# Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-17518

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 27, 2019
- **Citation:** 84 FR 45020

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 424
[Docket No. FWS-HQ-ES-2018-0006; Docket No. 180202112-8112-01; 4500030113]
RIN 1018-BC88; 0648-BH42
Endangered and Threatened Wildlife and Plants; Regulations for Listing Species and Designating Critical Habitat

AGENCY:

U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the “Services” or “we”), revise portions of our regulations that implement section 4 of the Endangered Species Act of 1973, as amended (Act). The revisions to the regulations clarify, interpret, and implement portions of the Act concerning the procedures and criteria used for listing or removing species from the Lists of Endangered and Threatened Wildlife and Plants and designating critical habitat.

DATES:

Effective date:
This final regulation is effective on September 26, 2019.

Applicability date:
These revised regulations apply to classification and critical habitat rules for which a proposed rule was published after September 26, 2019.

ADDRESSES:

Public comments and materials received, as well as supporting documentation used in the preparation of this final regulation, are available on the internet at
http://www.regulations.gov
in Docket No. FWS-HQ-ES-2018-0006.

FOR FURTHER INFORMATION CONTACT:

Gary Frazer, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240, telephone 202/208-4646; or Samuel D. Rauch, III, National Marine Fisheries Service, Department of Commerce, 1315 East-West Highway, Silver Spring, MD 20910, telephone 301/427-8000. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service at 800/877-8339.

SUPPLEMENTARY INFORMATION:

Background

On July 25, 2018, the Services published a proposed rule in the
Federal Register
(83 FR 35193) regarding section 4 of the Act and its implementing regulations in title 50 of the Code of Federal Regulations (CFR), part 424, which sets forth the procedures for the addition, removal, or reclassification of species on the Federal Lists of Endangered and Threatened Wildlife and Plants (lists) and designating critical habitat. In the July 25, 2018,
Federal Register
document, we provided the background for our proposed revisions to these regulations in terms of the statute, legislative history, and case law.

In this final rule, we focus our discussion on changes from the proposed revisions based on comments we received during the comment period and our further consideration of the issues raised. For background on the statutory and legislative history and case law relevant to these regulations, we refer the reader to the proposed rule (83 FR 35193, July 25, 2018).

In finalizing the specific changes to the regulations in this document, and setting out the accompanying clarifying discussion in this preamble, the Services are establishing prospective standards only. Although these regulations are effective 30 days from the date of publication as indicated in
DATES
above, they will apply only to relevant rulemakings for which the proposed rule is published after that date. Thus, the prior version of the regulations at 50 CFR part 424 will continue to apply to any rulemakings for which a proposed rule was published before the effective date of this rule. Nothing in these final revised regulations is intended to require that any previously completed classification decision or critical habitat designation must be reevaluated on the basis of these final regulations.

This final rule is one of three related final rules that are publishing in this issue of the
Federal Register
. All of these documents finalize revisions to various regulations that implement the Act.

Discussion of Changes From the Proposed Rule

In this section we discuss changes between the proposed regulatory text and regulatory text that we are finalizing in this document regarding the foreseeable future, factors for delisting, and designation of unoccupied critical habitat. We also explain a revision to the regulatory definition of “physical or biological features.” We are not modifying the proposed regulatory text for the section on prudent determinations of critical habitat or the proposed revision to 50 CFR 424.11(b). We are finalizing those sections as proposed.

Foreseeable Future

We proposed that the framework for the foreseeable future in 50 CFR 424.11(d) provide that the term foreseeable future extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time, but may instead explain the extent to which they can reasonably determine that both the future threats and the species' responses to those threats are probable.

The Services received numerous comments stating that many of the terms and phrases in the proposed framework are vague and unclear, and that the proposed framework impermissibly raises the bar for listing species as threatened species. Some commenters suggested in particular that “likely” should be used instead of “probable,” to avoid confusion and to ensure that the provision is consistent with the statutory definition of “threatened species.” In response to these comments and upon further consideration, we have revised the framework to provide that the term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time.

We have removed the phrase “conditions potentially posing a danger of extinction in the foreseeable future,” and are replacing it with “both the future threats and the species' responses to those threats.” In light of the public comments received, we determined that

this particular phrase, as originally proposed, could be read incorrectly to imply that “conditions” could include something other than “threats,” and that “conditions” affecting the species need only be “potential conditions” and not actual or operative threats. In addition, we concluded that the phrase “posing a danger of extinction” could conflate the concept of the foreseeable future with the status of the species, instead of indicating that the foreseeable future is the period of time in which the Services can make reliable predictions about the threats and the species' responses to those threats.

We have also replaced the word “probable” with the word “likely.” While we had intended “probable” to have its common meaning, which is synonymous with the term “likely,” we have determined that it is most consistent with the statutory definition of “threatened species” to instead use the term “likely.” We have deleted the term “probable” and replaced it with the term “likely” to avoid any confusion on this point and to address public comments. We clarify that by “likely” the Services mean “more likely than not.” This is consistent with the Services' long-standing interpretation and previous judicial opinions.

Factors Considered in Delisting Species

We are making one minor change to the proposed regulatory text for 50 CFR 424.11(e). We have replaced “will” with “shall” in the first sentence of this provision to make it consistent with the language in other sections of 50 CFR 424.11. While we have not made any other changes, we note that when we use the term “status review” in the context of evaluating extinction or not meeting the definition of a “species,” this review may not necessarily involve an evaluation of the species' status relative to the five listing factors in section 4(a)(1) of the Act. As is our common practice, if the Services determine the entity does not meet the statutory definition of a “species,” the status review would conclude at that point. Likewise, if the Services determine an entity is extinct, there would be no need for the Services to evaluate the factors affecting the species as part of a status review.

We received many comments expressing concern over removing the terms “recovery” and “error” from the regulatory text because of a perception that the basis of the Services' actions would not be clear. As is the Services' current practice, we will continue to explain in proposed and final delisting rules why the species is being removed from the lists—whether due to recovery, extinction, error, or other reasons. These revisions do not alter, in any way, the Services' continued goal of recovery for all listed species.

Not Prudent Determinations

We proposed that 50 CFR 424.12(a)(1)(v) provide that after analyzing the best scientific data available, the Secretary otherwise determines that designation of critical habitat would not be prudent.

We note that this formulation could be misconstrued to suggest that the Secretary may make a determination irrespective of the data, provided the Secretary first analyzes the data. This interpretation, although grammatically possible, was not our intent and is not permissible under the Act. However, given that numerous comments expressed concern about expanding circumstances when the Services may find critical habitat designation to be not prudent, we decided to reorder 50 CFR 424.12(a)(1)(v) to provide that the Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

Designating Unoccupied Areas

We proposed that 50 CFR 424.12(b)(2) provide that the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species or would result in less efficient conservation for the species. Efficient conservation for the species refers to situations where the conservation is effective, societal conflicts are minimized, and resources expended are commensurate with the benefit to the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable likelihood that the area will contribute to the conservation of the species.

The Services received numerous comments that the term “efficient conservation” is vague and would introduce a requirement not contained in the statute. We also received numerous comments that the reasonable likelihood standard was not defined and is unclear. In response to these comments and upon further consideration, we revised 50 CFR 424.12(b)(2) to provide that the Secretary will designate as critical habitat, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species only upon a determination that such areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.

We have removed the proposed language regarding “efficient conservation.” Therefore, we will only designate unoccupied critical habitat if we determine that occupied critical habitat is inadequate for the conservation of the species. Public comments indicated that the “efficient conservation” concept was confusing and that implementation of this provision would be inordinately complex and difficult.

We have also revised the proposed language by replacing “reasonable likelihood” with “reasonable certainty.” Although “reasonable likelihood” and “reasonable certainty” both convey the need for information beyond speculation but short of absolute certainty, we find that the latter requires a higher level of certainty than the former. We intend the phrase “reasonable certainty” as applied to designation of unoccupied critical habitat in this final regulation to preclude designations of unoccupied critical habitat based upon mere potential or speculation—either as to the contribution of the area of unoccupied critical habitat to the species' conservation or as to the existence of one or more of the physical or biological features essential to the conservation of the species. At the same time, we do not intend to require that designations of unoccupied critical habitat be based upon guarantees or absolute certainty about the future conservation contributions of, or features present within, unoccupied critical habitat. In light of the public comments that the “reasonable likelihood” language was undefined and unclear, and could allow too much discretion to designate areas that would not ultimately contribute to species conservation, we concluded that the language of this final rule better reflects the need for high confidence that an area designated as unoccupied critical habitat will actually contribute to the

conservation of the species. We consider the phrase “reasonable certainty” to confer a higher level of certainty than “reasonable likelihood,” meaning a high degree of certainty, but not to require absolute certainty.

The Supreme Court recently held that an area must be habitat before that area could meet the narrower category of “critical habitat,” regardless of whether that area is occupied or unoccupied. See
Weyerhaeuser Co.
v.
U.S. FWS,
139 S Ct. 361 (2018). We have addressed the Supreme Court's holding in this rule by adding a requirement that, at a minimum, an unoccupied area must have one or more of the physical or biological features essential to the conservation of the species in order to be considered as potential critical habitat. We note that we do not in the rule attempt to definitively resolve the full meaning of the term “habitat.”

First, the language and structure of the statute support this interpretation. By its very terms the Act requires that areas designated as critical habitat be habitat for the species: “The Secretary . . . shall . . . designate any
habitat
of [a listed] species which is then considered to be critical habitat” (section 4(a)(3)(A)(i) of the Act (emphasis added)). Moreover, paragraph (C) of the statutory definition of “critical habitat” at section 3(5) makes clear that “critical habitat shall not include the entire geographical area which can be occupied by the [listed] species.” The phrase “can be occupied” in the definition demonstrates that all critical habitat—both occupied and unoccupied alike (the use of “can be” instead of “is” demonstrates that the provision is not limited to occupied habitat)—must be habitat because the only way that an area “can be occupied” is if it is habitat. Further, the use of the present tense—“are essential”—in section 3(5)(A)(ii) indicates that for an unoccupied area to qualify as “critical habitat,” it must currently be essential for the conservation of the species. The Services interpret this requirement to mean that there is a reasonable certainty both that the area currently contains one or more of the physical or biological features essential to the conservation of the species and that the area will contribute to the species' conservation. A reasonable reading of the statutory definition of “unoccupied” critical habitat would find that areas that do not contain at least one of the features essential to life processes of the species or will not contribute to the conservation of the species cannot be essential for conservation.

Second, the legislative history supports the conclusion that unoccupied habitat must contain one or more of those physical or biological features essential to the conservation of the species. While the 1973 Act did not define “critical habitat,” the Services' 1978 regulations did define “critical habitat” as “any air, land, or water area . . . and constituent elements thereof, the loss of which would appreciably decrease the likelihood of survival and recovery of a listed species . . . . The constituent elements of critical habitat include, but are not limited to: physical structures and topography, biota, climate, human activity, and the quality and chemical content of land, water, and air. Critical habitat may represent any portion of the present habitat of a listed species and may include additional areas for reasonable population expansion.” 43 FR 870, 874-875 (Jan. 4, 1978).

In response to the Tellico Dam decision by the Supreme Court,
Tennessee Valley Authority
v.
Hill,
437 U.S. 153 (1978), Congress amended the Act in a number of ways, including by providing a statutory definition of “critical habitat.” Notably, Congress did not adopt the Services' regulatory definition. Congress was concerned that the agencies' “regulatory definition could conceivably lead to the designation of virtually all of the habitat of a listed species as its critical habitat.” H.R. Rep. No. 95-1625, at 25 (1978). The House “narrow[ed]” the definition and told the agencies to be “exceedingly circumspect in the designation of critical habitat outside of the presently occupied areas of the species.”
Id.
at 18, 25. Additionally, the Senate Report noted there is “little or no reason to give exactly the same status to lands needed for population expansion as is given to those lands which are critical to a species' continued survival.” S. Rep. No. 95-874, at 10 (1978).

The Senate Report recognized the potential value of designating unoccupied habitat to expand populations, but questioned how broadly it could be used.
Id.
at 9-10 (“The goal of expanding existing populations of endangered species in order that they might be delisted is understandable”; “This process does, however, substantially increase the amount of area involved in critical habitat designation and therefore increases proportionately the area that is subject to the regulations and prohibitions which apply to critical habitats”). The Senate specifically criticized designations of critical habitat that include land “that is not habitat necessary for the continued survival” of the species, but is instead “designated so that the present population within the true critical habitat can expand.”
Id.
at 10.

Thus, we conclude that Congress intended that the test be more demanding for designating unoccupied critical habitat than for occupied habitat. All the courts to address this issue have agreed with this general principle.
E.g., Home Builders Ass'n
v.
U.S. Fish & Wildlife Service,
616 F.3d 983, 990 (9th Cir. 2010) (“Essential conservation is the standard for unoccupied habitat . . . and is a more demanding standard than that of occupied critical habitat.”);
Cape Hatteras Access Pres. All.
v.
U.S. Dep't of Interior,
344 F. Supp. 2d 108, 119 (D.D.C. 2004) (“it is not enough that the area's features be essential to conservation, the area itself must be essential”). As the Act and its legislative history makes clear, Congress intended that unoccupied critical habitat be defined more narrowly than as areas contemplated for species expansion. H.R. Rep. No. 95-1625 pp. 18, 25 (1978); S. Rep. No. 95-874, at 9-10 (1978). We have concluded that requiring that areas contain one or more features that the species needs furthers this congressional intent.

Note that, although the Conference Committee changed the definition of “critical habitat” so that it was no longer modeled after the 1978 regulatory definition as closely, Congress did not call into question the rest of that definition, which focused uniformly on aspects of habitat that were analogous to the concept of “essential features”: “`Critical habitat' means any air, land, or water area . . . and constituent elements thereof . . . . The constituent elements of critical habitat include, but are not limited to: Physical structures and topography, biota, climate, human activity, and the quality and chemical content of land, water, and air.” 43 FR 870, 874-875 (Jan. 4, 1978). Moreover, areas outside the occupied geographical range are not likely to be “essential for the conservation of the species” unless they contain at least one of the features that are essential for survival and recovery of the species.

We acknowledge that the reference to “physical or biological features” in the definition of “critical habitat” only occurs in the portion addressing occupied habitat. Nevertheless, given that Congress intended that a higher standard apply to the designation of unoccupied critical habitat than to the designation of occupied critical habitat, the Services conclude that it furthers congressional intent to require that those areas contain one or more of the physical or biological features that are essential to the conservation of the

species. This interpretation retains the 1978 regulation's focus on physical or biological features and furthers the objective Congress referenced when it adopted the definition of “critical habitat” that included both occupied and unoccupied habitat: Allowing for the possibility of protecting areas that are reasonably certain to contribute to the conservation of the species while limiting the designation to areas where the species can survive.

We note that the Services have not previously taken the position that unoccupied habitat must contain physical or biological features that are essential to the conservation of the species. In fact, in litigation FWS has sometimes argued the contrary.
E.g., Weyerhaeuser Co.
v.
U.S. FWS,
No. 17-71 (S. Ct.);
Bear Valley Mutual Water Co.
v.
Jewell,
790 F.3d 977 (9th Cir. 2015). Although our previous interpretation was reasonable, we have revisited our interpretation in light of the recent
Weyerhaeuser
decision, which held that critical habitat must be “habitat.” Given the ambiguity of the language at issue, we may interpret it in any manner that is a reasonable construction of the Act and consistent with controlling court decisions.

Physical or Biological Features

We received a number of comments in response to our invitation for recommendations on whether the Services should consider modifying the definition of “physical or biological features” at 50 CFR 424.02. We adopted this regulatory definition in 2016 to provide an interpretation of this term, which appears in the Act's definition of “critical habitat,” that was simpler and closer to the statutory text than the prior approach we had followed since 1984. The prior approach had involved identification of “primary constituent elements,” which is a term not used in the statute and which we found led to significant confusion.

We defined the term “physical or biological features” at a general level in 2016, with the expectation that the Services would first identify the physical or biological features that support the species' life-history needs, and then narrow that group of features down to a subset of those features that meet all the requirements the statute imposes for features that could lead to a designation of occupied critical habitat. Thus, once physical or biological features had been identified, the Services would apply the language from section 3(5)(A) of the Act. That language layers on additional qualifiers, including that the features “are essential to the conservation of the species” and “may require special management considerations or protection.” Further, the statute limits designation of occupied habitat to “specific areas” on which one or more of those features are found.

Many commenters expressed concern that the definition should be more clearly limited only to those features that could, in the context of the statutory requirements, actually lead to designation of a specific area as critical habitat.

We have decided in the interests of clarity to make minor modifications to the existing definition to provide that physical or biological features essential to the conservation of the species are the features that occur in specific areas and that are essential to 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.

We find that the changes we are making, which we detail below, are helpful to emphasize the key statutory language and make clear that only those features that are essential to the conservation of the species can lead to a designation of occupied critical habitat (assuming the requirement that the features may require special management considerations or protection is also met). First, in order to bring such clarity directly into the regulatory text, we have found that we should identify the term more specifically. The full term used in the statutory definition of occupied critical habitat is “physical or biological features . . .
essential to the conservation of the species,”
and therefore we are modifying the defined term to read “physical or biological features essential to the conservation of the species.”

Second, we incorporate the statutory requirement that essential features be found on specific areas by qualifying “features” with the new phrase “that occur in specific areas.” We note that the use of the word `on' in the statute has been interpreted by the Services to mean `in' when used in conjunction with specific areas. Therefore, “features found on specific areas” is synonymous with “features found in specific areas.” Finally, instead of referring to the broader group of features that “support the life-history needs” of the species, and in keeping with further focusing the scope of the defined term, we have added language specifying that these are the features which are “
essential
to support the life-history needs” of the species. We retain the rest of the language of the current definition, which makes clear that, in identifying the essential physical or biological features, the Services are to articulate those features with the level of specificity previously associated with “primary constituent elements” (an issue we discuss further in response to comments, below).

Summary of Comments and Responses

In our proposed rule published on July 25, 2018 (83 FR 35193), we requested public comments on our specific proposed changes to 50 CFR part 424. We also sought public comments recommending, opposing, or providing feedback on specific changes to any provisions in part 424 of the regulations, including but not limited to revising or adopting as regulations existing practices or policies, or interpreting terms or phrases from the Act. In particular, we sought public comment on whether we should consider modifying the definitions of “geographical area occupied by the species” or “physical or biological features” in 50 CFR 424.02. We received several requests for public hearings and requests for extensions to the public comment period. Public hearings are not required for regulation revisions of this type, and we elected not to hold public hearings or extend the public comment period beyond the original 60-day public comment period. We received more than 65,000 submissions representing hundreds of thousands of individual commenters. Many comments were nonsubstantive in nature, expressing either general support for or opposition to provisions of the proposed rule with no supporting information or analysis. We also received many detailed substantive comments with specific rationale for support of or opposition to specific portions of the proposed rule. Below, we summarize and respond to the significant, substantive public comments sent by the September 24, 2018, deadline and provide responses to those comments.

Comments on Presentation of Economic or Other Impacts

Comment:
Most commenters disagreed with removing the phrase “without reference to possible economic

or other impacts of such determination” and our proposal to present the economic impacts of listing determinations. Many stated that this change violates the intent of the Act and cited the Act and its legislative history in support of their statements. Furthermore, a commenter also stated that the Services are prohibited by the Act from compiling and presenting economic data on the listing of a species as a threatened or an endangered species, citing the conference report language from the 1982 amendments to the Act: “economic considerations have no relevance to determinations regarding the status of species and the economic analysis requirements of Executive Order 12291, and such statutes as the Regulatory Flexibility Act and the Paperwork Reduction Act, will not apply to any phase of the listing process.” Many commenters also questioned how the Services could compile such economic information and not have it influence their decision whether to list a species as a threatened or an endangered species, noting that the statute and legislative history are clear that listing decisions are to be based solely on the best scientific and commercial data available. In contrast, several commenters stated that providing the economic impacts of listing species shows transparency to the public and local, State, and tribal governments, and could be useful for planning purposes. Commenters noted that making this information available does not mean that it will be used in the decisionmaking process, but it would provide important information about the impacts of implementing the Act.

Response:
In this final rule, the Services remove the phrase “without reference to possible economic or other impacts of such determination.” As discussed in the preamble to the proposed rule, we acknowledge that the statute and its legislative history are clear that listing determinations must be made solely on the basis of the best scientific and commercial data available. Moreover, the listing determination must be based on whether a species is an endangered species or a threatened species because of any of the five statutory factors. However, the Act does not prohibit the Services from compiling economic information or presenting that information to the public, as long as such information does not influence the listing determination. Similarly, the statements Congress included in the legislative history focus on ensuring that economic information would not affect or delay listing determinations, but do not demonstrate an intention to prohibit the Services from compiling information about economic impacts. For example, the legislative history for the 1982 amendments to the Act describes the purposes of the amendments using the following language (emphases added): “to prevent non-biological considerations
from affecting
[listing] decisions,” Conf. Rep. (H.R.) No. 97-835 (1982) (“Conf. Rep.”), at 19; “[listing and delisting] decisions
are based
solely upon biological criteria,” Conf. Rep., at 20; “economic considerations
have no relevance to
[listing] determinations,” Conf. Rep., at 20; “to prevent [critical habitat] designation]
from influencing
the [listing] decision,” H.R. Rep. No. 97-567, at 12. Because neither the statute nor the legislative history indicates that Congress intended to prohibit the Services from compiling economic information altogether, we removed the language at issue.

Comment:
Some commenters stated that Congress intended that “the balancing between science and economics should occur subsequent to listing” and pointed to statements in the legislative history and in the court's decision in
Alabama Tombigbee Rivers Coal.
v.
Kempthorne,
477 F.3d 1250, 1266 (11th Cir. 2007): “While `economic analysis' is meant to `offer[ ] some counter-point to the listing of species without due consideration for the effects on land use and other development interests,' Congress wanted `to prevent [habitat] designation from influencing the decision on the listing of a species,' and for that reason intended that the `balancing between science and economics should occur subsequent to listing through the exemption process.' House Report at 12 (emphasis added); cf. Senate Report at 4.”

Response:
The commenters' characterizations of the legislative history and the court's decision in the
Alabama-Tombigbee
case are not accurate. In that case, FWS listed two fish without concurrently designating critical habitat, and the court concluded that Congress did not intend to prohibit designating critical habitat subsequent to the final listing decision. The court based its reasoning on the statute and legislative history: The requirement to complete final listing determinations within 1 year of listing proposals, the removal of the requirement to propose critical habitat concurrently with proposed listings, the addition of authority to make not-determinable findings for critical habitat, and the quoted language in the legislative history demonstrating Congress's intent to keep consideration of economic factors (part of the critical habitat designation process) separate from listing decisions. Thus, the court in that case was analyzing not whether compilation of economic information
must
come after the final listing decision, but whether compilation of economic information during the critical habitat designation
may
come after listing decisions. As a result, the decision in
Alabama-Tombigbee
and the legislative history that the court quoted in that case are an unsuitable comparison to the regulatory change the Services proposed. And, more fundamentally, the mandate that the Secretary “shall, concurrently with making a [listing] determination . . ., designate any habitat of such species which is then considered to be critical habitat” is qualified by the “to the maximum extent prudent and determinable” language. Therefore, Congress authorized, but did not require, the Services to designate critical habitat after the final listing decision, and the Services continue to publish final critical habitat designations (whenever designation is prudent) concurrently with final listing decisions unless they are not determinable at the time of listing.

Comment:
Some commenters stated that the Services' comparison to the Environmental Protection Agency's (EPA's) practice of conducting cost-benefit analyses under the Clean Air Act's National Ambient Air Quality Standards is irrelevant and pointed to differences between the Act and the Clean Air Act. Specifically, the Clean Air Act directs the EPA to compile economic information and has a follow-on process (development of State implementation plans) that the economic information informs. Other commenters stated that EPA's process for completing a regulatory impact analysis (RIA) of the ambient air quality standards under the Clean Air Act is not comparable to the Services' process for listing a species under the Act. These commenters stated that the costs associated with ambient air quality measures are more easily estimated, and that costs associated with listing a species do not necessarily have an economic value and assessing their “worth” or “value” would be very difficult. Some commenters also noted that EPA typically does not “make reference” to the impact analysis in their rules proposing or adopting air standards.

Response:
While the Services recognize that there are differences between the statutory frameworks of the Clean Air Act and the Act, the EPA example illustrates that it is possible for an agency to compile and present

economic data for one purpose while not considering it in the course of carrying out a decision process where consideration of economic data is prohibited. Nothing in the Act precludes the agencies from compiling or disclosing information relating to the economic impacts for purposes of informing the public. With regard to whether EPA “makes reference” to its impact analyses in its rulemakings adopting national ambient air quality standards, we note that the commenter's observation highlights an ambiguity in the existing regulatory language that we are removing. The commenter seems to equate “reference” to economic impacts to mean “making reference to,”
i.e.,
“citing,” the information in agency determinations or giving such considerations significance in the decisionmaking. However, the term “reference” can be construed more broadly as an instance of simply referring to something as a source of information,
i.e.,
to use or consult, which could be done in passing. It is not our intention to “make reference” to economic information in our listing determinations either by citing it or by considering it.

Comment:
Some commenters noted that the Act does not expressly authorize compiling or referring to economic information regarding listing determinations. Some noted that it would not be appropriate to attempt to do so to inform critical habitat designations (citing
Arizona Cattle Growers' Ass'n
v.
Salazar,
606 F.3d 1160, 1173 (9th Cir. 2010) (holding that analysis of the impacts of designation of critical habitat is separate from analyzing impacts from listing)).

Response:
The Act does not expressly authorize compiling economic information, and the statute does not prohibit compiling the information in order to inform the public. We rely on our inherent authority to administer our programs in the interest of public transparency in concluding that the Services have discretion to compile such information regarding a particular listing if they choose.

Comment:
Several commenters asserted that the Services' reasoning for deleting the “without reference to economic or other impacts of listing” phrase contradicts their interpretation and reasoning from when they adopted the previous regulations following the 1982 amendments to the Act, which added the word “solely.” They cited to the Services' proposed rule, which stated: “Changes made by the Amendments were designed to ensure that decisions in every phase of the listing process are based solely on biological consideration, and to prohibit considerations of economic or other non-biological factors from affecting such decisions. . . . This new paragraph is proposed to implement the requirement of the Amendments that determinations regarding the biological status of a given species not be affected or delayed by any consideration of the possible economic or other effects of such a determination.” 48 FR 36062 (Aug. 8, 1983).

Response:
The preamble to the 1984 final rule originally adopting the existing language is illuminating. After the language was proposed in 1983, a commenter had recommended that the “without reference to possible economic or other impacts of such determination” not be included in the final language, but the Services responded that “no substantial change” would result from adopting such a recommendation. 49 FR 38900, 38903 (Oct. 1, 1984). At the time, the Services felt that including the language would more clearly express Congressional intent and reflect the guidance in the Conference Report to the 1982 amendments, but also made clear their understanding that the legal effect of the 1982 amendment adding the word “solely” was to insure economic or other impacts were not “considered” by the decision-maker “as part of the identification and listing process,”
id.,
and to prevent such considerations from “affecting decisions regarding endangered or threatened status” or being “taken into account in deciding whether to list a given species.”
Id.
at 38900.

The statutory amendment requiring that listing determinations be based solely on the best scientific and commercial data did not address whether the Services could prepare information for the public on other aspects of the implications of their decisions. On its face, the statutory amendments merely required that the Services not take such matters into consideration in determining whether a species meets the definition of a threatened species or an endangered species. Some members of the public and Congress have become increasingly interested in better understanding the impacts of regulations including listing decisions. Therefore, we find it is in the public interest and consistent with the statutory framework to delete the unnecessary language from our regulation while still affirming that we will not consider information on economic or other impacts in the course of listing determinations.

Comment:
Several commenters opined that removing the existing regulatory language “without reference to possible economic or other impacts of such determination” would signal that the Services' commitment to abide by the will of Congress to base listing decisions solely on the best scientific and commercial data has weakened. Some commenters suggested that the Services' motives were suspect given that the regulation has been in place since 1984 with no indication that implementation was problematic. Some claimed that removing the regulatory language was inconsistent with the Supreme Court's holdings in
T.V.A.
v.
Hill,
437 U.S. 153 (1978).

Response:
Removing the phrase does not signal any difference in the basis upon which listing determinations will be made. As we have affirmed in several instances through the proposed and final rules, the Services understand and appreciate the statutory mandate to base listing determinations solely on whether a species is an endangered species or a threatened species because of any of the factors identified in section 4(a)(1) using the best scientific and commercial data available. Removing this phrase from the regulation, which could be construed to not allow the Services to inform the public of the economic implications of the Services' listing decisions, will not violate any direction of Congress or holdings of the Supreme Court. Rather, we are responding to strong and growing interest by some members of Congress and the public for increased transparency regarding the economic impacts of regulations. We note that the
T.V.A.
decision was decided in the particular context of compliance with section 7 after a species had been listed and has no direct bearing on interpretation of the Act's listing provisions.
T.V.A.
was also decided before Congress amended section 4(a)(1) to include the term “solely,” so its holding has no relevance to the interpretation of this term in the statute.

Comment:
One commenter suggested that it was unnecessary to delete the “without reference to economic or other impacts” language if the Services' intent is merely to be able to inform the public of the impacts of listing. The commenter agreed that Congress did not prohibit doing so, as long as the listing determinations are not influenced by such information, but noted that the Services had not pointed to any situation where the existing language had presented a hurdle to providing desired public information. Rather, the commenter asserted, maintaining the existing language in the regulations would provide a daily reminder to Service staff about the importance of cabining consideration in listing

determinations to only the factors authorized under the Act.

Response:
We believe that the removal of the phrase will more closely align the regulatory language to the statutory language. Because the prior language could be read to preclude conducting an analysis merely for the purposes of informing the public, it is more transparent to delete the phrase.

Comment:
Many commenters asked for more information regarding when the Services would conduct an economic analysis for listing determinations, how the Services would estimate potential economic impacts, what criteria would be considered, and whether economic benefits of a particular species, which can be difficult to quantify, would be considered. Some commenters expressed concern that cost/benefit analyses would be skewed toward only accounting for potential costs. Another commenter suggested our impacts analysis include an analysis of the negative impacts to other species, as management for a listed species could be a contributing factor for the endangerment of a non-listed species.

Response:
The Services are not creating a framework or guidelines for how or when the presentation of economic impacts of listing, reclassifying, or delisting species would occur as part of this rulemaking. We remain committed to basing species' classification decisions on the best available scientific and commercial data and will not consider economic or other impacts when making these decisions.

Comment:
Many commenters questioned how the Services would comply with the statutory timeframes if we conducted economic analyses on the listing determination. Commenters stated that the Services have not explained how they will deal with this additional workload. They also expressed concerns about the amount of time and effort it would take to gather the necessary economic or other impact information and stated that this added work would slow the number of listings that could be done under current budget conditions. Such a delay, the commenters stated, could make the Services more vulnerable to deadline litigation.

Response:
The Services intend to comply with statutory, court-ordered, and settlement agreement timelines for classification determinations. The Services are equally committed to public transparency in the implementation of the Act. Additionally, we recognize the uncertainty of budget cycles and appropriated funding. Therefore, we will continue to prioritize our work according to the requirements of the Act and remain flexible to work on other actions as funding allows.

Comment:
At least one commenter suggested that the Services should affirmatively declare that information regarding the economic or related impacts of a potential listing can be considered in making listing determinations, in light of the statutory reference to the best scientific “and commercial data” available.

Response:
We decline to do so.

Comment:
Some commenters stated that even though the Act does not expressly prohibit presenting information regarding economic impacts, doing so will contravene Congress' intention that listing decisions should be purely a biological question immune from political concerns. They asserted that presenting analysis of economic impacts even merely to inform the public would open the Services to pressure to avoid listings where there are significant social, political, or economic implications. They noted that the provisions regarding designation of critical habitat expressly authorize consideration of economic and other impacts, demonstrating that Congress consciously chose not to authorize such for listing decisions. They cited the decision in
Northern Spotted Owl
v.
Hodel,
716 F. Supp. 479 (W.D. Wash. 1988), as an example where the court set aside a decision not to list a species on the grounds that it was “arbitrary and capricious or contrary to law,” predicting that such litigation and adverse results would be more common if the proposed change is finalized.

Response:
Congress did not authorize the Services to consider the economic impacts of listing decisions. Therefore, the Services have expressly confirmed their intention that all listing determinations must be based solely on the best scientific and commercial data available. While the commenter is correct that the
Hodel
decision was unfavorable for FWS, resulting in remand of the determination not to list the northern spotted owl, the basis for the decision was the court's view of the sufficiency of the scientific support and explanation for the FWS' decision, rather than a direct consideration of whether economic considerations had impermissibly played a role in the determination.

Comment:
The Services cannot rely on the Regulatory Flexibility Act (RFA) as providing authority for presentation of economic impact information of listing determinations because the Services have taken the position that the RFA is not applicable to listing determinations.
See, e.g.,
Endangered and Threatened Wildlife and Plants: Final Rule to List the Taiwanese Humpback Dolphin as Endangered Under the Endangered Species Act, 83 FR 21182, 21186 (May 9, 2018).

Response:
We do not rely on the RFA as a basis for presentation of economic impacts of classification determinations (H.R. Conf. Rep. No. 97-835, at 20 (1982)). The Services may elect to provide a presentation of economic impacts of particular listing decisions to inform the public of those costs. The Act does not preclude the compilation and presentation of those impacts to the public.

Comments on the Foreseeable Future

Comment:
Commenters stated that if the intended goal of the proposed foreseeable future framework is to continue to follow a 2009 opinion from the Department of the Interior (M-37021) for interpretation of “foreseeable future,” as the Services indicate in the proposed rule, then there is no need to make the proposed revision to the regulations. Some commenters recommended that the Services simply base the “foreseeable future” on the best available data and not proceed with the proposed regulation, which does nothing to clarify how the Services will determine the foreseeable future.

Response:
Although listing determinations must be based on the best available scientific and commercial data, the Services also must be able to determine the likelihood of a species' future state, and in some circumstances the best available data may not be sufficient to go beyond speculation. In these cases, the data are insufficient to allow the Services to foresee the future threats and the species' response to those threats so as to be able to determine that a species is likely to become endangered in the future. To give meaning to the phrase “foreseeable future,” the Services are providing a consistent explanation of this term, and we find that it is appropriate to do so in our implementing regulations. While the two Services have both applied the principles articulated in a 2009 opinion from the DOI Office of the Solicitor when interpreting the phrase “foreseeable future,” including a foreseeable future framework in our joint implementing regulations gives the public more transparency, provides the Services with a shared regulatory meaning for this important term, and makes it clear that both agencies will adhere to the same framework.

Comment:
Numerous commenters supported the Services' effort to clarify

the meaning of the term “foreseeable future”; however, most of these commenters also stated that one or more of the terms used in the proposed “foreseeable future” framework, such as “potential,” “probable,” “reasonably,” “reasonably determine,” and “reliable,” are vague, unclear, or could be misinterpreted. Commenters specifically requested that one or more of these terms be clarified or removed, because they give the public little understanding of what criteria the Services will use to evaluate the foreseeable future. Various commenters were concerned that the proposed foreseeable future language could allow for speculation, prevent or undermine the Service's ability to rely on the best available science, result in a less streamlined process, or invite political interference with listing decisions.

Several commenters recommended that the terms “potentially” and “reasonably” be omitted, because those terms could be misread and dilute the statutory standard of “likely.” A commenter stated that “reasonably” could be misconstrued to suggest a reasonable basis is sufficient, rather than the affirmative finding of “likely” actually required by the Act. Another commenter noted that a standard that relies on a mere “potential” for future conditions to pose a danger invites speculation about future circumstances, and, as the Services acknowledge, they should “avoid speculating as to what is hypothetically possible.” 83 FR at 35196, July 25, 2018.

Other commenters recommend specific edits, such as replacing “reasonably determine” with “scientifically determine,” and removal of the term being defined (
i.e.,
“foreseeable future”) from the proposed definition of “foreseeable future.”

Response:
We appreciate the many comments regarding the wording of the proposed “foreseeable future” framework. We agree with the comments that including the term “foreseeable future” as part of the definition of this term is somewhat circular and therefore not appropriate, so we have revised the language to remove this circular phrasing. We have also removed the phrase containing the word “potentially” as explained further in response to the comment below. However, we are not defining the terms “reliable” and “reasonably determine,” because these terms are commonly used and should be interpreted as having their everyday meaning. The regulatory framework is consistent with how these terms are used in the M-Opinion (M-37021, January 16, 2009), which states, in a footnote, that “the words “rely” and “reliable” [are used] according to their common, non-technical meanings in ordinary usage. Thus, for the purposes of this memorandum, a prediction is reliable if it is reasonable to depend upon it in making decisions.” As a concluding statement, the M-Opinion also states that ”reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.” We find that these statements make it clear how the Services intend to interpret these terms and conclude that further attempts to define words within the “foreseeable future” framework are not necessary.

Lastly, we find that the framework's term “reasonably” does not dilute or establish an incompatible, lower standard for the affirmative finding of “likely” required by the statute. The foreseeable future framework acknowledges that we must make a `reasonable determination,' based on the best available data. In other words, in the context of determining the foreseeable future, our conclusions need not be made with absolute certainty, but they must be reasonable, and must not be arbitrary or capricious. We also decline to replace the phrase “reasonably determine” with “scientifically determine,” because the foreseeable framework does not in any way alter the requirement that the Services rely on the best available scientific and commercial data when interpreting the foreseeable future and listing species as threatened. We fully intend to continue to apply the best available data when making conclusions about the foreseeable future.

Comment:
Several commenters stated that the foreseeable future should not be based on general “conditions” and requested that we clarify that the word “conditions” refers to threats and species' responses to those threats. Commenters stated the statute does not allow for broader consideration of any “conditions” that are not encompassed within the five factors defined by Congress. Another commenter also stated that the use of the term “conditions” in the context of the proposed regulatory framework suggests that the Services will only examine the environmental conditions affecting a species (
i.e.,
the threat factors) and not the corresponding response of the species when determining the species' future population status. The commenter noted that it is well established that a species cannot be listed merely because there is an identified threat (
e.g., Ctr. for Biological Diversity
v.
Lubchenco,
758 F. Supp. 2d 945, 955 (N.D. Cal. 2010);
Defenders of Wildlife
v.
Norton,
258 F.3d 1136, 1143 (9th Cir. 2001)). The commenter stated that by referencing conditions “potentially posing a danger of extinction,” the Services are not incorporating the appropriate level of certainty with respect to whether the “conditions” will occur and the corresponding relationship to the future status of the species. The Services are also raising the possibility that a “benefit of the doubt” standard could erroneously be applied during the listing determination (
Bennett
v.
Spear,
520 U.S. 154, 176 (1997);
Greater Yellowstone Coal., Inc.
v.
Servheen,
665 F.3d 1015, 1028 (9th Cir. 2011)).

Response:
As some commenters point out, the Act requires listing determinations to be based on whether a species is an endangered species or threatened species because of one or more of the five factors in section 4(a)(1), and it is the Services' long-established practice to refer to these factors in listing determinations. The “foreseeable future” framework in these final regulations does not supplant those five factors or the statutorily required status review. Rather, use of the word “conditions” was intended to capture the full range of possible natural and manmade threats that may be affecting a particular species and that would be considered under section 4(a)(1). However, we now find it is more clear to simply use the word “threats,” rather than “conditions,” and thus have made this revision to the final regulatory text. In addition, after further consideration of the proposed language, we find that the phrase “potentially posing a danger of extinction” could be interpreted as implying that the Services would rely on a “benefit of the doubt” standard for determining the existence of a threat or consider the mere possibility of threat occurring sufficient when assessing a species' future status. This was not our intention, and we acknowledge that the statutory requirement to use the “best scientific and commercial data available” is intended “to ensure that the Act not be implemented haphazardly, or on the basis of speculation or surmise.”
See Bennett
v.
Spear,
520 U.S. 154, 176-77 (1997) (construing substantially identical requirement in section 7 context). Thus, we have removed this phrase from the final regulatory language to eliminate this source of confusion.

Comment:
A large number of comments addressed the Services' use of the word “probable” within the proposed foreseeable future framework. Several commenters stated that the use of the word “probable” introduces more

ambiguity to an already ambiguous framework and that it is unclear, for example, what degree of probability and certainty are required to be considered “probable.” Several commenters specifically requested that the Services clarify that the term “probable” means “likely” in this particular context, and others requested use of the word “likely” in place of “probable” to reflect the statutory standard. Some commenters stated that the word “probable” implies that the Services will rely on too low of an evidence threshold and that the word “probable” should be replaced with “clear and convincing.”

The majority of commenters who addressed this issue stated that use of the word “probable” would set too high of a bar for threatened listings, provides the Services greater latitude to reject listings, and contravenes Congress's intent that the Act “give the benefit of the doubt to the species” (H.R. Rep. No. 96-697, at 12 (1979)). The commenters also argued that the proposed regulation would be inconsistent with the statements expressed in the M-Opinion (M-37021, January 16, 2009). Multiple commenters indicated specifically their view that the proposed framework is much narrower than that expressed in the 2009 M-Opinion, which does not use the term “probable,” and that the Services did not adequately explain their reasoning for departing from the standards expressed in the M-Opinion. Commenters further noted that the “probable” standard would undermine the Secretary's duty to list species that are primarily threatened by climate change. Others stated that it would prevent the application of the Act's requirement to rely on the “best available scientific and commercial data” and that the Services cannot interpret the foreseeable future in a way that sets an arbitrary threshold for how much science is required before a species can be listed as threatened. Multiple commenters recommended that if the Services wish to adopt a definition in line with the M-Opinion, they should adhere more closely to the 2009 Solicitor's opinion or publish it as a draft joint policy for notice and comment, which would accord with the Services' past practice of publishing joint policies to interpret the Act's key phrases such as “significant portion of the range” and “distinct population segment.”

Some commenters provided discussions of other reasons why use of a “probable” standard would be inappropriate. A group of commenters stated that use of the term “probable” implies that the Services may only consider threats that have a 50 percent or greater chance of occurring during a particular time period and that the Services have not explained how they would reliably quantify the percentage of likelihood of threats to species. These commenters also noted that it would be unlawful and arbitrary to discount several threats that may be, say, 40 percent likely but that would be extremely dangerous to the species and that such an approach would be contrary to the Services' longstanding precautionary approach.
Cf.
48 FR 43098, 43102-43103 (Sept. 21, 1983) (FWS guidelines for reclassification from threatened species to endangered species status based on magnitude and immediacy of threats). Other commenters pointed out the only way to assess what is “probable” requires quantitative methods such as statistical prediction and modeling. Several commenters stated that this approach is flawed in that it does not take into account the severity of the threats or the different types or levels of uncertainty associated with various threats.

Lastly, we received comments suggesting that because the Services used both terms—“likely” and “probable”—in the proposed regulatory framework, the inconsistent terminology suggests that different meanings are contemplated. Other comments noted that, to the extent that the Services intend “probable” to require any greater likelihood than the statutory term “likely” from the definition of “threatened species” at 16 U.S.C. 1532(20), it would be an impermissible interpretation of the statute, and that neither “likely” nor “probable” can permissibly be interpreted to require the probability of extinction is “more likely than not.”

Response:
For maximum clarity and consistency with the statutory language, this final rule uses “likely” in place of “probable” in the relevant sentence of the provision describing the “foreseeable future.” We are making this change to avoid any unintended confusion. We further clarify that “likely,” in turn, means “more likely than not.” This interpretation is supported by case law (
e.g., Alaska Oil and Gas Association
v.
Pritzker,
840 F.3d 671, 684 (9th Cir. 2016);
Trout Unlimited
v.
Lohn,
645 F. Supp. 2d 929, 944 (D. Or. 2007);
WWP
v.
FWS,
535 F.Supp.2d 1173, 1184 & n.3 (D. Idaho 2007). Our foreseeable future framework does not depart from the standards expressed in the 2009 M-Opinion that forms the basis for the framework (M-37021, January 16, 2009); rather, it is fully consistent with that opinion.

Our replacement of the term “probable” with “likely” within the foreseeable future framework should also eliminate concerns that the Services are impermissibly raising the bar for listing species as threatened to something beyond a threshold of “likely” or allowing that classification determinations could be based on anything other than the “best scientific and commercial data” standard. We must rely on the “best scientific and commercial data,” available, but that data may or may not indicate whether something is likely. To determine an event is likely, we must be able to determine that it is more likely to occur than not after taking the “best scientific and commercial data” into account. We will continue to apply the best available scientific and commercial data in making our listing determinations as required under the Act.

We appreciate the recommendation to develop and publish a more detailed policy based on the M-Opinion. However, at this time, we expect that the regulatory framework that we revise in this final regulation after considering public comment, in combination with the supporting text of the existing M-Opinion that further explains the background and reasoning for this longstanding approach, will provide adequate guidance to the Services.

Comment:
Some commenters stated that when concluding that a species should be listed, the Services must specifically find “that both future threats and the species' responses to those threats are probable.” In contrast, other commenters questioned the Services' proposal to assess the foreseeable future based on both “future threats” and the “species' responses.” These commenters said this would involve a combined evaluation of both time and impact and instead recommended that the Services separate the concept of foreseeable future from its analysis of the potential threats that the Service can concretely determine will affect the species during that time period. Others cautioned that we should evaluate the species' response at the population level because threats faced by one segment of the population do not necessarily result in a negative response by the population as a whole.

Response:
This regulation takes the position that “the foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species' responses to those threats are likely.” This approach is consistent with the M-Opinion (M-37021, January 16, 2009). It is not sufficient for us to determine that a particular threat is likely; we must

also conclude that the manifestation of that threat is likely to result in a response from the species. By “species' response” we mean a change in the species' status after encountering the adverse effects of the threats. We cannot separate the forward-looking analysis of threats from the forward-looking consideration of how those threats are expected to affect the species. To do so would essentially prevent an evaluation of the species' status in the foreseeable future.

With respect to consideration of threats operating in the foreseeable future that affect only a portion or some individuals within the species (
i.e.,
species, subspecies, or DPS) being evaluated for listing, we agree with the commenter that during a status review we must consider how that threat is affecting the particular species at a population or higher level. Listing decisions are ultimately based on a synthesis of all relevant data regarding the status of the species and the threats, taking into consideration how those threats may vary spatially or temporally across individuals or populations of that species.

Comment:
Several commenters referred to the Council on Environmental Quality's (CEQ's) implementing regulations for the National Environmental Policy Act (NEPA regulations) at 40 CFR 1502.22, which present discussion of reasonably foreseeable significant adverse impacts. The commenter noted that the NEPA regulations do not define “reasonably foreseeable,” but requested that the Services adopt a regulatory definition for foreseeable future rather than apply a subjective, case-by-case approach for defining foreseeable future. Commenters specifically requested we adopt the following “accepted legal definition” or something similar: “A consequence is reasonably foreseeable if it could have been anticipated by an ordinary person of average intelligence as naturally flowing from his actions.” The commenters stated that a definition along these lines would inject reasonable consideration of common sense into decisions that have such profound impacts on the human environment.

Response:
As requested by the commenters, we reviewed the regulations at 40 CFR 1502.22, which address situations in which a Federal agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information. The CEQ NEPA regulations, as noted by the commenter, do not provide a definition for the term “reasonably foreseeable.” Overall, we did not find these regulations useful in refining or revising the foreseeable future framework. The Act has a very different purpose and imposes different mandates on the Services than NEPA. Whereas NEPA directs agencies to engage in a process to consider a broad range of potential impacts as a means to guide the agencies in choosing among possible actions, the Act directs specific actions and imposes a mandate that decisions be based on the best available information. We have not adopted the commenters' proposed alternative definition.

Comment:
Many commenters stated that they supported the Services' attempt to clarify the term “foreseeable future” in the proposed regulations, and many agreed with the proposed qualitative framework in which the foreseeable future would be determined on a case-by-case basis using the best available scientific and commercial data for the particular species. However, some of these commenters stated that the foreseeable future should still be defined in terms of a specific period of time or range of years (
e.g.,
20-25 years) so that the reasonableness of this particular aspect of threatened listings can be assessed in a meaningful way by the public. In contrast, many other commenters stated that the same time period should be applied as the foreseeable future for all species, because the information on foreseeability is not species dependent. We also received a specific recommendation to use a definition for the foreseeable future that is already in place and used by many indigenous people—the next seven generations of human life.

Response:
Using a predetermined number of years or period of time (
e.g.,
seven generations) as a universally applied “foreseeable future” for all listings would be arbitrary and would preclude the Services from relying on the best available data. Although some threats might manifest according to certain consistent timeframes, the species' likely response to those stressors is uniquely related to the particular plant or animal's characteristics, status, trends, habitats, and other operative threats. Furthermore, when multiple threats affect a particular species, these threats may have synergistic effects that are also unique to that particular species. Therefore, we do not intend to specify a particular timeframe to be applied universally to all species. However, we will continue to provide information regarding the particular timeframes used when evaluating threats and a species' risk of extinction to the extent possible in all listing decisions. Providing such information facilitates the public's ability to evaluate the reasonableness of the Services' listing decisions.

Comment:
Multiple commenters recommended that the Services adopt a more quantitative approach in determining the foreseeable future to reduce uncertainty and litigation and increase transparency and consistency. Many of these commenters also recommended adopting certain quantitative approaches, such as: Defining risk of extinction and uncertainty in a manner similar to approaches used by The Intergovernmental Panel on Climate Change; identifying timeframes over which certain threats (
e.g.,
wind-energy development) or certain population trends for specific taxonomic groups (
e.g.,
salmonids) are foreseeable; and using previous listing decisions to identify any consistent patterns in the time horizons used for certain types of threats or taxa.

Response:
When quantitative methods are available and consistent with best practices, we use them along with other available data and methods. However, the `best available data' standard under the Act does not necessarily require use of quantitative methods and data, and we are not specifying particular quantitative methods in the regulations we are finalizing in this document.

Comment:
Several commenters stated that to assess the danger of extinction, and thus be able to list a species as threatened, the Services must first identify the extinction threshold for that species and the likelihood of reaching that point in the future. Commenters noted that NMFS has explained previously that “[a] species is `threatened' if it exhibits a trajectory indicating that in the foreseeable future it is likely to be at or near a qualitative extinction threshold below which stochastic/depensatory processes dominate and extinction is expected.” (NMFS, Interim Protocol for Conducting Endangered Species Act Status Reviews at 12 (2007).) Commenters also stated that in cases where the Services lack the data or ability to identify future population trends, assess the impact of population declines on the species' overall population status, or establish an extinction threshold, it is not possible to determine or foresee the likelihood of future extinction for purposes of the listing determination. A commenter noted that Congress explained that the threatened classification was included to give effect to the Secretary's ability to

forecast population trends (S. Rep. No. 93-307 at 3 (July 1, 1973)).

Response:
The Services do not need to identify an extinction threshold or the likelihood of reaching that threshold in the future in order to determine whether a species meets the definition of a threatened species. Rather than wait for such data and analyses to become available, the Services are required to apply the best available data to make a determination whether the species meets the definition of a “threatened species” or an “endangered species” as a result of any of the factors outlined in section 4(a)(1) of the Act. Secondly, predicting extinction thresholds requires certain data regarding population parameters and environmental variables, and it requires the use of appropriate models. Modeling extinction thresholds is often not possible with the nature or type of data available.

Comment:
A commenter recommended that the Services formally define “in danger of extinction” and apply the definitions and analysis in the remanded memorandum that FWS filed with the United States District Court for the District of Columbia in
In re: Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation,
No. 08-mc-00764-EGS, Doc. No. 237 (Dec. 22, 2010) (“Polar Bear memo”).

Response:
FWS developed the Polar Bear memo after the court in that case held that the definition of “endangered species” under the Act is ambiguous and ordered the agency to provide on remand an additional explanation for the legal basis of the agency's decision to list the polar bear as a threatened species. To develop the Polar Bear memo, FWS surveyed the history of the agency's listing determinations in light of the text of the Act and the applicable legislative history and encapsulated FWS's overall, general understanding of the phrase “in danger of extinction” as “currently on the brink of extinction in the wild.” Polar Bear memo at 3. FWS noted that it does not employ its general understanding in a narrow or inflexible way and that a species need not be likely to become extinct to be “on the brink of extinction.”
Id.
The memo also described four categories of circumstances in which FWS had found species to be “currently on the brink of extinction in the wild.”
Id.
at 4-6.

Although the Polar Bear memo is not binding and does not have the force of law,
see Alliance for the Wild Rockies
v
. Zinke,
265 F. Supp. 3d 1161, 1180-81 (D. Mont. 2017), it remains a statement by FWS as to what may constitute “in danger of extinction.” FWS stated explicitly in the memo that it applied only to the listing decision for the polar bear. Polar bear memo at 1 n.1. FWS's general understanding, the historical survey of its listing decisions in the memo, and the associated discussion in the Polar Bear memo can still serve as a useful starting point for analyzing whether a species is in danger of extinction.

As the Polar Bear memo noted, FWS has not promulgated a binding interpretation of “in danger of extinction,” due in part to the contextual and fact-dependent nature of listing determinations.
Id.
at 3. The Services continue to conclude that codification of FWS's general understanding of “in danger of extinction” is not necessary at this time.

Comment:
We received comments expressing disagreement with the Services' proposed framework for foreseeable future in that it allows for different “foreseeable futures” depending on the particular threat being considered. Instead, the commenter recommended that the Services select a single number of years or range of years in which to determine the future status of the species. The commenter stated that if the Services adopt varying foreseeable futures for the different listing factors for a single species, they are conceivably assessing whether that species is likely to become an endangered species based on fewer than all the listing factors. While the Act allows the Service to list a species based on a single factor, it does not allow the Service to disregard any of the factors in making the holistic determination whether a species has “become an endangered species.” In addition, the listing factors assess both positive and negative impacts on the status of the species. So being unable to assess certain listing factors at the end of a long foreseeable future for other listing factors means the Service is ignoring potentially beneficial conditions, for example, the existing regulatory mechanisms.

Response:
We appreciate the commenter's concern and clarify in this response that, although there may be different degrees of “foreseeability” with respect to particular threats and their impacts on the species, we ultimately base listing determinations on consideration of all of the available data and a review of all of the section 4(a)(1) factors. As stated in the M-Opinion, “Although the Secretary's conclusion as to the future status of a species may be based on reliable predictions with respect to multiple trends and threats over different periods of time or even threats without specific time periods associated with them, the final conclusion is a synthesis of that information.” (M-37021, January 16, 2009). The Services have been following this approach for nearly a decade, and courts have found it to be reasonable and appropriate (
See, e.g., In Re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation,
709 F.3d 1, 15-16 (D.C. Cir. 2013). The approach reflects the reality that there is a variation among the kinds and levels of information the Services typically have available when assessing specific threats. The approach allows the Services to comprehensively consider all that is known about the threats acting on the species, and the listing determination itself is based on a synthesis of that information. No information is disregarded merely because it relates to a time horizon that is different from that associated with other threats. As a matter of practice, the Services consider applicable data regarding both negative (
e.g.,
poaching) and positive (
e.g.,
enforcement efforts to reduce poaching) factors when making their listing determinations and will continue to do so under the “foreseeable future” framework being finalized in this rule.

Comment:
A commenter stated that the discussion included in the proposed rule on data and use of models is unclear. The commenter specifically pointed to the statements in the proposed rule that the foreseeable future can extend only as far as the Services can reasonably depend on the available data to formulate a reliable prediction and avoid speculation and preconception, and that “in cases where the available data allow for quantitative modeling or projection, the time horizon presented in these analyses does not necessarily dictate what constitutes the `foreseeable future' or set the specific threshold for determining when a species may be in danger of extinction.” The commenter said this seems to be contradictory, because if there is enough information to provide a reliable prediction that avoids speculation, based on quantitative modeling or projection, it seems that the Services should consider that as a “foreseeable future.” The commenter said this phrasing seems to indicate that models may show specific time periods, but that it can still be ignored. The commenter said all data and information should be reviewed and interpreted, including modeling.

Response:
We agree that, if available and reliable, quantified studies or analyses should not be ignored, and our proposed rule was not meant to imply otherwise. Our intention with the particular language quoted by the

commenter was to indicate that the existence of a quantitative model or projection will not necessarily determine the foreseeable future in all cases or situations. A particular model or analysis may in fact be used by the Services to determine the period of time that can be considered the foreseeable future. However, this will not always be the case. In some instances, a model's time horizon may fall short of how far into the future the Services can foresee; and in other instances, a model may extend out to a point at which the model's predictions become speculative or highly uncertain. In both cases, the time period covered by the particular model would not dictate the time period for what the Services consider to be “foreseeable.” In addition, even if a model is considered reliable, it may not be possible to limit the time horizon considered in the status review based on what one particular model or analysis indicates as a reasonable period of time. When we review a species' status over the foreseeable future, we must take all available data into account. In other words, while we fully agree that reliable predictions based on quantitative models should not be ignored, those quantitative models may not in themselves establish what constitutes the “foreseeable future” for the entire species or every threat. They may simply reflect possible, but not likely, outcomes.

Comment:
Multiple commenters stated that foreseeable-future timeframes are very uncertain with respect to forecasted climate-change impacts and that additional clarifications or modifications to the proposed “foreseeable future” framework are needed. Various commenters stated that there is too much uncertainty associated with foreseeable futures that extend too far (
e.g.,
100 years) and that the foreseeable future should be shorter (
e.g.,
10 years, 25-30 years). Commenters, citing Congressional reports, stated that Congress intended the foreseeable future to be in the near future. Commenters provided various suggested approaches or parameters that would dictate how far the foreseeable future could extend, such as using three generation lengths for long-lived species, and considering threats in light of the biology of the species (
e.g.,
long generation versus short generation lengths). Commenters stated that if predictions are too speculative, then the Services cannot give the species the benefit of the doubt and must acknowledge that listing the species is not warranted. Lastly, commenters requested that NMFS align its procedures for determining foreseeable future with those of the FWS, particularly regarding incorporation of uncertainty in climate models and other elements.

Response:
We acknowledge that levels of uncertainty can increase the further into the future that climate-change impacts are projected. The magnitude of this increase in uncertainty over time will vary from case to case depending on the available data for the particular issues at hand. Nevertheless, we must carefully consider the available data and the levels of uncertainty, make a reasoned conclusion, and explain that conclusion in a transparent way in our proposed and final listing determinations. Our regulatory framework for the “foreseeable future” does not undermine these requirements.

For these reasons, we do not agree that a predetermined period of years is appropriate in order to minimize uncertainty when making threatened species listing determinations. Including such a time limit in the foreseeable future regulation would be arbitrary and would preclude the Services from meeting the best-available-data standard required under section 4 of the Act. Furthermore, as noted in the M-Opinion, Congress purposefully did not set a timeframe for the Secretary's consideration of whether a species was likely to become an endangered species, nor did Congress intend that the Secretary set a uniform timeframe. Thus, we do not intend to specify one in the regulatory framework being finalized in this document.

We conclude that it is generally appropriate to consider the foreseeable future in light of the particular species' biology. This principle is explicitly embedded in the regulatory framework for the foreseeable future, which states: “The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability.”

We agree that listing decisions cannot be based on speculation. As stated in our proposed rule, “the foreseeable future can extend only as far as the Services can reasonably depend on the available data to formulate a reliable prediction and avoid speculation and preconception.” 83 FR 35195, 35196, July 25, 2018. Our “foreseeable future” framework is explicit in this respect, because it states that foreseeable future extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats “are likely.” However, we note that as long as that standard is met, we are not required to wait to make listing determinations until better or more-concrete science is available, and that the Act requires that we base our decision on the best
available
data.
See, e.g., San Luis & Delta-Mendota Water Authority
v.
Jewell,
747 F.3d 581, 602 (9th Cir. 2014) (“best available” standard does not require perfection or best information
possible
) (
citing Building Indus. Ass'n
v.
Norton,
247 F.3d 1241, 1246 (D.C. Cir. 2001));
Alaska
v.
Lubchenco,
825 F. Supp. 2d 209, 223 (D.D.C. 2011) (same);
Maine
v.
Norton,
257 F. Supp. 2d 357, 389 (D. Me. 2003) (noting that the “best available” standard “is not a standard of absolute certainty”). By the same token, we acknowledge that the precautionary principle does not apply to listing determinations, so we do not list species merely as a precaution if there is not reliable evidence indicating that the species meets the definition of a “threatened species.”
E.g., Center for Biological Diversity
v.
Lubchenco,
758 F. Supp. 2d 945, 955 (N.D. Cal. 2010) (finding the “benefit of the doubt” concept does not apply in the listing context);
Trout Unlimited
v.
Lohn,
645 F. Supp. 2d 929, 947 (D. Or. 2007).

Lastly, as the two Services agree to these principles and have worked cooperatively to develop this rule, we find that the two Services have already largely aligned their approaches. Any apparent differences in outcomes stem from species-specific considerations rather than from having different interpretations of the statute.

Comment:
A few commenters stated that, although a uniform “foreseeable future” time period should not be applied to all species, the Services must identify the period of foreseeability for each operative threat and the species' response to that threat. A commenter also stated the Services should be specific regarding what time period they are using for a particular decision and that, absent that information, their decisions will be extremely unclear, unpredictable, and difficult to review.

Response:
We agree that status reviews and listing determinations should transparently discuss the time horizons over which any analyses were conducted, threats were evaluated, and/or species' responses were projected. However, it is not always possible or even necessary in every circumstance to define the “foreseeable future” as a particular number of years. As stated in the M-Opinion: “In some cases, quantifying the foreseeable future in terms of years may add rigor and transparency to the Secretary's analysis

if such information is available. Such definitive quantification, however, is rarely possible and not required for a `foreseeable future' analysis.” (M-37021, January 16, 2009). Ultimately, although the Secretary has broad discretion to determine what is foreseeable, this discretion is exercised based on the best scientific and commercial data available and is subject to review in accordance with the applicable standards of the Act and the Administrative Procedure Act.

Comment:
Multiple commenters stated that the Services must modify the definition of the “foreseeable future” such that healthy, viable species are not listed as threatened species. Another commenter stated that the Services should only rarely list currently viable, stable species as threatened so that their resources can be more appropriately focused on species already in need of conservation. Commenters also stated that the Services should not list healthy species, like polar bears and ice seals, based on speculation or on the possibility of a future threat. Multiple commenters stated that Congress intended that only species experiencing current threats that are affecting their population numbers may be considered for listing and stated that a species must already be experiencing the effects of a threat and be “depleted in numbers” to be considered for listing as threatened. Commenters also asserted that the Ninth Circuit's interpretation in
Alaska Oil & Gas Assoc.
v
. Pritzker,
840 F.3d 671, 683 (9th Cir. 2016) was an illogical result of the potential application of the Act to every species based on the possibility that climate-related threats may pose some effect at some remote future time. Commenters noted this Congressional intent is also reflected by the definition of “conservation” in section 3 of the Act, which they noted clearly does not apply to a healthy species that is not being affected by present threats to its existence because it would not be possible to “bring” that species “to the point” where the protections of the Act “are no longer necessary.”

Response:
We agree that we cannot list a species as threatened due to speculation about future declines of that species; however, it does not follow that listing a species as threatened under the Act requires that a decline has already begun. If the best available scientific and commercial data allow us to make a reliable prediction (as opposed to speculating) that a not-yet-begun decline makes it likely that the species will become in danger of extinction, then that species meets the definition of a threatened species. In other words, the Services need not wait until a species has reached a particular tipping point if the best available data indicate the threats the species currently faces will result in it likely becoming an endangered species within the foreseeable future. Furthermore, the Services cannot ignore the threats a species faces even if the species has not yet begun to decline. Some species may also exhibit nonlinear changes in their population levels. For example, some species are vulnerable, due to demographic factors affecting their abundance, productivity, or other reasons, to sudden ecological regime shifts, which can cause population collapse even though population declines had not been previously evident.

Lastly, we do not agree with the suggestion that the definition of “conservation” in section 3 of the Act reflects an intention by Congress that only species with declining abundances be listed under the Act. The Act defines “conserve,” “conserving,” and “conservation” 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.” A species that is properly listed due to reliable predictions of future declines can benefit from conservation methods and procedures that will forestall or ameliorate that decline. If successful, such conservation measures will eventually no longer be necessary, the species will no longer be “likely to become an endangered species,” and the species can be delisted. Listing a species as threatened due to future declines that are foreseeable is thus completely compatible with the definition of “conservation.”

Comment:
Multiple commenters expressed concern that under the proposed “foreseeable future” framework the Services would consider climate change as a hypothetical and not a “probable” threat or would otherwise ignore the best available science on climate change. Commenters stated that under the proposed definition of “foreseeable future,” the Services could arbitrarily cite climate change as a justification to avoid species protections if none of the specific projections reaches the 50 percent “probability” threshold due to uncertainty stemming from environmental variability. They further stated that the regulations should instead be explicit that the best available science regarding the “foreseeable future” must include climate-change and ocean-acidification projections as well as any studies regarding what those projections will mean for both specific species and larger ecosystems. The commenters stated that the Services must consider the associated ranges of probabilities and uncertainties as best science even though they do not present a single likelihood of any particular impact. Commenters further noted that oftentimes there is high confidence in the directionality of a climate trend or impact (
e.g.,
sea-level rise), even when there is lower confidence in the rate or ultimate magnitude of the change, and that under the proposed definition of “foreseeable future” it would be possible to dismiss such projections by focusing on the uncertainty in rate instead of the certainty in trend.

Response:
Consistent with our longstanding practice, in all classification decisions we will consider the best available science and evaluate impacts to the species that may result from changing climate within the foreseeable future. Also consistent with our standard practice and per the Act's section 4(a)(1) factors for listing, we will consider what the particular climate-related predictions mean in terms of impacts on the species as well as impacts on the larger ecosystem. In reviewing and applying the best available data in our foreseeable future framework, we will also consider the ranges of probabilities and uncertainties associated with the available data, and we will not arbitrarily dismiss reliable aspects of various climate change predictions or projections (
e.g.,
directionality) even if other aspects (
e.g.,
rate of change) have greater levels of uncertainty. We will take all of the available climate change data into consideration when making a reasonable determination regarding the foreseeable future and the status of the species in the foreseeable future.

Comment:
Numerous commenters expressed concern regarding how the Services will address uncertainty and reliability under the proposed foreseeable future framework when models are used. Commenters noted that models used to project future conditions are often flawed by the inclusion of too few factors, or the exclusion of factors that may be unknown or not fully known, and that models can be manipulated. Therefore, commenters recommended that explanatory language should state that models must be identified as such and data inputs used to construct them must be listed, and that model outputs do not constitute data in and of themselves. Other commenters stated that

models often cannot provide reliable

predictions of future conditions at narrow geographical scales or on short time horizons sufficient to support specific conclusions about the future condition of species or habitat at precise locations. The commenters specifically noted that, in withdrawing their proposed rule to list the wolverine as threatened, the FWS recognized the significant disagreement and uncertainty regarding the accuracy of localized climate change projections for a species' habitat or population persistence (79 FR 47522, 47533; August 13, 2014). In contrast, other commenters stated the Services can rely on models even if they are not perfect, and that, under the proposed approach, species will impermissibly be left without protection until the science is developed enough to establish with “reasonable certainty” that they will be in danger of extinction.

Response:
We agree that, when models are applied in a status review, we should provide detailed, explanatory language to describe the particular data sources and inputs used to construct the model. We will also strive to explicitly describe the assumptions, limitations, and relevant measures of uncertainty associated with the particular models. However, it is important to note that models can often provide useful and robust predictions even in the absence of certain variables or data. Thus, the Services may consider, among other sources of scientific data, models that are not “perfect” or do not indicate a “reasonable certainty” of a species being in danger of extinction. Indeed, nothing in the framework we have set forth for determining the “foreseeable future” we adopt is designed or intended to require “reasonable certainty” of a species being in danger of extinction in the foreseeable future before it may be listed as threatened. Models are analytical tools that can be applied to better understand complex datasets. We will continue to use various types of analytical tools, as appropriate and as transparently as possible, when conducting status reviews. We conclude that the requirement to use the “best available” data means that we cannot insist that information must be free from all uncertainty, and further agree that the Act's protections should not be withheld until a species' status has declined to the point that the future risk of extinction is certain.

With respect to the comment regarding the degree of spatial and temporal precision of models, we agree that models will not always support specific conclusions about the future condition of species or habitat at fine scales or in precise locations. As stated previously, in reaching any conclusions regarding the foreseeable future or the extinction risk of a particular species, we will apply model results only to the extent that we have determined they are the best available data and they are relevant.

Comment:
A few commenters stated that “professional judgment” is ambiguous terminology and there is no clear indication on when use of professional judgment is considered appropriate. Some commenters expressed concern that subjectivity and opinion would take the place of data where gaps exist in the available science, and one commenter noted that the use of best professional judgment does not relieve the Services of their statutory duty to make listing determinations “solely on the basis of the best scientific and commercial data available.” One commenter recommended adopting guidance requiring that experts provide their credentials demonstrating their expertise and that their detailed recommendations be made available to the public.

Response:
These comments refer to a discussion in the proposed rule regarding the types of data that may inform what is “foreseeable.” Specifically, we stated that, depending on the nature and quality of the available data, “predictions regarding the future status of a particular species may be based on analyses that range in form from quantitative population-viability models and modelling of threats to qualitative analyses describing how threats will affect the status of the species. In some circumstances, such analyses may include reliance on the exercise of professional judgment by experts where appropriate.” (83 FR 35193, July 25, 2018).

This discussion was intended to clarify that the data underlying any “foreseeable future” could take several forms and that it would not, for example, exclusively depend on quantitative analysis. Professional judgment is not used in place of the best available scientific or commercial data; it is used when there are gaps in such data that require scientific interpretation to address. We note that when professional judgment is applied, it should be done transparently and in accordance with applicable standards.

Comment:
Multiple commenters raised concerns regarding what constitutes the “best available scientific and commercial data” in establishing a probable foreseeable future and requested we further clarify the term and its use. Several commenters stated it is imperative that the data considered during the listing process be made available to the public, and that any assumptions made are disclosed in a transparent manner. One commenter stated that the FWS has inconsistently applied standards for what constitutes the best available science and suggested that, to avoid interference with the application of the best available data, the words “the Services” should be replaced with “the Services' biologists.” We also received a request to insert the words “scientific and commercial” into the phrase “best available data” within the foreseeable future regulatory text. Lastly one commenter noted that the proposed rule fails to provide clarifying language regarding what constitutes “commercial data” and expressed concern that this could open the door to an over-reliance on the use of potentially biased and non-peer-reviewed data for listing and delisting decisions.

Response:
Multiple requirements have already been established to guide the Services' use and application of the best available data and provide sufficient guidance on this topic. For example, the Information Quality Act (IQA, Pub. L. 106-554), agency policy directives for implementing the IQA (
e.g.,
NMFS Policy Directive 04-108, June 2012, and FWS Information Quality Guidelines, June 2012; and the Office of Management and Budget's (OMB's) Final Information Quality Bulletin for Peer Review (M-05-03, December 16, 2004) guide the Services in ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the Services. In addition, the Services comply with the policy memorandum issued on February 22, 2013, by the Office of Science and Technology Policy regarding public access to federally funded research results. That memorandum establishes a set of principles to guide Federal agencies in providing access to and archiving results of Federal or federally funded research. Lastly, as a matter of practice, the Services' status reviews are subjected to both peer and public review before they are relied upon in a final listing determination. Overall, we find these existing requirements sufficient to ensure the quality, integrity, and accessibility of the data used by the Services in support of their listing decisions.

To ensure status reviews and listing decisions are transparently based on the best available scientific and commercial data, we fully disclose any assumptions made. The Services consider this to be a standard best practice. Additionally, the Services make available cited

literature that is used in listing rules and that are not already publicly available, taking into account issues of intellectual property law, copyright, and open access.

We decline to specify in our regulations that the Services' biologists make any determination of what constitutes the best available data. The proposed wording change is both unnecessary and in conflict with the statute. In practice, it is the Services' biologists that gather, review, and synthesize the best available data, but as the statute clearly requires, the Secretary must make the ultimate determination regarding whether species meet the definition of a threatened or endangered species.

Likewise, we decline to make the requested insertion of the words “scientific and commercial” into the regulatory framework for the foreseeable future, which we had originally omitted for conciseness and readability. The addition of these words is unnecessary, because the Services are held to the requirement to rely on the best “scientific and commercial data” under section 4(b)(1)(A) of the Act. The regulatory foreseeable future framework does not alter this statutory requirement in any way.

We also decline to add clarifying language to the regulations regarding the term “commercial data,” and we disagree that the absence of such language may lead to reliance on potentially biased and non-peer-reviewed data for listing and delisting decisions. The term “commercial data” is used in the statute and, as clearly indicated by the legislative history, this term refers to trade data such as commercial harvest and landings data. See H.R. Rep. 97-657 (H.R. Rep. No. 567, 97th Cong., 2nd Sess. 1982, 1982 U.S.C.C.A.N. 2807, 1982 WL 25083) at 20. While those data are not subject to a peer review process equivalent to the process applied to published scientific literature articles, the statute clearly allows the Services to consider them. When doing so, the Services apply their own assessment of the nature, quality, and limitations of the data, and use the data only to the extent appropriate. Furthermore, when commercial data are used, the Services discuss their application and interpretation of the data transparently and subject that interpretation to both peer and public review.

Comment:
Some commenters noted that, while they generally support the proposed changes to the regulations regarding the foreseeable future, the general framework for making threatened determinations would benefit from additional specific criteria. In particular, they requested that the framework require that the best available scientific and commercial data demonstrate that listing the species as threatened would have a measurable beneficial effect.

Response:
The suggested change is not consistent with the statute. Section 4(a)(1) sets out the factors by which the Secretaries may determine a species is threatened or endangered. These factors do not include a category that allows for or requires consideration of the beneficial effect of the listing. Therefore, we have no basis for requiring that a species listing have some measurable benefit in order for that species to receive the protections of the Act.

Comment:
Some commenters stated that the Services should provide additional clarification on how they will address future projections associated with a species' life-history characteristics and demographic factors, as well as divergent projections associated with each threat-projection timeframe. The commenters stated that the Services should further explain how species' responses will be predicted and should explicitly state that the adaptability and resilience of a species to each operative threat will also be considered. The commenters specifically noted that adaptability and resilience are important considerations when contemplating the risk of extinction in relation to loss of range. Another commenter stated that, while they appreciate that the proposed foreseeable future framework takes into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability, they recommended adding additional considerations, such as changes in climatic characteristics, phenology, geographic ranges, and home range sizes of some species, which can be particularly informative in the face of global changes to climate for which the only reference condition is the past.

Response:
As we indicated in the proposed rule, how we analyze and predict species' responses to threats will vary from case to case. For example, in data-rich cases, population viability analyses may be used to predict species' responses, whereas in data-poor situations, we will likely conduct a qualitative risk assessment. In all cases, species' likely responses to particular threats will be evaluated using the best data available for that species.

We can and do take factors such as climate, adaptability, resilience, phenology, and home-range sizes into account when assessing a species' status into the foreseeable future. It is our longstanding practice to take such types of information into account, as appropriate, when conducting status reviews. The foreseeable future framework refers to several categories of considerations (
i.e.,
“such as life-history characteristics, threat-projection timeframes, and environmental variability”) as examples of relevant factors that will inform how far into the future the foreseeable future extends for a particular species. The framework does not exclude other relevant considerations. Thus, we conclude that additional revisions to foreseeable future framework are not necessary.

Comments on Delisting

Comment:
Several commenters agreed with the proposal that the criteria for determining whether a species qualifies for protection under the Act are the same whether the context is a potential decision to delist or the initial decision whether to list a species. Numerous commenters stated that the standard for delisting a species should be higher than for listing a species; thus, the Services have a higher burden in proving that a listed species has recovered such that it can be delisted than they have in listing the species in the first instance. Further, some stated that under the precautionary principle embodied in the Act, scientific uncertainty must be considered differently in the context of delistings and downlistings versus initial listings. Many commenters stated that the precautionary principle embodied in the Act necessarily means that, once a species is listed, a subsequent reversal of that conclusion must be specifically supported by evidence that explains why the species no longer meets the definition associated with its prior listing.

Response:
The standard for a decision to delist a species is the same as the standard for a decision not to list it in the first instance. This approach is consistent with the statute, under which the five-factor analysis in section 4(a)(1) and the definitions of “endangered species” and “threatened species” in sections 3(6) and 3(20) establish the parameters for both listing and delisting determinations without distinguishing between them. The Services determine whether species meet the definitions of a “threatened species” or an “endangered species” based on the best scientific and commercial data available. We must consider the best available scientific data the same way regardless of whether it is in the context of delistings and downlistings versus initial listings. This interpretation is

consistent with the Services' longstanding practice and the decision in
Friends of Blackwater
v.
Salazar,
691 F.3d 428 (D.C. Cir. 2012). That decision confirms that, when reviewing whether a listed species should be delisted, the Services must apply the factors in section 4(a) of the Act. 691 F.3d at 433 (upholding FWS's decision to delist the West Virginia northern flying squirrel because the agency was not required to demonstrate that all of the recovery plan criteria had been met before it could delist the species and it was reasonable to construe the recovery plan as predictive of the delisting analysis rather than controlling it). In that case, the court held that “Section 4(a)(1) of the Act provides the Secretary `shall' consider the five statutory factors when determining whether a species is endangered, and section 4(c) makes clear that a decision to delist `shall be made in accordance' with the same five factors.”
Id.
at 432. Therefore, we have finalized the proposed change.

Comment:
Some commenters stated that the only “standard” articulated in the proposed regulations is that the species “shall be listed or reclassified if the Secretary determines on the basis of the best scientific and commercial data available after conducting a review of the species' status, that the species meets the definition of an endangered species or a threatened species.” Further, they stated that a decision to delist a species is not made against a blank slate. Rather, it is made in light of a prior factual determination by the Service. Therefore, the Services must explain and factually substantiate the departure from that prior determination. In making a new evaluation of a species' status, the Services cannot base their decision only on the available scientific and commercial data but must also consider their prior determination and substantiate the reasons for departing from their prior conclusions. An agency must provide “a more detailed justification” when it makes a decision that “rests upon factual findings that contradict” its prior findings. A failure to do so violates the Administrative Procedure Act.

Response:
The Act defines “threatened species” and “endangered species” and directs the Services to make determinations regarding whether a species is threatened or endangered based upon the best available scientific and commercial data. This determination requires the Services to take into account all material in the record, including prior findings and the discussion of facts supporting those findings, and discuss how the newly available information has led to different conclusions in a transparent manner.

The underlying obligation of the Services to articulate a rational connection between their decisions and facts in the record is the same regardless of the context of the determination being made (listing or delisting). Of course, where there is substantial information in the record that a listed species is likely to face a continuing threat, this responsibility is particularly acute.
See Greater Yellowstone Coalition, Inc.
v.
Servheen,
665 F.3d 1015, 1030 (9th Cir. 2011) (holding that, in particular circumstance where strong evidence of continuing threat to species was documented in the record, the Act's policy of “institutionalized caution” required that FWS explain why delisting the species was appropriate in face of the uncertainty regarding the extent of the threat).

Comment:
Several commenters stated that the removal of recovery as one of the reasons for delisting is in direct conflict with the main stated purpose of the Act and will allow the Services to delist species before they are recovered. They also stated that the Services have failed to adequately explain the purpose of removing the word “recovery” from § 424.11(d)(2). They noted the only reasoning provided in the proposed rule was to align with statutory definitions of endangered and threatened species. The Services did not explain how removing this word creates better alignment.

Response:
We note that the Act does not use the term `recovery' or `recovered' when referring to removing a species from the list. Rather, a species is removed from the list when it does not meet the definition of an endangered species or threatened species. Furthermore, the Services do not agree that this change will allow species to be delisted before they are recovered. The Services will continue to use the best scientific and commercial data available to make determinations as to whether species meet the definition of an endangered species or a threatened species. If a review of a listed species indicates a species does not meet either definition, the Services will propose the species for delisting. Likewise if, following a review, a listed species is determined to still meet the definition of an endangered or a threatened species, the Services would not propose the species for delisting. Thus, this revision in no way conflicts with the intention of the Act.

The Services removed the reference to “recovery” from § 424.11(d)(2) because the existing regulatory language, which was intended to provide examples of when a species should be removed from the lists, has been, in some instances, misinterpreted as establishing criteria for delisting. Although we are removing the word “recovery” from this section, the language will continue to include species that have recovered, because recovered species would no longer meet the definition of either an “endangered species” or a “threatened species.” However, the Services reiterate that the goal of the Act and the Services is to recover threatened and endangered species.

Comment:
Some commenters objected to the removal of recovery from § 424.11 and stated the proposed rule appeared to circumvent recovery plans and improperly make section 4(f) of the Act meaningless. Additionally, they stated that removing this provision disconnects recovery from species recovery plans that in turn guide State-level actions and are effective means to address recovery. They argued the Services should include a discussion of recovery and recovery plans as part of this change and consider if protections are in place to support continued recovery of the species into the future.

Response:
This change does not make recovery meaningless. Section 4(f) requires the development of recovery plans for most listed species. Recovery plans are a key component in conservation planning and provide an important roadmap for a species' recovery. This provision does not undermine the importance or effectiveness of recovery plans. Recovery plans will continue to guide the Services' recovery efforts.

Comment:
A commenter expressed concern that the proposed addition of new paragraph (e) to § 424.11 would circumvent the requirement that delisting decisions must be made based on the best science and data available at the time of the decision. The commenter argued that the proposed revisions would allow for delisting based solely upon achieving any recovery criteria identified at the time of listing, even if this occurs prior to the attainment of the plan's recovery criteria and without regard to current information.

Response:
The Services are required to make delisting determinations based upon the best sci

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-17518. Public record. Not legal advice.