Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81411 (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: December 4, 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 August 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, August 5, 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 January 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 January 15, 2021. definition and the definition we are alternative definitions and were VerDate Sep<11>2014 16:21 Dec 15, 2020 Jkt 253001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\16DER1.SGM 16DER1 khammond on DSKJM1Z7X2PROD with RULES 81412 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 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 may