37754 Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of the 

National Technology Transfer and 

Advancement Act (NTTA) because this 

rulemaking does not involve technical 

standards; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

• In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where the EPA or 

an Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

• This action is subject to the 

Congressional Review Act, and the EPA 

will submit a rule report to each House 

of the Congress and to the Comptroller 

General of the United States. This action 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

• Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 23, 2022. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements (see section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: June 15, 2022. 

Meghan A. McCollister, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, the EPA amends 40 CFR part 

52 as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart AA—Missouri 

■ 2. In § 52.1320, the table in paragraph 

(c) is amended by revising the entry 

‘‘10–6.050’’ to read as follows: 

§ 52.1320 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSOURI REGULATIONS

Missouri 

citation Title 

State 

effective 

date 

EPA approval date Explanation 

Missouri Department of Natural Resources 

*******

Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of 

Missouri 

*******

10–6.050 .......... Start-Up, Shutdown, and Malfunction Conditions.1/30/2020 6/24/2022 [insert Federal Register citation].

* * * * * * * 

* * * * * 

[FR Doc. 2022–13314 Filed 6–23–22; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 73 and 74 

[MB Docket No. 15–146, GN Docket No. 12– 

268; FCC 22–33; FR ID 91601] 

Preservation of One Vacant Channel in 

the UHF Television Band for Use by 

White Spaces Devices and Wireless 

Microphones 

AGENCY: Federal Communications 

Commission. 

ACTION: Denial of petitions for 

reconsideration. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission or FCC) adopts an Order 

on Reconsideration (Order), that denies 

the Petitions for Reconsideration filed 

by Sennheiser Electronic Corporation 

and Shure Incorporated and affirms its 

conclusions and reasoning to close the 

vacant channel proceeding. The 

Commission’s Order denies petitioners’ 

requests for reconsideration and reversal 


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Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 37755 

of the Commission’s 2020 Report and 

Order, that declined to adopt proposals 

of a 2015 Notice of Proposed 

Rulemaking, and affirms closure of the 

vacant channel proceeding. 

DATES: The petitions for reconsideration 

were denied effective May 11, 2022. 

FOR FURTHER INFORMATION CONTACT: For 

further information, contact Michael 

Scurato (202–418–2083; 

Michael.Scurato@fcc.gov). 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

document, Order on Reconsideration, 

MB Docket No. 15–146, GN Docket No. 

12–268; FCC 22–35, adopted and 

released on May 11, 2022. The full text 

of this document can be accessed online 

via the Commission’s Electronic 

Comment Filing System (ECFS) at: 

https://apps.fcc.gov/ecfs and is available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat via ECFS and at 

https://www.fcc.gov/document/fccaffirms-closure-vacant-channelproceeding. To request materials in 

accessible formats for people with 

disabilities (braille, large print, 

electronic files, audio format), send an 

email to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). The Commission will 

not send a Congressional Review Act 

(CRA) submission to Congress or the 

Government Accountability Office 

pursuant to the CRA, 5 U.S.C. 

801(a)(1)(A), because no rules are being 

adopted by the Commission. 

Synopsis 

In this Order on Reconsideration, the 

Commission denies the Petitions for 

Reconsideration filed by Sennheiser 

Electronic Corporation (Sennheiser) and 

Shure Incorporated (Shure) 

(collectively, Petitioners) requesting 

reconsideration and reversal of a 

Commission Report and Order, 86 FR 

9297 (Feb. 12, 2021), 35 FCC Rcd 14272 

(2020) (Termination Order) that 

declined to adopt rules proposed in a 

2015 Notice of Proposed Rulemaking, 80 

FR 38158 (July 2, 2015), 30 FCC Rcd 

6711 (2015) (2015 NPRM), to preserve a 

vacant channel in the television (TV) 

bands for use by white space devices 

and wireless microphones and 

terminated the proceeding. 

As the Commission held in the 

Termination Order, it finds that 

adoption of the rules proposed in the 

2015 NPRM would not strike the most 

reasonable balance that would best 

serve the public interest. The 

Commission makes this determination 

in light of other actions taken by the 

Commission since the 2015 NPRM that 

will support wireless microphone users 

and the burdens that the proposal 

would impose on broadcasters. The 

Commission also reaffirms the 

conclusions it reached in the 

Termination Order that the steps the 

Commission has taken in other 

proceedings since the 2015 NPRM 

provide a better alternative for 

addressing the needs of wireless 

microphone providers than through 

efforts to preserve a vacant channel in 

light of the burdens the vacant channel 

proposal would impose on broadcasters. 

Because it agrees that the totality of 

these circumstances support the 

findings in the Termination Order, the 

Commission rejects the Petitioners’ 

claim that the its action was arbitrary 

and capricious. 

The Commission recognizes the 

Petitioners’ preference for UHF TV band 

spectrum to the alternatives adopted to 

assist the wireless microphone 

operations, but does not find sufficient 

grounds to reconsider the Commission’s 

conclusion not to pursue the 2015 

NPRM. The Commission notes that the 

Termination Order does not find that 

the other proceedings to support 

spectrum access for wireless 

microphones are a perfect substitute for 

the UHF TV band spectrum. The 

Commission also notes that its decision 

not to pursue the 2015 NPRM did not 

lessen the spectrum access that wireless 

microphones currently enjoy in the TV 

band and indeed the Commission has 

continued to find ways, and additional 

spectrum, to accommodate wireless 

microphones in the future outside of the 

crowded TV bands. Furthermore, 

technical issues raised by Petitioners 

and commenters related to the 

differences between spectrum in the TV 

band and other bands have been 

considered in other dockets, the 

Commission explains. Moreover, 

although not necessary to support the 

Commission’s decision to terminate this 

proceeding, the Commission also notes 

that it continues to explore these issues 

in pending proceedings. 

In weighing those needs, the 

Commission further affirms that it 

reasonably concluded that the 2015 

vacant channel proposal would impose 

undue burdens on the broadcast users of 

the TV band. The Commission finds that 

it adequately weighed the needs of all 

spectrum users, and supported its 

decision not to pursue the proposals in 

the 2015 NPRM for several reasons, 

including changed circumstances since 

2015 and the alternate initiatives taken 

by the Commission since 2015. 

The Commission also agrees with its 

prior decision that the proposal would 

impose undue burdens on broadcasters 

‘‘both in congested areas where a vacant 

channel may not be available in the 

television band and in less congested 

areas where more spectrum is available 

such that analysis is not warranted.’’ As 

the National Association of Broadcasters 

(NAB) and a number of individual 

broadcasters noted in their 2015 

comments, the Commission explains 

that adoption of the proposed rules 

would serve to freeze full power stations 

in place and hamstring their ability to 

expand or innovate to better serve their 

viewers. And the proposal would 

require ‘‘novel engineering studies’’ that 

‘‘would be expensive and timeconsuming, particularly for smaller 

broadcasters’’ where ‘‘the cost of 

conducting such studies is likely to be 

multiples of current engineering design 

costs.’’ Significantly, television stations 

would bear the administrative burden of 

studying and proving the availability of 

channels for other users in order to 

receive approval of an application that 

is otherwise grantable in the public 

interest. The Commission concludes it 

properly decided ‘‘not [to] deviate from 

previous Commission decisions that use 

of the TV bands by primary and 

secondary broadcast users have priority 

over wireless microphones and white 

space devices.’’ Further, although 

Petitioners’ opine that the adoption of 

the 2015 proposals would not hinder 

the development of ATSC 3.0 (the TV 

transmission standard developed by the 

Advanced Television Systems 

Committee) service by broadcasters, 

including new and innovative uses of 

broadcast spectrum that the ATSC 3.0 

standard enables, the Commission 

explains that it believes that it properly 

balanced concerns raised in the record 

that the proposed rules would 

hamstring the ability of broadcasters to 

innovate. Petitioners’ support of a 

scheme that would forgo the nationwide 

solution proposed by the Commission 

and sought by proponents of the 2015 

NPRM would not ameliorate cost and 

regulatory compliance burdens for 

licensed broadcasters, the Commission 

concludes. 

The Commission acknowledges 

Shure’s assertion that the 2015 NPRM 

was an integral part of a multiproceeding effort to support wireless 

microphones and that it was 

contemplated that the Incentive Auction 

would result in changed circumstances. 

The Commission does not, however, 

believe these factors mandate 

reconsideration. As described herein, 

the Commission continues to balance 

and support various spectrum users’ 

needs in multiple proceedings balancing 

all the facts and circumstances and 


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37756 Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 

concludes that the actions taken in other 

proceedings to make spectrum available 

for wireless microphones have achieved 

the balance sought in the Incentive 

Auction Report and Order, 79 FR 48441 

(Aug. 15, 2014), 29 FCC Rcd 6567 

(2014), while also addressing the needs 

of licensed broadcast stations displaced 

by the Incentive Auction. For the same 

reason, the Commission does not 

believe that Sennheiser’s insistence that 

the Commission pursue the 2015 

NPRM’s proposals in addition to the 

other proceedings supporting wireless 

microphones mandates reconsideration. 

While the focus of the 2015 NPRM 

was on a nationwide vacant channel 

solution, Petitioners contend that a nonnationwide solution would also benefit 

wireless microphones and thus the 

inability to achieve a nationwide 

solution does not justify termination of 

the proceeding. The Commission 

disagrees. A non-nationwide vacant 

channel solution would necessarily 

provide fewer benefits than the proposal 

as originally conceived without 

diminishing any of the burdens on 

broadcasters, especially in rural areas 

without adequate multichannel video 

programming distributor (MVPD) and 

broadband service alternatives, and if 

anything would therefore further 

support the Commission’s balance of the 

needs of the various spectrum users. 

The Commission also rejects Shure’s 

unsupported argument that the 

Commission erred by unanimously 

adopting the Termination Order during 

the ‘‘lame duck’’ transition period after 

the national presidential election, which 

resulted in a change of the party with 

control over administrative agencies. 

Shure’s argument is unavailing because 

it lacks any legal support and, in any 

event, is now moot because the 

Commission rejects the Petitions on the 

merits. 

Market analyses provided by Shure 

and Sennheiser purporting to indicate 

vacant channel availability in major 

designated market areas (DMAs) does 

not support reconsideration, according 

to the Commission. Neither submission 

alters the Commission’s conclusion in 

the Termination Order that TVStudy 

software reveals that there are numerous 

major metropolitan areas in the United 

States that have no vacant, 6 MHz 

channels. In its petition, Shure 

describes an ‘‘independent preliminary 

analysis of channel availability’’ that it 

conducted using a tool that it developed 

to ‘‘calculate[ ] vacant channel 

availability after drawing information 

from the FCC TV database.’’ Using the 

tool, Shure compiled a list of channels 

it claims are vacant in the top 10 DMAs. 

But the ‘‘preliminary analysis’’ is 

flawed, the Commission finds. For 

example, channels listed as available in 

multiple markets, including the two 

listed for Houston, two for Dallas, two 

for Los Angeles, and one for Chicago, do 

not qualify as vacant channels because 

they are adjacent to land mobile. Others, 

including the remaining channels listed 

for Dallas, Los Angeles, and Chicago 

also do not qualify as vacant channels 

because they are identified in LPTV or 

Class A construction permits or 

licenses. Similarly, Sennheiser’s ex 

parte purportedly ‘‘update[d] the 

Commission on new developments’’ to 

offer a data analysis. On the basis of that 

analysis, it asserts that, with the 

exception of Phoenix, Arizona, ‘‘in 

almost every major DMA in the United 

States, there is a vacant channel that 

could be designated for wireless 

microphones.’’ This analysis is also 

unconvincing, the Commission 

concludes. First, by identifying Phoenix 

as a market that lacks a vacant channel, 

the ex parte concedes that the 

Commission was correct in its assertion 

in the Termination Order that a 

nationwide vacant channel solution in 

the TV band as proposed in the 2015 

NPRM is no longer possible. 

Furthermore, the analysis described in 

the ex parte is flawed for several 

reasons, and therefore it does not 

undermine the assertion in the 

Termination Order that numerous major 

metropolitan areas have no vacant 6 

MHz channels. First, the analysis is 

inaccurate in stating that certain 

channels are available. For example, the 

ex parte assertion that channel 16 in 

Salt Lake City is available overlooks a 

displacement construction permit 

issued for that channel. Second, the 

analysis incorrectly assumes that the 

identification of an available channel in 

a specific location demonstrates that the 

channel could be preserved across an 

entire DMA. Again, the example of 

channel 16 in Salt Lake City is 

illustrative, as the Salt Lake City DMA 

includes the entire state of Utah and 

portions of neighboring states. Within 

that DMA a number of TV translators 

occupy channel 16, which would 

disqualify the channel as vacant 

throughout the entire DMA. Third, some 

of the channels that the ex parte 

identifies as available in large markets, 

such as New York and Los Angeles, 

could not be deemed vacant for the 

purposes of the 2015 NPRM proposals 

because those channels have land 

mobile reservations on adjacent 

channels. Finally, the ex parte analysis 

was performed using a third-party tool 

found on an internet web page that 

utilizes standards that are not consistent 

with Commission rules to protect TV 

operations from wireless microphones, 

which in many cases will overstate 

channel availability as compared to 

what was proposed in the 2015 NPRM 

and is not a reliable method for 

evaluating the Vacant Channel proposal. 

In summary, and consistent with the 

public interest analysis in the 

Termination Order, while the 

Commission recognizes the important 

benefits provided by wireless 

microphones in the TV bands, it finds 

that other actions that the Commission 

has taken to support these users 

subsequent to issuance of the 2015 

NPRM provide a better alternative for 

addressing their needs than through 

efforts to preserve a vacant channel in 

light of the burdens the vacant channel 

proposal would impose on broadcasters. 

The Commission agrees with the 

conclusion in the Termination Order 

that it can no longer say that the 2015 

NPRM’s proposals ‘‘will not 

significantly burden broadcast 

applicants.’’ In light of changed 

circumstances, the Commission 

concludes that it should not deviate 

from previous Commission decisions 

that use of the TV bands by primary and 

secondary broadcast users have priority 

over wireless microphones and white 

space devices. The Commission believes 

that preserving robust over-the-air 

broadcast television service remains an 

important spectrum allocation priority, 

especially to rural areas without 

adequate MVPD and broadband service 

alternatives. The Commission continues 

to recognize the promise of next 

generation ATSC 3.0 service by overthe-air television broadcasters to expand 

the universe of potential uses of 

broadcast spectrum capacity for new 

and innovative services in ways that 

will complement the nation’s 

burgeoning 5G networks and usher in a 

new wave of innovation and 

opportunity. Having restructured the TV 

band, the Commission finds that to now 

adopt a requirement that primary and/ 

or secondary television stations protect 

spectrum availability for wireless 

microphones in the smaller, more 

densely packed television band, would 

not serve the public interest. Therefore, 

the Commission finds that, on balance, 

seeking to preserve a vacant channel at 

this time, considering all of the actions 

that the Commission has taken since 

2015 to promote wireless microphones 

interests, are outweighed by the burdens 

of the proposals on broadcasters. 

The Commission therefore affirms the 

its decision in the Termination Order to 

decline to adopt the proposals of the 

2015 NPRM and to terminate this 

docket, and disagrees with Petitioners 


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Federal Register / Vol. 87, No. 121 / Friday, June 24, 2022 / Rules and Regulations 37757 

that the Commission’s rejection of the 

2015 NPRM warrants reconsideration. 

For the reasons stated above, the 

Commission denies the Petitions filed 

by Sennheiser and Shure requesting 

reconsideration and reversal of the 

Termination Order and declines to 

adopt rules proposed in the 2015 NPRM 

to preserve a vacant channel for use 

wireless microphones use. 

Accordingly, it is ordered that, 

pursuant to sections 1, 4(i), 4(j), 303(r), 

and 405 of the Communications Act of 

1934, as amended, 47 U.S.C. 151, 154(i), 

154(j), 303(r), 405 and § 1.429 of the 

Commission’s rules, 47 CFR 1.429, the 

captioned Petitions for Reconsideration 

are denied, for the reasons discussed 

herein. 

It is further ordered that, should no 

petitions for reconsideration or petitions 

for judicial review be timely filed, MB 

Docket No. 15–146 shall be terminated 

and the docket closed. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2022–13249 Filed 6–23–22; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2020–0047, 

FF09E23000 FXES1111090FEDR 223; 

Docket No. 220613–0133] 

RIN 1018–BE69; 0648–BJ44 

Endangered and Threatened Wildlife 

and Plants; Regulations for Listing 

Endangered and Threatened Species 

and Designating Critical Habitat 

AGENCY: U.S. Fish and Wildlife Service, 

Interior; National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(hereafter collectively referred to as the 

‘‘Services’’ or ‘‘we’’), rescind the final 

rule titled ‘‘Regulations for Listing 

Endangered and Threatened Species 

and Designating Critical Habitat’’ that 

was published on December 16, 2020, 

and became effective on January 15, 

2021. This rescission removes the 

regulatory definition of ‘‘habitat’’ 

established by that rule. 

DATES: This final rule is effective July 

25, 2022. 

ADDRESSES: Public comments and 

materials received, as well as supporting 

documentation used in the preparation 

of this final regulation, are available 

online at https://www.regulations.gov in 

Docket No. FWS–HQ–ES–2020–0047. 

FOR FURTHER INFORMATION CONTACT: 

Angela Somma, National Marine 

Fisheries Service, Office of Protected 

Resources, 1315 East-West Highway, 

Silver Spring, MD 20910, telephone 

301–427–8403; or 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. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

On January 20, 2021, the President 

issued Executive Order (E.O.) 13990, 

which, in section 2, required all 

executive departments and agencies to 

review Federal regulations and actions 

taken between January 20, 2017, and 

January 20, 2021. In support of E.O. 

13990, a ‘‘Fact Sheet’’ was issued that 

set forth a non-exhaustive list of specific 

agency actions that agencies are 

required to review to determine 

consistency with the policy 

considerations articulated in section 1 

of the E.O. (See www.whitehouse.gov/ 

briefing-room/statements-releases/2021/ 

01/20/fact-sheet-list-of-agency-actionsfor-review/). Among the agency actions 

listed on the Fact Sheet was our 

December 16, 2020, final rule 

promulgating a regulatory definition for 

the term ‘‘habitat’’ (85 FR 81411) under 

the Endangered Species Act of 1973, as 

amended, 16 U.S.C. 1531 et seq. 

(hereafter, ‘‘the Act’’). Following our 

review of this rule (the ‘‘habitat 

definition rule’’), we determined it was 

unclear and confusing and inconsistent 

with the conservation purposes of the 

Act, and we subsequently published a 

proposed rule to rescind it (86 FR 

59353, October 27, 2021). We solicited 

public comments on the proposed rule 

through November 26, 2021. In response 

to several requests, we extended the 

deadline for submission of public 

comments to December 13, 2021 (86 FR 

67013, November 24, 2021). 

The December 2020 final rule defined 

‘‘habitat’’ as follows: For the purposes of 

designating critical habitat only, habitat 

is the abiotic and biotic setting that 

currently or periodically contains the 

resources and conditions necessary to 

support one or more life processes of a 

species. The definition itself indicates 

that it applies only in the context of 

designating ‘‘critical habitat,’’ which is 

defined in section 3(5)(A) of the Act as 

specific areas within the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of this Act, on 

which are found those physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protections; and as 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of this Act, upon 

a determination by the Secretary that 

such areas are essential for the 

conservation of the species. 

The two types of critical habitat 

described in this statutory definition are 

often referred to as ‘‘occupied’’ and 

‘‘unoccupied’’ critical habitat, 

respectively, and for simplicity, we use 

those shorthand terms within this 

document. The Secretaries (of 

Commerce and the Interior) designate 

critical habitat for threatened and 

endangered species on the basis of the 

best scientific data available and after 

taking into consideration various 

impacts of the designation (16 U.S.C. 

1533(b)(2)). Once critical habitat is 

designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

actions they authorize, fund, or carry 

out are not likely to destroy or adversely 

modify that habitat (16 U.S.C. 

1536(a)(2)). Critical habitat requirements 

do not apply to actions on private land 

that do not involve the authorization or 

funding of a Federal agency. 

On January 14, 2021, one day before 

the rule took effect, seven 

environmental groups challenged it, 

filing suit against the Services in 

Federal district court in Hawaii. Shortly 

thereafter on January 19, 2021, 19 States 

similarly filed suit challenging the 

habitat definition rule in the Northern 

District of California. Parties in both 

cases have agreed to long-term 

stipulated stays in the litigation as this 

rulemaking proceeds. 

Following consideration of all public 

comments received in response to our 

proposed rule to rescind the habitat 

definition, and for reasons outlined both 


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