ 

(Categorical Exclusion G7, at CM 

Appendix E). 

We invite the public to comment on 

the extent to which this proposed 

regulation may have a significant impact 

on the human environment, or fall 

within one of the categorical exclusions 

for actions that have no individual or 

cumulative effect on the quality of the 

human environment. We will complete 

our analysis, in compliance with NEPA, 

before finalizing this regulation. 

Energy Supply, Distribution or Use 

(E.O. 13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. The proposed revised 

regulations are not expected to affect 

energy supplies, distribution, and use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Authority 

We issue this proposed rule under the 

authority of the Endangered Species 

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

List of Subjects in 50 CFR Part 424 

Administrative practice and 

procedure, Endangered and threatened 

species. 

Proposed Regulation Promulgation 

For the reasons set out in the 

preamble, we hereby propose to amend 

part 424, subchapter A of chapter IV, 

title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 424—LISTING ENDANGERED 

AND THREATENED SPECIES AND 

DESIGNATING CRITICAL HABITAT 

■ 1. The authority citation for part 424 

continues to read as follows: 

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

■ 2. Amend § 424.11 by revising 

paragraphs (b) through (f) and adding a 

new paragraph (g) to read as follows: 

§ 424.11 Factors for listing, delisting, or 

reclassifying species. 

* * * * * 

(b) The Secretary shall make any 

determination required by paragraphs 

(c), (d), and (e) of this section solely on 

the basis of the best available scientific 

and commercial information regarding a 

species’ status. 

(c) A species shall be listed or 

reclassified if the Secretary determines, 

on the basis of the best scientific and 

commercial data available after 

conducting a review of the species’ 

status, that the species meets the 

definition of an endangered species or a 

threatened species because of any one or 

a combination of the following factors: 

(1) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(2) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(3) Disease or predation; 

(4) The inadequacy of existing 

regulatory mechanisms; or 

(5) Other natural or manmade factors 

affecting its continued existence. 

(d) In determining whether a species 

is a threatened species, the Services 


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must analyze whether the species is 

likely to become an endangered species 

within the foreseeable future. The term 

foreseeable future extends only so far 

into the future as the Services can 

reasonably determine that the 

conditions potentially posing a danger 

of extinction in the foreseeable future 

are probable. The Services will describe 

the foreseeable future on a case-by-case 

basis, using the best available data and 

taking into account considerations such 

as the species’ life-history 

characteristics, threat-projection 

timeframes, and environmental 

variability. The Services need not 

identify the foreseeable future in terms 

of a specific period of time, but may 

instead explain the extent to which they 

can reasonably determine that both the 

future threats and the species’ responses 

to those threats are probable. 

(e) The Secretary will delist a species 

if the Secretary finds that, after 

conducting a status review based on the 

best scientific and commercial data 

available: 

(1) The species is extinct; 

(2) The species does not meet the 

definition of an endangered species or a 

threatened species. In making such a 

determination, the Secretary shall 

consider the same factors and apply the 

same standards set forth in paragraph (c) 

of this section regarding listing and 

reclassification; or 

(3) The listed entity does not meet the 

statutory definition of a species. 

(f) The fact that a species of fish, 

wildlife, or plant is protected by the 

Convention on International Trade in 

Endangered Species of Wild Fauna and 

Flora (see part 23 of this title 50) or a 

similar international agreement on such 

species, or has been identified as 

requiring protection from unrestricted 

commerce by any foreign nation, or to 

be in danger of extinction or likely to 

become so within the foreseeable future 

by any State agency or by any agency of 

a foreign nation that is responsible for 

the conservation of fish, wildlife, or 

plants, may constitute evidence that the 

species is endangered or threatened. 

The weight given such evidence will 

vary depending on the international 

agreement in question, the criteria 

pursuant to which the species is eligible 

for protection under such authorities, 

and the degree of protection afforded 

the species. The Secretary shall give 

consideration to any species protected 

under such an international agreement, 

or by any State or foreign nation, to 

determine whether the species is 

endangered or threatened. 

(g) The Secretary shall take into 

account, in making determinations 

under paragraphs (c) or (e) of this 

section, those efforts, if any, being made 

by any State or foreign nation, or any 

political subdivision of a State or 

foreign nation, to protect such species, 

whether by predator control, protection 

of habitat and food supply, or other 

conservation practices, within any area 

under its jurisdiction, or on the high 

seas. 

■ 3. Amend § 424.12 by revising 

paragraphs (a)(1) and (b)(2) to read as 

follows: 

§ 424.12 Criteria for designating critical 

habitat. 

(a) * * * 

(1) The Secretary may, but is not 

required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) After analyzing the best scientific 

data available, the Secretary otherwise 

determines that designation of critical 

habitat would not be prudent. 

* * * * * 

(b) * * * 

(2) The Secretary will designate as 

critical habitat, at a scale determined by 

the Secretary to be appropriate, specific 

areas outside the geographical area 

occupied by the species only upon a 

determination that such areas are 

essential for the conservation of the 

species. When designating critical 

habitat, the Secretary will first evaluate 

areas occupied by the species. The 

Secretary will only consider unoccupied 

areas to be essential where a critical 

habitat designation limited to 

geographical areas occupied would be 

inadequate to ensure the conservation of 

the species or would result in less 

efficient conservation for the species. 

Efficient conservation for the species 

refers to situations where the 

conservation is effective, societal 

conflicts are minimized, and resources 

expended are commensurate with the 

benefit to the species. In addition, for an 

unoccupied area to be considered 

essential, the Secretary must determine 

that there is a reasonable likelihood that 

the area will contribute to the 

conservation of the species. 

* * * * * 

Dated: July 18, 2018 

Ryan K. Zinke, 

Secretary, Department of the Interior. 

Dated: July 16, 2018. 

Wilbur Ross, 

Secretary, Department of Commerce. 

[FR Doc. 2018–15810 Filed 7–24–18; 8:45 am] 

BILLING CODE 4333–15–P; 3510–22–P 


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