Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat

DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 424</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2025-0039, FXES11110900000-256-FF09E23000; Docket No. 251105-0168]</DEPDOC> <RIN>RIN 1018-B173; 0648-BN70</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Listing Endangered and Threatened Species and Designating Critical Habitat</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively, the “Services”), propose to revise portions of our regulations for section 4 of the Endangered Species Act of 1973, as amended (ESA or Act). The proposed revisions to the regulations clarify and interpret portions of the Act concerning the procedures and criteria used for listing, reclassifying, and delisting species on the Lists of Endangered and Threatened Wildlife and Plants and designating critical habitat. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received by December 22, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Comment submission:</E> You may submit comments and information on this document by one of the following methods: (1) <E T="03">Electronically:</E> Go to the Federal eRulemaking Portal: <E T="03">https://www.regulations.gov.</E> In the Search box, enter FWS-HQ-ES-2025-0039, which is the docket number for this rulemaking action. Then, click on the Search button. On the resulting page, in the panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on “Comment.” Please ensure that you have found the correct rulemaking before submitting your comment. Comments must be submitted to <E T="03">https://www.regulations.gov</E> before 11:59 p.m. (Eastern Time) on the date specified in <E T="02">DATES</E> . (2) <E T="03">By hard copy:</E> Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2025-0039; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803. We request that you send comments only by the methods described above. We will post all comments on <E T="03">https://www.regulations.gov.</E> This generally means that we will post any personal information you provide us (see Request for Comments, below, for more information). <E T="03">Availability of reference materials:</E> References and, in accordance with 5 U.S.C. 553(b)(4), a summary of this proposed rule are available at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2025-0039. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> FWS/NMFS, U.S. Fish and Wildlife Service, Division of Conservation and Classification, <E T="03">fws@fws.gov,</E> 703-358-2163; or FWS/NMFS, National Marine Fisheries Service, Office of Protected Resources, FWS/NMFS, 301-427-8466. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States. Please see Docket No. FWS-HQ-ES-2025-0039 on <E T="03">https://www.regulations.gov</E> for a document that summarizes this proposed rule. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> The Secretaries of the Interior and Commerce (the “Secretaries”) share responsibilities for administering most of the provisions of the Endangered Species Act, as amended (hereafter referred to as ESA or the Act; 16 U.S.C. 1531 <E T="03">et seq.</E> ), and authority to administer the Act has been delegated by the respective Secretaries to the Director of FWS and the Assistant Administrator for NMFS. Together, the Services have promulgated regulations that interpret aspects of the listing and critical habitat designation provisions of section 4 of the Act. These joint regulations, which are codified in the Code of Federal Regulations (CFR) at 50 CFR part 424, were revised in 2019 (84 FR 45020, August 27, 2019, effective September 26, 2019) and again most recently in 2024 (89 FR 24300, April 5, 2024; hereafter, “the 2019 rule” and “the 2024 rule,” respectively). The 2024 rule became effective on May 6, 2024. Portions of the 2024 rule are subject to pending litigation in three different courts. First, the 2024 rule, along with other revisions to the ESA regulations finalized in 2019, are subject to both substantive and procedural challenges in <E T="03">Center for Biological Diversity et al.</E> v. <E T="03">Dep't of Interior et al.,</E> 4:24-cv-4651 (N.D. Cal.). In addition, the 2019 and 2024 amendments to 50 CFR 424.12(a)(1) have been challenged in <E T="03">Defenders of Wildlife</E> v. <E T="03">U.S. Fish & Wildlife Service,</E> 25-cv-45 (E.D. Cal.). Lastly, the 2024 rule changes to 50 CFR 424.11(e)(2) and 50 CFR 424.12(b)(2) have been challenged in <E T="03">American Farm Bureau Federation et al.</E> v. <E T="03">U.S. Fish & Wildlife Service et al.,</E> 1:25-cv-00947 (D. DC); plaintiffs in that case seek to have the 2019 rule reinstated. Prior litigation over the 2019 rule was not resolved on the merits ( <E T="03">Animal Legal Defense Fund</E> v. <E T="03">Haaland, et al.</E> 4:19-cv-06812-JST (N.D. Cal.); <E T="03">State of California et al. V. Haaland, et al.,</E> 4:19-cv-06013-JST (N.D. Cal.); <E T="03">Center for Biological Diversity et al. V. Haaland, et al.,</E> 4:19-cv-05206-JST (N.D. Cal.)); rather, on November 16, 2022, the district court issued orders remanding the 2019 regulations to the Services without vacating them, as the Services had voluntarily asked the court to do. Accordingly, the Services developed the 2024 regulations to amend some aspects of the 2019 rule. Executive Order (E.O.) 14154, “Unleashing American Energy,” issued January 20, 2025, directed all departments and agencies to immediately review agency actions to identify those actions that potentially impose an undue burden on the identification, development, or use of domestic energy resources, and, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding agency actions identified as unduly burdensome that conflict with this national objective. To administer provisions of E.O. 14154, the Secretary of the Interior subsequently issued Secretary's Order (S.O.) 3418, which indicated that FWS would work with NMFS to suspend, revise, or rescind the ESA regulations that had been revised in 2024. E.O. 14219 also directs all departments and agencies to review and rescind unlawful regulations that are “based on anything other than the best reading of the underlying statutory authority.” <E T="03">See also Loper Bright Enterprises</E> v. <E T="03">Raimondo,</E> 603 U.S. 369 (2024). In response to these orders, and in light of recent case law and ongoing litigation, the Services have reviewed the 2024 rule and evaluated the specific regulatory revisions promulgated through that process. Now, as discussed below, we propose to revise the regulations at 50 CFR part 424 by replacing the regulations promulgated in 2024 with those promulgated in 2019. The regulations we propose in this document provide criteria or otherwise clarify the processes by which the Services will interpret various statutory requirements set forth in section 4 of the Act. This proposed rule is intended to provide the public with a clear, transparent explanation of how we are proposing to revise the regulations in 50 CFR part 424 and the opportunity to comment on these proposed revisions. We interpret our authorities under the statutory scheme consistent with the best reading of the ESA. For example, the meaning of the term “foreseeable future,” which is used in the definition of “threatened species” and thus an innate part of making a listing decision under section 4(a), is not set out in the Act. By contrast, where the Act contains clear direction, regulatory text is less necessary to ensure that we efficiently and effectively apply the statute in our decision-making processes. While the regulations at 50 CFR part 424 are process-oriented regulations, they nonetheless are useful for administering the Act in a consistent manner, and for informing the public about those processes. Section 2 of the Act states that the purposes of the ESA include providing a means to conserve the ecosystems upon which endangered and threatened species depend, developing a program for the conservation of listed species, and achieving the purposes of certain treaties and conventions (16 U.S.C. 1531(b)). Section 2 of the Act also makes explicit that it is the policy of Congress that all Federal agencies and departments seek to conserve endangered and threatened species and use their authorities to further the purposes of the Act (16 U.S.C. 1531(c)). To receive the protections afforded by the Act, a species must first be listed as either an endangered or a threatened species. Whether a species warrants listing under the Act depends upon its risk of extinction. To determine whether listing a species is warranted, the Act requires that the Services conduct a review of the species' status and consider any efforts being made by any State or foreign nation (or subdivision thereof) to protect the species. The Act also requires that determinations ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 58k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━