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(3) When payment is for legal or other ADDRESSES: Public comments and finalizing for the term ‘‘habitat,’’ as that professional services rendered in materials received, as well as supporting term is used in the context of critical connection with the case; or documentation used in the preparation habitat designations and which will be (4) When payment is expressly of this final regulation, are available on set forth in the implementing authorized by statute or regulation, the internet at http:// regulations at 50 CFR 424.02. including restitution and forfeiture. www.regulations.gov in Docket No. We proposed a regulatory definition (d) This policy applies to all civil and FWS–HQ–ES–2020–0047. of ‘‘habitat’’ as that term is used in the criminal cases litigated under the FOR FURTHER INFORMATION CONTACT: Gary context of critical habitat designations direction of the Attorney General and Frazer, U.S. Fish and Wildlife Service, under the Act. In addition to the includes civil settlement agreements, cy Department of the Interior, Washington, proposed definition, we also sought pres agreements or provisions, plea DC 20240, telephone (202) 208–4646; or comment on an alternative definition. agreements, non-prosecution Samuel D. Rauch, III, National Marine The Act defines ‘‘critical habitat’’ in agreements, and deferred prosecution Fisheries Service, Office of Protected section 3(5)(A), establishing separate agreements. Resources, 1315 East-West Highway, criteria depending on whether the Dated: , 2020. Silver Spring, MD 20910, telephone relevant area is within or outside of the geographical area occupied by the William P. Barr, (301) 427–8403. If you use a species at the time of listing, but it does Attorney General. telecommunications device for the deaf (TDD), call the Federal Relay Service not define the broader term ‘‘habitat.’’ [FR Doc. 2020–27189 Filed 12–15–20; 8:45 am] See 16 U.S.C. 1532(5)(A). The Services (FRS) at (800) 877–8339. BILLING CODE 4410–BB–P have not previously adopted a SUPPLEMENTARY INFORMATION: definition of the term ‘‘habitat’’ through Background regulations or policy; rather, we have DEPARTMENT OF THE INTERIOR traditionally applied the criteria from On 5, 2020, the Services the definition of ‘‘critical habitat’’ based Fish and Wildlife Service published a proposed regulatory on the implicit premise that any specific definition of ‘‘habitat’’ in the Federal area satisfying that definition was DEPARTMENT OF COMMERCE Register (85 FR 47333); the definition habitat. would be added to title 50 of the Code However, the Supreme Court recently National Oceanic and Atmospheric of Federal Regulations in part 424 (50 held that an area must logically be Administration CFR part 424). In that proposed rule, we ‘‘habitat’’ in order for that area to meet provided the background for our the narrower category of ‘‘critical 50 CFR Part 424 proposed definition in terms of the habitat’’ as defined in the Act statute, legislative history, and case law. Weyerhaeuser Co. v. U.S. FWS, 139 S. [Docket No. FWS–HQ–ES–2020–0047, In this final rule, we focus our FF09E23000 FXES1111090FEDR 212; Ct. 361 (2018). The Court stated: ‘‘. . . Docket No. 201210–0335] discussion on changes from the Section 4(a)(3)(A)(i) does not authorize proposed rule based on comments we the Secretary to designate [an] area as RIN 1018–BE69; 0648–BJ44 received during the comment period critical habitat unless it is also habitat and our further consideration of the for the species.’’ Id. at 368; see id. at 369 Endangered and Threatened Wildlife issues raised. For background on the and Plants; Regulations for Listing n.2 (‘‘we hold that an area is eligible for statutory and legislative history and designation as critical habitat under Endangered and Threatened Species case law relevant to this regulation, we and Designating Critical Habitat section 4(a)(3)(A)(i) only if it is habitat refer the reader to the proposed rule (85 for the species’’). Given this holding in AGENCY: U.S. Fish and Wildlife Service, FR 47333, , 2020). the Supreme Court’s opinion in Interior; National Marine Fisheries In finalizing the specific changes to Weyerhaeuser, we are adding a Service, National Oceanic and the regulation in this document and regulatory definition of ‘‘habitat.’’ Atmospheric Administration, setting out the accompanying clarifying Under the text and logic of the statute, Commerce. discussion in this preamble, the the definition of ‘‘habitat’’ must ACTION: Final rule. Services are establishing a prospective inherently be at least as broad as the standard only. Although this regulation statutory definition of ‘‘critical habitat.’’ SUMMARY: We, the U.S. Fish and is effective 30 days from the date of To give effect to all of section 3(5)(A), Wildlife Service (FWS) and the National publication as indicated in DATES above, the definition of ‘‘habitat’’ we are Marine Fisheries Service (NMFS) it will apply only to relevant finalizing is broad enough to include (collectively referred to as the rulemakings for which the proposed both occupied areas and unoccupied ‘‘Services’’ or ‘‘we’’), add a definition of rule is published after that date. Thus, areas, because the statute defines ‘‘habitat’’ to our regulations that the prior version of the regulations at 50 ‘‘critical habitat’’ to include both implement section 4 of the Endangered CFR part 424 will continue to apply to occupied and unoccupied areas. 139 S. Species Act of 1973, as amended (Act). any rulemakings for which a proposed Ct. at 369 (‘‘[h]abitat can, of course, This rulemaking responds to Supreme rule was published before the effective include areas where the species does Court case law regarding the designation date of this rule. Nothing in this final not currently live, given that the statute of critical habitat and provides revised regulation is intended to require defines critical habitat to include transparency, clarity, and consistency that any previously completed critical unoccupied areas’’). for stakeholders. habitat designation be reevaluated on We received numerous comments that DATES: the basis of this final regulation. the proposed and alternative definitions Effective date: This final regulation is lacked clarity, were ambiguous, and Discussion of Changes From the effective on 15, 2021. used terms that needed to be defined Applicability date: This revised Proposed Rule further. Additionally, commenters regulation applies to critical habitat In this section, we discuss changes identified specific issues with some of rulemakings for which a proposed rule between the proposed regulatory the terms used in the proposed and is published after , 2021. definition and the definition we are alternative definitions and were

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concerned overall that the definition in habitat were not encompassed in the We have retained the phrase ‘‘one or could have unintended consequences proposed definition. Finally, this use of more life processes’’ from the proposed on implementation of other parts of the the phrase ‘‘abiotic and biotic setting’’ definition for similar reasons, in that we Act or on other Federal programs avoids the undefined term ‘‘attributes,’’ intend for habitat to include areas used involving habitat. In response to these which commenters found to be vague, during a particular season (e.g., for comments and upon further poorly defined, or confusing. migratory species) or at a particular consideration, the Services have revised We included the phrase ‘‘resources phase in the species’ life cycle (e.g., the regulatory definition of ‘‘habitat’’ to and conditions’’ to make clear that the fresh-water spawning habitat versus be added to 50 CFR 424.02 to read as definition of ‘‘habitat’’ is inclusive of all adult marine habitat). We intend this follows: qualities of an area that can make that phrase to have the common biological area important to the species. We intend For the purposes of designating critical meaning, that is, to include a series of habitat only, habitat is the abiotic and biotic for the word ‘‘resources’’ to describe the functions—such as movement, setting that currently or periodically contains common ecological concept—which in respiration, growth, reproduction, the resources and conditions necessary to general is a source or supply from excretion, and nutrition—that are support one or more life processes of a which a benefit is produced and that essential to sustain a living being. species. has some utility. Likewise, we intend Retaining this phrase is consistent with By reducing the definition to a single the word ‘‘condition’’ to describe a terms that commenters suggested should sentence, this structure is more logical, particular state that something is in. be included in the definition—such as Examples of resources and conditions and eliminates any apparent ‘‘reproduction,’’ ‘‘recruitment,’’ or can include dynamic processes (e.g., contradiction between the first sentence ‘‘survival’’—but avoids limiting the riverine sand bar formation or fire and the second sentence of both the definition to a particular set of life- disturbance), a set of environmental proposed and alternative definitions on history needs that not be applicable conditions (e.g., temperature, pH, and which we sought comment in the to all species. salinity), or any characteristics that can proposed rule. We removed the second sentence of satisfy life-history needs (e.g., food, We added an introductory phrase to the proposed definition because we shelter). Additionally, this plain the final definition (‘‘For the purposes incorporated some of its concepts (e.g., language takes the place of the phrase of designating critical habitat only’’) that attributes) into the first sentence and the ‘‘existing attributes’’ that commenters remainder of the sentence is now explicitly limits the scope of stated was vague, unclear, and applicability to the designation of confusing. unnecessary. As discussed earlier, the critical habitat. We added this explicit We solicited comments on whether addition of the phrase ‘‘resources and statement in response to public the phrase ‘‘depend upon’’ or the word conditions’’ to the first sentence clarifies comments that raised concerns about ‘‘use’’ better describes the relationship and takes the place of the phrase the potential for the definition to apply between a species and its habitat. We ‘‘existing attributes,’’ which commenters to other sections of the Act or other received many comments on these stated was vague, unclear, and Federal programs that use the term phrases. We chose to use the phrase confusing. The inclusion of ‘‘or ‘‘habitat’’ and thus have unintended ‘‘necessary to support’’ to replace the periodically’’ addresses the clarification consequences on implementation of phrase ‘‘depend upon to carry out’’ from in the second sentence that ‘‘habitat’’ these other sections and programs. This the proposed definition or the phrase includes ephemeral habitat. In the addition provides clarity that the ‘‘use to carry out’’ from the alternative preamble to the proposed definition, we definition applies only to the process of definition. Many commenters stated that described ephemeral habitat as habitat designating critical habitat. both ‘‘depend upon’’ and ‘‘use’’ were that ‘‘may be variable, both temporally We replaced the phrase ‘‘physical too broad and would encompass areas and spatially, such as beach overwash places’’ with the phrase ‘‘abiotic and that should not be considered habitat, or areas, early-successional riparian biotic setting.’’ Abiotic means derived were too narrow and would leave areas communities, or riverine sandbars. For from non-living sources such as soil, out that should be considered habitat. example, the sand bars that interior least water, temperature, or physical We intend that the phrase ‘‘necessary to terns use in a river may develop during processes. Biotic means derived from support’’ applies to areas needed for one particular times of the year correlating living sources such as a plant or more of a species’ life processes. to changes in flow rates of a stream or community type or prey species. We Inclusion of this phrase is plain river system.’’ In light of that intend for the word ‘‘setting’’ to have its language, and we intend for this phrase description, defining ‘‘habitat’’ as common meaning, such as the time, to convey its common meaning. settings that ‘‘currently or periodically place, and circumstances in which We adopted the phrases ‘‘resources contains the resources and conditions’’ something occurs or develops. The and conditions,’’ ‘‘necessary to includes ephemeral habitat because, addition of this phrase responds to support,’’ and currently or periodically although we are not able to predict comments that habitat is more than contains.’’ As discussed in the preamble exactly where within the general setting simply a physical location. As we stated to the proposed rule, we intend the a specific attribute or feature will form, in the proposed rule, we intentionally definition of ‘‘habitat’’ to include we know that the area contains the chose not to use the statutory phrase ephemeral habitats—areas that ‘‘may be resources and conditions for the ‘‘physical or biological features’’ to variable, both temporally and spatially, attribute or feature to form within that avoid conflating the statutory language such as beach overwash areas, early- general setting. Similarly, as long as the regarding occupied critical habitat with successional riparian communities, or area currently or periodically contains that of the broader definition of riverine sandbars.’’ 85 FR at 47335. the ‘‘resources and conditions necessary ‘‘habitat’’ promulgated here. However, Therefore, we included ‘‘periodically’’ to support one or more life processes’’ we consider ‘‘abiotic and biotic setting’’ to clarify that habitat includes of the species, the term ‘‘existing’’ to be inclusive of ‘‘physical or biological ephemeral habitat, which are areas attributes from the second sentence does features.’’ Additionally, it addresses the where the resources and conditions are not add meaning. At the same time, concerns raised by commenters that not consistently present but appear at notwithstanding the inclusion of natural spatial and temporal variations certain times. ephemeral and seasonal habitat in the

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definition, the definition excludes areas shorter than 60 days. See, e.g., community. Some commenters stated that do not currently or periodically Connecticut Light & Power Co. v. that the text of the Act and the contain the requisite resources and Nuclear Regulatory Comm’n, 673 F.2d Weyerhaeuser decision both use present conditions, even if such areas could 525, 534 (D.C. Cir. 1982) (upholding a tense; therefore, the definition should meet this requirement in the future after 30-day comment period and stating that require all attributes to be present. restoration activities or other changes ‘‘neither statute nor regulation mandates Those commenters argued the proposed occur. that the agency do more’’). In addition and alternative definitions have the We note that this understanding of to the length of a comment period, potential to contradict Congress’s ‘‘habitat’’ is consistent with the courts consider the number of legislative intent and engage in interpretive requirement that any comments received and whether regulatory overreach. conception of ‘‘habitat’’ in this context comments had an effect on an agency’s Response: The Supreme Court be broad enough to include currently final rule, in assessing whether the recently held that an area must logically unoccupied areas that nonetheless meet public had a meaningful opportunity to be ‘‘habitat’’ before that area could meet the definition of ‘‘critical habitat.’’ For comment. Although the comment the narrower category of ‘‘critical example, a species may be extirpated in period here was shorter than 60 days, habitat’’ as defined in the Act. a particular area due to over- the public had a meaningful Weyerhaeuser Co. v. U.S. FWS, 139 S. exploitation, disease, or a stochastic opportunity to comment on the Ct. 361 (2018). Given the need to event. If that area nonetheless provides proposed rule. The Services received address this particular holding from the ‘‘the abiotic and biotic setting that more than 48,000 public submissions Supreme Court’s opinion in currently or periodically contains the representing more than 167,000 Weyerhaeuser, we decided to develop a resources and conditions necessary to individual commenters. Among the regulatory definition of ‘‘habitat.’’ Under support one or more life processes of a submissions were multiple letters from the text and logic of the statute, the species,’’ it will remain ‘‘habitat’’ for the organizations signed by thousands of definition of ‘‘habitat’’ must inherently species despite the absence of the individuals expressing general be at least as broad as the statutory species. opposition to the rule. Although many definition of ‘‘critical habitat.’’ To give effect to all of section 3(5)(A), the Summary of Comments and Responses of the other individual comments were non-substantive in nature, expressing definition of ‘‘habitat’’ we are finalizing In our proposed rule published on either general support for, or opposition today is sufficiently broad to include August 5, 2020 (85 FR 47333), we to, the proposed rule with no supporting both the occupied areas and unoccupied requested public comments on a information or analysis, we also areas described in the statutory proposed definition of ‘‘habitat’’ and an received many detailed substantive definition of ‘‘critical habitat’’; alternative definition, with the intention comments with specific rationales for therefore, it is consistent with the of adding a definition of this term to our support of, or opposition to, specific legislative intent and the statute implementing regulations in 50 CFR portions of the proposed rule, and many regarding the role of critical habitat in part 424. In particular, we requested commenters also provided unique achieving the Act’s purpose of species comment on whether either definition is revised definitions for our consideration conservation. Furthermore, the revised too broad or narrow or otherwise proper in the final rule. In addition, the definition is consistent with the or improper. We also sought public Services were responsive to the received Weyerhaeuser opinion (see 139 S. Ct. at comment on specific terms and phrases comments by making revisions to the 369 (‘‘[h]abitat can, of course, include in the proposed definition and definition in the final rule to address areas where the species does not alternative definition, such as ‘‘depend them. Below, we summarize the currently live, given that the statute upon’’ or ‘‘use,’’ and whether the phrase significant, substantive public defines critical habitat to include ‘‘where the necessary attributes to comments sent by the 4, unoccupied areas’’)). Finally, because support the species presently exist’’ 2020, deadline and indicate where we the scope of the final definition is expressly limits what could qualify as made revisions to the definition in necessary to encompass the full unoccupied critical habitat for a species. response to those comments. definition of ‘‘critical habitat’’ under the During the public comment period, we Comment 1: The Services received statute, it is not regulatory overreach. received several requests for public comments stating that the proposed Comment 2: Many commenters hearings. Public hearings are not definition contradicted the intent of the requested the Services make clear that required for regulation revisions of this Act, providing varied reasons. Many the definition of ‘‘habitat’’ applies only type, and we elected not to hold public commenters cited to the purposes of the to critical habitat designations. They hearings. After considering several Act (16 U.S.C. 1531(b)) and provisions noted the term ‘‘habitat’’ is used requests for extensions of the public regarding critical habitat (id. §§ 1532(5), multiple times in the Act and is not comment period beyond the original 30- 1533) to support their views that any limited to critical habitat. Some day public comment period, we also definition must be broad enough to commenters expressed concern decided not to extend the public serve the long-term conservation of the regarding unintended consequences of comment period. species. Commenters stated that the applying this definition to other The APA does not specify a minimum proposed and alternative definitions provisions of the Act, stating that the number of days for a comment period, would significantly limit the areas proposed rule did not address potential but the comment period must be long eligible for critical habitat designations impacts of the ‘‘habitat’’ definition to enough to afford the public a and, as a result, run counter to other Act-based actions such as meaningful opportunity to comment, Congressional intent that critical habitat conservation planning, species and which usually leads agencies to allow a designations identify areas essential to a habitat restoration, permitting, comment period of at least 60 days. species’ survival and recovery. mitigation, enforcement, and recovery Consistent with this principle, courts Other commenters argued that the implementation. give broad discretion to agencies in proposed and alternative definitions Commenters also expressed concern determining the reasonableness of a were too broad and ran contrary to the that the definition of ‘‘habitat’’ could comment period. Courts have frequently spirit of the definition of ‘‘habitat’’ most have impacts beyond the Endangered upheld comment periods that were widely accepted among the scientific Species Act, including a number of

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other Federal and State programs to landowners or other parties. As Response: The Services have clarified conserve and enhance wildlife habitats. indicated by the revised wording of the that the revised regulatory definition of One State expressed concern about the definition, this regulatory definition is ‘‘habitat’’ will be applicable only in the impact of this definition on their State applicable only within the context of a context of critical habitat designation endangered species act. Multiple critical habitat designation or revision, and revision. The definition does not commenters stated that a regulatory and it does not create a new category or create a new procedural or regulatory definition should not be used in any type of regulated area. Therefore, this process, nor will it impose any federal grant program to restrict the rule has no bearing on, and will not additional regulatory consequences for allocation, or to use federal funds, for affect, other habitat programs or habitat- landowners, project proponents, or the restoration or creation of new management activities. other affected parties. habitat in areas of non-habitat. As we discussed in the proposed rule, Comment 5: Multiple commenters Response: Although the Services if an area is occupied by the listed stated we should clarify that this rule indicated in the preamble of the species, then as a matter of logic and will not affect projects that are already proposed rule that our intent was to rational inference, the area must also be pending approval when this rule limit the definition of ‘‘habitat’’ to the habitat for the species. Similarly, given becomes effective. Some commenters designation of critical habitat, it was not the more exacting criteria set forth in noted this rule should apply to future explicitly stated in the regulatory the regulations for designating critical habitat designations, as well as definition. Thus, we have revised the unoccupied areas as critical habitat (see future revisions of existing critical definition to explicitly limit it to the 50 CFR 424.12(b)(2)), which were habitat. Several commenters had the context of designating (or revising) recently revised to address the Supreme converse view and stated that, following critical habitat. We did this by adding Court’s decision in Weyerhaeuser, conclusion of this rulemaking, we ‘‘For the purposes of designating critical questions regarding whether an should review previously designated habitat only’’ to the beginning of the unoccupied area qualifies as habitat are critical habitats and revise them as definition. The addition of this phrase far less likely to occur. Those appropriate to ensure that only existing will make clear that the definition of regulations, which were revised in 2019 habitat is designated as critical habitat. ‘‘habitat’’ only applies in the context of (see 84 FR 54020, , 2019), Response: As stated in the proposed critical habitat designations and will indicate that unoccupied critical habitat rule, the regulatory definition of avoid any unforeseen or unintended will be considered for designation only ‘‘habitat’’ will apply only to critical consequences of the definition being if (1) the occupied areas are not habitat rules that are proposed after the applied in situations where it is not adequate to ensure the conservation of effective date of this final rule. Thus, it appropriate. the species and (2) there is a reasonable Comment 3: Multiple commenters does not apply to critical habitat that stated that application of this regulation certainty both that the unoccupied areas was designated or proposed for should not be limited to cases in which will contribute to the species’ designation prior to the effective date of ‘‘genuine questions exist’’ (as we stated conservation and that the unoccupied this rule. This final rule will not have in the proposed rule), and that this areas contain one or more of the a bearing on consultations under section regulation should instead establish a physical or biological features essential 7 for any projects with a Federal nexus required procedural step in which the to the conservation of the species (50 unless the project may affect areas for Services first determine whether an area CFR 424.12(b)(2)). This is not to say, as which a critical habitat designation or is habitat before proceeding to a was asserted by some commenters, that revision was proposed after the effective determination that the area meets the we are using or intend to use the date of this rule. After this rule becomes requirements for designation as critical statutory definition of ‘‘critical habitat’’ effective, we do not intend to conduct habitat. These commenters stated that to define what is habitat for a species. a systematic review of all previous we cannot rely on the statutory We are instead stating that an added critical habitat designations. The Act definition of ‘‘critical habitat’’ to fulfill step of first assessing whether an area provides a process by which designated the requirement of ensuring an area is meets the regulatory definition of critical habitat may be revised, and we habitat for the species, and some ‘‘habitat’’ before assessing whether it will continue to employ that process. explained that this is a necessary step meets the definition of and criteria for Lastly, as indicated in the proposed because even areas within the occupied ‘‘critical habitat’’ will, in most cases, be rule, in the vast majority of cases, we range of the species do not all an unnecessary step. Therefore, we do expect application of this definition of necessarily qualify as habitat. However, not agree with comments that we should ‘‘habitat’’ to be unnecessary because other commenters agreed with the use this rule to institute a new most designations include occupied position taken in the proposed rule that procedure or process through which all areas only, and we conclude that the this regulation should not be used to areas must first be evaluated to occupancy of the species confirms that create an additional regulatory determine whether or not the areas are the areas constitute habitat for that procedure or step. Some commenters in fact habitat for a species before we species. noted that the proposed rule’s claim that determine whether they meet the Comment 6: Some commenters stated this definition would apply only in narrower definition and criteria for that the proposed rule represents a limited cases was unclear because the critical habitat. departure from the Act’s requirement to rule would establish a regulatory Comment 4: Commenters stated that rely on the best scientific data available. definition for all habitat and would the Services should state that any Commenters stated that the concept of therefore apply to all cases. identification of ‘‘habitat’’ for a habitat is species-specific and should be Response: In response to these and particular species will not impose defined based on the best available other comments, we have further additional regulatory consequences for science for that species, not by a set of clarified in this final rule that the landowners, project proponents, or regulatory standards. Commenters regulatory definition of ‘‘habitat’’ will other affected parties. The identification asserted that application of a regulatory not be used to create a new procedural of ‘‘habitat’’ should be a purely definition of ‘‘habitat’’ would step or regulatory process, nor will it administrative action in preparation for unnecessarily constrain what qualifies result in any new regulatory burdens for critical habitat designation. as habitat.

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Response: Section 4(b)(2) of the Act identical to these published definitions We also considered the definition requires that we designate, and make because it has to fit within the used by Canada’s Species at Risk Act revisions to, critical habitat on the basis regulatory framework of the Act. This (SARA; Canada § 2(1)). Under SARA, of the best scientific data available and concept is explained further in our ‘‘habitat’’ is defined as ‘‘(a) in respect of after taking into consideration the response to the comment below aquatic species, spawning grounds and economic, national security, and other regarding the relationship of our nursery, rearing, food supply, migration relevant impacts of specifying any definition to those in the scientific and any other areas on which aquatic particular area as critical habitat. We literature. species depend directly or indirectly in will continue to apply this statutory Comment 8: Multiple commenters order to carry out their life processes, or requirement when designating critical requested to review the scientific areas where aquatic species formerly habitat, and we will also apply the best literature that the Services used in occurred and have the potential to be scientific data available when developing the proposed and alternate reintroduced; and (b) in respect of other determining what areas meet the definitions of habitat. Commenters also wildlife species, the area or type of site regulatory definition of ‘‘habitat.’’ requested that we further explain our where an individual or wildlife species Furthermore, because this regulatory rationale by providing an analysis of the naturally occurs or depends on directly definition of ‘‘habitat’’ is intentionally literature relative to the final rule’s or indirectly in order to carry out its life broad enough to encompass both definition and by describing why other processes or formerly occurred and has occupied and unoccupied critical existing definitions of ‘‘habitat’’ were the potential to be reintroduced.’’ Our habitat as defined in section 3 of the Act insufficient for our regulatory definition has similar concepts as and as further detailed in the framework. The commenters also SARA’s without differentiating between implementing regulations in 50 CFR provided examples of existing literature aquatic species and other wildlife. 424.12, application of this definition that describes definitions of ‘‘habitat’’ Specifically, both definitions include will not constrain the application of the used within the conservation biology currently unoccupied areas along with best scientific data available to which community, as well as a recently occupied habitat, and both definitions areas qualify as critical habitat and are developed definition of ‘‘habitat’’ for take into account the potential for ultimately designated as critical habitat use within a regulatory context habitat to be suitable for a species only under the Act. We see no tension (Rylander et. al 2020). some of the time. Both definitions are between the final definition and the Response: In developing our final also based on the ecological conditions requirements of the Act and the regulatory definition of ‘‘habitat,’’ we a species needs to survive. In the case implementing regulations. considered several published of SARA, these are described as ‘‘the Comment 7: We received numerous definitions from the ecological and areas on which . . . species depend comments that provided various conservation-biology literature. directly or indirectly in order to carry alternative definitions of the term Two definitions that we considered in out its life processes.’’ In our definition, ‘‘habitat.’’ Some were wholesale re- detail were Odum’s (1971) definition, it is ‘‘the abiotic and biotic setting that writes of the definitions; others used ‘‘the place where an organism lives, or currently or periodically contains the many of the same terms used in the the place where one would go to find resources and conditions necessary to proposed and alternative definitions it,’’ and Kearney’s (2006) definition, ‘‘a support one or more life processes of a from the proposed rule but with slight description of a physical place, at a species.’’ One difference is that we variations; some referred to dictionary particular scale of space and time, altered the final definition from our definitions or definitions in published where an organism either actually or proposed definition to avoid the use of relevant ecological or conservation- potentially lives.’’ Neither these nor the word ‘‘depend,’’ which commenters biology literature; and some used other definitions in the scientific stated was vague (see specific response different terms and phrases from the literature are well-suited to our to these comments below). ones used in the proposed rule. Some particular purpose here, which is to Comment 9: Commenters stated that commenters provided multiple define the term within the legal many of the terms used in both the variations in the same comment letter. framework for designation of critical proposed and alternative definition Response: We considered the various habitat under the Act. The Act defines were ambiguous, unclear, and alternative definitions provided and ‘‘critical habitat’’ not just in terms of undefined. Commenters stated that the have revised the definition of ‘‘habitat’’ where a species may be found, but also lack of clarity or of clear definitions of accordingly. After considering the in terms of which areas provide the terms used in both the proposed and substantive comments, we made the resources that further the species’ alternative definition could lead to changes summarized in the preamble to conservation. Further, we find that none confusion in implementation, increased arrive at the final definition in this rule. of the existing definitions clearly regulatory uncertainty, and increased In short, our edits relative to the incorporate areas that are not currently litigation. Commenters recommended proposed and alternative definitions in occupied by the species but that may that we clearly define the terms that are the proposed rule were focused on still satisfy the requirements to be used in the definition in the final rule. making the final definition clearer by considered unoccupied critical habitat. Response: In response to these and using more commonly understood Our definition includes unoccupied other comments, we have revised the words. We also explain certain words areas, and therefore complies with the definition of ‘‘habitat’’ in this final rule. and phrases (e.g., ‘‘support’’) later in intent of the Act, which requires the These changes are described in the this response-to-comments section, Secretaries to designate as critical preamble to this regulation and again to help where additional clarity habitat not only areas that are occupied throughout this responses-to-comments was requested. We have explained more by the species, but also those areas that section. Changes include removal of fully the relationship between our final are ‘‘outside the geographical area words or terms, the substitution of new definition and those of published occupied by the species at the time it is wording to reduce ambiguity, and the definitions of ‘‘habitat’’ that we listed upon a determination by the description of intended meanings of considered (see the relevant comment Secretary that such areas are essential particular words used in the final and response below). We determined for the conservation of the species’’ (16 definition. For example, we removed that our final definition could not be U.S.C. 1532(3)). both ‘‘depend upon’’ and ‘‘use,’’ words

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which generated many comments both habitat is more than just areas that a clarify this ambiguity, especially with in favor of and opposed to their species physically uses. Some respect to how ‘‘capacity to support’’ inclusion, and replaced them with commenters also asserted that ‘‘depend relates to either ‘‘depend upon’’ or ‘‘necessary to support,’’ which describes upon’’ is preferable to ‘‘use’’ because it ‘‘use.’’ Some of their concern related to the ‘‘resources and conditions’’ in is consistent with the language in how the word ‘‘capacity’’ could be question. section 2 of the Act stating that the interpreted—whether narrowly, to We further describe (below, in purpose of the Act is to provide a means exclude marginal-quality habitat another response to comment) that our by which the ecosystems that because it refers only to areas that intent is for the meaning of ‘‘support’’ endangered species and threatened contain all necessary attributes to to be consistent with the purposes of the species depend upon may be conserved. support the species, or broadly, to Act to recover listed species to the point Some commenters noted that ‘‘use’’ is include areas of any quality because it at which they no longer need the vague and may imply that a negligible includes areas that have or could protections of the Act. The ‘‘resources level of reliance on an area or incidental develop some attributes that could and conditions’’ in question must use of an area is sufficient for the area support the species if restored. contribute to this outcome, at least to qualify as habitat, or it may be Commenters also expressed uncertainty incrementally. interpreted to refer to concepts of as to whether ‘‘support’’ only means Other changes made to the proposed habitat use or resource use rather than that the species can survive, or whether definition in light of commenters’ what constitutes habitat. the habitat can sustain the species into requests for increased clarity include In contrast, commenters in favor of the future. the deletion of the words ‘‘attributes’’ the word ‘‘use’’ or ‘‘may use’’ stated that Response: As discussed earlier, we and ‘‘physical places’’ from the final ‘‘depend upon’’ could be applied too have removed the second sentence from definition. ‘‘Physical places’’ was narrowly in that it may imply obligate the definition because the changes to removed from the definition and use (restricted to one) , and it is too the first sentence have made it replaced with ‘‘biotic and abiotic similar in meaning to the word unnecessary. Therefore, the term setting’’ because the substituted phrase ‘‘essential’’ in the statutory definition of ‘‘capacity’’ no longer appears in the captures a broader set of characteristics, ‘‘critical habitat.’’ Other commenters definition or raises these questions. The conditions, and processes and addresses stated that ‘‘use’’ is preferable because it term ‘‘support’’ remains in the the concern raised by multiple more accurately describes the definition, but now appears in the first commenters that natural spatial and relationship between species and their sentence. We use that term consistent temporal variations in habitat were not environments. Some commenters with the intent of the Act—to further the encompassed in the proposed preferred ‘‘use’’ because it conservation of listed species. definition. ‘‘Attributes’’ was removed in acknowledges that habitat may include Specifically, to ‘‘support’’ a listed favor of the plain-language terminology areas where the species does not species’ life processes, resources and ‘‘resources and conditions necessary to currently exist. conditions must contribute, at least support one or more life processes of a Response: Given the large number of incrementally, to bringing the species species,’’ which is further described in comments for and against using each of ‘‘to the point at which the measures a separate comment below. the two terms—‘‘depend upon’’ and provided pursuant to . . . [the Act] . . . ‘‘use’’—in the regulatory definition of Wording of the Proposed Definition are no longer necessary’’ (16 U.S.C. ‘‘habitat,’’ we have revised the final 1532(3)). This approach is also Comment 10: Commenters’ views on definition to eliminate use of these consistent with our recent revisions to the terms ‘‘depend upon’’ and ‘‘use’’ terms altogether. Based on the public the procedures used to designate critical within the definition of ‘‘habitat’’ varied comments, we have replaced these habitat (50 CFR 424.12(b)(2); 84 FR greatly. Some commenters expressed terms with other, plain-language words 45020, August 27, 2019), which specify support for using ‘‘depend upon’’ that more clearly indicate the intended that the Secretary must determine, in instead of ‘‘use,’’ whereas other meaning of the term ‘‘habitat’’ and avoid part, that there is a reasonable certainty commenters expressed the opposite the types of ambiguity and that the area will contribute to the view. Some commenters supported misinterpretations discussed by the conservation of the species. inclusion of both terms within the commenters. Specifically, we have Comment 12: A number of definition because this construction focused the definition on the abiotic and commenters expressed concern that the would capture the ideas both that the biotic setting that provides resources proposed and alternative definitions species relies on the area and that and conditions ‘‘necessary to support’’ focus too narrowly on ‘‘physical places’’ individuals are in fact using the area. one or more life processes of the and do not recognize habitat is the Other commenters discussed how both species. What is considered ‘‘necessary resources and conditions found in those of these closely related terms were too to support’’ the species will be physical places that provide for the vague and could be interpreted in grounded in the best available science needs of the species. Some suggested various ways, narrowly as well as for the particular species and the the definition of ‘‘habitat’’ should broadly, with some commenters common-sense application of ecological emphasize the biotic and abiotic suggesting that both terms be used in principles. We also find that this components that comprise a species’ the definition, and other commenters phrasing better demonstrates how the habitat and noted that it is not a static suggesting that one or both of the terms definition of ‘‘habitat’’ is inclusive of location on a map. At least one be replaced with other, clearer both areas that would qualify as commenter that supported the use of terminology—such as ‘‘supports the occupied critical habitat and areas that ‘‘physical places’’ suggested that we use species.’’ would qualify as unoccupied critical ‘‘types of places’’ to provide a broader Commenters in favor of using habitat. application that reflects habitat linkages ‘‘depend upon’’ stated that this phrasing Comment 11: Commenters found the and the principle that unoccupied areas more accurately reflects the relationship phrase ‘‘capacity to support’’ to be can be habitat. between species and their habitat and is ambiguous and subject to Response: We have removed the consistent with the well-established misinterpretation, and requested that words ‘‘physical places’’ from the principle in the scientific literature that the Services provide a definition to definition. The definition now refers to

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the ‘‘biotic and abiotic setting,’’ which and need the area. These commenters assessing what constitutes habitat for a captures a broader set of characteristics, stated that reference to the ‘‘species’’ is species. conditions, and processes, and consistent with the Act, existing Other Topics accomplishes the intent that the regulations, and the Supreme Court comment sought to accomplish. opinion in Weyerhaeuser. In contrast, Comment 15: Commenters stated that Comment 13: Commenters stated that some commenters stated that habitat the definition should neither require the definition should not just consider must also include areas that support occupancy nor limit critical habitat attributes that are present. Areas where even a single individual of a listed designations to occupied habitat. Some attributes are absent because a given species. These commenters stated that commenters noted that habitat should location simply cannot support any or such an interpretation is consistent with not be limited to occupied areas because all of the necessary attributes needed by the plain meaning and dictionary occupancy can be difficult to determine a species, or because human activity or definitions of ‘‘habitat’’ in that there is for certain species. Other commenters a natural event has altered one or more no requirement that the area support an stated a concern that designating habitat attributes, should be considered habitat entire population or species in order to where a species does not exist (i.e., if the site is capable of providing the qualify as habitat. These commenters unoccupied habitat) has significant attributes. Commenters stated that using recommended that, to avoid impacts to private property rights and ‘‘presently’’ makes the definition too misinterpretation and misapplication of the ability to engage in economic narrow and does not include enough the definition, we clarify that the term activities. areas that have the capacity to support ‘‘habitat’’ encompasses all areas that Response: The revised regulatory the species. Additionally, commenters support the species, populations, or definition of ‘‘habitat’’ must be believe the terms ‘‘existing attributes’’ individuals of the species. sufficiently broad to encompass both occupied and unoccupied areas that and ‘‘necessary attributes’’ are vague Response: Both the proposed and and should be clarified. Other satisfy the definition of ‘‘critical alternative definitions provided in the habitat’’ in section 3 of the Act. commenters stated that the definition proposed rule defined habitat in terms should include ‘‘all necessary Application of this definition will not of areas that ‘‘individuals of the constrain what qualifies as critical attributes’’ and the definition should species’’ depend upon or use. The focus on attributes that can support habitat because it complements the phrase ‘‘individuals of the species’’ was existing regulations at 50 CFR 424.12, populations rather than individuals. not intended to artificially restrict what Response: We have added the phrase which prescribe when and how the qualifies as habitat to something less ‘‘resources and conditions necessary to Services will consider designating, and than what would be necessary to sustain support one or more life processes of a ultimately designate, unoccupied areas the species, nor was it intended to species’’ to the definition. This revision as critical habitat under the Act. The removes the term ‘‘existing attributes’’ artificially expand what qualifies as definition does not create a new that commenters criticized as being habitat to areas where, for example, only procedural or regulatory process, nor vague and unclear. Resources and vagrant individuals are present. We will it result in any additional conditions allow for the inclusion of the agree that what qualifies as habitat for regulatory consequences for aspects of habitat that are important to a given species should be based on the landowners, project proponents, or the species, including dynamic ecology of that species so that it reflects other affected parties. processes (e.g., riverine sandbar the specific relationship between the Comment 16: Commenters stated that formation or fire disturbance) or a set of environment and individuals, the proposed definition was too narrow, environmental conditions (e.g., populations, and the species as a whole. in particular that it may not account for temperature, pH, and salinity). By Because this phrase received extensive all geographic areas that are or could be avoiding inclusion of areas that cannot public comments indicating an suitable across a species’ entire range, or currently or periodically support the unintended ambiguity, we have all sites that a species may use, because species, this simplified phrasing removed this phrase from the definition of the limitation of the phrase ‘‘existing addresses commenters’ concerns that of ‘‘habitat’’ provided in this final rule. attributes.’’ Conversely, other the final definition would be overly The final definition is instead oriented commenters stated that the proposed broad. around life processes of the species and definition of ‘‘habitat’’ should be limited Comment 14: Commenters expressed the setting that supports those life to specific geographic areas, and that the various concerns that both the proposed processes. We find that this revised Services should clarify the relationship and alternative definitions of habitat definition removes the potential between the range, habitat, and critical emphasized ‘‘individuals of the species’’ confusion identified by the commenters habitat of a species. as a frame of reference and noted that and is sufficiently broad to encompass Response: As noted in the preamble it could be interpreted as something what would constitute habitat at the above, the text and logic of the statute more or less than intended. Some relevant and appropriate biological inherently require that the definition of commenters felt this phrasing could be scale—i.e., individual members of a ‘‘habitat’’ must be at least as broad as applied to limit habitat protections in species, populations, and the species as the statutory definition of ‘‘critical smaller areas that supported some a whole. habitat.’’ We have therefore created this individuals but that were not While the word ‘‘species’’ still occurs definition to be sufficiently broad to sufficiently large to support recovery of in the final definition, it is not used in include both occupied and unoccupied the species, whereas other commenters a manner that constrains the definition areas. As for the relationship between felt that this phrasing could be applied of ‘‘habitat’’ to a single biological level, range and habitat, the current range of to include areas where only a single such as the whole species. Rather, this a species is the general geographic area member of the species was present term is used as an inclusive term in the within which a species can be found. without considering the ecological context of the definition. In other words, Therefore, depending on the facts relationship between the individual and use of the term ‘‘species’’ does not surrounding a given species, the areas the particular setting. Some commenters preclude consideration of the necessary that constitute occupied habitat for the stated that, for an area to qualify as ecological linkages between individuals, species are a subset of, or are the same habitat, the species as a whole must use populations, and metapopulations when as, its current range.

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Comment 17: Commenters noted that be habitat have the necessary resources above, even if areas are initially the proposed definition, including the and conditions at that time in the future, determined not to be habitat, they may phrase ‘‘existing attributes,’’ may critical habitat can be revised. be subsequently determined to be preclude identifying as habitat areas Comment 18: Some commenters habitat. In addition, we note that in that experience rapid changes in stated that restoration of marginal or addition to designating areas as critical ecology driven by habitat loss and degraded areas is a necessary and habitat, other tools and mechanisms are fragmentation or areas that may develop proven recovery strategy for many available to the Services and our over time, as a result of changing or species, and because the proposed partners to identify or protect areas in shifting conditions due to climate definition seemingly precludes need of restoration to support the change, to the point that they can identification of areas needing conservation of a species. The Services support the species. Additionally, other restoration, the definition of ‘‘habitat’’ is also note, as indicated in the preamble commenters noted that the effects of contrary to the conservation purposes of and in responses to comments, that we climate change may make some current the Act. In particular, they believe this have clarified that ‘‘habitat’’ is defined habitat unsuitable for species while over limitation would prohibit the Services here for the purposes of designating time other areas that are not currently from protecting areas that are currently critical habitat and would not be used suitable habitat may become suitable. unoccupied but may become necessary in other contexts. Conversely, some commenters stated to the survival and recovery of a species. Comment 19: The Services received that the Services must determine Commenters provided examples of comments stating that the proposed whether areas qualify as habitat based circumstances in which currently definition violates the Administrative on current conditions, not on the unoccupied areas may become Procedure Act because it failed to expected future ability of an area to necessary for the conservation of the provide a reasoned explanation or become habitat as a result of climate species, including: (1) The species’ rational basis for the proposed change. current habitat becomes degraded or definitions. Commenters stated that Response: Consistent with our destroyed, or is insufficient for recovery; referring to the need to address the longstanding practice, we will consider (2) those currently unoccupied areas Supreme Court’s decision in the best scientific data available, (including formerly occupied habitat) Weyerhaeuser is not a reasoned including data regarding changing are restored; or (3) the areas are likely explanation because nothing in that climate, in determining what areas to become suitable in the future as a decision required that the Services currently or periodically contains the result of ecological processes such as define ‘‘habitat,’’ encouraged the resources and conditions necessary to succession. Other commenters stated Services to adopt a restrictive definition, support one or more life processes of the that the definition must include areas or even took issue with the Services’ species. We must evaluate a species’ that may require some restoration long-standing approach of defining habitat use and requirements on a case- because, if remaining habitat were habitat in accordance with the life by-case and species-specific basis enough for a species, it is likely the history and ecology of each species. because we must take into account the species would not have been listed as an particular species’ life history and endangered or threatened species. Response: Although the Supreme ecology, including factors such as Other commenters took the opposing Court’s opinion in Weyerhaeuser did mobility, adaptability, resilience, view, stating that any definition of not require promulgation of a definition phenology (the timing of recurring ‘‘habitat’’ must not include areas that of ‘‘habitat,’’ given the Court’s holding natural events), and home-range sizes. need even a de minimis amount of that the Act does not give the As noted previously (see response to habitat restoration because that would Secretaries the authority to designate an Comment 13), the Services have stretch the scientific understanding of area as critical habitat unless it is also removed the words ‘‘existing attributes’’ the definition of ‘‘habitat’’ too far. These habitat for the species, we proposed to from the final definition. commenters stated that, if intentional define the term to ‘‘provide For areas that are outside the restoration is required for an area, then transparency, clarity, and consistency geographical area occupied by the it should not qualify as habitat. for stakeholders.’’ See 85 FR at 47334, species at the time of listing, we Response: The Services agree that August 5, 2020. In the proposed rule, we evaluate whether the best available some unoccupied areas may be essential identified our objectives in developing scientific data indicate that an area to the conservation of the species; the proposed and alternative definitions currently or periodically contains the however, we disagree that the definition (sufficient breadth to include both resources and conditions necessary to of ‘‘habitat’’ precludes the designation occupied and unoccupied areas and to support life history needs of the of such areas as critical habitat. accommodate the wide variety of abiotic particular species. We recognize that, However, habitat, whether occupied or and biotic attributes that the vast array due to varying levels of uncertainty unoccupied, must still have (currently of species need) and how we went about regarding effects of climate change and or periodically) the resources and developing them (incorporation of the complexity of biotic and abiotic conditions necessary to support one of useful concepts from the ecological interactions within a given ecosystem, it the life processes for the species. literature while adding concepts to may not always be possible to make As noted above, the definition of ensure sufficient breadth based on the reasonable predictions regarding how ‘‘habitat’’ we are finalizing today is statute and our experience) (id.). The habitat is changing in response. Even if consistent with the legislative intent proposed rule also sought comments areas are initially determined not to be and the statute regarding the role of from the public on specific terms and habitat, they may be subsequently critical habitat in achieving the Act’s phrases in the definitions, and our determined to be habitat; however, there purpose of species conservation. The comment responses above provide a is not an automatic assumption that definition respects the statutory text by detailed and reasoned explanation of those areas would be considered to be distinguishing between habitat and why the specific terminology in the critical habitat. If, in the future, areas that are not habitat (but can definition accomplishes the purposes of conditions change or new information become habitat in the future, whether by the definition and the conservation becomes available indicating that areas virtue of restoration activities or because goals of the Act. Therefore, we have that were not previously considered to of other changes). As further noted provided a reasoned explanation and

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rational basis for our action as required would likely cause significant, negative exclusion because one or more by the Administrative Procedure Act. environmental impacts to imperiled ‘‘extraordinary circumstances’’ are Comment 20: The Services received species and their habitat (for example, present under FWS’s NEPA regulations comments stating that the proposal by undercutting both habitat and and NMFS’s NEPA Manual. For violated the Administrative Procedure species recovery and restoration efforts). example, commenters asserted that the Act because the absence of a rational Others stated that the specific definition could have significant explanation for the proposed definitions categorical exclusion that we invoked impacts on ecologically significant or deprived the public of a meaningful (43 CFR 46.210(i) and Categorical critical areas, migratory birds, species opportunity to comment. In particular, Exclusion G7 from NOAA NEPA listed or proposed for listing under the commenters stated that the proposed Manual at Appendix E) does not apply Endangered Species Act, or Tribal rule did not disclose specifically what to this rulemaking and that we did not lands; violate Tribal law requirements information we did consider, or provide explain why any of the Services’ imposed for protection of the citations to the ecological literature that categorical exclusions applies to this environment (such as by limiting formed the basis for the proposal or to rulemaking. studies showing how the proposed or Response: We conclude that the ceremonial use of Indian sacred sites); alternative definition reflects the categorical exclusion for ‘‘[p]olicies, be subject to public controversy; or have principle that a species’ habitat is based directives, regulations, and guidelines: highly controversial effects and highly on its ecology. that are of an administrative, financial, uncertain and potentially significant Response: Contrary to what these legal, technical, or procedural nature’’ environmental effects. In addition, the comments suggest, the public had a (43 CFR 46.210(i) and NOAA NEPA definition could have a significant meaningful opportunity to comment on Manual, Appendix E, Categorical impact on areas designated as critical the proposed and alternative Exclusion G7) applies to this habitat both for future designations and definitions. The proposed rule rulemaking. As we made clear in the for review of current designations. transparently communicated that, proposed rule, the objective of this Response: We conclude that none of although concepts from ecological rulemaking is to ‘‘provide transparency, the ‘‘extraordinary circumstances’’ literature provided a starting point for clarity, and consistency for apply in this situation. First, this the Services’ definitions, ‘‘no pre- stakeholders’’ because the Weyerhaeuser definition is limited to the context of existing definition was adequate to decision may raise questions in some designating critical habitat. Second, address the particular regulatory instances as to whether areas of promulgating this definition does not framework.’’ As a result, the proposed unoccupied critical habitat are alter the outcomes for any species or rule did not provide citations to specific ‘‘habitat.’’ Adoption of the final critical habitat designations because studies because the Services had not definition would not create a new relied on specific studies, but instead procedural step that the Services would even before we finalize this definition, ‘‘incorporated useful concepts from the need to undertake every time we the Weyerhaeuser decision already literature to the extent appropriate and designate critical habitat because in the required the Services to ensure that added concepts based on our decades of vast majority of cases there is no areas they designate as critical habitat expertise.’’ The public thus was question that the areas that qualify as qualify as ‘‘habitat.’’ Moreover, this final provided with a meaningful opportunity critical habitat are ‘‘habitat.’’ The definition incorporates concepts from to comment in light of the explanation question of whether areas within a ecological literature, with adaptations in the proposed rule, combined with the critical habitat definition qualify as that the Services put in place in light of specific questions for which the ‘‘habitat’’ would arise only in the the statutory context and their proposed rule sought comment. relatively rare situations when there is regulatory and technical expertise. The Comment 21: Several commenters a question as to whether any of the adaptations we have made are designed supported invoking the NEPA unoccupied areas that we are to ensure that the definition is categorical exclusion for ‘‘[p]olicies, considering designating as critical sufficiently broad to apply to both directives, regulations, and guidelines: habitat qualifies as ‘‘habitat.’’ In such a occupied and unoccupied areas under that are of an administrative, financial, situation, the Weyerhaeuser opinion consideration for designation as critical legal, technical, or procedural nature’’ would require the Services to undertake habitat and to the vast array of species under the Services’ NEPA implementing the analysis reflected in this definition, and their life histories that may need regulations (43 CFR 46.210(i) and that is, to determine—based on concepts protection under the Act. Even without NOAA NEPA Manual at Appendix E, in the ecological literature, combined promulgating this definition, the Categorical Exclusion G7). Commenters with the Services’ regulatory and Services would undertake this analysis maintained that the definition does not scientific experience and expertise— and would adopt and adapt the establish any new requirements that whether the unoccupied areas meet the concepts from the ecological literature may change the scope of critical habitat definition of ‘‘habitat.’’ The result of in designating critical habitat. designations, or impose any additional promulgating this definition, therefore, Promulgating the definition through procedural steps for designating critical is merely to inform the public and the rulemaking merely makes the analysis habitat, and some suggested that the fact Services’ employees of the mechanics of that the Services are developing the how that consideration will work, so express and transparent, and it therefore definition in response to the Supreme that the process of designating critical does not have an impact upon any Court’s decision in Weyerhaeuser also habitat is more straightforward, more species, critical habitat, or area of land. supports the conclusion that the efficient, and more transparent. Finally, because the definition is pulled categorical exclusion applies. Accordingly, this rulemaking is of a from concepts in ecological literature Alternatively, we also received technical nature. and the Services’ practical regulatory comments opposing the invocation of a Comment 22: Several commenters experience, promulgating this definition categorical exclusion for the proposed stated that, even if the proposed is technical or administrative in nature definitions of ‘‘habitat.’’ Some asserted definition fell within a potential and does not have any uncertain that the definition would constitute a categorical exclusion, it would be impacts on any species, critical habitat, major substantive change in the law and inappropriate to invoke the categorical or area of land.

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Required Determinations substantial number of small entities. Further, the rule would not result in a The following discussion explains our regulatory taking because it would not Regulatory Planning and Review— rationale. deny all economically beneficial or Executive Orders 12866 and 13563 This rulemaking responds to productive use of the land or aquatic Executive Order 12866 provides that applicable Supreme Court case law resources and would not present a the Office of Information and Regulatory regarding designating critical habitat barrier to all reasonable and expected Affairs (OIRA) in the Office of under the Endangered Species Act and beneficial use of private property. Management and Budget will review all provides transparency, clarity, and significant rules. OIRA has determined consistency for stakeholders. The Federalism (E.O. 13132) that this rule is significant. changes to these regulations do not alter In accordance with Executive Order Executive Order 13563 reaffirms the the reach of designations of critical 13132, we have considered whether this principles of E.O. 12866 while calling habitat. rule would have significant federalism for improvements in the nation’s NMFS and FWS are the only entities effects and have determined that a regulatory system to promote that are directly affected by this rule federalism summary impact statement is predictability, to reduce uncertainty, because we are the only entities that not required. This rule pertains only to and to use the best, most innovative, designate critical habitat under the designation of critical habitat under the and least burdensome tools for Endangered Species Act. No external Endangered Species Act, and would not achieving regulatory ends. The entities, including any small businesses, have substantial direct effects on the executive order directs agencies to small organizations, or small States, on the relationship between the consider regulatory approaches that governments, will experience any Federal Government and the States, or reduce burdens and maintain flexibility economic impacts from this rule. At the on the distribution of power and and freedom of choice for the public proposed rule stage, we certified that responsibilities among the various where these approaches are relevant, this rule would not have a significant levels of government. feasible, and consistent with regulatory economic effect on a substantial number Civil Justice Reform (E.O. 12988) objectives. E.O. 13563 emphasizes of small entities. Nothing in this final further that regulations must be based rule changes that conclusion. This rule does not unduly burden the on the best available science and that judicial system and meets the applicable the rulemaking process must allow for Unfunded Mandates Reform Act (2 standards provided in sections 3(a) and public participation and an open U.S.C. 1501 et seq.) 3(b)(2) of Executive Order 12988. This exchange of ideas. We have developed In accordance with the Unfunded rule pertains only to designation of this rule in a manner consistent with Mandates Reform Act (2 U.S.C. 1501 et critical habitat under the Endangered these requirements. This rule is seq.): Species Act. consistent with Executive Order 13563, (a) On the basis of information Government-to-Government and in particular with the requirement contained in the Regulatory Flexibility Relationship With Tribes of retrospective analysis of existing Act section above, this final rule would rules, designed ‘‘to make the agency’s not ‘‘significantly or uniquely’’ affect In accordance with Executive Order regulatory program more effective or small governments. We have 13175 ‘‘Consultation and Coordination less burdensome in achieving the determined and certify pursuant to the with Indian Tribal Governments,’’ the regulatory objectives.’’ Unfunded Mandates Reform Act, 2 Department of the Interior’s manual at U.S.C. 1502, that this rule would not 512 DM 2, and the Department of Executive Order 13771 impose a cost of $100 million or more Commerce (DOC) ‘‘Tribal Consultation This final rule is an Executive Order in any given year on local or State and Coordination Policy’’ (, 13771 ‘‘other’’ action. governments or private entities. A Small 2013), DOC Departmental Administrative Order (DAO) 218–8, and Regulatory Flexibility Act Government Agency Plan is not required. As explained above, small NOAA Administrative Order (NAO) Under the Regulatory Flexibility Act governments would not be affected 218–8 ( 2012), we have considered (as amended by the Small Business because this final rule would not place possible effects of this final rule on Regulatory Enforcement Fairness Act additional requirements on any city, federally recognized Indian Tribes. The (SBREFA) of 1996; 5 U.S.C. 601 et seq.), county, or other local municipalities. following Tribes and Tribal entities whenever a Federal agency is required (b) This rule would not produce a stated that Government-to-Government to publish a notice of rulemaking for Federal mandate on State, local, or consultation is required or requested any proposed or final rule, it must Tribal governments or the private sector Government-to-Government prepare, and make available for public of $100 million or greater in any year; consultation: Jamestown S’Klallam comment, a regulatory flexibility that is, this final rule is not a Tribe, Northwest Indian Fisheries analysis that describes the effect of the ‘‘significant regulatory action’’ under Commission, Port Gamble S’Klallam rule on small entities (i.e., small the Unfunded Mandates Reform Act. Tribe, Skokomish Tribe, Confederated businesses, small organizations, and This rule would impose no obligations Tribes of the Chehalis Reservation, small government jurisdictions). on State, local, or Tribal governments. Spokane Tribe of Indians, Point No However, no regulatory flexibility Point Treaty Council, Confederated analysis is required if the head of an Takings (E.O. 12630) Tribes of the Colville Reservation Fish agency, or his designee, certifies that the In accordance with Executive Order and Wildlife, Confederated Tribes of the rule will not have a significant 12630, this rule would not have Colville Reservation, Yurok Tribe, economic impact on a substantial significant takings implications. This Kootenai Tribe of Idaho, Miccosukee number of small entities. SBREFA rule would not directly affect private Tribe of Indians of Florida, National amended the Regulatory Flexibility Act property, nor would it cause a physical Congress of American Indians, to require Federal agencies to provide a or regulatory taking. It would not result Confederated Tribes of the Umatilla statement of the factual basis for in a physical taking because it would Indian Reservation, and the Upper certifying that a rule will not have a not effectively compel a property owner Snake River Tribes Foundation, Inc. The significant economic impact on a to suffer a physical invasion of property. Services have reviewed these comments

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from the Tribes and conclude that the environment and, therefore, that these PART 424—LISTING ENDANGERED changes to these implementing actions are categorically excluded from AND THREATENED SPECIES AND regulations make general changes to the the requirement for completion of an DESIGNATING CRITICAL HABITAT Act’s implementing regulations and do environmental assessment or not directly affect specific species or environmental impact statement: ■ 1. The authority citation for part 424 Tribal lands or interests. This regulation ‘‘Policies, directives, regulations, and continues to read as follows: defines the term ‘‘habitat’’ as it is guidelines: that are of an administrative, Authority: 16 U.S.C. 1531 et seq. applied to designating critical habitat financial, legal, technical, or procedural ■ 2. Amend § 424.02 by adding a and directly affect only the Services. nature.’’ With or without these regulatory definition for ‘‘Habitat’’ in alphabetical revisions, the Services would be NOAA’s NEPA procedures include a order to read as follows: similar categorical exclusion for obligated to continue to list species and § 424.02 Definitions. to designate critical habitat based on the ‘‘preparation of policy directives, rules, * * * * * best available data. Therefore, we regulations, and guidelines of an Habitat. For the purposes of conclude that this regulation does not administrative, financial, legal, designating critical habitat only, habitat have ‘‘tribal implications’’ under section technical, or procedural nature.’’ is the abiotic and biotic setting that 1(a) of E.O. 13175, and formal (Categorical Exclusion G7, at CM currently or periodically contains the government-to-government consultation Appendix E). resources and conditions necessary to is not required by the executive order We have considered the extent to support one or more life processes of a and related policies of the Departments which this regulation has a significant species. of Commerce and the Interior. We will impact on the human environment and continue to collaborate with Tribes on * * * * * issues related to federally listed species determined that it falls within one of the [FR Doc. 2020–27693 Filed 12–15–20; 8:45 am] and their habitats and work with them categorical exclusions for actions that BILLING CODE 4333–15–P as we implement the provisions of the have no effect on the quality of the Act. See Joint Secretarial Order 3206 human environment. DEPARTMENT OF COMMERCE (‘‘American Indian Tribal Rights, Energy Supply, Distribution or Use (E.O. Federal-Tribal Trust Responsibilities, 13211) National Oceanic and Atmospheric and the Endangered Species Act,’’ Administration 5, 1997). Executive Order 13211 requires Paperwork Reduction Act agencies to prepare Statements of 50 CFR Part 648 Energy Effects when undertaking certain This rule does not contain any new actions. This regulation is not expected [Docket No. 201209–0332; RTID 0648– collections of information that require to have a significant adverse effect on XX064] approval by the OMB under the the supply, distribution, or use of Paperwork Reduction Act and does not Fisheries of the Northeastern United energy, and it has not been otherwise alter the existing collection of States; Atlantic Bluefish Fishery; 2021 designated by the Administrator of information approved under OMB Bluefish Specifications OIRA as a significant energy action. Control Number 1018–0165. An agency Therefore, this action is a not a AGENCY: National Marine Fisheries may not conduct or sponsor, and a Service (NMFS), National Oceanic and person is not required to respond to, a significant energy action, and no Statement of Energy Effects is required. Atmospheric Administration (NOAA), collection of information unless it Commerce. displays a currently valid OMB control Authority number. ACTION: Final rule. We issue this final rule under the National Environmental Policy Act SUMMARY: NMFS issues final authority of the Endangered Species specifications for the 2021 Atlantic We analyzed this final rule in Act, as amended (16 U.S.C. 1531 et bluefish fishery. This action is necessary accordance with the criteria of the seq.). to establish allowable harvest levels to National Environmental Policy Act prevent overfishing, consistent with the (NEPA), the Department of the Interior List of Subjects in 50 CFR Part 424 most recent scientific information, as regulations on Implementation of the Administrative practice and required by the Magnuson-Stevens National Environmental Policy Act (43 Fishery Conservation and Management CFR 46.10–46.450), the Department of procedure, Endangered and threatened Act and the Atlantic Bluefish Fishery the Interior Manual (516 DM 8), the species. Management Plan. This rule also NOAA Administrative Order 216–6A, George Wallace, informs the public of the final fishery and the NOAA Companion Manual Assistant Secretary for Fish and Wildlife and specifications for the 2021 fishing year. (CM), ‘‘Policy and Procedures for Parks, Department of the Interior. Compliance with the National DATES: Effective on , 2021. Christopher Wayne Oliver, Environmental Policy Act and Related ADDRESSES: The Mid-Atlantic Fishery Authorities’’ (effective , Assistant Administrator, National Marine Management Council prepared a 2017). This rulemaking responds to Fisheries Service, National Oceanic and Supplemental Information Report (SIR) Atmospheric Administration. recent Supreme Court case law. for these specifications that describes As a result, we conclude that the Regulation Promulgation the action and any changes from the categorical exclusion found at 43 CFR original environmental assessment (EA) 46.210(i) applies to this regulation. At For the reasons set out in the and analyses for the revised 2020 and 43 CFR 46.210(i), the Department of the preamble, we hereby amend part 424, 2021 specifications action. Copies of the Interior has found that the following subchapter A of chapter IV, title 50 of SIR, original EA, and other supporting category of actions would not have a the Code of Federal Regulations, as set documents for this action, are available significant effect on the human forth below: upon request from Dr. Christopher M.

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