7414 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

DEPARTMENT OF COMMERCE 

National Marine Fisheries Service 

50 CFR Part 424 

[Docket No. FWS–HQ–ES–2012–0096; 

Docket No. 120106025–5640–03; 

4500030114] 

RIN 1018–AX86; 0648–BB79 

Listing Endangered and Threatened 

Species and Designating Critical 

Habitat; Implementing Changes to the 

Regulations for Designating Critical 

Habitat 

AGENCY: U.S. Fish and Wildlife Service, 

Interior; National Marine Fisheries 

Service, Commerce. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (FWS) and the National 

Marine Fisheries Service (NMFS) 

(collectively referred to as the 

‘‘Services’’ or ‘‘we’’), amend portions of 

our regulations that implement the 

Endangered Species Act of 1973, as 

amended (Act). The revised regulations 

clarify, interpret, and implement 

portions of the Act concerning the 

procedures and criteria used for adding 

species to the Lists of Endangered and 

Threatened Wildlife and Plants and 

designating and revising critical habitat. 

Specifically, the amendments make 

minor edits to the scope and purpose, 

add and remove some definitions, and 

clarify the criteria and procedures for 

designating critical habitat. These 

amendments are based on the Services’ 

review of the regulations and are 

intended to clarify expectations 

regarding critical habitat and provide for 

a more predictable and transparent 

critical habitat designation process. 

Finally, the amendments are also part of 

the Services’ response to Executive 

Order 13563 (January 18, 2011), which 

directs agencies to review their existing 

regulations and, among other things, 

modify or streamline them in 

accordance with what has been learned. 

DATES: Effective date: This rule is 

effective March 14, 2016. Applicability 

date: This rule applies to rules for 

which a proposed rule was published 

after March 14, 2016. 

ADDRESSES: Public input and a list of 

references cited for this final rule are 

available on the Internet at http://

www.regulations.gov. Supporting 

documentation used in the preparation 

of this rule will be available for public 

inspection, by appointment, during 

normal business hours at: U.S. Fish and 

Wildlife Service, Division of 

Conservation and Classification, 5275 

Leesburg Pike; Falls Church, VA 22041– 

0041, telephone 703/358–2171; 

facsimile 703/358–1735 and National 

Marine Fisheries Service, Office of 

Protected Resources, 1315 East-West 

Highway, Silver Spring, MD 20910, 

telephone 301–713–1401; facsimile 

301–713–0376. 

FOR FURTHER INFORMATION CONTACT: 

Douglas Krofta, U.S. Fish and Wildlife 

Service, Division of Conservation and 

Classification, 5275 Leesburg Pike, Falls 

Church, VA 22041, telephone 703/358– 

2527; facsimile 703/358–1735; or Marta 

Nammack, National Marine Fisheries 

Service, Office of Protected Resources, 

1315 East-West Highway, Silver Spring, 

MD 20910, telephone 301/427–8469; 

facsimile 301/713–0376. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

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

SUPPLEMENTARY INFORMATION: This 

document is one of three listed below, 

of which two are final rules and one is 

a final policy: 

• A final rule that amends the 

regulations governing section 7 

consultation under the Endangered 

Species Act to revise the definition of 

‘‘destruction or adverse modification’’ of 

critical habitat. The previous regulatory 

definition had been invalidated by 

several courts for being inconsistent 

with the language of the Act. That final 

rule amends title 50 of the Code of 

Federal Regulations (CFR) at part 402. 

The Regulation Identifier Numbers 

(RINs) are 1018–AX88 and 0648–BB80, 

and the final rule may be found on 

http://www.regulations.gov at Docket 

No. FWS–R9–ES–2011–0072. 

• A final rule that amends the 

regulations governing the designation of 

critical habitat under section 4 of the 

Act. A number of factors, including 

litigation and the Services’ experiences 

over the years in interpreting and 

applying the statutory definition of 

‘‘critical habitat,’’ highlighted the need 

to clarify or revise the regulations. This 

final rule (this document) amends 50 

CFR part 424. It is published under RINs 

1018–AX86 and 0648–BB79 and may be 

found on http://www.regulations.gov at 

Docket No. FWS–HQ–ES–2012–0096 or 

at Docket No. NOAA–NMFS–2014– 

0093. 

• A final policy pertaining to 

exclusions from critical habitat and how 

we consider partnerships and 

conservation plans, conservation plans 

permitted under section 10 of the Act, 

Tribal lands, national-security and 

homeland-security impacts and military 

lands, Federal lands, and economic 

impacts in the exclusion process. This 

final policy complements the revised 

regulations at 50 CFR part 424 and 

clarifies expectations regarding critical 

habitat, and provides for a more 

predictable and transparent exclusion 

process. The policy is published under 

RIN 1018–AX87 and 0648–BB82 and 

may be found on http://

www.regulations.gov at Docket No. 

FWS–R9–ES–2011–0104. 

Background 

The Endangered Species Act of 1973, 

as amended (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. 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. 

In passing the Act, Congress viewed 

habitat loss as a significant factor 

contributing to species endangerment. 

Habitat destruction and degradation 

have been a contributing factor causing 

the decline of a majority of species 

listed as threatened or endangered 

species under the Act (Wilcove et. al. 

1998). The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is included in the Act as one of the 

factors on which to base a determination 

of threatened or endangered species 

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 species’ recovery. Once critical 

habitat is designated, it can contribute 

to the conservation of listed species in 

several ways. Specifying the geographic 

location of critical habitat facilitates 

implementation of section 7(a)(1) of the 

Act by identifying areas where Federal 

agencies can focus their conservation 

programs and use their authorities to 

further the purposes of the Act. 

Designating critical habitat also helps 

focus the conservation efforts of other 

conservation partners, such as State and 

local governments, nongovernmental 

organizations, and individuals. 

Furthermore, when designation of 

critical habitat occurs near the time of 

listing, it provides a form of early 

conservation planning guidance (e.g., 

identifying some of the areas that are 

needed for recovery, the physical and 

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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7415 

biological features needed for the 

species’ life history, and special 

management considerations or 

protections) to bridge the gap until the 

Services can complete recovery 

planning. 

In addition to serving as an 

educational tool, the designation of 

critical habitat also provides a 

significant regulatory protection—the 

requirement that Federal agencies 

ensure, in consultation with the 

Services under section 7(a)(2) of the Act, 

that their actions are not likely to 

destroy or adversely modify critical 

habitat. The Federal Government, 

through its role in water management, 

flood control, regulation of resources 

extraction and other industries, Federal 

land management, and the funding, 

authorization, and implementation of 

myriad other activities, may propose 

actions that are likely to affect critical 

habitat. The designation of critical 

habitat ensures that the Federal 

Government considers the effects of its 

actions on habitat important to species’ 

conservation and avoids or modifies 

those actions that are likely to destroy 

or adversely modify critical habitat. 

This benefit is especially valuable 

when, for example, species presence or 

habitats are ephemeral in nature, 

species presence is difficult to establish 

through surveys (e.g., when a plant’s 

‘‘presence’’ is sometimes limited to a 

seed bank), or protection of unoccupied 

habitat is essential for the conservation 

of the species. 

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 Fisheries. 

There have been no comprehensive 

amendments to the Act since 1988, and 

no comprehensive revisions to part 424 

of the implementing regulations since 

1984. In the years since those changes 

took place, the Services have gained 

considerable experience in 

implementing the critical habitat 

requirements of the Act, and there have 

been numerous court decisions 

regarding the designation of critical 

habitat. 

On May 1, 2012, the Services 

finalized the revised implementing 

regulations related to publishing textual 

descriptions of proposed and final 

critical habitat boundaries in the 

Federal Register for codification in the 

Code of Federal Regulations (77 FR 

25611). That final rule revised 50 CFR 

424.12(c) to make the process of 

designating critical habitat more userfriendly for affected parties, the public 

as a whole, and the Services, as well as 

more efficient and cost effective. Since 

the final rule became effective on May 

31, 2012, the Services have continued 

the publication of maps of proposed and 

final critical habitat designations in the 

Federal Register, but the inclusion of 

any textual description of the 

designation boundaries in the Federal 

Register for codification in the Code of 

Federal Regulations is optional. Because 

we revised 50 CFR 424.12(c) separately, 

we do not discuss that paragraph further 

in this final rule. 

On August 28, 2013, the Services 

finalized revisions to the regulations for 

impact analyses of critical habitat (78 

FR 53058). These changes were made as 

a result of the President’s February 28, 

2012, Memorandum, which directed us 

to take prompt steps to revise our 

regulations to provide that the economic 

analysis be completed and made 

available for public comment at the time 

of publication of a proposed rule to 

designate critical habitat. These 

revisions also state that the impact 

analysis should focus on the 

incremental effects resulting from the 

designation of critical habitat. Because 

we have revised 50 CFR 424.19 

separately, we do not discuss that 

section further in this final rule. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

May 12, 2014 (79 FR 27066), we 

requested that all interested parties 

submit written comments on the 

proposal by July 11, 2014. We also 

contacted appropriate Federal and State 

agencies, scientific experts and 

organizations, and other interested 

parties, and invited them to comment 

on the proposal. We did not receive any 

requests for a public hearing. We did 

receive several requests for an extension 

of the public comment period, and on 

June 26, 2014 (79 FR 36284), we 

extended the public comment period to 

October 9, 2014. All substantive 

information provided during the 

comment periods has either been 

incorporated directly into this final 

determination or addressed in the more 

specific response to comments below. 

General Issues 

(1) Comment: Several commenters, 

including several States, provided edits 

to the proposed regulation. 

Our Response: We have reviewed the 

edits provided and, where appropriate, 

we have incorporated them into this 

final regulation. The more specific 

comments and edits are addressed 

below. 

(2) Comment: Several comments 

stated that the proposed changes to the 

regulation would vastly expand the area 

of critical habitat designation, in direct 

conflict with using the critical habitat 

designation as a conservation tool. 

Our Response: The proposed changes 

to the regulation are not likely to vastly 

expand the areas included in any 

particular critical habitat designation. 

Many commenters focused on the 

inclusion of unoccupied areas or 

perception that the proposed changes 

expand the Services’ authority to 

include such areas in a critical habitat 

designation. Section 3(5)(A) of the Act 

expressly allows for the consideration 

and inclusion of unoccupied habitat in 

a critical habitat designation if such 

habitat is determined to be essential for 

the conservation of the species. 

However, the existing implementing 

regulations state that such unoccupied 

habitat can be considered only if a 

determination is made that the 

Service(s) cannot recover the species 

with the inclusion of only the 

‘‘geographical area presently occupied’’ 

by the species, which is generally 

understood to refer to habitat occupied 

at the time of listing (50 CFR 424.12(e)). 

As discussed in the proposed rule, we 

have determined that the provision is an 

unnecessary and redundant limitation 

on the use of an important conservation 

tool. Further, we have learned from 

years of implementing the critical 

habitat provisions of the Act that a rigid 

step-wise approach, i.e., first 

designating all occupied areas that meet 

the definition of ‘‘critical habitat’’ 

(assuming that no unoccupied habitat is 

designated) and then, only if that is not 

enough, designating essential 

unoccupied habitat 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 effective as a conservation tool. 

Our proposed change will allow us to 

consider the inclusion of occupied and 

unoccupied areas in a critical habitat 

designation following any general 

conservation strategy that has been 

developed for the species. In some cases 

(e.g., wide ranging species like the 

spotted owl or lynx), we have found and 

expect that we will continue to find that 

the inclusion of all occupied habitat in 

a designation does not support the best 

conservation strategy for a species. We 

expect that the concurrent evaluation of 

occupied and unoccupied areas for a 

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critical habitat designation will allow us 

to develop more precise and deliberate 

designations that can serve as more 

effective conservation tools, focusing 

conservation resources where needed 

and minimizing unnecessary regulatory 

burdens. 

(3) Comment: Several commenters 

including one State noted that recovery 

planning and critical habitat designation 

are two different processes. A 

commenter also asked how the Services 

will ‘‘infer’’ that unoccupied areas will 

eventually become necessary for 

recovery given that recovery plans do 

not exist at the time of listing and when 

it is not appropriate to designate 

unoccupied areas that are essential for 

recovery. 

Our Response: While we agree that 

the designation of critical habitat and 

the recovery planning processes are 

different and guided by two separate 

provisions of the Act and implementing 

regulations, the ultimate goal of 

developing effective conservation tools 

and measures to recover a listed species 

is the same. A general draft conservation 

strategy or criterion that informs the 

construction of a critical habitat 

designation is often developed in 

consultation with staff working in 

recovery planning and implementation 

to ensure collaboration, consistency, 

and efficiency as the Services work with 

the public and partners to recover a 

listed species. 

We have replaced the word ‘‘infer’’ 

with the word ‘‘determine’’ in our 

preambular discussion to be clearer. We 

will determine from the record and 

based on any existing conservation 

strategy for the species if any 

unoccupied areas are likely to become 

necessary to support the species’ 

recovery. In order to designate 

unoccupied areas, we are required by 

section 3(5)(A) of the Act to determine 

that such areas are essential for the 

conservation of the species. 

(4) Comment: Several commenters 

stated that this attempt by the Services 

to expand their own discretion and 

authority without congressional 

authorization is neither justified nor 

lawful. 

Our Response: The amended 

regulations do not expand the Services’ 

discretion. Rather, they clarify the 

existing process by which we designate 

critical habitat based on lessons learned 

over many years of implementing 

critical habitat and relevant case law. 

The amendments synchronize the 

language in the implementing 

regulations with that in the Act to 

minimize confusion, and clarify the 

discretion and authority that Congress 

provided to the Secretaries under the 

Act. The Services are exercising their 

discretion to resolve ambiguities and fill 

gaps in the statutory language, and the 

amended regulations are a permissible 

interpretation of the statute. 

(5) Comment: Several commenters 

were concerned that the changes would 

lead to extensive litigation because the 

Services failed to establish clear, 

measurable, and enforceable criteria for 

what should or should not be 

considered ‘‘habitat’’ for a given species, 

let alone whether an area should or 

should not be considered critical habitat 

under the Act. 

Our Response: The amended 

regulations do not substantially change 

the manner in which critical habitat is 

designated. Rather, the amendments 

primarily clarify how the Services 

already have been developing critical 

habitat designations. We have set forth 

criteria in the final rule below. We will 

also refine, to the extent practicable, and 

articulate the specific criteria used for 

identifying which features and areas are 

essential to the conservation of a species 

and the subsequent development of a 

critical habitat designation for each 

species (using the best scientific data 

available) in the proposed and final 

critical habitat rules. Our intent is to be 

more transparent about how we define 

the criteria and any generalized 

conservation strategy that may have 

been used in the development of a 

critical habitat designation to provide 

for a more predictable and transparent 

critical habitat designation process. 

(6) Comment: Several commenters 

stated that the Services have misled 

stakeholders and effectively failed to 

provide adequate notice and 

opportunity for public comment. The 

comments assert that we should 

withdraw our proposal, republish it 

with a more accurate and clear summary 

of the changes to the regulations and 

their implications, and provide further 

opportunity for public comment. 

Our Response: The Services have not 

misled stakeholders. We initially 

provided a 60-day public comment 

period on the proposed rule.In response 

to public comments requesting an 

extension, we extended the comment 

period for an additional 90 days. This 

followed extensive coordination and 

discussion with potentially affected 

Federal agencies, States, and 

stakeholders and partners, as well as 

formal interagency review under 

Executive Order 12866. We also held 

subsequent calls and extensive webinars 

with many stakeholders to further 

inform them about the proposed rule 

and address any questions or concerns 

they may have had at the time. This 

satisfies the Services obligation to 

provide notice and comment under the 

Act and the Administrative Procedure 

Act (APA). 

(7) Comment: Several tribes 

commented that traditional ecological 

knowledge should constitute the best 

scientific data available and be used by 

the Services. 

Our Response: Traditional ecological 

knowledge (TEK) is important and 

useful information that can inform us as 

to the status of a species, historical and 

current trends, and threats that may be 

acting on it or its habitat. The Services 

have often used TEK to inform decisions 

under the Act regarding listings, critical 

habitat, and recovery. The Act requires 

that we use the best scientific and 

commercial data available to inform 

decisions to list a species and the best 

scientific data available to inform 

designation of critical habitat, and in 

some cases TEK may be the best data 

available. The Services cannot 

determine, as a general rule, that TEK 

will be the best available data in every 

rulemaking. However, we will consider 

TEK along with other available data, 

weighing all data appropriately in the 

decision process. We will explain the 

sources of data, the weight given to 

various types of data, and how data are 

used to inform our decision. Further, 

any data, including TEK, used by the 

Services to support a listing 

determination or in the development of 

a critical habitat designation may be 

subject to disclosure under the Freedom 

of Information Act (FOIA). 

(8) Comment: One State strongly 

advised the Services to withdraw the 

Federal Register notice and form a 

Policy Advisory group on the issue. The 

Western Governors’ Association 

requested that the rule be reworked in 

cooperation with Western States and 

utilize State data to reach a more legally 

defensible result and to foster 

partnerships. 

Our Response: We appreciate the 

interest by the State and Western 

Governors’ Association to form a policy 

advisory group and work collaboratively 

with the Services. However, the 

Services have already coordinated with 

States, Federal agencies, and partners to 

develop the amended regulations, and 

do not agree that a Policy Advisory 

group is necessary. The Services have 

relied on input from States and other 

entities, as well as lessons we have 

learned from implementing the 

provisions for critical habitat under the 

Act, to make the regulations consistent 

with the statute, codify our existing 

practices, and provide greater clarity 

and flexibility to designate critical 

habitat so that it can be a more effective 

conservation tool. We will continue 

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working collaboratively with Federal, 

State, and private partners to ensure that 

our critical habitat designations are 

based on the best available scientific 

information and balance the 

conservation needs of the species with 

the considerations permitted under 

section 4(b)(2). 

Scope and Purpose (Section 424.01) 

(9) Comment: Several commenters 

including several States suggested that 

we retain the words ‘‘where 

appropriate’’ to qualify the reference to 

designation or revision of critical habitat 

as it is a phrase of limiting potential. 

Some commenters suggested that we 

replace the words with ‘‘unless deemed 

imprudent’’ to better clarify the 

intention of this proposed change. 

Our Response: As discussed in our 

proposal, the phrase ‘‘where 

appropriate’’ was misleading and 

implied a greater flexibility than the 

Services have regarding whether to 

designate critical habitat. The Services 

have the discretion not to designate 

critical habitat only for species listed 

prior to 1978 for which critical habitat 

has not previously been designated or 

where an explicit determination is made 

that designation is not prudent. Based 

on our experiences with designating 

critical habitat, a determination that 

critical habitat is not prudent is rare. 

Removing the phrase ‘‘where 

appropriate’’ still allows the Services to 

determine that critical habitat is not 

prudent for a species if such 

determination is supported by the best 

available scientific information. 

Replacing it with the phrase ‘‘unless 

deemed imprudent’’ implies that not 

prudent determinations are common, 

which is not our intent. Deleting ‘‘where 

appropriate’’ provides the necessary 

clarification concerning the discretion 

the Services have in determining when 

to designate critical habitat. 

(10) Comment: Several commenters 

suggested that we add the words ‘‘at the 

appropriate time’’ in place of the words 

‘‘where appropriate’’ to qualify the 

reference to designation or revision of 

critical habitat in § 424.01(a). 

Our Response: The Services are 

required under section 4(a)(3)(A) of the 

Act to designate critical habitat, to the 

maximum extent prudent and 

determinable, at the time a species is 

listed. The inclusion of the phrase ‘‘at 

the appropriate time’’ and the 

implication that the Services have 

flexibility regarding the timing of the 

designation process runs counter to the 

statutory text. 

Definitions 

(11) Comment: Several commenters 

including one State asked us to keep the 

definitions for ‘‘critical habitat,’’ 

‘‘endangered species,’’ ‘‘plant,’’ 

‘‘Secretary,’’ ‘‘State Agency,’’ and 

‘‘threatened species’’ in the regulation 

for the purpose of transparency and 

clarity because they are core definitions 

in the authorizing statute and are 

important terms in the regulations. 

Our Response: These terms are 

defined in the Act itself, thus repeating 

them verbatim in the implementing 

regulations is redundant and does not 

resolve any ambiguity. 

(12) Comment: Several commenters 

were concerned that the addition of the 

phrase ‘‘i.e., the species is recovered’’ to 

the definition of ‘‘conserve, conserving, 

and conservation’’ to explain the point 

at which the measures provided under 

the Act are no longer necessary resulted 

in a higher standard for conservation 

than is warranted. Others commented 

that the Services are implying that 

conservation of critical habitat is 

equated to meeting recovery goals. 

Our Response: The use of ‘‘recovered’’ 

in the definition of ‘‘conserve, 

conserving, and conservation’’ does not 

introduce a new standard for 

conservation. Rather, it clarifies the 

existing link between conservation and 

recovery. Conservation is the use of all 

methods and procedures that are 

necessary to bring any species to the 

point at which measures provided by 

the Act are no longer necessary. 

Recovery is improvement in the status 

of listed species to the point at which 

listing is no longer appropriate. Also see 

our response to comment 2. 

(13) Comment: One commenter stated 

that if the ‘‘i.e., the species is recovered’’ 

is added to the definition of ‘‘conserve, 

conserving, and conservation,’’ then the 

Services should also add the phrase ‘‘or 

extinct’’ since these examples describe 

when the action of conservation (a set 

of methods and procedures) are not 

necessary anymore. 

Our Response: ‘‘Conserve, conserving, 

and conservation’’ is defined in the Act 

as to use and the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary. Extinction does 

not meet this definition because extinct 

species have not been brought to the 

point at which listing is no longer 

necessary. Our regulations at § 424.11(d) 

state that a species may be delisted for 

one or more of the following reasons: (1) 

Extinction; (2) Recovery; (3) Original 

data for classification in error. Each of 

these is a separate category, and only 

recovered species have reached the 

recovered state contemplated by the 

definition of ‘‘conserve, conserving, and 

conservation.’’ (See our response to 

comment 12). 

(14) Comment: Several commenters 

stated that proposing to define 

‘‘geographical area occupied by the 

species’’ is an amendment to the 

definition in the Act and is illegal. 

Our Response: The Act does not 

define the phrase ‘‘geographical area 

occupied by the species.’’ The Services 

may develop, clarify, and revise 

regulations implementing the provisions 

of a statute, provided that our 

interpretations do not conflict with or 

exceed the authority provided by the 

statute. Since there has been 

considerable confusion as to the specific 

area and scale the phrase refers to, we 

find that it is important to provide a 

reasonable and practicable definition for 

this phrase based on what we have 

learned over the many years of 

implementing critical habitat under the 

Act. Providing this definition will 

clarify how we designate critical habitat 

and which areas are considered 

occupied at the time of listing. 

(15) Comment: Several States 

commented that the definition of 

‘‘geographical area occupied by the 

species’’ provides no objective criteria, 

which will only lead to further 

confusion and more litigation. One State 

requested that we abandon the 

definition. Several States offered revised 

language. 

Our Response: The Services are 

defining the term ‘‘geographical area 

occupied by the species’’ because the 

phrase is found in the Act but is not 

defined in the Act’s regulations, and 

because there has been considerable 

confusion over the proper interpretation 

of the phrase. We have clearly stated 

and explained the definition in our 

proposal. Further, we will specify the 

criteria used for identifying which 

features and areas are essential to the 

conservation of a species and the 

subsequent development of a critical 

habitat designation for each species 

(using the best scientific data available) 

in the proposed and final rules for a 

particular critical habitat designation. 

Our intent is to be more clear and 

transparent about how we define the 

criteria and any generalized 

conservation strategy that may have 

been used in the development of a 

critical habitat designation to enhance 

its use as a conservation tool. 

(16) Comment: One State commented 

that ‘‘regular or consistent use’’ is a 

hallmark of a finding of occupied 

habitat, and should be required by the 

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‘‘geographical area occupied by the 

species’’ definition, not excluded. The 

State pointed to the decision in Arizona 

Cattle Growers’ Ass’n v. Salazar, 606 

F.3d 1160 (9th Cir. 2010), in which the 

court upheld the application of the 

Service’s definition of occupied habitat 

for the Mexican spotted owl as ‘‘areas 

that the owl uses with sufficient 

regularity that it is likely to be present 

during any reasonable span of time.’’ 

Another State similarly commented that 

the use of the term ‘‘even if not used on 

a regular basis’’ in the definition of 

geographical area occupied by the 

species will now enable the Services to 

designate critical habitat within areas 

infrequently used by a species. 

Our Response: We respectfully 

disagree with the commenter that the 

definition of ‘‘geographical area 

occupied by the species’’ should be 

limited to only those areas in which the 

use by the species is ‘‘regular or 

consistent.’’ As discussed at length in 

our proposal, we find that the phrase 

‘‘geographical area occupied by the 

species’’ should also include areas that 

the species uses on an infrequent basis 

such as ephemeral or migratory habitat 

or habitat for a specific life-history 

phase. We find that this more inclusive 

interpretation is consistent with 

legislative history and Arizona Cattle 

Growers’ Ass’n v. Salazar, 606 F.3d 

1160 (9th Cir. 2010), and congressional 

intent. Additionally, based on our 

experience of implementing the 

provisions of critical habitat for many 

years, we have found that there has been 

considerable confusion and differing 

interpretations of this phrase. Our intent 

through the definition provided in our 

proposal was to provide greater clarity 

regarding how we interpret the phrase 

and the general scale at which we define 

occupancy. We give examples in the 

rule of areas such as migratory 

corridors, seasonal habitats, and habitats 

used periodically (but not solely by 

vagrant individuals). We will use the 

best scientific data available to 

determine if such areas occur for a 

species. Each species’ life cycle is 

different and the details of such areas, 

if they exist, would be explained in the 

proposed and final rules designating 

critical habitat for a particular species. 

These areas would also have to meet the 

criteria for occupied areas in the 

definition of critical habitat found in the 

Act. 

(17) Comment: One commenter stated 

that the definition of ‘‘geographical area 

occupied by the species’’ fails to include 

paragraph 3(5)(C) from the Act: ‘‘Except 

in those circumstances determined by 

the Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species.’’ 

Our Response: The regulatory 

definition is intended to clarify how we 

interpret the phrase, not to repeat the 

language of the statute. Further, 

paragraph 3(5)(C) in the Act, applies to 

the geographic area that can be 

occupied by a species, as opposed to the 

geographic area actually occupied by 

the species. 

(18) Comment: Several commenters 

including several States stated that the 

definition of ‘‘geographical area 

occupied by the species’’ provides 

unlimited discretion and authority to 

the Secretary to determine the 

boundaries and size of the critical 

habitat area. 

Our Response: While we agree that 

the Secretaries are afforded significant 

discretion and authority to define and 

designate critical habitat, we 

respectfully disagree with the 

commenter that the discretion and 

authority is unlimited. First, critical 

habitat is to be defined and designated 

based on the best scientific data 

available. Second, we have learned from 

years of implementing the critical 

habitat provisions of the Act that often 

a rigid step-wise approach, i.e., first 

designating all occupied areas that meet 

the definition of ‘‘critical habitat’’ 

(assuming that no unoccupied habitat is 

designated) and then, only if that is not 

enough, designating essential 

unoccupied habitat, 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 effective as a conservation tool. 

By providing a definition of 

‘‘geographical areas occupied by the 

species’’ along with the other revisions 

and clarifications in our proposal, we 

can be more precise and deliberate in 

the development of our critical habitat 

designations following any general 

conservation strategy that has been 

developed for the species. Lastly, we are 

still bound by paragraph 3(5)(C) (see 

response to Comment 17 above). 

(19) Comment: Several commenters 

asked, ‘‘What standards will be in place 

to substantiate that such areas are used 

as part of a species’ life cycle and not 

just an individual vagrant’s life cycle’’ 

in the definition of ‘‘geographical area 

occupied by the species.’’ Several States 

also commented that the vagrant animal 

exception in the rule is vague and 

subject to varying interpretations 

because no definition of ‘‘vagrant’’ is 

provided. 

Our Response: As stated in our 

proposed rule, vagrant individuals are 

species who wander far from the known 

range of the species. We will use the 

best scientific data available to 

determine whether an area is used by a 

species for part of its life cycle versus 

an individual vagrant’s life cycle. The 

basis for our determination on this point 

will be articulated in our proposed and 

final rules designating critical habitat 

for a particular species and subject to 

public review and comments, as well as 

peer review. 

(20) Comment: Several commenters 

suggested that we add the word 

‘‘regularly’’ to the sentence ‘‘Such areas 

may include those areas used regularly 

throughout all or part of the species’ life 

cycle’’ in the definition of ‘‘geographical 

area occupied by the species.’’ 

Our Response: The suggested addition 

would conflict with the second part of 

the sentence, in which we state ‘‘even 

if not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals).’’ If the 

best scientific data available indicates 

that these areas are used periodically 

during some portion of the listed 

species’ life history, then these areas 

should be considered in the 

development of a critical habitat 

designation. 

(21) Comment: Several commenters 

questioned what would happen to the 

size, shape, and location of critical 

habitat areas that were designated in 

areas that were not regularly used as 

conditions change and travel corridors 

shift or breeding areas move. 

Our Response: As discussed in our 

proposal and throughout this final rule, 

critical habitat is to be based on the best 

scientific data available, and to the 

maximum extent prudent and 

determinable promulgated concurrent 

with the listing of a species. Often at the 

time of listing when we are developing 

a designation of critical habitat for a 

species, we may have only limited data 

concerning the distribution of the 

species, its life-history requirements, 

and other factors that can inform the 

identification of features or specific 

areas essential to the conservation of the 

species. Such limited data may still be 

the best scientific data available. The 

Services are required in a proposed and 

final designation of critical habitat to 

clearly articulate what data are being 

used and the criteria for defining the 

specific essential features and areas. The 

Services must also allow for public 

review and comments on the proposal 

to ensure public involvement in the 

process and provide as much clarity and 

transparency as possible. The 

designation of critical habitat results in 

a regulation in which the boundaries of 

critical habitat for a species are defined. 

These boundaries can be changed only 

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through rulemaking. Thus, if habitat 

changes following a designation, such 

that those specific areas no longer meet 

the definition of ‘‘critical habitat,’’ the 

areas within the boundaries of critical 

habitat are still critical habitat until 

such time as a revision to the 

designation is promulgated. Any 

interested party may file a petition with 

the Services to request revision of a 

critical habitat designation. 

(22) Comment: A number of 

commenters, including several States, 

asserted that the proposed definition of 

‘‘geographical area occupied by the 

species’’ is so vague it could lead to 

huge areas of unoccupied and 

potentially unsuitable habitat being 

designated as critical habitat that would 

result in the public or the regulated 

community having no consistency. 

Our Response: The proposed 

definition would not lead to more 

expansive critical habitat designations. 

We do not designate areas that are 

occupied at the time of listing unless 

those areas have one or more of the 

physical or biological features present 

that are essential to the conservation of 

the species and may require special 

management considerations or 

protection. Any unoccupied habitat at 

the time of listing could only be 

designated critical habitat under section 

3(5)(A)(ii) of the Act, which requires a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species. Further, we will 

articulate the specific criteria used for 

identifying which features and areas are 

essential to the conservation of a species 

during the subsequent development of a 

critical habitat designation for each 

species (using the best scientific data 

available) in the proposed and final 

rules designating critical habitat for that 

species. Our intent is to be more clear 

and transparent about how we define 

the criteria for designation and how in 

the development of a critical habitat 

designation we use any generalized 

conservation strategy that may have 

been developed for the species. The 

proposed rule would inform the public, 

including landowners and businesses, 

of our critical habitat designation and 

allow them time to review and provide 

comments. 

(23) Comment: Two States 

commented that the Services have 

justified the new definition of 

‘‘geographical area occupied by the 

species’’ by misrepresenting the court’s 

decision in Otay Mesa Property L.P. v. 

DOI, 646 F.3d 914 (D.C. Cir. 2011), 

reversing 714 F. Supp. 2d 73 (D.D.C. 

2010). The States contend that we 

asserted that the D.C. Circuit’s decision 

supported our interpretation, even 

though a thorough review of the 

decision reveals the court did not hold 

or find that the Act allows the Services 

to make a post-listing determination of 

occupancy if based on adequate data, 

simply because the court did not decide 

that particular issue. 

Our Response: We agree that the D.C. 

Circuit did not hold or find that the ESA 

allows the Services to make a postlisting determination of occupancy. Our 

proposed rule, however, did not assert 

that the circuit court opinion supported 

our interpretation. Instead, the proposed 

rule correctly noted that the district 

court opinion supported our 

interpretation. See 714 F. Supp. 2d at 83 

(‘‘The question, therefore, is not 

whether FWS knew in 1997, when it 

listed the San Diego fairy shrimp as 

endangered, that there were San Diego 

fairy shrimp on Plaintiffs’ property but, 

rather, whether FWS reasonably 

concluded, based on data from 2001, 

that the shrimp had been on the 

property in 1997.’’). Because that 

decision was reversed by the D.C. 

Circuit, however, we needed to explain 

what effect that D.C. Circuit’s decision 

had on the district court opinion with 

respect to this issue. Because the D.C. 

Circuit reversed the district court’s 

opinion on other grounds (i.e., that the 

evidence in the record was inadequate), 

the D.C. Circuit did not address the 

interpretive issue of whether later data 

can support a determination of 

occupancy at the time of listing. Thus, 

we stated, accurately, that the D.C. 

Circuit ‘‘did not disagree’’ with this 

aspect of the district court’s opinion. We 

did not mean to suggest that the D.C. 

Circuit had considered and affirmed this 

aspect of the district court’s opinion. 

(24) Comment: One State commented 

that the Service’s reliance on the 

decision in Arizona Cattle Growers’ 

Assoc. v. Salazar, 606 F.3d 1160 (9th 

Cir. 2010), to expand the definition of 

‘‘occupied’’ is misplaced because the 

Services oversimplify and misstate the 

court’s ruling. The State provided 

additional detail regarding the court’s 

analysis, noting a variety of factors that 

the court suggested were relevant to a 

case-by-case determination of 

occupancy, and the court’s emphasis on 

reasonableness. 

Our Response: None of the detail 

provided by the State is inconsistent 

with our summary of the holding: ‘‘a 

determination that a species was likely 

to be temporarily present in the areas 

designated as critical habitat was a 

sufficient basis for determining those 

areas to be occupied, even if the species 

was not continuously present.’’ 

(25) Comment: One commenter 

asserted that the ‘‘physical or biological 

features’’ definition has too many if and 

if/then scenarios that appear too 

scientifically attenuated to serve as an 

appropriate basis for critical habitat 

designations. 

Our Response: In defining physical 

and biological features, we provided 

examples of types of features and 

conditions that we have found to be 

essential to certain species based on 

experience over many years of 

designating critical habitat for a wide 

variety of species. The determination of 

specific features essential to the 

conservation of a particular species will 

be based on the best scientific data 

available and explained in the proposal 

to designate critical habitat for that 

species, which will be available for 

public comment and peer review. 

(26) Comment: Several States 

commented that the new definition of 

‘‘physical or biological features’’ is 

excessively broad and completely 

unnecessary. They stated that the new 

definition goes too far and allows the 

Services to include areas that do not 

currently have any essential physical or 

biological features necessary for a 

species; they asserted that the original 

language of the Act provides enough 

latitude to allow for ephemeral, 

essential habitat requirements. Two 

States also asked the Services to more 

clearly define the phrase ‘‘reasonable 

expectation’’ found in the preamble 

discussion (‘‘the Services could 

conclude that essential physical or 

biological features exist in a specific 

area . . . if there were documented 

occurrences of the particular habitat 

type in the area and a reasonable 

expectation of that habitat occurring 

again’’). 

Our Response: Because the term 

‘‘physical or biological features’’ is not 

defined in the Act, the Services clarify 

how they have been using this term. A 

‘‘reasonable expectation’’ would be 

based on the best scientific data 

available showing that the habitat has a 

temporal or cyclical nature in that in 

some years particular habitat elements 

may not be present, but the record 

indicates that, once certain conditions 

are met, the habitat will recur and be 

used by the species. 

(27) Comment: One State contended 

that the Services support the new 

definition of ‘‘physical or biological 

features’’ with a flawed interpretation of 

the opinion in Cape Hatteras Access 

Preservation Alliance v. DOI, 344 F. 

Supp. 2d 108 (D.D.C. 2004). According 

to the State: That opinion does not 

justify expanding the meaning and 

breadth of the phrase; the Services 

should withdraw the definition because 

the Services cite no authority for making 

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such a change and thus lack any 

justification for doing so; the Court 

explicitly rejected the Service’s attempt 

to broaden the scope of critical habitat 

designation; and the Services should not 

attempt to expand their authority by 

circumventing the Federal courts. 

Our Response: The district court 

rejected the U.S. Fish and Wildlife 

Service’s critical habitat designation for 

the piping plover as including lands 

that did not currently contain the 

features defined in the rule, but noted 

that it was not addressing whether 

dynamic land capable of supporting 

plover habitat can itself be one of the 

physical or biological features essential 

to the conservation of the plover. The 

court noted that the Service had not 

made that assertion in the context of the 

piping plover designation. To address 

this unintentional gap, we are setting 

out our interpretation as part of the 

framework regulations. This new 

definition clarifies that features can be 

dynamic or ephemeral habitat 

characteristics. We clearly state in the 

rule that an area within the geographical 

area occupied by the species, with 

habitat that is not ephemeral by nature 

but that has been degraded in some way, 

must have one or more of the features 

at the time of designation to be critical 

habitat. 

(28) Comment: Several commenters 

recommended that the Services 

separately define ‘‘physical features’’ 

and ‘‘biological features’’ to provide 

greater clarity. 

Our Response: The Act refers to 

‘‘physical or biological features,’’ so it is 

not necessary to define them separately. 

We find that the definition provided in 

the draft proposal along with the 

examples and accompanying 

explanation provides sufficient clarity 

and that separately defining these terms 

in the final regulation would not be 

helpful. However, the Services must 

clearly articulate, in proposed and final 

rules designating critical habitat for a 

particular species, which physical or 

biological features are essential to the 

conservation of the species and the basis 

for that critical habitat. 

(29) Comment: Several commenters 

suggested that we remove ‘‘at a scale 

determined by the Secretary to be 

appropriate’’ and add ‘‘for a specific 

unoccupied area to be designated as 

critical habitat, it must be reasonably 

foreseeable that (1) such area will 

develop the physical and biological 

features necessary for the species and 

(2) such features will be developed in an 

amount and quality that the specific 

area will serve an essential role in the 

conservation of the species.’’ 

Our Response: We determine whether 

unoccupied areas are essential for the 

conservation of the species by 

considering the best available scientific 

data regarding the life-history, status, 

and conservation needs of the species, 

which include considerations similar to 

those raised by the commenter. 

However, we do not agree that the 

specific findings suggested by the 

commenter either are required under the 

statute or are useful limitations for the 

Services to impose on themselves. 

Further, our rationale for why 

unoccupied areas are essential for the 

conservation of the species will be 

articulated in the proposed rule 

designating critical habitat for a 

particular species and available for 

public review and comment. Finally, we 

decline to remove the language ‘‘at a 

scale determined by the Secretary to be 

appropriate because we have concluded 

that it is useful to clarify that different 

circumstances will require different 

scales of analysis, and the Secretary 

retains the discretion to choose an 

appropriate scale. 

(30) Comment: A commenter 

suggested that we add the phrase ‘‘based 

on the best scientific data available’’ 

after the word ‘‘appropriate’’ in ‘‘the 

Secretary will identify, at a scale 

determined by the Secretary to be 

appropriate’’ in § 424.12(b)(2). The 

commenter further stated that this 

provides a reference to the scientific 

basis on which the Secretary will 

determine this scale. 

Our Response: The phrase ‘‘based on 

the best scientific data available’’ is 

captured in § 424.12(b)(1)(ii). Under 

section 4(b)(2) of the statute, it also 

states that the Secretary shall designate 

critical habitat, and make revisions 

thereto, under subsection (a)(3) on the 

basis of the best scientific data available. 

It would be redundant to add the phrase 

to the section the commenter has 

suggested. Nevertheless, as stated above, 

the Secretary’s choice of scale will be 

based on the best available scientific 

data. 

(31) Comment: A commenter 

suggested that we replace the phrase 

‘‘conservation needs of the species’’ 

with ‘‘physical or biological features’’ in 

§ 424.12(b)(2). The commenter stated 

that the phrase ‘‘conservation needs of 

the species’’ is undefined and adds 

ambiguity to the regulation. 

Our Response: Section 424.12(b)(2) 

refers to the designation of critical 

habitat in unoccupied areas. Under 

section 3(5)(A)(ii) of the statute, 

unoccupied areas are subject only to the 

requirement that the Secretary 

determine that such areas are essential 

for the conservation of the species. The 

presence of physical or biological 

features is not required by the statute for 

the inclusion of unoccupied areas in a 

designation of critical habitat. 

Incorporating the edit suggested by the 

commenter would limit Secretarial 

discretion in a way inconsistent with 

the statute by mandating the presence of 

essential features as a prerequisite to 

inclusion of unoccupied areas in a 

critical habitat designation. Therefore, it 

would be inappropriate to use the term 

‘‘physical or biological features’’ in this 

section. 

(32) Comment: Several commenters 

stated that the Services’ claim that they 

may designate acres or even square 

miles without evidence that those areas 

contain features essential to the 

conservation of the species is contrary 

to the Act. Two States commented that 

the scale of critical habitat should not be 

left to the Secretary’s absolute discretion 

and must be chosen and justified at a 

scale that both makes sense in terms of 

the habitat needs of the species and is 

fine enough to demonstrate that the 

physical or biological features are found 

in each specific area of occupied 

habitat. One State also provided revised 

language for § 424.12(b)(1) by replacing 

‘‘at a scale determined by the Secretary 

to be appropriate’’ with ‘‘at a scale 

consistent with the geographical extent 

of the physical or biological features 

essential to the species’ conservation.’’ 

Our Response: We state in the 

proposed regulation that the Secretary 

need not determine that each square 

inch, yard, acre, or even mile 

independently meets the definition of 

critical habitat. However, setting out 

defined guidelines for the scale of an 

analysis in regulations would not be 

practicable for the consideration of 

highly diverse biological systems and 

greatly differing available data. Each 

critical habitat designation is different 

in terms of area proposed, the 

conservation needs of the species, the 

scope of the applicable Federal actions, 

economic activity, and the scales for 

which data are available. Additionally, 

the scale of the analysis is very fact 

specific. Therefore, the Services must 

have flexibility to evaluate these 

different areas in whatever way is most 

biologically and scientifically 

meaningful. For example, for a narrowendemic species, a critical habitat 

proposal may cover a small area; in 

contrast, for a wide-ranging species, a 

critical habitat proposal may cover an 

area that is orders of magnitude greater. 

The appropriate scale for these two 

species may not be the same. For the 

narrow-endemic species, we may look at 

a very fine scale with a great level of 

detail. In contrast, for the wide-ranging 

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species, which may cover wide 

expanses of land or water, we may use 

a coarser scale, due to the sheer size of 

the proposed designation. Each critical 

habitat proposal includes a description 

of the scope of the area being proposed, 

and uses a scale appropriate to that 

situation based on the best scientific 

data available. The suggested language 

would not allow for the Secretarial 

discretion that is needed to be flexible 

to meet the conservation needs of the 

species. The proposed rule designating 

critical habitat for a particular species is 

made available for public review and 

comment, and interested parties may 

comment on the scale for a specific 

designation. 

(33) Comment: Several commenters 

stated that, in reaching this 

determination, the Services appear to 

conflate disparate terminology (specific 

areas versus occurrences) and rely upon 

a vague term (range) that does not 

adequately delineate what geographic 

areas are actually occupied by a species. 

Several commenters also requested 

additional explanation of the term 

‘‘range.’’ 

Our Response: Under section 

3(5)(A)(i) of the Act, specific areas 

designated as critical habitat include 

those specific areas within the 

geographical area occupied by the 

species at the time the species is listed. 

As discussed in our proposal and this 

final rule, the geographical area that 

may generally be delineated around the 

species’ occurrences is synonymous 

with the species’ range. The term 

‘‘range’’ used in our proposal refers to 

the general area currently occupied by 

the species at the time the listing 

determination is made. These areas are 

occupied by the species throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis. Some 

examples we give are migratory 

corridors, seasonal habitats, and habitats 

used periodically, but not solely by 

vagrant individuals. This scale of 

occupancy is different from a very 

narrow or limited delineation of areas of 

occupancy identified through presence 

and absence surveys for localized 

occurrences of the species. We, 

therefore, disagree that we are using a 

vague term in referring to range. 

(34) Comment: Several commenters 

including one State stated that by 

defining the geographical area occupied 

by the species as coextensive with the 

‘‘range’’ and including multiple areas of 

occurrence, the Services are expanding 

the geographic extent of occupied 

habitat beyond the limits of judicial 

interpretation. They suggested we 

should define the area occupied by the 

species as limited to the specific 

location where the species occurs on a 

regular or consistent basis. 

Our Response: We have indicated that 

the geographical area occupied by the 

species is likely to be larger than the 

specific areas that would then be 

analyzed for potential designation under 

section 3(5)(A)(i). We are not suggesting 

that the specific areas included in 

critical habitat should fill this area. To 

limit the definition to specific locations 

where the species occurs on a regular or 

consistent basis would not allow the 

Secretaries to designate areas that may 

be important for the conservation of a 

listed species that may only be 

periodically used by a species, such as 

breeding areas, foraging areas, and 

migratory corridors, thereby limiting 

Secretarial discretion. 

(35) Comment: One State asked if the 

range in the geographical area occupied 

by the species definition refers to the 

historical range or the currently 

occupied range. 

Our Response: The term ‘‘range’’ as 

indicated in our proposal refers to the 

generalized area currently occupied by 

the species at the time the listing 

determination is made, not the 

historical range. 

(36) Comment: One State also wanted 

to know if land-use restrictions within 

the geographical area occupied by the 

species would be put into place in 

addition to the designated critical 

habitat. 

Our Response: The revised 

regulations would not result in any 

change to land-use restrictions beyond 

the existing regulatory requirements 

under section 7 of the Act that Federal 

agencies consult with the Services to 

ensure that the actions they carry out, 

fund, or authorize are not likely to 

destroy or adversely modify critical 

habitat (see the final rule published 

elsewhere in today’s Federal Register). 

The Act provides no special regulatory 

protections for those areas within the 

geographic area occupied by the species 

that are not designated as critical 

habitat, although the section 7 

prohibition on jeopardy and the section 

9 prohibitions may still be applicable. 

(37) Comment: Several States disagree 

with the Services’ interpretation of the 

definition of ‘‘occupied.’’ This 

interpretation and inclusion of 

‘‘periodic or temporary’’ areas will lead 

to a much larger consideration of critical 

habitat that is largely unnecessary for 

species recovery. 

Our Response: Identifying the 

geographic area occupied at the time of 

listing is only the first step in 

designating critical habitat. In occupied 

areas, we can only designate critical 

habitat if one or more of the physical or 

biological features are present and are 

found to be essential to the conservation 

of the species and may require special 

management considerations or 

protection. The inclusion of periodic or 

temporary areas would be based on the 

best scientific data available for the 

species and these areas would have to 

meet the criteria above. 

(38) Comment: Several commenters 

asked what constitutes being 

‘‘temporarily present?’’ The Services 

should explain that occupied areas 

require a demonstration of regular or 

consistent use within a reasonable 

period of time. One State commented 

that the Services should clarify the 

meaning of the terms ‘‘periodically’’ and 

‘‘temporarily’’ to provide adequate 

guidance and set reasonable limits for 

potential critical habitat designations. 

Our Response: We will use the best 

scientific data available to determine 

occupied areas including those that are 

used only periodically or temporarily by 

a listed species during some portion of 

its life history. This will be determined 

on a species-by-species basis, and our 

rationale would be explained in the 

proposed and final rules for these 

species, which would be available for 

public review and comment. 

(39) Comment: Several commenters, 

including two States, were concerned 

about using ‘‘indirect or circumstantial’’ 

evidence to determine occupancy and 

questioned whether this qualified as the 

best scientific data available. One of the 

commenters asserted that the Services 

should only designate areas as occupied 

based on scientific evidence (including 

traditional and local knowledge) that 

breeding, foraging, or migratory 

behaviors actually occur in that location 

on a regular or consistent basis. 

Our Response: The Services will rely 

on the best scientific data available in 

determining which specific areas were 

occupied at the time of listing and 

which of these contain the features 

essential to the conservation of the 

species. The best available scientific 

data in some cases may only be indirect 

or circumstantial evidence. We will 

explain in the proposed rule designating 

critical habitat for a particular species if 

and how such evidence was used to 

determine occupancy and will provide 

the public with an opportunity to 

review and comment. 

(40) Comment: Several commenters, 

including two States, asked us to define 

and explain ‘‘life-history needs.’’ 

Our Response: We give a sample list 

of life-history needs in the rule. This list 

includes but is not limited to water 

characteristics, soil type, geological 

features, sites, prey, vegetation, 

symbiotic species, or other features. The 

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life-history needs are what the species 

needs throughout its different life stages 

to survive and thrive. 

(41) Comment: One State commented 

that the term ‘‘sites’’ in the definition of 

‘‘physical or biological features’’ is 

wholly ambiguous and must be defined, 

explained, or deleted. 

Our Response: We included the term 

‘‘sites’’ in the definition of physical or 

biological features to keep the same 

level of specificity as currently is called 

for in the regulations, and our current 

regulations list ‘‘sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal’’ among 

the examples of primary constituent 

elements that might be specified (50 

CFR 424.12(b)(4)). The term ‘‘sites’’ does 

not need to be defined or further 

explained because we rely on a plain 

dictionary meaning of ‘‘site’’: The place, 

scene, or point of an occurrence or event 

(Merriam-Webster, 2015). 

(42) Comment: One State suggested 

that we simplify the ‘‘physical or 

biological features’’ definition as 

follows: ‘‘Geographic or ecological 

elements within a species’ range that are 

essential to its survival and 

reproduction, whether single or in 

combination, or necessary to support 

ephemeral habitats. Features may be 

described in conservation biology terms, 

including patch size and connectivity.’’ 

Our Response: We appreciate the 

State providing edits to simplify the 

phrase; however, based on our years of 

experience designating critical habitat 

and implementing it, we find that the 

text in our proposal and this final rule 

will provide greater clarity. 

(43) Comment: Several commenters, 

including one State, indicated that we 

needed a more specific delineation of 

what features may be considered and 

how they relate to the needs of the 

species. 

Our Response: We respectfully 

disagree with the commenters that 

further clarification should be added in 

this revised regulation. However, we do 

agree that we need to clearly articulate 

in our proposed and final rules 

designating critical habitat for each 

species how the essential features relate 

to the life-history and conservation 

needs of the species. This type of 

specificity will be in the individual 

proposed and final rules designating 

critical habitat for each species. As is 

our general practice, we will clearly lay 

out the features and how they relate to 

the needs of the species in each rule. 

(44) Comment: Several commenters 

asked us to clarify the distinction, if 

any, between features that support the 

life-history needs of the species and 

features that are essential to the 

conservation of the species. 

Our Response: Our definition of 

physical or biological features is the first 

step, and we do not assume that all 

features are essential. In many 

circumstances the features that support 

life-history needs of the species are the 

features that are essential to the 

conservation of the species. The features 

that are essential to the conservation of 

the species are those found in the 

appropriate quality, quantity, and 

spatial and temporal arrangements in 

the context of the life history, status, 

and conservation needs of the species. 

This varies according to the species. For 

example, for a small, endemic species 

the features that support the life-history 

needs may be essential themselves, but 

for a wide-ranging species what rises to 

the level of essential features may rely 

more on the quality, quantity, and 

arrangement of those features. 

(45) Comment: Several commenters 

sought an explanation for how the 

requisite physical and biological 

features would be identified, 

documented, and verified during the 

critical-habitat-designation process. 

Our Response: We use the best 

scientific data available to determine the 

life-history needs of the species. The 

essential physical or biological features 

support the life-history and 

conservation needs of the species. A 

description of the essential features for 

each species and how they relate to its 

life-history and conservation needs will 

be articulated in the proposed and final 

rules designating critical habitat for a 

particular species. This description of 

the essential features, as well as the 

designation that is based on them, will 

be available for public review and 

comment during the rulemaking 

process. 

(46) Comment: Several commenters 

stated that the description of the 

relevant features cannot be in broad 

terms, but must be specific enough to 

limit critical habitat to the most 

‘‘essential areas’’ and help provide an 

understanding of what the species 

actually requires to return from the 

brink of extinction. 

Our Response: When evaluating 

occupied habitat, we agree that the 

statute requires us to determine which 

areas contain physical or biological 

features essential to the conservation of 

the species (that may require special 

management considerations or 

protection). In every proposed and final 

rule designating critical habitat for a 

particular species, we describe those 

features that we have determined to be 

essential and explain the basis for our 

determination. However, we 

respectfully disagree that broadly 

described features are necessarily 

inappropriate. The level of specificity in 

our description of the features is 

primarily determined by the state of the 

best scientific information available for 

that species. We will provide as much 

specificity as is appropriate in light of 

what is known about the species’ habitat 

needs, while recognizing that the 

available science may still be evolving 

for that species. Where the available 

information is still evolving, it may not 

be possible or necessary to provide a 

high level of specificity, and it may 

frustrate the conservation purposes of 

the Act to attempt to do so. See Arizona 

Cattle Growers’ Ass’n v. Kempthorne, 

534 F. Supp. 2d 1013, 1025 n.2 (D. Ariz. 

2008), aff’d sub nom. Arizona Cattle 

Growers’ Ass’n v. Salazar, 606 F.3d 

1160 (9th Cir. 2010). 

Finally, we must disagree with the 

commenter’s suggestion that in 

identifying essential features the 

Services must identify what the species’ 

actually requires to return from ‘‘the 

brink of extinction.’’ Critical habitat is 

generally required for threatened 

species as well as endangered species. 

Moreover, the Services are not required 

to have developed a recovery plan prior 

to designating critical habitat for any 

species. Home Builders Ass’n of 

Northern Cal. v. U.S. Fish and Wildlife 

Service, 616 F.3d 983, 989–90 (9th Cir. 

2010). Our determinations of which 

features are ‘‘essential’’ thus depend on 

an understanding of the species’ habitat 

needs rather than on a specific 

projection of how the species could be 

recovered. 

(47) Comment: Several commenters 

stated that the plain language of the Act 

limits the scope of any designated area 

to those features essential to the species, 

and does not authorize the designation 

of areas that may include those 

subsidiary characteristics that are 

essential for the development of the 

features themselves. 

Our Response: We respectfully 

disagree and interpret the statutory 

language not to limit ‘‘features’’ to those 

habitat characteristics that make habitat 

immediately usable by the species. In 

other words, the physical or biological 

features referred to in the definition of 

‘‘critical habitat’’ can include features 

that allow for the periodic development 

of habitat characteristics immediately 

usable by the species. An interpretation 

of ‘‘features’’ that referred only to 

immediately usable habitat would 

render many essential areas ineligible 

for designation as critical habitat, 

thwarting Congress’s intent that 

designation of critical habitat should 

contribute to species’ conservation. 

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We will use the best scientific data 

available to identify features essential to 

the conservation of the species and 

clearly identify how they relate to the 

life-history and conservation needs of 

the species. When considering what 

features are essential, it is sometimes 

necessary to allow for the dynamic 

nature of the habitat, such as 

successional stages of habitat, which 

could consist of old-growth habitat or 

habitat newly formed through 

disturbance events such as fire or flood 

events. Thus, the physical or biological 

features essential to the conservation of 

the species may include features that 

support the occurrence of ephemeral or 

dynamic habitat conditions. The 

example we gave in the proposed rule 

was a species that may require earlysuccessional riparian vegetation in the 

Southwest to breed or feed. Such 

vegetation may exist only 5 to 15 years 

after a local flooding event. The 

necessary features, then, may include 

not only the suitable vegetation itself, 

but also the flooding events, 

topography, soil type, and flow regime, 

or a combination of these characteristics 

and the necessary amount of the 

characteristics that can result in the 

periodic occurrence of the suitable 

vegetation. The flooding event would 

not be a subsidiary characteristic as 

suggested by the commenter, but would 

itself be a feature necessary for the 

vegetation to return. So in this case, it 

would be a combination of features, 

flooding, and vegetation that would be 

necessary to the conservation of the 

species. 

(48) Comment: Several commenters, 

including two States, were concerned 

that designating critical habitat based on 

the presence of certain characteristics 

that may be necessary to eventually 

support the periodic occurrence of 

riparian vegetation, without evidence 

that the vegetation would actually 

develop, constitutes an impermissible 

reliance upon hope and speculation. 

They further stated that the Services 

must go through a separate inquiry 

determining why it is reasonably 

foreseeable to conclude that the 

potential critical habitat will develop 

the physical or biological features at 

some point in the future. 

Our Response: We will use the best 

scientific data available to support the 

identification of features essential to the 

conservation of the species and clearly 

identify how they relate to the lifehistory and conservation needs of the 

species. When considering what 

features are essential, it is sometimes 

necessary to allow for the dynamic 

nature of the habitat, such as 

successional stages of habitat, which 

could consist of old-growth habitat or 

habitat newly formed through 

disturbance events such as fire or flood 

events. This does not constitute reliance 

on mere hope or speculation but is 

based on an understanding of the 

relevant ecological processes. We also 

disagree with the characterization of 

this situation as involving ‘‘potential 

critical habitat’’ that ‘‘will develop the 

physical or biological features at some 

point in the future.’’ Properly 

understood, the essential features would 

currently exist in these areas, even 

though they may not be currently 

manifesting the shorter-term habitat 

conditions immediately usable by the 

species. Such areas may currently meet 

the definition of ‘‘critical habitat’’ and 

not be merely ‘‘potential critical 

habitat.’’ 

(49) Comment: Several commenters 

stated that the Services’ position that 

‘‘most circumstances’’ require ‘‘special 

management’’ is inconsistent with 

congressional intent to narrow the 

definition of ‘‘critical habitat’’ to require 

a very careful analysis of what is 

actually needed for survival of the 

species. Several commenters, including 

two States, also indicated that the 

Services must continue to make the 

factual determination that special 

management is needed as required by 

the Act. 

Our Response: We make the 

determination and describe the special 

management considerations or 

protections that may be needed in the 

proposed and final rules designating 

critical habitat for each critical habitat 

area. However, it has been our 

experience that, in most circumstances, 

the physical or biological features 

essential to the conservation of 

endangered species may require special 

management considerations or 

protection in all areas in which they 

occur. This is particularly true for 

species that have significant habitatbased threats, which is the case for most 

of our listed species. The statute directs 

us to identify the essential physical or 

biological features which ‘‘may require’’ 

special management considerations or 

protection, a standard that suggests we 

should be cautious and protective. We 

do acknowledge that if in some areas the 

essential features clearly do not require 

special management considerations or 

protection, then that area does not meet 

this part (section 3(5)(A)(i)) of the 

definition of ‘‘critical habitat.’’ 

However, we expect based on our 

experience with designating critical 

habitat that these circumstances will be 

rare. In our proposed and final critical 

habitat rules, we will continue to make 

factual determinations as to whether 

special management considerations or 

protection may be required. 

(50) Comment: Several States 

commented that the new interpretation 

of ‘‘special management considerations 

or protection’’ set out in the preamble 

appears to presume that areas covered 

by existing protection plans will 

actually be more likely to be designated 

as critical habitat, and could act as a 

disincentive to implementing voluntary 

pre-designation conservation initiatives, 

in direct contravention to recent 

Services’ policies attempting to 

incentivize voluntary conservation. 

Our Response: We respectfully 

disagree. We are directed by the Act to 

identify areas that meet the definition of 

‘‘critical habitat’’ (i.e., occupied areas 

that contain the essential physical or 

biological features that may require 

special management considerations or 

protection and unoccupied areas that 

are essential for the conservation of a 

species) without regard to land 

ownership. We also make the 

determination and describe the special 

management considerations or 

protections that may be needed in the 

proposed and final rules for each critical 

habitat area. The consideration of 

whether features in an area may require 

special management considerations or 

protection occurs independent of 

whether any form of management or 

protection occurs in the area. This does 

not preclude the Services from 

considering the exclusion of these areas 

under section 4(b)(2) of the Act based on 

conservation programs, plans, and 

partnerships prior to issuing the final 

critical habitat rule. 

(51) Comment: Several commenters 

stated that the Services cannot designate 

critical habitat based on the general 

assertions that the area contains the 

essential physical or biological features. 

Instead, the Services must demonstrate 

that the relevant features are found 

within a specific area. 

Our Response: In the first part of the 

definition of ‘‘critical habitat’’ in the 

Act, we are required to identify specific 

areas within the geographical area 

occupied by the species at the time it is 

listed on which are found those 

physical or biological features essential 

to the conservation of the species and 

which may require special management 

considerations or protection. In our 

proposed and final critical habitat rules, 

we identify which features occur in the 

area, the basis on which we are 

identifying them as essential features, 

including how they provide for the lifehistory and conservation needs of the 

species, and whether they may require 

special management considerations or 

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protection. These rules will be available 

for public review and comment. 

(52) Comment: Several commenters 

suggested that we remove ‘‘principles of 

conservation biology’’ from the 

definition of ‘‘physical and biological 

features.’’ 

Our Response: We respectfully 

disagree. The sentence ‘‘Features may 

also be expressed in terms of relating to 

principles of conservation biology, such 

as patch size, distribution distances, and 

connectivity’’ explains more clearly 

how we may identify the features. The 

principles of conservation biology are 

generally accepted among the scientific 

community and consistently used in 

species-at-risk status assessments and 

development of conservation measures 

and programs. 

(53) Comment: Several commenters 

requested that we add language 

delineating the area ‘‘around’’ the 

species occurrences, either by using a 

distance or a reference to the species’ 

natural functions in the geographic area 

definition. 

Our Response: We are unable to 

determine a universal distance or a 

reference to the species’ natural 

functions that would be applicable to all 

species. This analysis and 

determination is best left to the specific 

critical habitat rulemaking for a given 

species. In those proposed and final 

rules, we can be specific for each 

species based on its life-history needs 

and more precisely define the 

geographical area occupied by the 

species. The rules will be available for 

public review and comment. 

(54) Comment: Several commenters, 

including one State, indicated that the 

proposed § 424.12(b)(2) and deletion of 

current § 424.12(e) would relieve the 

Services of any requirements that they 

justify the designation of unoccupied 

habitat by demonstrating the 

inadequacies of occupied habitat for the 

conservation of the species. They 

further stated that this was a major 

departure in the law regarding 

designation of critical habitat. 

Our Response: We respectfully 

disagree. The proposed rule clearly 

explains that the Act does not require 

the Services to first prove that the 

occupied areas are insufficient before 

considering unoccupied areas. The 

regulatory provision at 424.12(e) merely 

restated the requirement from the 

statutory definition in a different way. 

We will still explain based on the best 

scientific data available, why the 

unoccupied areas are essential for the 

conservation of the species. 

(55) Comment: Several commenters 

pointed out that we use ‘‘no longer 

necessary’’ in the new definition of 

‘‘conserve, conserving, and 

conservation’’ and the words ‘‘no longer 

appropriate’’ in the definition of 

‘‘recovery’’ in 50 CFR 402.02. The 

commenters asserted that these are two 

different standards and that we should 

pick one of them. 

Our Response: The words ‘‘no longer 

necessary’’ are used in the statutory 

definition of ‘‘conserve, conserving, and 

conservation’’ in the Act. The rule 

simply points out that the concept 

described in the statutory language is 

equivalent to ‘‘recovery.’’ That term is 

defined in § 402.02, which we are not 

revising at this time. 

(56) Comment: Several commenters 

stated that the National Marine 

Fisheries Service’s interpretation of the 

phrase ‘‘which interbreeds when 

mature’’ was upheld by the Ninth 

Circuit in Modesto Irr. Dist. v. Gutierrez, 

619 F.3d 1024 (9th Cir. 2010), and that 

the Act also requires that a group of 

organisms must interbreed when mature 

to qualify as a distinct population 

segment (DPS), which is in contrast to 

the Services’ interpretation of the phrase 

in the proposed rule. 

Our Response: We respectfully 

disagree that our interpretation of 

‘‘interbreeds when mature’’ is at odds 

with the ruling in Modesto Irrigation 

District. In that case, the Ninth Circuit 

did not hold that actual interbreeding 

among different populations is required 

in order to include such populations in 

a single DPS. To the contrary, the court 

made it clear that Congress did not 

intend to create a ‘‘rigid limitation’’ on 

the Services’ discretion to define DPSs. 

On the ‘‘narrow issue’’ of whether the 

ESA or the DPS Policy required that 

NMFS place interbreeding steelhead 

and rainbow trout in the same DPS, the 

court deferred to NMFS’s judgment that 

there was no such requirement. Id. at 

1037. While NMFS did state in the 

challenged rule that ‘‘[t]he ESA 

requirement that a group of organisms 

must interbreed when mature to qualify 

as a DPS is a necessary but not exclusive 

condition’’ (71 FR 834, 838 (Jan. 5, 

2006)), nothing in the rule suggested 

that NMFS’s position was that actual 

interbreeding among disparate 

populations was required, and that 

biological capacity to interbreed would 

not be sufficient. 

(57) Comment: Several commenters 

stated that the Services did in fact revise 

the regulations in our discussion of 

‘‘interbreeds when mature’’ by inserting 

the phrase ‘‘A distinct population 

segment ‘‘interbreeds when mature’’ 

when it consists of members of the same 

species or subspecies in the wild that 

are capable of interbreeding when 

mature’’ to the definition of a ‘‘species.’’ 

They further stated that this was an 

Administrative Procedure Act violation 

and that the phrase should be removed 

in the final rule. 

Our Response: The commenters are 

correct that we proposed to amend the 

definition of ‘‘species.’’ In the preamble 

we wrote, ‘‘Finally, we explain our 

interpretation of the meaning of the 

phrase ‘interbreeds when mature,’ 

which is found in the definition of 

‘species.’ . . . Although we are not 

proposing to revise the regulations at 

this time, we are using this notice to 

inform the public of our longstanding 

interpretation of this phrase.’’ Our 

intent was to explain how we have 

interpreted the phrase, but by 

inadvertently including this 

interpretation in the regulatory language 

of the proposed rule, we in fact were 

proposing to change the definition of 

‘‘species’’ to insert, ‘‘A distinct 

population segment ‘interbreeds when 

mature’ when it consists of members of 

the same species or subspecies in the 

wild that are capable of interbreeding 

when mature.’’ We have removed the 

proposed language from the definition 

of ‘‘species’’ in this final rule and left 

only the language in the preamble. The 

Services are not amending the 

definition. 

(58) Comment: A commenter 

suggested that the Services clarify the 

meaning of ‘‘being considered by the 

Secretary’’ in the definition of the term 

‘‘candidate.’’ The commenter suggested 

that the final rule substitute the more 

narrow definition found in the FWS 

candidate species fact sheet, which 

states: ‘‘Candidate species are plants 

and animals for which the U.S. Fish and 

Wildlife Service has sufficient 

information on their biological status 

and threats to propose them as 

endangered or threatened under the 

Endangered Species Act, but for which 

development of a proposed listing 

regulation is precluded by other higher 

priority listing activities.’’ 

Our Response: We agree with the 

commenter that the statement in the 

FWS candidate fact sheet is an 

appropriate meaning of the phrase 

‘‘being considered by the Secretary’’ 

found in the definition of candidate. We 

emphasize that we did not change the 

definition of ‘‘candidate’’ in this 

regulation. 

Criteria for Designating Critical Habitat 

(59) Comment: The Western 

Governors’ Association requested that 

the Services provide a thorough, databased explanation of the basis for the 

determination that areas outside the 

range occupied at the time of listing are 

or will be essential habitat. 

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Our Response: Under section 

3(5)(A)(ii) of the Act, to designate as 

critical habitat specific areas that are 

outside the geographical area occupied 

by the species at the time the species is 

listed, the Services must determine that 

the areas are essential for the 

conservation of the species. This 

determination must be based on the best 

scientific data available concerning the 

particular species and its conservation 

needs. When the Services propose to 

designate specific areas pursuant to 

section 3(5)(A)(ii), they have under the 

existing regulations and will under the 

revised regulations explain the basis for 

the determination, including the 

supporting data. Thus, the Services’ 

explanation will be available for public 

comment. 

(60) Comment: Several commenters, 

including one State, were concerned 

that the essential areas in unoccupied 

areas may not even be suitable for the 

species and that this is an erroneous and 

unreasonable interpretation of an 

otherwise clear statutory statement and 

should be withdrawn. 

Our Response: Section 3(5)(A)(ii) of 

the Act expressly allows for the 

consideration and inclusion of 

unoccupied habitat in a critical habitat 

designation if such habitat is 

determined to be essential for the 

conservation of the subject species. 

These areas do not have to contain the 

physical or biological features and are 

not subject to a finding that they may 

require special management 

considerations or protection. This is in 

contrast to what is required under the 

first part of the definition of ‘‘critical 

habitat’’ (section 3(5)(A)(i) of the Act) 

for areas occupied at the time of listing. 

(61) Comment: Several commenters 

stated that the Services may only 

properly make a ‘‘not prudent’’ finding 

if there is specific information that 

increased poaching would result from 

designating critical habitat. 

Our Response: We respectfully 

disagree with the commenters’ 

assertion. The current regulations (49 

FR 38900; October 1, 1984, and at 50 

CFR 424.12(a)(1)) allow for a 

determination that critical habitat is not 

prudent for a species if such designation 

would: (1) Increase the degree of threat 

to the species through the identification 

of critical habitat, or (2) not be 

beneficial to the species. The 

determination that critical habitat is not 

prudent for a listed species is 

uncommon, especially given that most 

species are listed, in part, because of 

impacts to their habitat or curtailment of 

their range. Most ‘‘not prudent’’ findings 

have resulted from a determination that 

there would be increased harm or 

threats to a species through the 

identification of critical habitat. For 

example, if a species was highly prized 

for collection or trade, then identifying 

specific localities of the species could 

render it more vulnerable to collection 

and, therefore, further threaten it. 

However, in some circumstances, a 

species may be listed because of factors 

other than threats to its habitat or range, 

such as disease, and the species may be 

a habitat generalist. In such a case, on 

the basis of the existing and revised 

regulations, it is permissible to 

determine that critical habitat is not 

beneficial and, therefore, not prudent. It 

is also permissible to determine that a 

designation would not be beneficial if 

no areas meet the definition of ‘‘critical 

habitat.’’ 

(62) Comment: Several commenters 

inquired about whether the Services 

would revise the regulations to provide 

greater flexibility in defining a greater 

breadth of circumstances where a 

determination can be made that the 

designation of critical habitat for a 

species is not beneficial to its 

conservation and, therefore, not 

prudent. 

Our Response: As noted above, it is 

permissible under the current and 

revised regulations to determine that 

designating critical habitat for a species 

is not beneficial and, therefore, not 

prudent. The text of these revised 

regulations further clarifies the nonexclusive list of factors the Services may 

consider in evaluating whether 

designating critical habitat is not 

beneficial. The inclusion of ‘‘but not 

limited to’’ to modify the statement ‘‘the 

factors the Services may consider 

include’’ allows for the consideration of 

alternative fact patterns where a 

determination that critical habitat is not 

beneficial would be appropriate. We 

think it is important to expressly reflect 

this regulatory flexibility in the revised 

regulations. Nonetheless, based on the 

Services’ history of implementing 

critical habitat, we anticipate that 

making a not-prudent determination on 

any fact pattern will be rare. 

(63) Comment: One State commented 

that the Services dropped the word 

‘‘probable’’ from the revised § 424.12(a) 

when talking about economic impacts 

and that the word should be retained in 

the final rule. 

Our Response: We agree and have 

retained the word ‘‘probable’’ in this 

final rule. It is consistent with the 

revised final regulation in 50 CFR 

424.19 (78 FR 53058) and our draft 

policy on exclusions under section 

4(b)(2) of the Act. We note that in this 

context the term ‘‘probable’’ means 

reasonably likely to occur. 

(64) Comment: Several commenters 

recommended adding after the word 

‘‘threat’’ in the second sentence to 

§ 424.12(a)(1)(ii), the words ‘‘sufficient 

to warrant listing the species as 

threatened or endangered.’’ 

Our Response: While we agree with 

the commenters’ intent, we find that 

adding the phrase would be redundant 

because we would only be making a 

determination as to whether critical 

habitat is prudent if the species was 

either being proposed for listing 

simultaneously or is already listed. 

(65) Comment: Several commenters 

thought the Services should simply 

delete § 424.12(a)(1)(ii) instead of 

expanding it. They further stated that 

the Act does not require that a species 

currently be threatened by habitat loss 

before critical habitat is designated and 

protected, and the spirit of the Act 

would not be served by the imposition 

of such a requirement by regulation. 

Our Response: Critical habitat is a 

conservation tool under the Act that can 

provide for the regulatory protection of 

a species’ habitat. The current 

regulations and the proposed revisions 

do not establish a requirement that a 

species be threatened by the 

modification, fragmentation, or 

curtailment of its range for critical 

habitat to be beneficial and, therefore, 

prudent to designate. However, the 

regulation and revisions establish a 

framework whereby if a species is listed 

under the Act and it is determined 

through that process that its habitat is 

not limited or threatened by destruction, 

modification, or fragmentation, then it 

may not be beneficial or prudent to 

designate critical habitat. While this 

provision is intended to reduce the 

burden of regulation in rare 

circumstances in which designating 

critical habitat does not contribute to 

conserving the species, the Services 

recognize the value of critical habitat as 

a conservation tool and expect to 

designate it in most cases. 

(66) Comment: Several commenters 

stated that § 424.12(a)(2) is not 

consistent with the plain meaning of the 

Act and should be deleted from the final 

rule. They stated the proposed minor 

word changes did not improve the 

situation. 

Our Response: The minor word 

changes to § 424.12(a)(2) are meant to 

make the language more consistent with 

the language in the Act. This section is 

necessary to inform the public as to the 

circumstances in which the Services 

will make a not-determinable finding on 

critical habitat and thereby invoking the 

1-year extension of section 4(b)(6)(C)(ii) 

of the Act. 16 U.S.C. 1533(b)(6)(C)(ii). 

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(67) Comment: A commenter stated 

that when the Services deem critical 

habitat as not determinable due to a lack 

of data for habitat analyses or lack of 

knowledge on biological needs of the 

species, the Services should regularly 

check for new data and/or make efforts 

to collect necessary data and move 

forward with critical habitat 

designations. One State also commented 

that critical habitat designations should 

only be made based on the best 

available scientific data and 

information, and in instances where 

data or information is lacking, the 

Services have an obligation to delay a 

designation until such time that 

sufficient information is acquired. 

Our Response: Finding that critical 

habitat is not determinable only invokes 

a 1-year extension of the deadline for 

finalizing a critical habitat designation 

under section 4(b)(6)(C)(ii) of the Act. 16 

U.S.C. 1533(b)(6)(C)(ii). At the 

conclusion of the year, the Services 

must move forward with the designation 

and have no authority under the Act to 

further delay designation (unless we 

determine that designation is not 

prudent). We agree that critical habitat 

designations must only be made based 

on the best scientific data available as 

required by the Act. If we initially do 

not have enough data to make a critical 

habitat determination, then we can 

invoke the 1-year extension allowed 

under the Act. The Services use that 

time to gather additional data. At the 

end of the 1-year extension, the Services 

must use the best scientific data 

available to make the critical habitat 

determination. 

(68) Comment: One State suggested 

that climate change is more 

appropriately addressed during a 5-year 

status review and the critical habitat 

revision process than trying to attempt 

to accommodate future critical habitat 

by predicting areas necessary to support 

the species’ recovery. It further asserted 

that the Services’ proposed authority to 

designate areas that are currently 

unoccupied and which are not now 

necessary to support the species’ 

recovery, but may eventually become 

necessary, is a vast expansion of the 

critical habitat program and contrary to 

the focus in the Act on current habitat 

conditions. 

Our Response: We agree that 5-year 

status reviews and the critical habitat 

revision process can play important 

roles regarding the conservation needs 

of a species in response to habitat 

changes resulting from climate change. 

However, the statute as written allows 

for sufficient flexibility to address the 

effects of climate change in a critical 

habitat designation, and, therefore, the 

clarifications provided in our proposal 

and this final rule do not expand the 

Services’ authority. There have been 

specific circumstances, as discussed in 

our proposal, where data have been 

available showing the shift in habitat 

use by a species in response to the 

effects of climate change. In those cases 

where the best scientific data available 

indicate that a species may be shifting 

habitats or habitat use, then it is 

permissible to include specific areas 

accommodating these changes in a 

designation, provided that the Services 

can explain why the areas meet the 

definition of ‘‘critical habitat.’’ Although 

some such instances are based on 

reasonable predictions of how habitat 

will be used by the species in the future, 

they are based on determinations that 

the areas are currently essential to the 

species. In other words, we may find 

that an unoccupied area is currently 

‘‘essential for the conservation’’ even 

though the functions the habitat is 

expected to provide may not be used by 

the species until a point in the 

foreseeable future. The data and 

rationale on which such a designation is 

based will be clearly articulated in our 

proposed rule designating critical 

habitat. The Services will consider 

whether habitat is occupied or 

unoccupied when determining whether 

to designate it as critical habitat and use 

the best available scientific data on a 

case-by-case basis regarding the current 

and future suitability of such habitat for 

recovery of the species, and when 

developing conservation measures. 

(69) Comment: Several commenters 

requested clarification of new 

§ 424.12(e) with regard to the 

differences in the way the Services 

handle designation of critical habitat for 

species listed prior to the 1982 

amendments to the Act versus species 

listed after the 1982 amendments. 

Our Response: If the Services 

designate critical habitat for species 

listed prior to the 1982 amendments, the 

designation is procedurally treated like 

a revision of existing critical habitat 

even if critical habitat was never 

designated. Thus, the Services have 

additional options at the final rule stage 

with regard to a proposal to designate 

critical habitat for those species listed 

prior to 1982 that they do not have 

when proposing to designate habitat for 

other species. These include an option 

to make a finding that the revision 

‘‘should not be made’’ and to extend the 

12-month deadline by an additional 

period of up to 6 months if there is 

substantial disagreement regarding the 

sufficiency or accuracy of available data 

(see 16 U.S.C. 1533(b)(6)(B)(i)). 

(70) Comment: Several commenters, 

including two States, indicated that 

removing references to ‘‘primary 

constituent elements’’ dramatically and 

unnecessarily expands the scope of 

critical habitat and confuses instead of 

clarifies critical habitat designation, 

leading to more litigation. 

Our Response: Removing references to 

‘‘primary constituent elements’’ from 

the regulation will not result in 

expansion of the scope of critical 

habitat. Removing this phrase is not 

intended to substantively alter anything 

about the designation of critical habitat, 

but to eliminate redundancy in how we 

describe the physical or biological 

features. The phrase ‘‘primary 

constituent element’’ is not found in the 

Act and the regulations have never been 

clear as to how primary constituent 

elements relate to or are distinct from 

physical or biological features essential 

to the conservation of the species, 

which is the phrase used in the Act. In 

fact, the removal of the phrase ‘‘primary 

constituent elements’’ will alleviate the 

tension caused by trying to understand 

the relationship between the phrases. 

The specificity of the primary 

constituent elements that has been 

discussed in previous designations will 

now be discussed in the descriptions of 

the physical or biological features 

essential to the conservation of the 

species. 

(71) Comment: Several commenters 

including several States were opposed 

to elimination of § 424.12(e) as this 

section is necessary and intentionally 

limiting and is an accurate 

implementation of the statutory 

definition and Congressional intent. 

Several commenters also questioned 

that when the Services promulgated 

§ 424.12(e) in 1980, that we explained in 

the preamble to that rule that the 

limitation in § 424.12(e) was intended to 

‘‘implement the statutory requirement’’ 

that unoccupied areas may be 

designated ‘‘only if necessary to ensure 

the conservation of the species.’’ The 

Services do not address this prior 

interpretation at all, or explain why a 

rule that it once enacted as necessary to 

implement a statutory requirement is 

now unnecessary. 

Our Response: We respectfully 

disagree. Section 424.12(e) did not 

allow us to designate unoccupied areas 

unless a designation limited to its 

present range (occupied) would be 

inadequate to ensure the conservation of 

the species. As we stated in the 

proposed rule, there is no suggestion in 

the legislative history that the Services 

were expected to exhaust occupied 

habitat before considering whether any 

unoccupied areas may be essential. 

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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7427 

Further, section 3(5)(A) of the Act 

expressly allows for the consideration 

and inclusion of unoccupied habitat in 

a critical habitat designation if such 

habitat is determined to be essential for 

the conservation of the subject species. 

There is no specific language in the Act 

that requires the Services to first prove 

that the inclusion of all occupied areas 

in a designation are insufficient to 

conserve the species before considering 

unoccupied areas. However, the existing 

implementing regulations state that 

such unoccupied habitat could only be 

considered if a determination was made 

that the Service(s) could not recover the 

species with the inclusion of only the 

occupied habitat. 

We have learned from years of 

implementing the critical habitat 

provisions of the Act that often a rigid 

step-wise approach, i.e., first 

designating all occupied areas that meet 

the definition of ‘‘critical habitat’’ 

(assuming that no unoccupied habitat is 

designated) and then, only if that is not 

enough, designating essential 

unoccupied habitat, does not 

necessarily serve the best conservation 

strategy for the species and in some 

circumstances may result in a 

designation that is geographically larger, 

but less effective as a conservation tool. 

Our proposed change will allow us to 

consider the inclusion of occupied and 

unoccupied areas in a critical habitat 

designation following at minimum a 

general conservation strategy for the 

species. In some cases, we have and 

may continue to find, that the inclusion 

of all occupied habitat in a designation 

does not support the best conservation 

strategy for a species. We expect that the 

concurrent evaluation of occupied and 

unoccupied areas for a critical habitat 

designation will allow us to develop 

more precise and deliberate 

designations that can serve as more 

effective conservation tools. 

Additionally, there is no specific 

language in the Act that requires the 

Services to first prove that the inclusion 

of all occupied areas in a designation 

are insufficient to conserve the species 

before considering unoccupied areas. 

The statutory language is sufficiently 

clear that it does not need explanation 

in the revised regulation, and, moreover, 

to the extent that the 1980 regulation 

language differs from the statutory 

language, it does not add any clarity. 

(72) Comment: Several commenters, 

including one State, disagreed that 

unoccupied areas need not have the 

features essential to the conservation of 

the species and that the Services 

propose to unlawfully write this 

statutory requirement out of the Act. 

The State also pointed out that the 

Services’ current position on this issue 

is distinctly contrary to the position the 

Services took in 1984 when the existing 

regulations were adopted. 

Our Response: Under the second part 

of the definition of ‘‘critical habitat’’ in 

the Act (section 3(5)(A)(ii)), the Services 

are to identify 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 the Act, upon a 

determination by the Secretary that such 

areas are essential for the conservation 

of the species. In contrast to section 

3(5)(A)(i), this provision does not 

mention physical or biological features, 

much less require that the specific areas 

contain the physical or biological 

features essential to the conservation of 

the species. These are two clearly 

distinct provisions. The unoccupied 

areas do not have to presently contain 

any of the physical or biological 

features, which is not a change from the 

way we have been designating 

unoccupied critical habitat (see, e.g., 

Markle Interests v. USFWS, 40 F. Supp. 

3d 744 (E.D. La. 2014)). 

(73) Comment: One State 

recommended that the Services develop 

a policy or metric to determine whether 

a particular area should be designated as 

critical habitat in unoccupied areas. 

Our Response: This final rule explains 

the Services’ general parameters for 

designating critical habitat. The details 

of why a specific area is determined to 

be essential to the conservation of the 

species will in part be directed by any 

generalized conservation strategy 

developed for the species, and clearly 

articulated in our proposed and final 

rules designating critical habitat. That 

determination is a fact-specific analysis 

and is based on the best available 

scientific data for the species and its 

conservation needs. The proposed rule 

for each critical habitat designation will 

be subject to public review and 

comment. 

(74) Comment: A commenter 

suggested that the Services designate 

enough critical habitat at the time of 

listing to ensure that a species can 

recover. 

Our Response: In evaluating which 

areas qualify as critical habitat and 

specific areas finalized (subject to 

section 4(b)(2) exclusions, see final 

policy published elsewhere in today’s 

Federal Register), we follow the 

statutory requirements to identify those 

occupied areas that contain the physical 

or biological features essential to the 

species’ conservation that may require 

special management considerations or 

protection and any unoccupied areas 

that we determine to be essential for the 

species’ conservation. Designation of 

critical habitat is one important tool that 

contributes to recovery, but a critical 

habitat designation alone may not be 

sufficient to achieve recovery. Indeed, 

given the limited regulatory role of a 

critical habitat designation (i.e., through 

section 7’s mandate that Federal 

agencies avoid destruction or adverse 

modification of critical habitat, see final 

rule published elsewhere in today’s 

Federal Register), it is generally not 

possible to look to a critical habitat 

designation alone to ensure recovery. 

Also, we must designate critical habitat 

according to mandatory timeframes, 

very often prior to development of a 

formal recovery plan. See Home 

Builders Ass’n of Northern Cal. v. U.S. 

Fish and Wildlife Service, 616 F.3d 983, 

989–90 (9th Cir. 2010). However, 

although a critical habitat designation 

will not necessarily ensure recovery, it 

will further recovery because the 

Services base the designation on the 

best available scientific information 

about the species’ habitat needs at the 

time of designation. The best available 

information will include any 

generalized conservation strategy or 

criteria that may have been developed 

for the species in consultation with staff 

working in recovery planning and 

implementation to ensure collaboration, 

consistency, and efficiency as the 

Services work with the public and 

partners to recover a listed species. 

(75) Comment: A commenter stated 

that the proposed rule clarifies that the 

Services have the discretion to designate 

critical habitat for species listed before 

1978, but does not specify when that 

discretion would be used. The 

commenter requested that the Services 

identify guidelines or standards for 

judging when to designate critical 

habitat for pre-1978 species. 

Our Response: Whether to exercise 

discretion to designate critical habitat 

for species listed prior to 1978 is a casespecific determination dependent on the 

conservation needs of the species, 

scientific data available, and the 

resources available for additional 

rulemaking. Guidelines on this point 

could limit Secretarial discretion and 

may not allow for sufficient flexibility 

in furthering the conservation of a 

species. 

(76) Comment: Several commenters 

were concerned that the Services must 

commit to using the best scientific data 

available when designating unoccupied 

areas as critical habitat. 

Our Response: We are mandated by 

the Act to use (and are committed to 

using) the best scientific data available 

in determining any specific areas as 

critical habitat, regardless of occupancy. 

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7428 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

(77) Comment: Several Tribes stated 

that while the Services readily 

acknowledge in the proposal their 

responsibility to communicate 

meaningfully with recognized Federal 

Tribes on a government-to-government 

basis, the proposed revision does 

nothing to clarify how the Services will 

carry out this responsibility. 

Our Response: These revised 

regulations set forth our general practice 

for designating critical habitat, clarify 

definitions and phrases, and in general 

align the regulations with the statute. 

The revised regulations are not intended 

to be prescriptive in how the Services 

will implement the provisions or 

coordinate with federally recognized 

Tribes that are potentially affected. 

However, the Services are committed to 

communicate and coordinate 

meaningfully and effectively with 

federally recognized Tribes concerning 

actions under the ESA, including the 

development and implementation of 

critical habitat for species that may 

occur on their lands. We rely on the 

requirements of S.O. 3206 to provide the 

guidance on how the Services will carry 

out this responsibility. We have often 

found that the best and most meaningful 

coordination and collaboration, 

including fulfilling our responsibilities 

under S.O. 3206, occurs between our 

Regional and field offices and a specific 

Tribe on a particular species. 

(78) Comment: Several commenters 

were opposed to the inclusion of the 

proposed § 424.12(g), saying the Act 

makes no distinction between foreign 

and domestic species and requires that 

all listed species receive critical habitat 

unless doing so is not prudent or 

determinable. 

Our Response: We respectfully 

disagree. Subsection (g) is a 

continuation of existing subsection (h), 

which has long codified the Services’ 

understanding that critical habitat 

should not be designated outside of 

areas under United States jurisdiction. 

This interpretation is well supported. 

The Act makes a distinction between 

coordination with and implementation 

of the provisions of the ESA between 

States and local jurisdictions within the 

United States versus with foreign 

countries. Section 4(b)(1)(A), which 

deals with listing species, provides that 

the Secretary shall consult, as 

appropriate, not only with affected 

States, but also, in cooperation with the 

Secretary of State, with the country or 

countries in which the species is 

normally found. In contrast, section 7 of 

the ESA does not include a requirement 

to consult with foreign governments. 

Further, section 8(b)(1) states that ‘‘the 

Secretary, through the Secretary of 

State, shall encourage—(1) foreign 

countries to provide for the 

conservation of fish or wildlife and 

plants including endangered species 

and threatened species listed pursuant 

to section 4.’’ It is clear that Congress 

understood the distinction between 

implementing the ESA within the 

jurisdiction of the United States and 

implementing the ESA within the 

jurisdiction of foreign countries. It then 

follows that since Congress did not 

explicitly state that critical habitat shall 

be designated in foreign countries or 

that the Secretary consult, as 

appropriate, with foreign countries on a 

designation of critical habitat, then the 

designation of critical habitat is limited 

to lands within the jurisdiction of the 

United States. 

Justice Stevens approved of the 

Services’ conclusion in his concurrence 

in Lujan v. Defenders of Wildlife, 504 

U.S. 555 (1992). There, he favorably 

noted the Service’s longstanding 

interpretation of the limitation of 

critical habitat designations to areas 

within the jurisdiction of the United 

States: 

The Secretary of the Interior and the 

Secretary of Commerce have consistently 

taken the position that they need not 

designate critical habitat in foreign countries. 

See 42 FR 4869 (1977) (initial regulations of 

the Fish and Wildlife Service and the 

National Marine Fisheries Service on behalf 

of the Secretary of the Interior and the 

Secretary of Commerce). Consequently, 

neither Secretary interprets § 7(a)(2) to 

require federal agencies to engage in 

consultations to ensure that their actions in 

foreign countries will not adversely affect the 

critical habitat of endangered or threatened 

species. 

That interpretation is sound. . . . 

Id. at 587 (Stevens, J., concurring). 

(79) Comment: One State requested 

that the Services include a new 

§ 424.12(e) that requires that designation 

will be made after consultation with the 

affected States. It would read, ‘‘In 

designating any area as critical habitat, 

the Secretary shall consult with affected 

States (those in which the proposed 

critical habitat is located or those that 

may be affected by the designation of 

the habitat) prior to completing the 

designation, and the fact of and finding 

of such consultation shall be addressed 

in the final rulemaking for the 

designation.’’ 

Our Response: The suggested new 

§ 424.12(e) is not necessary because 

section 4(b)(5)(A)(ii) of the Act requires 

the Secretary to give actual notice of the 

proposed regulation (including the 

complete text of the regulation) to the 

State agency in each State in which the 

species is believed to occur, and to each 

county or equivalent jurisdiction in 

which the species is believed to occur, 

and invite the comment of such agency, 

and each such jurisdiction. Further, 

section 4(i) of the Act requires the 

Secretary to provide a written 

justification for adopting regulations in 

conflict with the agency’s comments or 

for failing to adopt a regulation as 

requested in a State petition. In addition 

to these requirements, the Services are 

committed to continuing to work with 

the States early in the process to ensure 

that we are using the best scientific data 

available. 

(80) Comment: One State requested 

clarification on the application of this 

regulation to critical habitat 

designations that are currently under 

way, but not yet finalized. 

Our Response: As indicated in DATES

above, although effective 30 days from 

the date of publication, the revised 

version of § 424.12 will apply only to 

rulemakings for which the proposed 

rule is published after that date. Thus, 

the prior version of § 424.12 will 

continue to apply to any rulemakings 

for which a proposed rule was 

published before that date. However, 

because many of the revisions merely 

codify or explain our existing practices 

and interpretations, we may 

immediately refer to and act consistent 

with the amended language of § 424.12 

in final rules to which the prior version 

applies. 

(81) Comment: Several commenters 

objected to the Services’ determination 

that a regulatory flexibility analysis is 

not required for this regulation, stating 

the regulated community is affected by 

this regulation. 

Our Response: We respectfully 

disagree. We interpret the Regulatory 

Flexibility Act, as amended, to require 

that Federal agencies evaluate the 

potential incremental impacts of 

rulemaking only on those entities 

directly regulated by the rulemaking 

itself and, therefore, not on indirectly 

regulated entities. Recent case law 

supports this interpretation (https://

www.sba.gov/sites/default/files/

rfaguide_0512_0.pdf, pages 22–23). 

NMFS and FWS are the only entities 

that are directly affected by this rule 

because we are the only entities that 

designate critical habitat, and this rule 

pertains to the procedures for carrying 

out those designations. No external 

entities, including any small businesses, 

small organizations, or small 

governments, will experience any direct 

economic impacts from this rule. 

We understand that there is 

considerable confusion as to how these 

revisions to the regulation will change 

the process for designating critical 

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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7429 

habitat, with many thinking it will 

greatly expand our designations and 

provide less clarity to the process. We 

went to great effort in our proposal and 

further in this final rule to explain that 

revised regulations will not result in any 

significant deviation from how the two 

agencies have been designating critical 

habitat. Our intent is to codify what we 

have been doing for many years and 

provide common-sense revisions based 

on lessons learned and relevant case 

law. It is our expectation that these 

revisions will allow us to develop more 

precise and deliberate designations that 

can serve as more effective conservation 

tools, focusing conservation resources 

where needed and minimizing 

regulatory burdens where not necessary. 

As a consequence, we find, as iterated 

above, that NMFS and FWS are the only 

entities directly regulated by these 

revisions and that an RFA analysis is 

not required. 

(82) Comment: We received several 

comments that the proposed revised 

regulations constituted a major Federal 

action because they will result in 

significant socioeconomic consequences 

and these impacts must be analyzed 

under the National Environmental 

Policy Act of 1969 (NEPA). 

Our Response: As detailed in the 

REQUIRED DETERMINATIONS section 

below, we have determined that this 

action qualifies for a categorical 

exclusion under both DOI and NOAA 

governing procedures. 

Final Amendments to Regulations 

Discussion of Changes to Part 424 

This final rule revises 50 CFR 424.01, 

424.02, and 424.12 (except for 

paragraph (c)) to clarify the procedures 

and criteria used for designating critical 

habitat, addressing in particular several 

key issues that have been subject to 

frequent litigation. 

In finalizing the specific changes to 

the regulations that follow, and setting 

out the accompanying clarifying 

discussion in this preamble, the 

Services are establishing prospective 

standards only. As indicated in DATES

above, although effective 30 days from 

the date of publication, the revised 

version of § 424.12 will apply only to 

rulemakings for which the proposed 

rule is published after that date. Thus, 

the prior version of § 424.12 will 

continue to apply to any rulemakings 

for which a proposed rule was 

published before that date. However, 

because many of the revisions merely 

codify or explain our existing practices 

and interpretations, we may 

immediately refer to and act consistent 

with the amended language of § 424.12 

in final rules to which the prior version 

applies. Nothing in these final revised 

regulations is intended to require that 

any previously completed critical 

habitat designation must be reevaluated 

on this basis. 

Section 424.01 Scope and Purpose 

We are making minor revisions to this 

section to update language and 

terminology. The first sentence in 

§ 424.01(a) is being revised to remove 

reference to critical habitat being 

designated or revised only ‘‘where 

appropriate.’’ This wording implied a 

greater flexibility regarding whether to 

designate critical habitat than is correct. 

Circumstances in which we determine 

critical habitat designation is not 

prudent are rare. Therefore, the new 

language removes the phrase ‘‘where 

appropriate.’’ Other revisions to this 

section are minor word changes to use 

more plain language or track the 

statutory language. 

Section 424.02 Definitions 

This section of the regulations defines 

terms used in the context of section 4 of 

the Act. We are making revisions to 

§ 424.02 to update it to current 

formatting guidelines, to revise several 

definitions related to critical habitat, to 

delete definitions that are redundant 

with statutory definitions, and to add 

two newly defined terms. Section 

424.02 is currently organized with 

letters as paragraph designation for each 

term (e.g., § 424.02(b) Candidate). The 

Office of the Federal Register now 

recommends setting out definitions in 

the CFR without paragraph 

designations. We propose to revise the 

formatting of the entire section 

accordingly. Discussion of the revised 

definitions and newly defined terms 

follows. We note where these final 

revisions differ from those set out in the 

proposed rule. 

We note that, although revising the 

formatting of the section requires that 

the entirety of the section be restated in 

the final-amended-regulation section, 

we are not at this time revisiting the text 

of those existing definitions that we are 

not specifically revising, including 

those that do not directly relate to 

designating critical habitat. In 

particular, we are not in this rulemaking 

amending the definitions of ‘‘plant,’’ 

‘‘wildlife,’’ or ‘‘fish and wildlife’’ to 

reflect changes in taxonomy since the 

ESA was enacted in 1973. In 1973, only 

the Animal and Plant Kingdoms of life 

were universally recognized by science, 

and all living things were considered to 

be members of one of these kingdoms. 

Thus, at enactment, the ESA applied to 

all living things. Advances in taxonomy 

have subsequently split additional 

kingdoms from these two. Any species 

that was considered to be a member of 

the Animal or Plant Kingdoms in 1973 

will continue to be treated as such for 

purposes of the administration of the 

Act regardless of any subsequent 

changes in taxonomy. We may address 

this issue in a future rulemaking relating 

to making listing determinations (as 

opposed to designating critical habitat). 

In the meantime, the republication of 

these definitions here should not be 

viewed as an agency determination that 

these definitions reflect the scope of the 

Act in light of our current 

understanding of taxonomy. 

The current regulations include a 

definition for ‘‘Conservation, conserve, 

and conserving.’’ We are revising the 

title of this entry to ‘‘Conserve, 

conserving, and conservation,’’ 

changing the order of the words to 

conform to the statute. Additionally, we 

are revising the first sentence of the 

definition to include the phrase ‘‘i.e., 

the species is recovered’’ to clarify the 

link between conservation and recovery 

of the species. The statutory definition 

of ‘‘conserve, conserving, and 

conservation’’ is ‘‘to use and the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

measures provided pursuant to the Act 

are no longer necessary.’’ This is the 

same concept as the definition of 

‘‘recovery’’ found in § 402.02: 

‘‘improvement in the status of listed 

species to the point at which listing is 

no longer appropriate.’’ The Services, 

therefore, view ‘‘conserve, conserving, 

and conservation’’ as a process 

culminating at the point at which a 

species is recovered. 

We are deleting definitions for 

‘‘critical habitat,’’ ‘‘endangered species,’’ 

‘‘plant,’’ ‘‘Secretary,’’ ‘‘State Agency,’’ 

and ‘‘threatened species’’ because these 

terms are defined in the Act and the 

existing regulatory definitions do not 

add meaning to the terms. 

We also define the previously 

undefined term ‘‘geographical area 

occupied by the species’’ as: ‘‘the 

geographical area which may generally 

be delineated around the species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals).’’ This 

term appears in the definition of 

‘‘critical habitat’’ found in section 

3(5)(A)(i) and (ii) of the Act, but is not 

defined in the Act or in our current 

regulations. The inclusion of this new 

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7430 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

regulatory definition reflects the 

Services’ efforts to clarify the criticalhabitat-designation process. 

The definition of ‘‘critical habitat’’ in 

the Act has two parts, section 3(5)(A)(i) 

and (ii), which establish two distinct 

categories of critical habitat, based on 

species occupancy in an area at the time 

of listing. Therefore, to identify specific 

areas to designate as critical habitat, we 

must first determine what area 

constitutes the ‘‘geographical area 

occupied by the species at the time of 

listing,’’ which is the language used in 

the Act. The scale of this area is likely 

to be larger than the specific areas that 

would then be analyzed for potential 

designation under section 3(5)(A)(i). 

This is because the first part of the 

critical habitat definition in the Act 

directs the Services to identify ‘‘specific 

areas within’’ the geographical area 

occupied by the species at time of 

listing. This intentional choice to use 

more narrow terminology alongside 

broader terminology suggests that the 

‘‘geographical area’’ was expected most 

often to be a larger area that could 

encompass multiple ‘‘specific areas.’’ 

Thus, we find the statutory language 

supports the interpretation of equating 

the geographical area occupied by the 

species to the wider area around the 

species’ occurrences at the time of 

listing. A species’ occurrence is a 

particular location in which members of 

the species are found throughout all or 

part of their life cycle. The geographic 

area occupied by the species is thus the 

broader, coarser-scale area that 

encompasses the occurrences, and is 

what is often referred to as the ‘‘range’’ 

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 

being designated or revised several 

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 as surveys are 

not routinely carried out on private 

lands unless performed as part of an 

environmental analysis for a particular 

development proposal. Even then, such 

surveys typically focus on listed rather 

than unlisted species, so 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 a recent 

court 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 FWS acknowledges 

that to make a post-listing determination 

of occupancy we must distinguish 

between actual changes to species 

occupancy and changes in available 

information. For succinctness, herein 

and elsewhere we refer to areas as 

‘‘occupied’’ when we mean ‘‘occupied 

at the time of listing.’’ 

The second sentence of the definition 

for ‘‘geographical area occupied by the 

species’’ clarifies that the meaning of 

the term ‘‘occupied’’ includes specific 

areas that are used only periodically or 

temporarily by a listed species during 

some portion of its life history, and is 

not limited to those areas where the 

listed species may be found more or less 

continuously. Areas of periodic use may 

include, for example, breeding areas, 

foraging areas, and migratory corridors. 

The Ninth Circuit recently supported 

this interpretation by FWS, holding that 

a determination that a species was likely 

to be temporarily present in the areas 

designated as critical habitat was a 

sufficient basis for determining those 

areas to be occupied, even if the species 

was not continuously present. Arizona 

Cattle Growers’ Assoc. v. Salazar, 606 

F.3d 1160 (9th Cir. 2010) (Mexican 

spotted owl). 

Nonetheless, periodic use of an area 

does not include use of habitat in that 

area by vagrant individuals of the 

species who wander far from the known 

range of the species. Occupancy by the 

listed species must be based on 

evidence of regular periodic use by the 

listed species during some portion of 

the listed species’ life history. However, 

because some species are difficult to 

survey or we may otherwise have 

incomplete survey information, the 

Services will rely on the best available 

scientific data, which may in some cases 

include indirect or circumstantial 

evidence, to determine occupancy. We 

further note that occupancy does not 

depend on identifiable presence of adult 

organisms. For example, periodical 

cicadas occupy their range even though 

adults are only present for 1 month 

every 13 or 17 years. Similarly, the 

presence (or reasonably determined 

presence) of eggs or cysts of fairy shrimp 

or seed banks of plants constitute 

occupancy even when mature 

individuals are not present. 

We also finalize a definition for the 

term ‘‘physical or biological features.’’ 

This phrase is used in the statutory 

definition of ‘‘critical habitat’’ to assist 

in identifying the specific areas within 

the entire geographical area occupied by 

the species that can be considered for 

designation as critical habitat. We 

define ‘‘physical or biological features’’ 

as ‘‘the features that support the lifehistory needs of the species, including 

but not limited to water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic, or a more 

complex combination of habitat 

characteristics. Features may include 

habitat characteristics that support 

ephemeral or dynamic habitat 

conditions. Features may also be 

expressed in terms relating to principles 

of conservation biology, such as patch 

size, distribution distances, and 

connectivity.’’ 

The definition clarifies that physical 

and biological features can be the 

features that support the occurrence of 

ephemeral or dynamic habitat 

conditions. For example, a species may 

require early-successional riparian 

vegetation in the Southwest to breed or 

feed. Such vegetation may exist only 5 

to 15 years after a local flooding event. 

The necessary features, then, may 

include not only the suitable vegetation 

itself, but also the flooding events, 

topography, soil type, and flow regime, 

or a combination of these characteristics 

and the necessary amount of the 

characteristics that can result in the 

periodic occurrence of the suitable 

vegetation. Thus, the Services could 

conclude that essential physical or 

biological features exist in a specific 

area even in the temporary absence of 

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suitable vegetation, and could designate 

such an area as critical habitat if all of 

the other applicable requirements were 

met and if there were documented 

occurrences of the particular habitat 

type in the area and a reasonable 

expectation of that habitat occurring 

again. 

In Cape Hatteras Access Preservation 

Alliance v. DOI, 344 F. Supp. 2d 108, 

123 n.4 (D.D.C. 2004), the court rejected 

FWS’ designation for the piping plover 

as including lands that did not currently 

contain the features defined by FWS, 

but noted that it was not addressing 

‘‘whether dynamic land capable of 

supporting plover habitat can itself be 

one of the ‘physical or biological 

features’ essential to conservation.’’ The 

new definition for ‘‘physical or 

biological features’’ clarifies that 

features can be dynamic or ephemeral 

habitat characteristics. However, an area 

within the geographical area occupied 

by the species, containing habitat that is 

not ephemeral by nature but that has 

been degraded in some way, must have 

one or more of the physical or biological 

features at the time of designation. 

Having defined ‘‘physical or 

biological features,’’ we are also 

removing the term ‘‘primary constituent 

element’’ and all references to it from 

the regulations in § 424.12. As with all 

other aspects of these revisions, this will 

apply only to future critical habitat 

designations and is further explained 

below in the discussion of the changes 

to § 424.12, where the term is currently 

used. 

We are also revising the definition of 

‘‘special management considerations or 

protection’’ which is found in § 424.02. 

Here we remove the phrase ‘‘of the 

environment’’ from the current 

regulation. This phrase is not used in 

this context elsewhere in the regulations 

or the Act and, therefore, may create 

ambiguity. We also insert the words 

‘‘essential to’’ to conform to the 

language of the Act. 

In determining whether an area has 

essential features that may require 

special management considerations or 

protection, the Services do not base 

their decision on whether management 

is currently in place or whether that 

management is adequate. FWS formerly 

took the position that special 

management considerations or 

protection was required only if 

whatever management was in place was 

inadequate and that additional special 

management was needed. This position 

was rejected by the court in Center for 

Biological Diversity v. Norton, 240 F. 

Supp. 2d 1090 (D. Ariz. 2003) (Mexican 

spotted owl), the only court to address 

this issue. The Services agree with the 

conclusion of the court on this point— 

it is incorrect to read the statute as 

asking whether additional special 

management considerations or 

protection may be required. The 

evaluation of whether features in an 

area may require special management 

considerations or protection occurs 

independent of whether any form of 

management or protection occurs in the 

area. 

We expect that, in most 

circumstances, the physical or 

biological features essential to the 

conservation of endangered species may 

require special management in all areas 

in which they occur, particularly for 

species that have significant habitatbased threats. However, if in some areas 

the essential features do not require 

special management consideration or 

protection because there are no 

applicable threats to the features that 

have to be managed or protected for the 

conservation of the species, then that 

area does not meet this part (section 

3(5)(A)(i)) of the definition of ‘‘critical 

habitat.’’ Nevertheless, we expect such 

circumstances to be rare. 

Furthermore, it is not necessary that 

a feature currently requires special 

management considerations or 

protection, only that it may require 

special management to meet the 

definition of ‘‘critical habitat.’’ 16 U.S.C. 

1532(5)(A)(i) (emphasis added). Two 

district court decisions have 

emphasized this point. CBD v. Norton 

(Mexican spotted owl); Cape Hatteras 

Access Preservation Alliance v. DOI, 

344 F. Supp. 2d 108 (D.D.C. 2004) 

(piping plover). The legislative history 

supports the view that Congress 

purposely set the standard as ‘‘may 

require.’’ Earlier versions of the bills 

that led to the statutory definition of 

‘‘critical habitat’’ used the word 

‘‘requires,’’ but ‘‘may require’’ was 

substituted prior to final passage. In any 

case, an interpretation of a statute 

should give meaning to each word 

Congress chose to use, and our 

interpretation gives the word ‘‘may’’ 

meaning. 

Finally, we explain our interpretation 

of the meaning of the phrase 

‘interbreeds when mature,’ which is 

found in the definition of ‘species.’ The 

‘‘interbreeds when mature’’ language is 

ambiguous (Modesto Irrigation Dist. v. 

Gutierrez, 619 F.3d 1024, 1032 (9th Cir. 

2010)). Although we are not revising the 

regulatory definition of ‘‘species’’ at this 

time, we are using this notice to inform 

the public of our interpretation of this 

phrase.’’ We have always understood 

the phrase ‘‘interbreeds when mature’’ 

to mean that a DPS consists of members 

of the same species or subspecies that 

when in the wild would be biologically 

capable of interbreeding if given the 

opportunity, but all members need not 

actually interbreed with each other. A 

DPS is a subset of a species or 

subspecies, and cannot consist of 

members of different species or 

subspecies. The ‘‘biological species’’ 

concept, which defines species 

according to a group of organisms’ 

actual or potential ability to interbreed, 

and their relative reproductive isolation 

from other organisms, is one widely 

accepted approach to defining species. 

We interpret the phrase ‘‘interbreeds 

when mature’’ to reflect this 

understanding and to signify only that 

a DPS must be composed solely of 

members of the same species or 

subspecies. As long as this requirement 

is met, a DPS may include multiple 

groups of vertebrate organisms that do 

not actually interbreed with each other. 

For example, a DPS may consist of 

multiple groups of a fish species 

separated into different drainages. 

While it is possible that the members of 

these groups do not actually interbreed 

with each other, their members are 

biologically capable of interbreeding. 

Our intent was to explain how we 

have interpreted the phrase, but by 

inadvertently including this 

interpretation in the regulatory language 

of the proposed rule, we in fact were 

proposing to change the definition of 

‘‘species’’ to insert, ‘‘A distinct 

population segment ‘interbreeds when 

mature’ when it consists of members of 

the same species or subspecies in the 

wild that are capable of interbreeding 

when mature.’’ We have removed the 

proposed language from the definition 

of ‘‘species’’ in this final rule and left 

only the language in this preamble. We 

also noticed that we inadvertently left 

out the word ‘‘Includes’’ from the 

definition of ‘‘species’’ in our proposed 

regulation. We have restored the word 

‘‘Includes’’ in this final regulation to 

match the definition of ‘‘species’’ found 

in our 1984 regulation. The Services are 

not substantively amending the 

definition at this time. 

Section 424.12 Criteria for Designating 

Critical Habitat 

We are revising the first sentence of 

paragraph (a) to clarify that critical 

habitat shall be proposed and finalized 

‘‘to the maximum extent prudent and 

determinable . . . concurrent with 

issuing proposed and final listing rules, 

respectively.’’ The language of the 

existing regulation is ‘‘shall be specified 

to the maximum extent prudent and 

determinable at the time a species is 

proposed for listing.’’ We added the 

words ‘‘proposed and finalized’’ to be 

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7432 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

consistent with the Act, which requires 

that critical habitat be finalized 

concurrent with listing to the maximum 

extent prudent and determinable. The 

existing language could be interpreted 

to mean proposing critical habitat 

concurrent with listing was the only 

requirement. Additionally, the existing 

phrase ‘‘shall be specified’’ is vague and 

not consistent with the requirement of 

the Act, which is to propose and finalize 

a designation of critical habitat. The last 

two sentences in paragraph (a) contain 

minor language changes to use the 

active voice. 

Paragraphs (a)(1) and (a)(1)(i) are not 

changed. 

The first sentence of paragraph 

(a)(1)(ii) remains the same. However, we 

add a second sentence to paragraph 

(a)(1)(ii) to provide examples of factors 

that we may consider in determining 

whether a designation would not be 

beneficial to the species. A designation 

may not be beneficial and, therefore, not 

prudent, under certain circumstances, 

including but not limited to: Whether 

the present or threatened destruction, 

modification, or curtailment of a 

species’ habitat or range is not a threat 

to the species, or whether no areas meet 

the definition of ‘‘critical habitat.’’ For 

example, this provision may apply to a 

species that is threatened primarily by 

disease but the habitat that it relies 

upon continues to exist unaltered 

throughout an appropriate distribution 

that, absent the impact of the disease, 

would support conservation of the 

species. Another example is a species 

that occurs in portions of the United 

States and a foreign nation. In the 

foreign nation, there are multiple areas 

that have the features essential to the 

conservation of the species; however, in 

the United States there are no such 

areas. Consequently, there are no areas 

within the United States that meet the 

definition of ‘‘critical habitat’’ for the 

species. Therefore, there is no benefit to 

designation of critical habitat, and 

designation is not prudent. 

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. 

Section 424.12(a)(2) remains 

unchanged from the current regulation, 

and subparagraphs (i) and (ii) contain 

minor language changes to be consistent 

with the language in the Act. 

The Services are completely revising 

§ 424.12(b) of the current regulations. 

For the reason explained below, we also 

remove the terms ‘‘principal biological 

or physical constituent elements’’ and 

‘‘primary constituent elements’’ from 

this section. These concepts are 

replaced by the statutory term ‘‘physical 

or biological features,’’ which we define 

as described above. 

The first part of the statutory 

definition of ‘‘critical habitat’’ (section 

3(5)(A)(i)) contains terms necessary for 

(1) identifying specific areas within the 

geographical area occupied by the 

species that may be considered for 

designation as critical habitat and (2) 

describing which features on those areas 

are essential to the conservation of 

species. In addition, current § 424.12(b) 

introduced the phrase ‘‘primary 

constituent elements.’’ However, the 

regulations are not clear as to how 

primary constituent elements relate to 

or are distinct from physical or 

biological features, which is the term 

used in the statute. Adding a term not 

found in the statute that is at least in 

part redundant with the term ‘‘physical 

or biological features’’ has proven 

confusing. Trying to parse features into 

elements and give them meaning 

distinct from one another has added an 

unnecessary layer of complication and 

confusion during the designation 

process. 

The definition of ‘‘physical or 

biological features,’’ described above, 

encompasses similar habitat 

characteristics as currently described in 

§ 424.12(b), such as roost sites, nesting 

grounds, spawning sites, feeding sites, 

seasonal wetland or dryland, water 

quality or quantity, host species or plant 

pollinator, geological formation, 

vegetation type, tide, and specific soil 

types. Our proposal is intended to 

simplify and clarify the process, and to 

remove redundancy, without 

substantially changing the manner in 

which critical habitat is designated. The 

Services still expect to provide a 

comparable level of detail and 

specificity in defining and describing 

physical or biological features essential 

to the conservation of a species. 

Section 424.12(b) describes the 

process to be used to identify the 

specific areas to be considered for 

designation as critical habitat, based on 

the statutory definition of ‘‘critical 

habitat.’’ With respect to both parts of 

the definition, the revised regulations 

emphasize that the Secretary will 

identify areas that meet the definition 

‘‘at a scale determined by the Secretary 

to be appropriate.’’ The purpose of this 

language is to clarify that the Secretary 

cannot and need not make 

determinations at an infinitely fine 

scale. Thus, the Secretary need not 

determine that each square inch, square 

yard, acre, or even square mile 

independently meets the definition of 

‘‘critical habitat.’’ Nor will the Secretary 

necessarily consider legal property lines 

in making a scientific judgment about 

what areas meet the definition of 

‘‘critical habitat.’’ Instead, the Secretary 

has discretion to determine at what 

scale to do the analysis. In making this 

determination, the Secretary may 

consider, among other things, the life 

history of the species, the scales at 

which data are available, and biological 

or geophysical boundaries (such as 

watersheds), and any draft conservation 

strategy that may have been developed 

for the species. 

Under the first part of the statutory 

definition, in identifying specific areas 

for consideration, the Secretary must 

first identify the geographical area 

occupied by the species at the time of 

listing. Within the geographical area 

occupied by the species, the Secretary 

must identify the specific areas on 

which are found those physical or 

biological features (1) essential to the 

conservation of the species, and (2) 

which may require special management 

considerations or protection. 

Under § 424.12(b)(1)(i), the Secretary 

will identify the geographical area 

occupied by the species using the new 

regulatory definition of this term. Under 

§ 424.12(b)(1)(ii), the Secretary will then 

identify those physical and biological 

features essential to the conservation of 

the species. These physical or biological 

features are to be described at an 

appropriate level of specificity, based on 

the best scientific data available at the 

time of designation. For example, 

physical features might include gravel 

of a particular size required for 

spawning, alkali soil for germination, 

protective cover for migration, or 

susceptibility to flooding or fire that 

maintains early-successional habitat 

characteristics. Biological features might 

include prey species, forage grasses, 

specific kinds or ages of trees for 

roosting or nesting, symbiotic fungi, or 

a maximum level of nonnative species 

consistent with conservation needs of 

the listed species. The features may also 

be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

needed to support the life history of the 

species. For example, a feature may be 

a specific type of forage grass that is in 

close proximity to a certain type of 

shrub for cover. Because the species 

would not consume the grass if there 

were not the nearby shrubs in which to 

hide from predators, one of these 

characteristics in isolation would not be 

an essential feature; the feature that 

supports the life-history needs of the 

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species would consist of the 

combination of these two characteristics 

in close proximity to each other. 

In considering whether features are 

essential to the conservation of the 

species, the Services may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. For example, a 

small patch of meadow may have the 

native flowers, full sun, and a 

biologically insignificant level of 

invasive ants that have been determined 

to be important habitat characteristics 

that support the life-history needs of an 

endangered butterfly. However, that 

small patch may be too far away from 

other patches to allow for mixing of the 

populations, or the meadow may be too 

small for the population to persist over 

time. So the area could have important 

characteristics, but those characteristics 

may not contribute to the conservation 

of the species because they lack the 

appropriate size and proximity to other 

meadows with similar characteristics. 

Conversely, the exact same 

characteristics (native flowers, full sun, 

and a biologically insignificant level of 

invasive ants), when combined with the 

additional characteristics of larger size 

and short dispersal distance to other 

meadows, may in total constitute a 

physical or biological feature essential 

to the conservation of the species. 

Under § 424.12(b)(1)(iii), the Secretary 

will then determine the specific areas 

within the geographical area occupied 

by the species on which are found those 

physical or biological features essential 

to the conservation of the species. 

Section 424.12(b)(1)(iv) provides for 

the consideration of whether those 

physical or biological features may 

require special management 

considerations or protection. In this 

portion of the analysis, the Secretary 

must determine whether there are any 

‘‘methods or procedures useful in 

protecting physical and biological 

features for the conservation of listed 

species.’’ Only those physical or 

biological features that may be in need 

of special management considerations 

or protection are considered further. 

The Services may conduct this analysis 

for the need of special management 

considerations or protection at the scale 

of all specific areas, but they may also 

do so within each specific area. 

The ‘‘steps’’ outlined in 

subparagraphs (i) through (iv) above are 

not necessarily intended to be applied 

strictly in a stepwise fashion. The 

instructions in each subparagraph must 

be considered, as each relates to the 

statutory definition of ‘‘critical habitat.’’ 

However, there may be multiple 

pathways in the consideration of the 

elements of the first part of the 

definition of ‘‘critical habitat.’’ For 

instance, one may first identify specific 

areas occupied by the species, then 

identify all features needed by a species 

to carry out life-history functions in 

those areas through consideration of the 

conservation needs of the species, and 

then determine which of those specific 

areas contain the features essential to 

the conservation of the species. The 

determination of which features are 

essential to the conservation of the 

species may consider the spatial 

arrangement and quantity of such 

features in the context of the life history, 

status, and conservation needs of the 

species. In some circumstances, not 

every location that contains one or more 

of the habitat characteristics that a 

species needs will be designated as 

critical habitat. Some locations may 

have important habitat characteristics, 

but are too small to support a 

population of the species, or are located 

too far away from other locations to 

allow for genetic exchange. Considered 

in context of any generalized 

conservation strategy that might be 

developed for the species, 

§ 424.12(b)(1)(i) through (iv) will allow 

for sufficient flexibility to determine 

what areas within the geographical area 

occupied by the species are needed to 

provide for the conservation of the 

species. 

Occasionally, new taxonomic 

information may result in a 

determination that a previously listed 

species or subspecies is actually two or 

more separate entities. In such an 

instance, the Services must have 

flexibility, when warranted, to continue 

to apply the protections of the Act to 

preserve the conservation value of 

critical habitat that has been designated 

for a species listed as one listable entity 

(i.e., species, subspecies, or distinct 

population segment (DPS)), and which 

is being reproposed for listing as one or 

more different listable entities (e.g., 

when the Services propose to list two or 

more species, subspecies, or DPSs that 

had previously been listed as a single 

entity). Where appropriate (such as 

where the range of an entity proposed 

for listing and a previously designated 

area of critical habitat align), the 

Services have the option to find, 

simultaneously with the proposed 

listing of the proposed entity or entities, 

that the relevant geographic area(s) of 

the existing designation continues to 

apply as critical habitat for the new 

entity or entities. Such a finding 

essentially carries forward the existing 

critical habitat (in whole or in part). 

Alternatively, the Services have the 

option to pursue a succinct and 

streamlined notice of proposed 

rulemaking to carry forward the existing 

critical habitat (in whole or in part), 

which draws, as appropriate, from the 

existing designation. 

More broadly, when applying 

§ 424.12(b)(1) to the facts relating to a 

particular species, the Services will 

usually have more than one option 

available for determining what specific 

areas constitute the critical habitat for 

that species. In keeping with the 

conservation-based purpose of critical 

habitat, the relevant Service may find it 

best to first consider broadly what it 

knows about the biology and life history 

of the species, the threats it faces, the 

species’ status and condition, and, 

therefore, the likely conservation needs 

of the species with respect to habitat. If 

there already is a recovery plan for that 

species (which is not always the case 

and not a prerequisite for designating 

critical habitat), then that plan would be 

useful for this analysis. 

Using principles of conservation 

biology such as the need for appropriate 

patch size, connectivity of habitat, 

dispersal ability of the species, or 

representation of populations across the 

range of the species, the Services may 

evaluate areas needed for the 

conservation of the species. The 

Services must identify the physical and 

biological features essential to the 

conservation of the species and 

unoccupied areas that are essential for 

the conservation of the species. When 

using this methodology to identify areas 

within the geographical area occupied 

by the species at the time of listing, the 

Services will expressly translate the 

application of the relevant principles of 

conservation biology into the 

articulation of the features. Aligning the 

physical and biological features 

identified as essential with the 

conservation needs of the species and 

any conservation strategy that may have 

been developed for the species allows 

us to develop more precise designations 

that can serve as more effective 

conservation tools, focusing 

conservation resources where needed 

and minimizing regulatory burdens 

where not necessary. 

We note that designation of critical 

habitat relies on the best available 

scientific data at the time of designation. 

The Services may not know of, or be 

able to identify, all of the areas on 

which are found the features essential to 

the conservation of a species. After 

designation of final critical habitat for a 

particular species, the Services may 

become aware of or identify other 

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7434 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

features or areas essential to the 

conservation of the species, such as 

through 5-year reviews and recovery 

planning. Newly identified features that 

are useful for characterizing the 

conservation value of designated critical 

habitat can be considered in 

consultations conducted under section 

7(a)(2) of the Act as part of the best 

available scientific and commercial 

data. We also note that if there is 

uncertainty as to whether an area was 

‘‘within the geographical area occupied 

by the species, at the time it is listed,’’ 

the Services may in the alternative 

designate the area under the second part 

of the definition if the relevant Service 

determines that the area is essential for 

the conservation of the species. 

The second part of the statutory 

definition of ‘‘critical habitat’’ (section 

3(5)(A)(ii)) provides that areas outside 

the geographical area occupied by the 

species at the time of listing should be 

designated as critical habitat if they are 

determined to be ‘‘essential for the 

conservation of the species.’’ Section 

424.12(b)(2) further describes the factors 

the Services will consider in identifying 

any areas outside the geographical area 

occupied by the species at the time of 

listing that may meet this aspect of the 

definition of ‘‘critical habitat.’’ Under 

§ 424.12(b)(2), the Services will 

determine whether unoccupied areas 

are essential for the conservation of the 

species by considering ‘‘the life-history, 

status, and conservation needs of the 

species.’’ This will be further informed 

by any generalized conservation 

strategy, criteria, or outline that may 

have been developed for the species to 

provide a substantive foundation for 

identifying which features and specific 

areas are essential to the conservation of 

the species and, as a result, the 

development of the critical habitat 

designation. 

Section 424.12(b)(2) subsumes and 

supersedes § 424.12(e) of the existing 

regulations. Existing section 424.12(e) 

provides that the Secretary shall 

designate areas 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.’’ Although the existing 

provision represents one reasonable 

approach to giving meaning to the term 

‘‘essential’’ as it relates to unoccupied 

areas, the Services find, based on years 

of applying the existing regulations, that 

this provision is both unnecessary and 

unintentionally limiting. While 

Congress supplied two different 

standards to govern the Secretary’s 

designation of these two types of 

habitat, there is no suggestion in the 

legislative history that the Services were 

expected to exhaust occupied habitat 

before considering whether any 

unoccupied area may be essential. In 

addition, although section 3(5)(C) of the 

Act reflects Congressional intent that a 

designation generally should not 

include every area that the species can 

occupy, this does not necessarily 

translate into a mandate to avoid 

designation of any unoccupied areas 

unless relying on occupied areas alone 

would be insufficient. Indeed, there may 

be instances in which particular 

unoccupied habitat is more important to 

the conservation of the species than 

some occupied habitat. 

For example, a species may occupy at 

low densities a large amount of habitat 

that is marginal habitat for the species. 

That marginal habitat may nonetheless 

meet the definition of ‘‘critical habitat’’ 

because the species has been extirpated 

from what historically was superior 

habitat, and it is possible to recover the 

species if all of the marginal habitat is 

thoroughly protected. However, a more 

certain and efficient path to recovery 

may involve the protection of a 

relatively small subset of the marginal 

habitat combined with protection of 

some of the superior habitat (allowing 

for natural expansion or artificial 

reintroduction). A variation of this 

scenario would involve habitat that may 

currently be of high quality, but is 

unlikely to remain that way due to the 

effects of climate change. Given these 

scenarios, it will be useful for the 

Services to retain the flexibility to 

consider various paths to recovery in 

considering what areas to designate as 

critical habitat. 

We conclude that a rigid step-wise 

approach, i.e., first designating all 

occupied areas that meet the definition 

of ‘‘critical habitat’’ (assuming that no 

unoccupied habitat is designated) and 

then, only if that is not enough, 

designating essential unoccupied 

habitat, does not necessarily serve the 

best conservation strategy for the 

species and, in some circumstances, 

may result in a designation that is 

geographically larger but less effective 

as a conservation tool. Deleting current 

§ 424.12(e) will allow us to consider 

including occupied and unoccupied 

areas in a critical habitat designation 

and to follow any general conservation 

strategy, criteria, or outline for the 

species that may be developed. We 

expect that the concurrent evaluation of 

occupied and unoccupied areas for a 

critical habitat designation will allow us 

to develop more precise designations 

that can serve as more effective 

conservation tools, focusing 

conservation resources where needed 

and minimizing regulatory burdens 

where not necessary. 

In addition, the existing regulatory 

provision is unnecessary because the 

Secretary in any case must find that the 

unoccupied area is ‘‘essential.’’ In many 

cases the Secretary may conclude that 

an integral part of analyzing whether 

unoccupied areas are essential is to 

begin with the occupied areas, but the 

Act does not require the Services to first 

prove that the occupied areas are 

insufficient before considering 

unoccupied areas. Therefore, we 

conclude that deleting existing 

§ 424.12(e) restores the two parts of the 

statutory definition (for occupied and 

unoccupied areas) to the relationship 

envisioned by Congress. 

As it is currently written, the 

provision in § 424.12(e) also confusingly 

references present range, while the two 

parts of the statutory definition refer to 

the area occupied at the time of listing. 

In practice, these concepts may be 

largely the same, given that critical 

habitat ideally should be designated at 

or near the time of listing. Nevertheless, 

the Services find that it will reduce 

confusion to change the regulations to 

track the statutory distinction. In 

addition, because critical habitat may be 

revised at any time, the statutory 

distinction may be important during a 

revision, which could occur several 

years after the listing of the species. 

However, we note that unoccupied 

areas must be essential for the 

conservation of the species, but need 

not have the features essential to the 

conservation of the species: This follows 

directly from the inclusion of the 

‘‘features essential’’ language in section 

3(5)(A)(i) but not in section 3(5)(A)(ii). 

Thus, even keeping in mind that 

‘‘features’’ may include features that 

support the occurrence of ephemeral or 

dynamic habitat conditions, the 

Services may identify as areas essential 

to the conservation of the species areas 

that do not yet have the features, or 

degraded or successional areas that once 

had the features, or areas that contain 

sources of or provide the processes that 

maintain essential features in other 

areas. Areas may develop features over 

time, or, through special management 

considerations or protection. The 

conservation value may be influenced 

by the level of effort needed to manage 

degraded habitat to the point where it 

could support the listed species. Under 

§ 424.12(b)(2), the Services will identify 

unoccupied areas, either with the 

features or not, that are essential for the 

conservation of a species. This section 

is intended to provide a flexible, rather 

than prescriptive, standard to allow the 

Services to tailor the inquiry about what 

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is essential to the specific characteristics 

and circumstances of the particular 

species. 

The Services anticipate that critical 

habitat designations in the future will 

likely increasingly use the authority to 

designate specific areas outside the 

geographical area occupied by the 

species at the time of listing following 

any generalized conservation strategy 

that might be developed for the species. 

As the effects of global climate change 

continue to influence distribution and 

migration patterns of species, the ability 

to designate areas that a species has not 

historically occupied is expected to 

become increasingly important. For 

example, such areas may provide 

important connectivity between 

habitats, serve as movement corridors, 

or constitute emerging habitat for a 

species experiencing range shifts in 

latitude or altitude (such as to follow 

available prey or host plants). Where the 

best available scientific data suggest that 

specific unoccupied areas are, or it is 

reasonable to determine from the record 

that they will eventually become, 

necessary to support the species’ 

recovery, it may be appropriate to find 

that such areas are essential for the 

conservation of the species and thus 

meet the definition of ‘‘critical habitat.’’ 

An example may clarify this situation: 

A butterfly depends on a particular host 

plant. The host plant is currently found 

in a particular area. The data show the 

host plant’s range has been moving up 

slope in response to warming 

temperatures (following the cooler 

temperatures) resulting from the effects 

of climate change. Other butterfly 

species have been documented to have 

shifted from their historical ranges in 

response to changes in the range of host 

plants. Therefore, we rationally 

conclude that the butterfly’s range will 

likely move up slope, and we would 

designate specific areas outside the 

geographical area occupied by the 

butterfly at the time it was listed if we 

concluded this area was essential based 

on this information. 

Adherence to the process described 

above will ensure compliance with the 

requirement in section 3(5)(C) of the 

Act, which states that, except in those 

circumstances determined by the 

Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. 

Existing § 424.12(c) resulted from a 

recent separate rulemaking (77 FR 

25611; May 1, 2012); it is not addressed 

in this rulemaking. 

Section 424.12(d) includes minor 

language changes and removes the 

example as it is not necessary for the 

text of the regulation. 

We are removing current § 424.12(e), 

as this concept—designating specific 

areas outside the geographical area 

occupied by the species at the time it is 

listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species—is 

captured in revised § 424.12(b)(2). 

We are redesignating the current 

§ 424.12(f) as § 424.12(e) and adding a 

second sentence to emphasize that 

designation of critical habitat for species 

that were listed prior to 1978 is at the 

discretion of the Secretaries. The first 

sentence of § 424.12(e) provides that the 

Secretary ‘‘may designate critical habitat 

for those species listed as threatened or 

endangered species but for which no 

critical habitat has been previously 

designated.’’ This is substantially the 

same as current § 424.12(f) in the 

existing regulations, although the 

Services have changed the passive voice 

to the active voice. 

The new second sentence codifies in 

the regulations the principle that the 

decision whether to designate critical 

habitat for species listed prior to the 

effective date of the 1978 Amendments 

to the Act (November 10, 1978) is at the 

discretion of the Secretary. This 

principle is clearly reflected in the text 

of the statute and firmly grounded in the 

legislative history. The definition of 

‘‘critical habitat’’ added to the Act in 

1978 provided that the Secretary ‘‘may,’’ 

but was not required to, establish 

critical habitat for species already listed 

by the effective date of the 1978 

amendments. See Public Law 95–632, 

92 Stat. 3751 (Nov. 10, 1978) (codified 

at 16 U.S.C. 1532(5)(B)); see also 

Conservancy of Southwest Florida v. 

United States Fish & Wildlife Service, 

No. 2:10–cv–106–FtM–SPC, 2011 WL 

1326805, *9 (M.D. Fla. April 6, 2011) 

(Florida panther) (plain language of 

statute renders designation of habitat for 

species listed prior to the 1978 

Amendments discretionary), aff’d, 677 

F.3d 1073 (11th Cir. 2012); Fund for 

Animals v. Babbitt, 903 F. Supp. 96, 115 

n.8 (D.D.C. 1995) (grizzly bear) (same). 

Similarly, the 1982 amendments 

expressly exempted species listed prior 

to the 1978 amendments from the 

requirement that critical habitat be 

designated concurrently with listing. 

See Public Law 97–304, 96 Stat. 1411, 

sec, 2(b)(4) (Oct. 13, 1982). To reduce 

potential confusion, the revised 

regulations reflect the discretionary 

nature of designations for such species. 

As recent litigation has highlighted, 

the statutory history regarding the 

procedures for undertaking proposals to 

designate critical habitat for certain 

species is nuanced and has proven 

confusing in other respects as well. For 

species listed before passage of the 1982 

amendments to the Act (October 13, 

1982), any proposed regulations issued 

by the Secretary to designate critical 

habitat are governed by the provisions 

in section 4 of the Act applicable to 

proposals to revise critical habitat 

designations. This is specified in an 

uncodified provision of the 1982 

amendments. See Public Law 97–304, 

96 Stat. 1411, 1416, 2(b)(2), 16 U.S.C. 

1533 (note) (‘‘Any regulation proposed 

after, or pending on, the date of the 

enactment of this Act to designate 

critical habitat for a species that was 

determined before such date of 

enactment to be endangered or 

threatened shall be subject to the 

procedures set forth in section 4 of such 

Act of 1973 . . . for regulations 

proposing revisions to critical habitat 

instead of those for regulations 

proposing the designation of critical 

habitat.’’); see also Center for Biological 

Diversity v. FWS, 450 F.3d 930, 934–35 

(9th Cir. 2006) (unarmored three-spine 

stickleback). While the Services do not 

propose to add regulatory text to 

address this narrow issue, we explain 

below how these provisions must be 

understood within the general scheme 

for designating critical habitat. 

As a result of the above-referenced 

provision of the 1982 amendments, final 

regulations to designate critical habitat 

for species that were listed prior to 

October 13, 1982, are governed by 

section 4(b)(6)(A)(i) of the Act. By 

contrast, for species listed after October 

13, 1982, final regulations are governed 

by section 4(b)(6)(A)(ii). Proposed rules 

for species listed both pre- and post1982 are governed by section 4(b)(5). 

Thus, the Services have additional 

options at the final rule stage with 

regard to a proposal to designate critical 

habitat for those species listed prior to 

1982 that they do not have when 

proposing to designate habitat for other 

species. These include an option to 

make a finding that the revision ‘‘should 

not be made’’ and to extend the 12- 

month deadline by an additional period 

of up to 6 months if there is substantial 

disagreement regarding the sufficiency 

or accuracy of available data. See 16 

U.S.C. 1533(b)(6)(B)(i); see also Center 

for Biological Diversity, 450 F.3d at 936– 

37. 

These provisions, however, do not 

affect the handling or consideration of 

petitions seeking designation of critical 

habitat for species listed prior to 1982. 

The term ‘‘petition’’ is not used in 

section 2(b)(2) of the 1982 amendments 

to the Act (compare to section 2(b)(1) of 

the same amendments, which mentions 

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7436 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

‘‘[a]ny petition’’ and ‘‘any regulation’’). 

Thus, the special procedures for 

finalizing proposals to designate critical 

habitat for species listed prior to 1982 

come into play only upon a decision by 

the Secretary to actually propose to 

designate critical habitat for such 

species. Petitions seeking such 

designations are managed just like any 

other petition seeking designation, 

which are governed by the provisions of 

the Administrative Procedure Act rather 

than section 4 of the Endangered 

Species Act. See 50 CFR 424.14(d); 

Conservancy of Southwest Florida, 2011 

WL 1326805, at *9 (‘‘It is the Secretary’s 

proposal to designate critical habitat 

that triggers the statutory and regulatory 

obligations, not plaintiffs’ requests that 

the Secretary do so.’’); Fund for Animals 

v. Babbitt, 903 F. Supp. at 115 (petitions 

to designate critical habitat are governed 

by the APA, not the ESA). 

We are redesignating current 

§ 424.12(g) as § 424.12(f) with minor 

language changes. 

We are redesignating current 

§ 424.12(h) as § 424.12(g) with minor 

language changes. 

We are adding new § 424.12(h). This 

paragraph reflects the amendment to 

section 4(a)(3)(B)(i) of the Act in the 

National Defense Authorization Act for 

Fiscal Year 2004 (Pub. L. 108–136). 

Section 424.12(h) codifies the 

amendments to the Act that prohibit the 

Services from designating as critical 

habitat lands or other geographic areas 

owned or controlled by the Department 

of Defense, or designated for its use, if 

those lands are subject to an integrated 

natural resources management plan 

(INRMP) prepared under section 101 of 

the Sikes Act (16 U.S.C. 670a), and if the 

Secretary determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

being designated. In other words, if the 

Services conclude that an INRMP 

‘‘benefits’’ the species, the area covered 

is ineligible for designation. Unlike the 

Secretary’s decision on exclusions 

under section 4(b)(2) of the Act, this 

resulting exemption is not subject to the 

discretion of the Secretary (once a 

benefit has been found). 

Neither the Act nor the National 

Defense Authorization Act for Fiscal 

Year 2004 defines the term ‘‘benefit.’’ 

However, the conference report on the 

2004 National Defense Authorization 

Act (Report 108–354) instructed the 

Secretary to ‘‘assess an INRMP’s 

potential contribution to species 

conservation, giving due regard to those 

habitat protection, maintenance, and 

improvement projects . . . that address 

the particular conservation and 

protection needs of the species for 

which critical habitat would otherwise 

be proposed.’’ We, therefore, conclude 

that Congress intended ‘‘benefit’’ to 

mean ‘‘conservation benefit.’’ In 

addition, because a finding of benefit 

results in an exemption from critical 

habitat designation, and given the 

specific mention of ‘‘habitat protection, 

maintenance, and improvement’’ in the 

conference report, we infer that 

Congress intended that an INRMP 

provide a conservation benefit to the 

habitat (e.g., essential features) of the 

species, in addition to the species. 

Examples of actions that provide 

habitat-based conservation benefit to the 

species include: Reducing fragmentation 

of habitat; maintaining or increasing 

populations in the wild; planning for 

catastrophic events; protecting, 

enhancing, or restoring habitats; 

buffering protected areas; and testing 

and implementing new habitat-based 

conservation strategies. 

In the conference report, Congress 

further instructed the Secretary to 

‘‘establish criteria that would be used to 

determine if an INRMP benefits the 

listed species.’’ The Services, therefore, 

describe in § 424.12(h) some factors that 

will help us determine whether an 

INRMP provides a conservation benefit: 

(1) The extent of area and features 

present; (2) the type and frequency of 

use of the area by the species; (3) the 

relevant elements of the INRMP in terms 

of management objectives, activities 

covered, and best management 

practices, and the certainty that the 

relevant elements will be implemented; 

and (4) the degree to which the relevant 

elements of the INRMP will protect the 

habitat from the types of effects that 

would be addressed through a 

destruction-or-adverse-modification 

analysis. FWS will defer to our 

Guidelines for Coordination on 

Integrated Natural Resource 

Management Plans in evaluating these 

plans. 

Under the Sikes Act, the Department 

of Defense is also instructed to prepare 

INRMPs in cooperation with FWS and 

each appropriate State fish and wildlife 

agency. The compliant or operational 

INRMP must reflect the mutual 

agreement of the involved agencies on 

the conservation, protection, and 

management of fish and wildlife 

resources. In other words, FWS must 

agree with an INRMP (reflected by 

signature of the plan or letter of 

concurrence pursuant to the Sikes Act 

(not to be confused with a letter of 

concurrence issued in relation to 

consultation under section 7(a)(2) of the 

Act)) before an INRMP can be relied 

upon for making an area ineligible for 

designation under section 4(a)(3)(B)(i). 

As part of this process, FWS will also 

conduct consultation under section 

7(a)(2) of the Act, if listed species or 

designated critical habitat may be 

affected by the actions included in the 

INRMP. Section 7(a)(2) of the Act will 

continue to apply to any Federal actions 

affecting the species once an INRMP is 

compliant or operation. However, if the 

area is ineligible for critical habitat 

designation under section 4(a)(3)(B)(i), 

then those consultations would address 

only effects to the species and the 

likelihood of the Federal action to 

jeopardize the continued existence of 

the species. 

New § 424.12(h) specifies that an 

INRMP must be compliant or 

operational to make an area ineligible 

for designation under section 

4(a)(3)(B)(i). When the Department of 

Defense provides a draft INRMP for the 

Services’ consideration during 

development of a critical habitat 

designation, the Services may evaluate 

it following the guidelines set forth in 

our Policy on Exclusions from Critical 

Habitat under Section 4(b)(2) of the Act. 

Existing § 424.19 results from a 

recent, separate rulemaking (78 FR 

53058), and is not addressed in this 

rulemaking. 

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. The Office of 

Information and Regulatory Affairs 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. 

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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 

certified that the proposed rule to 

implement these changes to the 50 CFR 

part 424 regulations would not have a 

significant economic impact on a 

substantial number of small entities (79 

FR 27066, at 27075). Several 

commenters objected to the Services’ 

determination that a regulatory 

flexibility analysis is not required for 

this regulation, stating the regulated 

community is affected by this 

regulation. We explained that NMFS 

and FWS are the only entities that are 

directly affected by this rule because we 

are the only entities that designate 

critical habitat, and this rule pertains to 

the procedures for carrying out those 

designations (See our response to 

Comment 81). No external entities, 

including any small businesses, small 

organizations, or small governments, 

will experience any direct economic 

impacts from this rule. No information 

received during the public comment 

period leads us to change our analysis. 

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, these regulations 

will 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 these regulations will 

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 will not be affected 

because the regulations will not place 

additional requirements on any city, 

county, or other local municipalities. 

(b) These regulations will 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 rule is not a ‘‘significant 

regulatory action’’ under the Unfunded 

Mandates Reform Act. These regulations 

will impose no obligations on State, 

local, or tribal governments. 

Takings (E.O. 12630) 

In accordance with Executive Order 

12630, these regulations will not have 

significant takings implications. These 

regulations will not pertain to ‘‘taking’’ 

of private property interests, nor will 

they directly affect private property. A 

takings implication assessment is not 

required because these regulations (1) 

will not effectively compel a property 

owner to suffer a physical invasion of 

property and (2) will not deny all 

economically beneficial or productive 

use of the land or aquatic resources. 

These regulations will substantially 

advance a legitimate government 

interest (conservation and recovery of 

endangered and threatened species) and 

will 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 

these regulations will have significant 

Federalism effects and have determined 

that a Federalism assessment is not 

required. These regulations pertain only 

to determinations to designate critical 

habitat under section 4 of the Act, and 

will not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

Civil Justice Reform (E.O. 12988) 

These regulations do not unduly 

burden the judicial system and meet the 

applicable standards provided in 

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

Order 12988. These regulations will 

clarify how the Services will make 

designations of critical habitat under 

section 4 of the Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with Executive Order 

13175 ‘‘Consultation and Coordination 

with Indian Tribal Governments,’’ the 

Department of the Interior’s manual at 

512 DM 2, and the Department of 

Commerce (DOC) Tribal Consultation 

and Coordination Policy’’/(May 21, 

2013), DOC Departmental 

Administrative Order (DAO) 218–8, and 

NOAA Administrative Order (NAO) 

218–8 (April 2012), we have considered 

possible effects of this final rule on 

federally recognized Indian Tribes. 

Following an exchange of information 

with tribal representatives, we have 

determined that this rule, which 

modifies the general framework for 

designating critical habitat under the 

ESA, does not have tribal implications 

as defined in Executive Order 13175. 

We will continue to collaborate/

coordinate with tribes on issues related 

to federally listed species and their 

habitats and work with them as 

appropriate as we develop particular 

critical habitat designations, including 

consideration of potential exclusion on 

the basis of tribal interests. See Joint 

Secretarial Order 3206 (‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

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

Paperwork Reduction Act 

This rule does not contain any new 

collections of information that require 

approval by the OMB under the 

Paperwork Reduction Act. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

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 have analyzed these regulations 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 1–6 and 

8)), and National Oceanic and 

Atmospheric Administration (NOAA) 

Administrative Order 216–6. Our 

analysis includes evaluating whether 

this action is procedural, administrative, 

or legal in nature and, therefore, a 

categorical exclusion applies. 

Following a review of the changes to 

the regulations at 50 CFR 424.01, 

424.02, and 424.12 and our 

requirements under NEPA, we find that 

the categorical exclusion found at 43 

CFR 46.210(i) applies to these regulation 

changes. At 43 CFR 46.210(i), the 

Department of the Interior has found 

that the following category of actions 

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7438 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

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 Administrative Order 216–6 

contains a substantively identical 

exclusion for ‘‘policy directives, 

regulations and guidelines of an 

administrative, financial, legal, 

technical or procedural nature.’’ 

§ 6.03c.3(i). 

At the time DOI’s categorical 

exclusion was promulgated, there was 

no preamble language that would assist 

in interpreting what kinds of actions fall 

within the categorical exclusion. 

However, in 2008, the preamble for a 

language correction to this categorical 

exclusion gave as an example of an 

action that would fall within the 

exclusion the issuance of guidance to 

applicants for transferring funds 

electronically to the Federal 

Government. In addition, examples of 

recent Federal Register notices invoking 

this categorical exclusion include a final 

rule that established the timing 

requirements for the submission of a 

Site Assessment Plan or General 

Activities Plan for a renewable energy 

project on the Outer Continental Shelf 

(78 FR 12676; February 26, 2013), a final 

rule that established limited liability for 

Noncoal Reclamation by Certified States 

and Indian Tribes (78 FR 8822; February 

6, 2013), and a final rule changing the 

tenure of eagle permits (77 FR 22267; 

April 13, 2012). These regulations fell 

within the categorical exclusion because 

they did not result in any substantive 

change. In no way did they alter the 

standards for, or outcome of, any 

physical or regulatory Federal actions. 

The changes to the critical habitat 

designation criteria are similar to these 

examples of actions that are 

fundamentally administrative, 

technical, and procedural in nature. The 

changes to the regulations at 50 CFR 

424.01, 424.02, and 424.12 (except for 

paragraph (c)) clarify the procedures 

and criteria used for designating critical 

habitat, addressing in particular several 

key issues that have been subject to 

frequent litigation. In addition, the 

regulation revisions to 50 CFR 424.01, 

424.02, and 424.12 better track the 

statutory language of the Act and make 

transparent practices the Services follow 

as a result of case law. The Services also 

make minor wording and formatting 

revisions throughout the three sections 

to reflect plain language standards. The 

regulation revision as a whole carries 

out the requirements of Executive Order 

13563 because, in this rule, the Services 

have analyzed existing rules 

retrospectively ‘‘to make the agencies’ 

regulatory program more effective or 

less burdensome in achieving the 

regulatory objectives.’’ None of the 

changes to the text of the regulation will 

result in changes to the opportunity for 

public involvement in any critical 

habitat designations. 

We also considered whether any 

‘‘extraordinary circumstances’’ apply to 

this situation, such that the DOI 

categorical exclusion would not apply. 

See 43 CFR 46.215 (‘‘Categorical 

Exclusions: Extraordinary 

Circumstances’’). We determined that 

no extraordinary circumstances apply. 

Although the final regulations would 

revise the implementing regulations for 

section 4 of the Act, the effects of these 

proposed changes would not ‘‘have 

significant impacts on species listed, or 

proposed to be listed, on the List of 

Endangered or Threatened Species or 

have significant impacts on designated 

Critical Habitat for these species,’’ as 

nothing in the revised regulations is 

intended to require that any previously 

listed species or completed critical 

habitat designation be reevaluated on 

this basis. Furthermore, the revised 

regulations do not ‘‘[e]stablish a 

precedent for future action or represent 

a decision in principle about future 

actions with potentially significant 

environmental effects’’ (43 CFR 

46.215(e)). None of the extraordinary 

circumstances in 43 CFR 46.215(a) 

through (l) apply to the revised 

regulations in 50 CFR 424.01, 424.02, or 

424.12. 

Nor would the final regulations trigger 

any of the extraordinary circumstances 

of NAO 216–6. This rule does not 

involve a geographic area with unique 

characteristics, is not the subject of 

public controversy based on potential 

environmental consequences, will not 

result in uncertain environmental 

impacts or unique or unknown risks, 

does not establish a precedent or 

decision in principle about future 

proposals, will not have significant 

cumulative impacts, and will not have 

any adverse effects upon endangered or 

threatened species or their habitats. 

§ 5.05c. 

We completed an Environmental 

Action Statement for the Categorical 

Exclusion for the revised regulations in 

50 CFR 424.01, 424.02, and 424.12. 

Energy Supply, Distribution or Use (E.O. 

13211) 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. These regulations are not 

expected to affect energy supplies, 

distribution, and use. Therefore, this 

action is a not a significant energy 

action, and no Statement of Energy 

Effects is required. 

References Cited 

A complete list of all references cited 

in this document is available on the 

Internet at http://www.regulations.gov 

or upon request from the U.S. Fish and 

Wildlife Service (see FOR FURTHER

INFORMATION CONTACT). 

Authority 

We are taking this action under the 

authority of the Endangered Species Act 

of 1973, 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. 

Regulation Promulgation 

Accordingly, we are amending part 

424, subchapter A of chapter IV, title 50 

of the Code of Federal Regulations, as 

set forth below: 

PART 424—[AMENDED] 

■ 1. The authority citation for part 424 

continues to read as follows: 

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

■ 2. Revise § 424.01 to read as follows: 

§ 424.01 Scope and purpose. 

(a) Part 424 provides regulations for 

revising the Lists of Endangered and 

Threatened Wildlife and Plants and 

designating or revising the critical 

habitats of listed species. Part 424 

provides criteria for determining 

whether species are endangered or 

threatened species and for designating 

critical habitats. Part 424 also 

establishes procedures for receiving and 

considering petitions to revise the lists 

and for conducting periodic reviews of 

listed species. 

(b) The purpose of the regulations in 

part 424 is to interpret and implement 

those portions of the Act that pertain to 

the listing of species as threatened or 

endangered species and the designation 

of critical habitat. 

■ 3. Revise § 424.02 to read as follows: 

§ 424.02 Definitions. 

The definitions contained in the Act 

and parts 17, 222, and 402 of this title 

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Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 7439 

apply to this part, unless specifically 

modified by one of the following 

definitions. Definitions contained in 

part 17 of this title apply only to species 

under the jurisdiction of the U.S. Fish 

and Wildlife Service. Definitions 

contained in part 222 of this title apply 

only to species under the jurisdiction of 

the National Marine Fisheries Service. 

Candidate. Any species being 

considered by the Secretary for listing as 

an endangered or threatened species, 

but not yet the subject of a proposed 

rule. 

Conserve, conserving, and 

conservation. To use and the use of all 

methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided pursuant to the 

Act are no longer necessary, i.e., the 

species is recovered in accordance with 

§ 402.02 of this chapter. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Geographical area occupied by the 

species. An area that may generally be 

delineated around species’ occurrences, 

as determined by the Secretary (i.e., 

range). Such areas may include those 

areas used throughout all or part of the 

species’ life cycle, even if not used on 

a regular basis (e.g., migratory corridors, 

seasonal habitats, and habitats used 

periodically, but not solely by vagrant 

individuals). 

List or lists. The Lists of Endangered 

and Threatened Wildlife and Plants 

found at 50 CFR 17.11(h) or 17.12(h). 

Physical or biological features. The 

features that support the life-history 

needs of the species, including but not 

limited to, water characteristics, soil 

type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic, or a more 

complex combination of habitat 

characteristics. Features may include 

habitat characteristics that support 

ephemeral or dynamic habitat 

conditions. Features may also be 

expressed in terms relating to principles 

of conservation biology, such as patch 

size, distribution distances, and 

connectivity. 

Public hearing. An informal hearing 

to provide the public with the 

opportunity to give comments and to 

permit an exchange of information and 

opinion on a proposed rule. 

Special management considerations 

or protection. Methods or procedures 

useful in protecting the physical or 

biological features essential to the 

conservation of listed species. 

Species. Includes any species or 

subspecies of fish, wildlife, or plant, 

and any distinct population segment of 

any vertebrate species that interbreeds 

when mature. Excluded is any species 

of the Class Insecta determined by the 

Secretary to constitute a pest whose 

protection under the provisions of the 

Act would present an overwhelming 

and overriding risk to man. 

Wildlife or fish and wildlife. Any 

member of the animal kingdom, 

including without limitation, any 

vertebrate, mollusk, crustacean, 

arthropod, or other invertebrate, and 

includes any part, product, egg, or 

offspring thereof, or the dead body or 

parts thereof. 

■ 4. In § 424.12, revise paragraphs (a), 

(b), and (d) through (h) to read as 

follows: 

§ 424.12 Criteria for designating critical 

habitat. 

(a) To the maximum extent prudent 

and determinable, we will propose and 

finalize critical habitat designations 

concurrent with issuing proposed and 

final listing rules, respectively. If 

designation of critical habitat is not 

prudent or if critical habitat is not 

determinable, the Secretary will state 

the reasons for not designating critical 

habitat in the publication of proposed 

and final rules listing a species. The 

Secretary will make a final designation 

of critical habitat on the basis of the best 

scientific data available, after taking into 

consideration the probable economic, 

national security, and other relevant 

impacts of making such a designation in 

accordance with § 424.19. 

(1) A designation of critical habitat is 

not prudent when any of the following 

situations exist: 

(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; or 

(ii) Such designation of critical habitat 

would not be beneficial to the species. 

In determining whether a designation 

would not be beneficial, the factors the 

Services may consider include but are 

not limited to: Whether the present or 

threatened destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or whether 

any areas meet the definition of ‘‘critical 

habitat.’’ 

(2) Designation of critical habitat is 

not determinable when one or both of 

the following situations exist: 

(i) Data sufficient to perform required 

analyses are lacking; or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

(b) Where designation of critical 

habitat is prudent and determinable, the 

Secretary will identify specific areas 

within the geographical area occupied 

by the species at the time of listing and 

any specific areas outside the 

geographical area occupied by the 

species to be considered for designation 

as critical habitat. 

(1) The Secretary will identify, at a 

scale determined by the Secretary to be 

appropriate, specific areas within the 

geographical area occupied by the 

species for consideration as critical 

habitat. The Secretary will: 

(i) Identify the geographical area 

occupied by the species at the time of 

listing. 

(ii) Identify physical and biological 

features essential to the conservation of 

the species at an appropriate level of 

specificity using the best available 

scientific data. This analysis will vary 

between species and may include 

consideration of the appropriate quality, 

quantity, and spatial and temporal 

arrangements of such features in the 

context of the life history, status, and 

conservation needs of the species. 

(iii) Determine the specific areas 

within the geographical area occupied 

by the species that contain the physical 

or biological features essential to the 

conservation of the species. 

(iv) Determine which of these features 

may require special management 

considerations or protection. 

(2) The Secretary will identify, at a 

scale determined by the Secretary to be 

appropriate, specific areas outside the 

geographical area occupied by the 

species that are essential for its 

conservation, considering the life 

history, status, and conservation needs 

of the species based on the best 

available scientific data. 

* * * * * 

(d) When several habitats, each 

satisfying the requirements for 

designation as critical habitat, are 

located in proximity to one another, the 

Secretary may designate an inclusive 

area as critical habitat. 

(e) The Secretary may designate 

critical habitat for those species listed as 

threatened or endangered but for which 

no critical habitat has been previously 

designated. For species listed prior to 

November 10, 1978, the designation of 

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7440 Federal Register / Vol. 81, No. 28 / Thursday, February 11, 2016 / Rules and Regulations 

critical habitat is at the discretion of the 

Secretary. 

(f) The Secretary may revise existing 

designations of critical habitat according 

to procedures in this section as new 

data become available. 

(g) The Secretary will not designate 

critical habitat within foreign countries 

or in other areas outside of the 

jurisdiction of the United States. 

(h) The Secretary will not designate as 

critical habitat land or other geographic 

areas owned or controlled by the 

Department of Defense, or designated 

for its use, that are subject to a 

compliant or operational integrated 

natural resources management plan 

(INRMP) prepared under section 101 of 

the Sikes Act (16 U.S.C. 670a) if the 

Secretary determines in writing that 

such plan provides a conservation 

benefit to the species for which critical 

habitat is being designated. In 

determining whether such a benefit is 

provided, the Secretary will consider: 

(1) The extent of the area and features 

present; 

(2) The type and frequency of use of 

the area by the species; 

(3) The relevant elements of the 

INRMP in terms of management 

objectives, activities covered, and best 

management practices, and the certainty 

that the relevant elements will be 

implemented; and 

(4) The degree to which the relevant 

elements of the INRMP will protect the 

habitat from the types of effects that 

would be addressed through a 

destruction-or-adverse-modification 

analysis. 

Dated: January 29, 2016. 

Michael J. Bean, 

Principal Deputy Assistant Secretary for Fish 

and Wildlife and Parks. 

Dated: January 29, 2016. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2016–02680 Filed 2–10–16; 8:45 am] 

BILLING CODE 4310–55–P; 3510–22–P 

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