At its December 2020 meeting, the Board issued a final Subordinated Debt rule (the final rule) permitting LICUs, Complex Credit Unions, and New Credit Unions to issue Subordinated Debt for purposes of Regulatory Capital treatment. 1 Relevant to this proposal, the final rule grandfathered secondary capital issued before January 1, 2022, and allowed such secondary capital to receive regulatory capital treatment until January 1, 2042 (20 years from the effective date of the final rule). 2 The grandfathering provision of the final rule allowed LICUs with grandfathered secondary capital to continue to be subject to the requirements of § 701.34(b), (c), and (d) (recodified in the final rule as § 702.414), rather than the requirements of the final rule. 3 The final rule also includes a provision stating that any issuances of secondary capital not completed by January 1, 2022, are, as of January 1, 2022, subject to the requirements applicable to Subordinated Debt in the final rule. 4 This provision would nullify any approved secondary capital application if the associated issuance was not completed before January 1, 2022. Any LICU in this situation would be required to reapply under the final rule if such LICU sought to proceed with its planned secondary capital issuance.

Subsequent to the issuance of the final rule, Congress passed the Consolidated Appropriations Act, 2021. 5 The CAA, among other things, created the ECIP. Under ECIP, Congress appropriated funds and directed Treasury to make investments in “eligible institutions” to support their efforts to “provide loans, grants, and forbearance for small businesses, minority-owned businesses, and consumers, especially in low-income and underserved communities.”  6 The definition of “eligible institutions” includes federally insured credit unions that are minority depository institutions or community development financial institutions, provided such credit unions are not in troubled condition or subject to any formal enforcement actions related to unsafe or unsound lending practices. 7

Under the terms developed by Treasury, investments in eligible credit unions will be in the form of subordinated debt. Treasury also aligned its investments in LICUs with the Federal Credit Union Act and the NCUA's regulations to allow eligible LICUs to apply to the NCUA for secondary capital treatment for these investments.

Treasury opened the ECIP application process on March 4, 2021, with an application deadline of May 7, 2021. Treasury has subsequently extended this deadline multiple times, with the most recent deadline, as of the date of this proposal, being September 1, 2021. As of September 17, 2021, 44 LICUs have received approval from the NCUA to issue secondary capital under the ECIP for an aggregate amount of approximately $1.9 billion.

The changes proposed in this rule are narrowly tailored to address a specific situation with funding of approved secondary capital applications. Therefore, the Board notes that it is not considering any other changes to the final Subordinated Debt rule. Comments outside the scope of the changes discussed herein will be treated as such for the purposes of any final rule the Board may issue. In light of this targeted scope and the prior public comment period on the Subordinated Debt rule, the Board finds that a 30-day comment period will provide an adequate opportunity for public input. 8

In the event approved LICU ECIP investments, or investments from any other programs administered by the U.S. government that can fund secondary capital, are not funded by the end of 2021, those approved LICUs would be required to reapply for regulatory capital treatment under the Subordinated Debt rule. As this scenario would impose an unnecessary burden on these LICUs, the Board is proposing to amend the Subordinated Debt rule to permit funding of secondary capital approved under the current rule, beyond 2021, without the need to reapply under the Subordinated Debt rule. Regardless of the issuance date of the secondary capital, such secondary capital would, for the purposes of the Subordinated Debt rule be considered Grandfathered Secondary Capital, and remain subject to § 701.34(b), (c) and (d) of the NCUA's regulations, (recodified in the final rule as § 702.414). The Board notes that the proposed changes in this rule are narrowly tailored to provide an exception to the issuance cutoff date, if the secondary capital issuance is:

1. To the U.S. Government; and

2. Being conducted under a secondary capital application that was approved before January 1, 2022, under either § 701.34 of the NCUA's regulations, for federal credit unions, or § 741.203 of the NCUA's regulations, for federally insured, state-chartered credit unions. 9

Consistent with the final Subordinated Debt rule, any LICU not meeting the above criteria will remain subject to the requirement to complete any issuance by the end of 2021 or such issuance will be subject to the requirements of the final Subordinated Debt rule.

The Board believes it is appropriate to narrowly tailor this rule, using the above criteria, for the following reasons. First, the issuances targeted by this rule were applied for and approved under the requirements of the current secondary capital rule. The Board included the issuance cutoff date in the Subordinated Debt rule to ensure future issuances were done in accordance with the more robust requirements in that rule, particularly in the area of disclosures and investor protections. As the issuances that are the subject of this rule are to the U.S. Government, the Board believes that the sharing of non-public, confidential supervisory information between the NCUA and the U.S. Government investor is sufficient to warrant a limited exception. The sharing of non-public, confidential supervisory information also separates the issuances subject to this proposed rule and issuances to non-U.S. Government investors. As such, the Board is not proposing to apply the exception in this proposed rule to secondary capital issuances to entities or persons other than the U.S. Government. Further, the Board notes that, as of September 7, 2021, there were four approved secondary capital applications not related to U.S. Government programs that have not been funded.

While the Board is permitting this limited exception for issuances to the U.S. Government, the Board continues to believe that the requirements of the Subordinated Debt rule, including the issuance of an Offering Document, should apply to all future issuances, regardless of the identity of the investor. The Board notes that information sharing between government agencies is not a substitute for executing an offering document. However, given the non-recurring nature of the transition from the current secondary capital requirements to the new Subordinated Debt requirements, the Board is willing to rely on information sharing in this instance.

The Board is proposing the above criteria to limit the scope to address potential funding timelines under U.S. Government programs that extend beyond the end of 2021. As such, if funding is completed by the end of 2021 for these limited number of applications, there may be no need to finalize this proposed rule. However, out of an abundance of caution, the Board believes it is prudent to be prepared to act should funding delays continue beyond the end of 2021.

The Board reiterates that any LICU that would qualify for the exception granted by this proposed rule must be operating under a secondary capital plan approved before January 1, 2022 under either §§ 701.34 or 741.204 of the NCUA's regulations. Operating under an approved secondary capital plan means that a LICU may only conduct secondary capital issuances in accordance with the terms and conditions included in the LICU's approved secondary capital plan. Further, any LICU that receives an investment from the U.S. Government that is less than the amount approved under its secondary capital application with the NCUA would be limited to only that lesser investment and would not be permitted to use the proposed exception to conduct subsequent issuances. For example, if a LICU was approved to issue $100 million of secondary capital by the NCUA, but under the U.S. Government program was only granted a $60 million investment, the LICU would not be permitted to issue the remaining $40 million of approved secondary capital to another investor or under another U.S. Government program. Further, if a LICU receives a lesser investment amount, the NCUA reserves the right to revisit the LICU's approved plan to verify that the LICU continues to operate in accordance with that plan.

Finally, the Board is proposing to amend the starting point for Grandfathered Secondary Capital to retain its status as Regulatory Capital. Currently, the Subordinated Debt rule states that all Grandfathered Secondary Capital will be treated as regulatory capital until January 1, 2042 (20 years from the effective date of the final rule). As this proposal would allow limited issuances of Grandfathered Secondary Capital beyond January 1, 2022, the Board is proposing to allow such secondary capital to count as regulatory capital for up to 20 years from the date of issuance. The Board notes that this proposed amendment would provide equitable treatment for all issuances of Grandfathered Secondary Capital. Finally, the Board notes that this proposed change does not change the Board's rationale, as articulated in the proposed and final Subordinated Debt rules, for imposing a 20-year cutoff for regulatory capital treatment.

This change also would not permit LICUs to issue secondary capital with terms longer than 20 years. The Board was clear in both the proposed and final Subordinated Debt rules that the maximum 20-year maturity was necessary to help ensure Subordinated Debt was not considered equity, which is an impermissible issuance for federal credit unions. 10 To permit longer term issuances of secondary capital would be counter to the Board's concerns and reasons articulated in the aforementioned rules.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) requires that the Office of Management and Budget approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a valid Office of Management and Budget control number. This proposed rule extends the time for certain issuances of secondary capital and the corresponding Regulatory Capital treatment of such issuances. As such, this rule would not require any information collection as defined by the Paperwork Reduction Act of 1995.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive Order to adhere to fundamental federalism principles.

This proposed rule does not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of Government. The NCUA has therefore determined that this proposed rule does not constitute a policy that has federalism implications for purposes of the Executive Order.

The NCUA has determined that this rule will not affect family well-being within the meaning of § 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

The Regulatory Flexibility Act  11 requires the NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $100 million in assets). 12 This proposed rule would affect a small number of LICUs with approved secondary capital applications for issuances to the U.S. Government or its subdivisions. This rule extends the deadline for such credit unions to complete their issuance of secondary capital. Accordingly, the NCUA certifies that this proposed rule would not have a significant economic impact on a substantial number of small credit unions.

For the reasons discussed in the preamble, NCUA proposes to amend 12 CFR parts 702 and 741, as amended by 86 FR 11060 (Feb. 23, 2021) and scheduled to become effective on January 1, 2022, as follows:

On August 21, 2019, the U.S. Department of Housing and Urban Development published a document implementing the “Demonstration To Assess the National Standards for the Physical Inspection of Real Estate and Associated Protocols.” (“the 2019 document”). 1 Through this demonstration, HUD is collecting, processing, and evaluating physical inspection data and information, and is improving and refining the NSPIRE model. The NSPIRE model will revise the way that HUD-assisted housing is inspected and evaluated to reduce regulatory burden and improve HUD oversight through a unified assessment of housing quality and a prioritization of resident health and safety.

HUD has decided to extend this demonstration to assess the improvements and alignment of the inspection protocol. This decision furthers the direction contained in the Joint Explanatory Statement accompanying the Consolidated Appropriations Act of 2016, Public Law 114-113, approved December 18, 2015; the statutory requirements detailed in the Economic Growth and Recovery, Regulatory Relief, and Consumer Protection Act of 2018, Public Law 115-174;  2 and the proposed guidance the Department has outlined in the Economic Growth, Regulatory Relief, and Consumer Protection Act: Implementation of National Standards for the Physical Inspection of Real Estate proposed rule. 3 All participant and program-specific requirements highlighted in the 2019 document continue to apply, including the extension of the inspection periodicity for participating properties as outlined in section V. HUD extends this demonstration through April 30, 2023. HUD may amend the demonstration dates in response to changes in programmatic and environmental conditions through subsequent Federal Register publications.

This notification provides operating instructions and procedures in connection with activities under a Federal Register document that has previously been subject to a required environmental review. Accordingly, under § 50.19(c)(4), this notification is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321, et seq. )

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On October 1, 2015, the EPA promulgated a revision to the ozone NAAQS (“2015 ozone NAAQS”), lowering the level of both the primary and secondary standards to 0.070 parts per million (ppm). 1 Section 110(a)(1) of the CAA requires states to submit, within 3 years after promulgation of a new or revised standard, SIP submissions meeting the applicable requirements of section 110(a)(2). 2 One of these applicable requirements is found in section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision, which generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on other states due to interstate transport of pollution. There are two so-called “prongs” within CAA section 110(a)(2)(D)(i)(I). A SIP for a new or revised NAAQS must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting air pollutants in amounts that will: Significantly contribute to nonattainment of the NAAQS in another state (prong 1); or interfere with maintenance of the NAAQS in another state (prong 2). The EPA and states must give independent significance to prong 1 and prong 2 when evaluating downwind air quality problems under CAA section 110(a)(2)(D)(i)(I). 3

We note that the EPA has addressed the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) with respect to prior ozone NAAQS in several regional regulatory actions, including the Cross-State Air Pollution Rule (CSAPR), which addressed interstate transport with respect to the 1997 ozone NAAQS as well as the 1997 and 2006 fine particulate matter standards, 4 the CSAPR Update, and, most recently, the Revised CSAPR Update for the 2008 ozone NAAQS. 5 6

Through the development and implementation of CSAPR and other regional rulemakings pursuant to the good neighbor provision, 7 the EPA, working in partnership with states, developed the following four-step interstate transport framework to address the requirements of the good neighbor provision for the ozone NAAQS: (1) Identify downwind air quality problems; (2) identify upwind states that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identify the emissions reductions necessary (if any), applying a multifactor analysis, to prevent linked upwind states identified in step 2 from contributing significantly to nonattainment or interfering with maintenance of the NAAQS at the locations of the downwind air quality problems; and (4) adopt permanent and enforceable measures needed to achieve those emissions reductions.

The EPA has released several documents containing information relevant to evaluating interstate transport with respect to the 2015 ozone NAAQS. First, on January 6, 2017, the EPA published a notice of data availability (NODA) with preliminary interstate ozone transport modeling with projected ozone design values for 2023 using a 2011 base year platform, on which we requested comment. 8 In the NODA, the EPA used the year 2023 as the analytic year for this preliminary modeling because that year aligns with the expected attainment year for Moderate ozone nonattainment areas for the 2015 ozone NAAQS. 9 On October 27, 2017, we released a memorandum (“2017 memorandum”) containing updated modeling data for 2023, which incorporated changes made in response to comments on the NODA, and noted that the modeling may be useful for states developing SIPs to address good neighbor obligations for the 2008 ozone NAAQS. 10 On March 27, 2018, we issued a memorandum (“March 2018 memorandum”) noting that the same 2023 modeling data released in the 2017 memorandum could also be useful for identifying potential downwind air quality problems with respect to the 2015 ozone NAAQS at step 1 of the four-step interstate transport framework. The March 2018 memorandum also included the then newly available contribution modeling results to assist states in evaluating their impact on potential downwind air quality problems for the 2015 ozone NAAQS under step 2 of the interstate transport framework. The EPA subsequently issued two additional memoranda in August and October 2018, providing additional information to states developing good neighbor SIPs for the 2015 ozone NAAQS concerning, respectively, potential contribution thresholds that may be appropriate to apply in step 2 of the framework, and considerations for identifying downwind areas that may have problems maintaining the standard at step 1 of the framework. 11

On October 30, 2020, in the Notice of Proposed Rulemaking for the Revised CSAPR Update, the EPA released and accepted public comment on updated 2023 modeling that used the 2016 emissions platform developed under the EPA/Multi-Jurisdictional Organization (MJO)/state collaborative project as the primary source for the base year and future year emissions data. 12 On March 15, 2021, the EPA signed the final Revised CSAPR Update using the same modeling released at proposal. 13 Although Hawaii relied in part on the modeling included in the March 2018 memorandum to develop its SIP submission, the EPA now proposes to primarily rely on the updated and newly available 2016 base year modeling in evaluating this submission. By using the updated modeling results, EPA is using the most current and technically appropriate information as the primary basis for this proposed rulemaking. EPA's independent analysis, which also evaluated historical monitoring data, recent ambient air monitoring design values, and emissions trends, found that such information provides additional support and further substantiates the results of the 2016 base year modeling as the basis for this proposed rulemaking. Section II of this document and the Air Quality Modeling technical support document (TSD) included in the docket for this proposed action contain additional detail on this modeling. 14

In the CSAPR, CSAPR Update, and the Revised CSAPR Update, the EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the interstate transport framework and would, therefore, contribute to downwind nonattainment and maintenance sites identified in step 1. If a state's impact did not equal or exceed the one percent threshold, the upwind state was not “linked” to a downwind air quality problem, and the EPA, therefore, concluded the state would not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in the downwind states. However, if a state's impact equaled or exceeded the one percent threshold, the state's emissions were further evaluated in step 3, to determine what, if any, emissions might be deemed “significant” and, thus, must be eliminated under the good neighbor provision. The EPA is proposing to rely on the one percent threshold ( i.e., 0.070 ppb) for the purpose of evaluating Hawaii's contributions to nonattainment or maintenance of the 2015 ozone NAAQS in downwind areas.

Several D.C. Circuit court decisions have addressed the issue of the relevant analytic year for the purposes of evaluating ozone transport air-quality problems. On September 13, 2019, the D.C. Circuit issued a decision in Wisconsin v. EPA, remanding the CSAPR Update to the extent that it failed to require upwind states to eliminate their significant contribution by the next applicable attainment date by which downwind states must come into compliance with the NAAQS, as established under CAA section 181(a). 15

On May 19, 2020, the D.C. Circuit issued a decision in Maryland v. EPA that cited the Wisconsin decision in holding that the EPA must assess the impact of interstate transport on air quality at the next downwind attainment date, including Marginal area attainment dates, in evaluating the basis for the EPA's denial of a petition under CAA section 126(b). 16 The court noted that “section 126(b) incorporates the Good Neighbor Provision,” and, therefore, “the EPA must find a violation [of section 126] if an upwind source will significantly contribute to downwind nonattainment at the next downwind attainment deadline. Therefore, the agency must evaluate downwind air quality at that deadline, not at some later date.”  17 The EPA interprets the court's holding in Maryland as requiring the Agency, under the good neighbor provision, to assess downwind air quality by the next applicable attainment date, including a Marginal area attainment date under section 181 for ozone nonattainment. 18 The Marginal area attainment date for the 2015 ozone NAAQS is August 3, 2021. 19 Historically, the EPA has considered the full ozone season prior to the attainment date as supplying an appropriate analytic year for assessing good neighbor obligations. While this would be 2020 for an August 2021 attainment date (which falls within the 2021 ozone season running from May 1 to September 30), in this circumstance, when the 2020 ozone season is wholly in the past, it is appropriate to focus on 2021 in order to address good neighbor obligations to the extent possible by the 2021 attainment date. The EPA does not believe it would be appropriate to select an analytical year that is wholly in the past, because the agency interprets the good neighbor provision as forward looking. 20 Consequently, in this proposed action the EPA will use the analytical year of 2021 to evaluate Hawaii's good neighbor obligations with respect to the 2015 ozone NAAQS. 21

The Hawaii Department of Health (HDOH) submitted its good neighbor SIP submission for the 2015 ozone NAAQS by letter dated November 12, 2019. 22 The submittal included documentation of public participation proceedings to meet the requirements of CAA section 110(a)(2) and 40 CFR 51.102. The EPA determined that the submittal was complete on November 13, 2019. 23

HDOH concluded that Hawaii does not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state, citing the distance from Hawaii to the continental U.S, the relatively small quantity of ozone precursor emissions in Hawaii, and an evaluation of ozone transport using trajectory analysis of emissions from Hawaii to the continental U.S.

In the HDOH submittal, the State notes that Hawaii is approximately 2,390 miles from the nearest state, California. HDOH also points to Hawaii's 2016 Annual Summary of Air Quality Data to note that Hawaii is in attainment for all NAAQS and compares Hawaii's ozone precursor emissions to those of California and Nevada. Hawaii's analysis states that emissions of ozone precursors, nitrogen oxides (NO X ) and volatile organic compounds (VOC), from Hawaii were 7.57 and 6.28 percent, respectively, of California's emissions in 2011 and 7.95 and 5.21 percent in 2014. 24 Cumulatively, emissions of ozone precursors from Hawaii in 2011 and 2014 were 6.97 and 6.54 percent, respectively, of California's emissions. Furthermore, HDOH points out that the State's ozone precursor emissions have exhibited a downward trend, having decreased since the 2011 National Emissions Inventory (NEI), and notes that their emissions continue to be relatively low compared to California. To demonstrate that Hawaii's ozone precursor emissions would not significantly contribute to interstate transport, even if California and Hawaii were directly adjacent to each other, the submittal compares Hawaii's ozone precursor emissions to those of Nevada, which shares a border with California, but does not significantly contribute to interstate transport to any other state. 25 Emissions of NO X and VOCs from Hawaii were 51.24 and 49.28 percent, respectively, of Nevada's emissions in 2014. Cumulatively, emissions of ozone precursors from Hawaii in 2014 were 50.35 percent of Nevada's emissions.

Appendix 1 of the HDOH submittal provides trajectories for emissions from Hawaii's Campbell Industrial Park, which includes a refinery and power generation facility, based on 2010 meteorological data during January and July. HDOH found that a comparison between the trajectory modeling results and ozone monitoring data supports the conclusion that it is highly unlikely that Hawaii is currently impacting nonattainment or maintenance areas of other states and that it is highly unlikely to do so in the future.

As explained in Section I of this document, in consideration of the holdings in Wisconsin and Maryland, the EPA's four-step interstate transport analysis relies on 2021 as the relevant attainment year for evaluating Hawaii's good neighbor obligations with respect to the 2015 ozone NAAQS. 26 In step 1, we identify locations where the Agency expects there to be nonattainment or maintenance receptors for the 2015 8-hour ozone NAAQS in the 2021 analytic future year. Where the EPA's analysis shows that a monitoring site does not fall under the definition of a nonattainment or maintenance receptor, that site is excluded from further analysis under the EPA's four-step interstate transport framework. For monitoring sites that are identified as nonattainment or maintenance receptors in 2021, we proceed to the next step of our four-step framework by identifying the upwind state's contribution to those receptors.

The EPA's approach to identifying ozone nonattainment and maintenance receptors in this proposed action is consistent with the approach used in the CSAPR, the CSAPR Update, and the Revised CSAPR Update. The EPA's approach gives independent consideration to both the “contribute significantly to nonattainment” and the “interfere with maintenance” prongs of section 110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's direction in North Carolina. 27 Further, in its decision on the remand of CSAPR from the Supreme Court in the EME Homer City case, the D.C. Circuit confirmed that the EPA's approach to identifying maintenance receptors in CSAPR comported with the court's prior instruction to give independent meaning to the “interfere with maintenance” prong in the good neighbor provision. 28

For purposes of this proposed action, the EPA identifies nonattainment receptors as those monitoring sites that are projected to have average design values that exceed the NAAQS and that are also measuring nonattainment based on the most recent monitored design values. 29 This approach is consistent with prior transport rulemakings, such as the CSAPR Update, where the EPA defined nonattainment receptors as those areas that both currently monitor nonattainment and that the EPA projects will be in nonattainment in the future analytic year. 30 In addition, in this proposed action, the EPA identifies a receptor to be a “maintenance” receptor for purposes of defining interference with maintenance, consistent with the method used in CSAPR and upheld by the D.C. Circuit in EME Homer City II. 31 32

Recognizing that nonattainment receptors are also, by definition, maintenance receptors, the EPA often uses the term “maintenance-only” to refer to receptors that are not also nonattainment receptors. Consistent with the methodology described above, monitoring sites with a projected maximum design value that exceeds the NAAQS, but with a projected average design value that is below the NAAQS, are identified as maintenance-only receptors. In addition, those sites that are currently measuring ozone concentrations below the level of the applicable NAAQS but are projected to be nonattainment based on the average design value and that, by definition, are projected to have a maximum design value above the standard are also identified as maintenance-only receptors.

To evaluate future air quality in steps 1 and 2 of the interstate transport framework, the EPA is using the 2016 and 2023 base case emissions developed under the EPA/MJO/state collaborative emissions modeling platform project as the primary source for base year and 2023 future year emissions data for this proposed rule. Because this platform does not include emissions for 2021, the EPA developed an interpolation technique based on modeling for 2023 and measured ozone data to determine ozone concentrations for 2021. To estimate average and maximum design values for 2021, the EPA first performed air quality modeling for 2016 and 2023 to obtain design values in 2023. The 2023 design values were then coupled with the corresponding 2016 measured design values to estimate design values in 2021. Details on the modeling, including the interpolation methodology, can be found in the Air Quality Modeling TSD, in the docket for this proposed action.

To quantify the contribution of emissions from specific upwind states on 2021 8-hour design values for the identified downwind nonattainment and maintenance receptors, the EPA first performed nationwide, state-level ozone source apportionment modeling for 2023. The source apportionment modeling provided contributions to ozone from precursor emissions of anthropogenic NO X and VOCs in each individual state. The modeled contributions were then applied in a relative sense to the 2021 average design value to estimate the contributions in 2021 from each state to each receptor. Details on the source apportionment modeling and the methods for determining contributions in 2021 are in the Air Quality Modeling TSD in the docket.

The EPA generally does not consider modeling to be necessary for isolated states like Hawaii for the purposes of evaluating interstate transport. Therefore, Hawaii was not included in the modeling domain, and the apportionment modeling analysis described above does not calculate emissions contributions from Hawaii to the downwind nonattainment and maintenance areas identified in step 1 in the contiguous United States. In lieu of apportionment modeling, at step 2 of the interstate transport framework, a proper and well-supported weight of evidence approach can provide sufficient information for purposes of addressing Hawaii's interstate transport for the 2015 ozone NAAQS. In a weight of evidence analysis, no single piece of information is by itself dispositive of the issue. Instead, the total weight of all the evidence taken together is used to evaluate significant contribution to nonattainment or interference with maintenance of the 2015 ozone NAAQS in another state. In the weight of evidence analysis detailed below, we consider (1) the distance between sources in Hawaii and the nonattainment and maintenance receptors identified in step 1; (2) the relative magnitude of state-wide emissions of ozone precursors; (3) an evaluation of prevailing wind direction that may impact of transport of emissions from Hawaii during the summer ozone season; and (4) a comparison of Hawaii's impact on California to California's impact on Connecticut.

The state with the nearest nonattainment receptors to Hawaii is California, based on the modeling supporting the Revised CSAPR Update. 33 The nearest California nonattainment receptor is the Modesto-14th Street monitor, located in Stanislaus County, which is 2,384 miles from the easternmost edge of Hawaii. 34 The next closest nonattainment receptors outside of California are located in Douglas County, Jefferson County, and Larimer County in Colorado, and Davis County and Salt Lake County in Utah.

The nearest California maintenance-only receptor to Hawaii is the Tracy-Airport monitor, located in San Joaquin County, which is 2,363 miles from the easternmost edge of Hawaii. 35 The next closest maintenance-only receptors outside of California are in Yuma County, Arizona; Clark County, Nevada; Dona Ana County, New Mexico; and Weber County, Utah.

Sheer distance alone makes it unlikely that emissions from Hawaii contribute to nonattainment or interfere with maintenance in these states. However, we also compare the emissions of ozone precursors from Hawaii to those of other western states. 36 Hawaii's emissions of ozone precursors are substantially lower than emissions from other western states, as shown in Table 1. 37 The table represents the most recent data available on emissions of ozone precursors. NEI data, which is released every three years, is not yet available for 2020.

The relative magnitude of Hawaii's emissions compared to Arizona, California, Nevada, Oregon, and Utah, coupled with the distance between Hawaii and these states, further indicates that Hawaii is unlikely to contribute to nonattainment or interfere with maintenance in California, or any other state.

The next step in our analysis is to look at prevailing wind direction in Hawaii. In the trajectory analysis in Appendix 1 of the State's submittal, HDOH concluded that the predominant transport patterns in January and July of 2010—which are from the northeast to the southwest ( i.e., generally opposite the direction from Hawaii to the location of nonattainment and maintenance-only receptors in the U.S.)—support the conclusion that Hawaii is unlikely to contribute to nonattainment or interfere with maintenance in California or other western states. 38 While HDOH only analyzed wind trajectories in January and July of 2010, Hawaii's 2017 Regional Haze SIP contains 2013 and 2015 wind rose plots, which also illustrate that the predominant wind transport patterns year-round blow from northeast to southwest. 39 This is further verified by the National Weather Service, which lists persistent trade winds, the prevailing easterly winds  40 that circle the earth near the equator as a result of the earth's rotation, from the northeast as a feature of Hawaii's climate. 41 Based on the State's trajectory analysis and wind rose plots from its 2017 Regional Haze SIP, along with information from the National Weather Service, we expect emissions from Hawaii would initially travel westwards before turning eastwards on the vast majority of days. This would make the pathway to the continental U.S. considerably longer than the more than 2,000 miles separating the continental U.S. from Hawaii. These trajectories further indicate that Hawaii is unlikely to contribute to nonattainment or interfere with maintenance in California or any other state.

Finally, we compare the impact of Hawaii on California, with California's impact on Connecticut, because the distance between Hawaii and California, and Connecticut and California, is roughly equivalent. As previously mentioned, we have modeled contributions among the continental states in the Revised CSAPR Update. In terms of distance, Hawaii is slightly farther to nonattainment and maintenance-only receptors in California, at 2,384 and 2,363 miles, respectively, than California is to nonattainment and maintenance only receptors in Connecticut, which are 2,263 and 2,285 miles away, respectively. 42 California's contribution to these monitors is 0.03 ppb to both the nonattainment and maintenance-only receptors in 2021, which represents the maximum contribution of California to any nonattainment and maintenance-only receptor in Connecticut. This is well below the threshold of 1 percent of the NAAQS that would link the two states, triggering further review in steps 3 and 4 of the interstate transport analysis framework. Given that the distance between California and Connecticut is comparable to the distance between Hawaii and California, and ozone precursor emissions from California are more than 10 times larger than ozone precursor emissions from Hawaii, because California's contributions to Connecticut are well below the 1 percent threshold, it is reasonable to conclude that Hawaii's contribution to California would also be below the 1 percent threshold. Therefore, it is not necessary to evaluate potential NO X reductions as part of step 3 in the EPA's four-step interstate transport framework.

Based on the weight of evidence, including (1) the distance between Hawaii and California, (2) the relative magnitude of ozone precursor emissions from Hawaii, (3) the predominant wind direction of the trade winds in Hawaii, and (4) the comparison to the impact of ozone precursor emissions from California on Connecticut, we propose to find that Hawaii will not significantly contribute to nonattainment or interfere with maintenance in any other state.

Based on our review of the interstate transport SIP submission from HDOH to address the 2015 ozone NAAQS and the additional analysis discussed in this document, we propose to find that emissions from Hawaii will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state. Accordingly, we propose to approve the HDOH Submittal as satisfying the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This document proposes to take action on Arizona's changes to its hazardous waste management program under the Resource Conservation and Recovery Act (RCRA), as amended. We have published a direct final action authorizing these changes in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final authorization.

If we receive no adverse comment, we will not take further action on this proposed rulemaking. If we receive adverse comment, we will withdraw the direct final authorization and it will not take effect. We would then address all public comments in a subsequent final action and base any further decision on the authorization of the state program changes after considering all comments received during the comment period.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

You may be potentially affected by this action if your facility submits annual reports under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. 11023, and section 6607 of the Pollution Prevention Act (PPA), 42 U.S.C. 13106, to EPA and States or Tribes of the facility's environmental releases or other waste management quantities of covered chemicals. (Pursuant to 40 CFR 372.30(a), facilities located in Indian country are required to report to the appropriate tribal government official and EPA instead of to the State and EPA. See April 19, 2012 (77 FR 23409) (FRL-9660-9)). To determine whether your facility is affected by this action, you should carefully examine the applicability criteria in 40 CFR part 372, subpart B. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 113310, 211130*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512230*, 512250*, 519130*, 541713*, 541715*, or 811490*. (* Exceptions and/or limitations exist for these NAICS codes.)

• Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212230, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (all are limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); or 562112 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq. ) (corresponds to SIC code 4953, Refuse Systems).

• Federal facilities.

Covered facilities in specified SIC codes that manufacture, process, or otherwise use listed toxic chemicals in amounts above specified threshold levels report certain facility specific information about such chemicals, including the annual releases and other waste management quantities. EPCRA section 313(g)(1) requires EPA to publish a uniform toxic chemical release form for these reporting purposes, and it also prescribes, in general terms, the types of information that must be submitted on the form. Congress also granted EPA broad rulemaking authority to allow the Agency to fully implement the statute, to ensure the release forms are available to inform the public of toxic chemical releases and “to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering” (EPCRA section 313(h)). EPCRA section 328 states that: “The Administrator may prescribe such regulations as may be necessary to carry out this chapter” (42 U.S.C. 11048).

EPA is proposing to codify the definition of “parent company” for TRI reporting purposes. Under this proposed action, EPA would clarify existing guidance and provide reporting clarity for facilities, including those owned by corporate subsidiaries, multiple owners, foreign entities, or that are publicly owned.

Currently, facilities required to report to TRI must also report their parent companies and identify whether any reportable off-site transfers of TRI chemicals are sent to a facility also owned by that same parent company. Reporting facilities rely on the TRI Reporting Forms and Instructions (RFI) to report this information and to address questions, including what constitutes a “parent company” for TRI reporting purposes. The RFI does not address all scenarios applicable to many TRI facilities, including facilities owned by subsidiaries of larger companies; facilities with multiple owners, none of whom are a majority owner; joint ventures that are not purely 50:50; facilities directly owned by foreign entities; and publicly-owned facilities. EPA is proposing to codify that the “parent company” for TRI reporting purposes is the highest-level company with the largest ownership interest in the TRI facility as of December 31 of the reporting year. This proposal addresses the following ownership scenarios:

• A facility is owned by a single company, which is not owned by another company;

• A facility is owned by a single company, which is owned by another company;

• A facility is owned by multiple companies, including companies that are themselves owned by other entities;

• A facility is owned by a joint venture or cooperative;

• A facility is owned, at least in part, by a foreign company; and

• A facility is owned by the federal government, or a state, tribal, or municipal government.

EPA is also proposing to require facilities reporting to TRI to utilize standardized naming conventions for parent company reporting, as provided in the annual TRI RFI, available as a downloadable Excel file (“Standardized Parent Company Names”) at www.epa.gov/tri/rfi. These naming conventions address common formatting discrepancies, such as punctuation, capitalization, and abbreviations (for example, “Corp” for “Corporation”).

The Agency's current guidance on reporting the parent company on a TRI form has resulted in reporter confusion in situations such as a facility having multiple owners, or no single entity owning at least 50% of the facility. Further, codifying the definition of parent company for the variety of ownership scenarios that exist for TRI reporting facilities will provide regulatory certainty and reporting clarity for the facilities. In previous years, relying only on a broad definition of parent company in the RFI, the Agency has found that many facilities inaccurately report parent company information to TRI, resulting in efforts to contact individual facilities to verify their facility's ownership structure after every annual reporting cycle. EPA has also worked to standardize parent company formatting for data quality purposes. As a result of the formatting standardization, TRI facilities are instructed to report parent companies using common abbreviations (for example, reporting “Inc” for “Incorporation”) and identical punctuation and capitalization styles, where appropriate (Ref. 1). Thus, TRI reports and EPA databases more accurately reflect which facilities are owned by the same parent company, rather than counting parent companies reported with variations in spelling, capitalization, punctuation, or abbreviations as unique companies.

Without a straightforward definition and a standardized format, regularly having to complete data quality screenings on TRI reporting forms is a considerable burden for TRI reporting facilities. Each year, after receiving TRI reporting forms, EPA conducts initial analyses on parent company data received and identifies potential errors on forms, such as unexplained changes in the parent company listed by a facility on its TRI reporting form ( e.g., change in name from what was reported for the previous year, misspellings, or discrepancies in formatting). After the initial analyses, EPA then reaches out to individual facilities both to verify whether a different parent company name should have been submitted on the reporting form and to confirm whether the updated and standardized naming format should be used going forward.

For example, for Reporting Year 2019, the Agency received TRI reporting forms from 21,394 facilities. EPA needed to contact 2,119 of those facilities regarding their submitted parent company name to conform the submitted name to the standardized format and reflect the highest-level parent company in the U.S. (9.9% of all TRI facilities). The number of facilities affected by the parent company standardization effort for Reporting Year 2019 was similar to the numbers in Reporting Years 2012 (19% of TRI facilities), 2013 (21% of facilities), 2014 (15% of facilities), 2015 (14% of facilities), 2016 (8.5% of facilities), 2017 (4.5% of facilities), and 2018 (6.8% of facilities). Even though EPA prepopulates standardized parent company names into TRI-MEweb—the reporting software used by TRI facilities—for use in the next reporting year, the Agency still has to reach out to thousands of TRI facilities annually to ensure they submit accurate, standardized parent company names. While time-saving measures have been implemented over the past few years, regulatory uncertainty over this definition remains, and verifying and standardizing parent company information remains burdensome for reporters, necessitating a rule to improve reporting efficiency for TRI facilities and the Agency's data quality efforts.

Additionally, collecting the highest-level foreign parent company name in addition to the highest level-U.S.-based parent company name would ensure greater data consistency for TRI data users than just including one name ( i.e., either the highest-level U.S.-based company, or the foreign parent company). The distinct data elements for U.S.-based and foreign parent company names enable data users to include or exclude any foreign parent companies from analyses or searches as they choose. Allowing either a U.S.-based or foreign parent company name to be reported for the same data element would prevent TRI's public data tools from distinguishing companies that are owned by U.S.-based entities from those that are foreign-owned. TRI data users include researchers, industry, the public, and other EPA and government reporting programs. Conversely, a single data element that reflects just the single highest-level parent company, whether it is based in the U.S. or abroad, would prevent any data user from reasonably and efficiently determining where the company is based, unless further data of the listed parent company, such as address, was also required.

Finally, this proposed rule would more closely align the definition of parent company for TRI reporters with the definition codified by the Chemical Data Reporting (CDR) Program at 40 CFR 711.3. Differences in this proposed definition and the definition codified in the CDR regulations result from differences in the respective programs' longstanding terms of art ( e.g., TRI uses “facilities,” whereas CDR uses “sites”), as well as from edits intended to provide greater clarity in the TRI context. For instance, the proposed TRI definition slightly differs from CDR regulations in the paragraph referring to 50:50 joint ventures (40 CFR 372.3) in order to clarify that a joint venture should be reported as its own parent company, irrespective of whether any of the joint participants is owned by a higher-level company. Nonetheless, this proposed rule would bring the codified definition of “parent company” under TRI regulations much closer to the codified definition under CDR regulations. Having nearly identical definitions between the TRI and CDR programs will support EPA's ability to compare the databases for data quality purposes. Additionally, the Greenhouse Gas Reporting program (GHGRP) has codified the definition of parent company at 40 CFR 98.3(c)(11). While the GHGRP definition of this data element has some differences from the CDR definition and this rulemaking's proposed definition, there are many similarities between the definitions, including the need to report the highest-level company in the facility's ownership hierarchy and the requirement to refer to reporting instructions for standardized naming conventions. Thus, this proposed definition and reporting requirement is similar to those codified under other EPA reporting rules. Ultimately, this proposed definition is expected to promote understanding of the data element within the regulated community, especially among those facilities which also report to CDR and are already familiar with the codified definition.

EPA has evaluated the potential incremental impacts of this proposed rulemaking, including alternative options. The details are presented in the economic analysis prepared for the proposed rule (Ref. 2), which is available in the docket and is briefly summarized here.

EPA estimates the incremental impacts across all facilities to be up to $1,209,202 in the first year, and up to $14,020 every subsequent year, with no annualized capital or operation and maintenance costs. The paperwork burden is estimated to be up to 18,091 hours the first year, and up to 210 hours every subsequent year. However, these estimated impacts do not include the cost and time savings for facilities who have previously had difficulty interpreting EPA's guidance on this data element, nor do these impacts include the reduced need for communication between the Agency and facilities in the annual effort to standardize parent company names. The benefits of the proposed rule are described qualitatively in the economic analysis, as some of the benefits are unable to be monetized (such as the improved ability of various TRI data users to analyze parent company-level information thoroughly); thus, the estimated incremental impact listed does not factor in benefits. EPA estimates that a total of 21,458 entities may be impacted by this proposed rule.

1. Submitting CBI. Do not submit CBI to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

In the RFI, “parent company” is described as: “the highest-level company, located in the United States, that directly owns at least 50 percent of the voting stock of [the facility's] company . . . . [A] facility that is a 50:50 joint venture is its own parent company. When a facility is owned by more than one company and none of the facility owners directly owns at least 50 percent of its voting stock, the facility should provide the name of the parent company of either the facility operator or the owner with the largest ownership interest in the facility.”

After receiving annual TRI reporting forms, EPA uses TRI's parent company data to better understand typical industry practices regarding chemical use and waste management activities. Pursuant to PPA section 6607, TRI reporting facilities must also report information on source reduction and other waste management activities.

The TRI National Analysis, published annually (see: https://www.epa.gov/trinationalanalysis ), looks at how the top parent companies (based on quantity of production-related waste managed) managed their wastes in terms of recycling, treatment, energy recovery, and releases. EPA uses this parent company-level data to compare the methods by which the various parent companies are managing their wastes, especially when considering the number of facilities owned by each parent company, in keeping with the PPA. Similarly, the TRI National Analysis highlights the top source reduction activities used by the top parent companies (based on number of source reduction activities), such as improved process modifications and product substitutions (Ref. 3). Further, considering facilities owned by the same parent company allows EPA to compare waste management and pollution prevention activities within a given sector, particularly when a parent company is primarily composed of same-sector facilities. In addition to improving EPA's understanding of industry waste management and source reduction practices, collecting parent company-level data allows TRI data users and reporting facilities to highlight best practices, which may also help other facilities and companies achieve the pollution prevention goals of the PPA. A more precise understanding of the structures and practices at TRI facilities leads to improvements in the source reduction information that is relied upon to develop effective control strategies (PPA section 6602(a)).

Environmental agencies, industry, and the public also use TRI data. EPA program offices use TRI data, along with other data, to help establish programmatic priorities, evaluate potential hazards to human health and the natural environment, and undertake appropriate regulatory and/or enforcement activities. EPA believes that TRI data on the facility's foreign parent company are of interest to the public because of the potential social benefits resulting from the availability of these data. Making TRI information on foreign parent companies available to the public may provide incentives for facilities to reduce TRI chemical releases. For example, the public availability of release information aggregated at the foreign parent company level may induce these parent companies to encourage facilities to reduce releases when such changes would not otherwise be in the parent company's interest if release information were not in the public domain. Potential social benefits derived from voluntary follow-on activities include decreased costs of waste treatment and disposal, lower probability of accidental releases and lower clean-up costs in the event of such releases, reduced contamination of natural resources, improved air and water quality, and reduced risks to human health. Such social benefits would be partially offset by the social costs to implement the changes, such as using flare gas recovery recycling and installing vapor recovery systems. The net social benefits of the information provided by the proposed rule and the possible follow-on activities equal the difference between the total benefits and the total costs of the activities leading to reduced releases (Ref. 2).

For facilities that are owned by a foreign company ( i.e., the facility itself or its highest-level U.S.-based parent company are owned by a foreign-based company), identifying foreign parent companies would bring additional clarity on reporting guidelines. Current TRI reporting definitions result in the facility reporting a U.S.-based parent entity that is often a subsidiary or holding company of a larger, foreign company. In many cases, facility personnel know the foreign company's name more readily than the domestic holding company's name. Further, in cases where TRI facilities are directly owned by a foreign company, with no U.S.-based subsidiary or holding company, the facilities are unable to report any parent company under the existing definition, only indicating “No U.S. Parent Company (for TRI reporting purposes)” in the TRI reporting form checkbox. Issues surrounding foreign ownership of TRI reporting facilities have caused reporting uncertainty for facilities in the past. The reporting of the highest-level foreign company in these situations would help improve TRI reporting for facilities by possibly allowing TRI reporting software to help suggest parent company names submitted by facilities with similar parent company data and industrial activities.

Reporting a facility's foreign parent company name and its Dun and Bradstreet identification number (D-U-N-S number), if applicable, would not only create greater certainty among relevant TRI reporting facilities, it would also provide TRI data users with more accurate parent company-level data. Including foreign parent company data would enhance parent company data collected at the U.S. level. Notably, this would allow TRI data users to compare the data across the same foreign parent when no U.S.-based parent exists and conduct the same trend analyses as users could for the highest-level U.S.-based parent. For TRI data analysis purposes, listing a subsidiary or holding company rather than the actual parent company is an impediment to TRI data users seeking to conduct a more accurate and comprehensive assessment of the waste management and source reduction activities by parent companies. As multiple subsidiaries or holding companies may exist underneath larger corporations, excluding foreign parent companies proves difficult to aggregate at the actual parent company level. Whereas facilities whose highest-level parents are foreign-based cannot be identified easily by current TRI data, requiring the reporting of a highest-level foreign parent would allow EPA and its data users to analyze trends at a more appropriate corporate level, similar to current analysis of U.S.-based companies. Under complex corporate ownership structures, TRI facilities ultimately owned by foreign parent companies are required to report a U.S.-based company that may not be easily recognizable as an entity within a larger, foreign firm. For instance, holding companies and subsidiaries with different names from their foreign parent are currently listed in TRI data under the subsidiary and lesser-known names that do not accurately represent the true ownership structure of a facility. This may skew analyses of TRI parent company data by suggesting foreign firms may not be as involved in the ownership and operation of TRI reporting facilities as U.S.-based companies. Collecting and analyzing data on foreign parent companies of TRI facilities would provide more accurate data for TRI data users.

EPA will continue to provide a data element in the facility identification sections of the Form R and Form A Certification Statement for a facility to report the name of the highest-level U.S.-based parent company, as well as the D-U-N-S number for this company when one exists (see: http://www.dnb.com/duns-number.html ). Additionally, the Agency is proposing to add a data element to the Form R and Form A certification for a facility to report the name and identification-U-N-S number of a foreign-based parent company, if there is one. A facility whose highest-level U.S.-based parent company is owned by a foreign company would report both the U.S.-based parent company (Part I, Section 5.1 on the reporting forms) and the foreign parent company (the proposed Part I, Section 5.3 on the reporting forms), and their D-U-N-S numbers.

A facility whose U.S.-based parent company is not owned by any foreign-based company would simply check an “NA” box (or similar) in the proposed Part I, Section 5.3 on the reporting forms.

EPA requests comments on the implementation of this proposed rulemaking, including alternative reporting scenarios for this data element. EPA solicits comments on the extent to which TRI reporting form regulations and guidance includes a facility's foreign parent company, if applicable. First, EPA is interested in receiving comments on whether to include reporting the applicable foreign parent company. The alternative would be to codify the parent company definition but limit the guidance and reporting form data elements such that only the highest U.S.-based company would be reported. Additionally, EPA is interested in receiving comments on whether to add a new data element to the reporting form to identify the proper foreign parent company, if any. EPA considered the following three options, and the proposed rulemaking reflects Option 3:

• Option 1: Parent company definition would be codified and included in the Reporting Forms and Instructions (RFI). The reporting regulations would only require reporting the highest-level U.S.-based parent company in the current data element under Part I, Section 5.1.

• Option 2: Codified parent company definition would be similar to that proposed in this document, plus EPA would include instructions for how to report a foreign parent company in Part I, Section 5.1 instead of the highest-level U.S.-based parent company when applicable. No additional data element would be added to the reporting form.

• Option 3: Codified parent company definition identical to that proposed in this document, including reporting both the highest-level U.S.-based parent company and highest-level foreign parent company, and add a new data element to Part I, Section 5 of the reporting forms for reporting the name of a foreign company and its D-U-N-S number, in addition to reporting the highest-level U.S.-based parent company, when applicable.

All three options are included in the economic analysis, which is available in the docket for this rulemaking (Ref. 2).

Additionally, Part II, Section 6.2 of the Form R includes a checkbox which indicates whether an off-site, non-POTW (publicly owned treatment works) location that receives a transfer from the reporting facility is under the management or control of the reporting facility, or under the management or control of that facility's parent company. EPA included this element on the Form R to “give users of [TRI] data an important indication of the relative level of responsibility for the ultimate disposition of the chemical in the environment” (52 FR 21159; June 4, 1987). When the Agency added this checkbox, it indicated that this information would likely to be readily available to submitters. Id. Accordingly, EPA believes that extending this checkbox to apply to an off-site, non-POTW location that receives a transfer from the reporting facility that is under the management or control of the reporting facility, or under the management or control of that facility's U.S.-based or foreign parent company would provide users of TRI data an important indication of the relative level of responsibility for the ultimate disposition of the chemical in the environment. The proposed regulatory text changes in this action do not address this additional data element at this time. EPA does not anticipate a measurable increase in burden were the checkbox to apply to foreign parent ownership and thus the economic analysis does not reflect Section 6.2 checkbox reporting. Similarly, EPA believes that a facility is likely to know whether or not it is transferring waste to another facility with a common parent company, either U.S.-based or international; transfers to such a facility are likely conducted at least in part due to their common ownership. EPA is requesting comment on the benefits and burdens that might accrue should EPA extend this checkbox to include parent ownership beyond the U.S.-based parent.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2597.01 (Ref. 4). You can find a copy of the ICR in the docket for this proposed rule, and it is briefly summarized here.

This proposed action would require all TRI reporters to refer to TRI regulatory text in reporting their parent company(s). Facilities which report to TRI currently rely on guidance for this required data element but lack a codified definition. Additionally, all TRI reporters with foreign parent companies would be required to submit additional information (indicate the foreign parent company name or not applicable). This proposed action would allow TRI data users, which include the general public, industry, researchers, and the media, to better aggregate and understand this data.

Respondents/affected entities: The proposed rule will affect any facility required to report to TRI. This proposed action would not change the universe of TRI reporting facilities.

Respondent's obligation to respond: Mandatory, 42 U.S.C. 11023.

Estimated number of respondents: 21,458.

Frequency of response: Annual.

Total estimated burden hours: Across all facilities, the total first year burden hours will be up to 18,091 hours, and up to 210 hours every subsequent year. Burden is defined at 5 CFR 1320.3(b).

Total estimated burden cost: Up to $1,209,202 in the first year, and up to $14,020 every subsequent year, includes $0 annualized capital or operation and maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this proposed rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than October 28, 2021. The EPA will respond to any ICR-related comments in the final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small privately-owned facilities and municipal government-owned facilities who are required to report to EPA under EPCRA section 313. The Agency has determined that all entities, including any small entities, may experience an impact of incurring annualized costs of less than 1%. Details of this analysis are presented in EPA's economic analysis (Ref. 2).

This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249). This proposed rule will not impose substantial direct compliance costs on Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action is a procedural change and does not have any impact on human health or the environment.

For the reasons discussed in the preamble, EPA proposes to amend 40 CFR part 372 as follows:

Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can be accomplished only by issuing a rule.

What this document does. We propose to list the Peñasco least chipmunk as an endangered species under the Act, and we propose the designation of critical habitat for the species.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that stressors affecting the viability of the Peñasco least chipmunk include vegetation shifts, wildfire, forest encroachment, recreation, development, and land use (Factor A, disease (Factor C), nonnative species (Factors A and C), and small population size and lack of connectivity (Factor E).

Although small population size is the primary stressor to the Peñasco least chipmunk, Risk Factors for Peñasco Least Chipmunk, below, presents a broader discussion of the threats. We have found that existing regulatory mechanisms do not adequately reduce the threats acting on the species to eliminate the risk of extinction (Factor D).

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best available scientific data after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Peer review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of five appropriate specialists regarding the species status assessment report. We received comments from three, and their input informed this proposed rule. The purpose of peer review is to ensure that our listing and critical habitat designations are based on scientifically sound data, assumptions, and analyses. Additionally, we received reviews from several partners, including the State of New Mexico and U.S. Forest Service.

Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to the species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of the species, including the locations of any additional populations.

(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent:

(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or

(d) No areas meet the definition of critical habitat.

(6) Specific information on:

(a) The amount and distribution of Peñasco least chipmunk habitat;

(b) What areas, that were occupied at the time of listing ( i.e., are currently occupied) and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;

(c) Any additional areas occurring within the range of the species, i.e., the Sacramento and White Mountains in New Mexico, that should be included in the designation because they (1) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (2) are unoccupied at the time of listing and are essential for the conservation of the species;

(d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(e) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments:

(i) Regarding whether occupied areas are adequate for the conservation of the species;

(ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species; and

(iii) Explaining whether or not unoccupied areas fall within the definition of “habitat” at 50 CFR 424.02 and why.

(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(8) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.

(9) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

(10) Information on land ownership within proposed critical habitat areas, particularly Tribal land ownership (allotments, trust, and/or fee) so that the Service may best implement Secretarial Order 3206 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act).

(11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. Specific information we seek includes information on any conservation plans within the proposed designated critical habitat areas that provide conservation for the Peñasco least chipmunk and its habitat. For any additional areas that you may request be excluded from the designation, we will undertake an exclusion analysis if you provide credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of inclusion or if we otherwise decide to exercise the discretion to evaluate the areas for possible exclusion.

(12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

(13) Ongoing or proposed conservation efforts that could result in direct or indirect ecological benefits to the associated habitat for the species; as such, those efforts would lend to the recovery of the species and therefore areas covered may be considered for exclusion from the final critical habitat designation.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via https://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov.

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified above in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

WildEarth Guardians petitioned us to list Peñasco least chipmunk in October 2011. The Service published a substantial 90-day finding and a warranted but precluded 12-month finding on November 21, 2012 (77 FR 69994), stating that listing of the subspecies was warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range and the fragmentation and isolation of small populations. In 2018, we completed a species status assessment (SSA) to provide the biological support for a decision on whether or not to propose to list the subspecies as threatened or endangered under the Act and, if so, where to propose designating critical habitat. This proposed listing rule also constitutes our 12-month petition finding for the species.

A species status assessment (SSA) team prepared an SSA report for the Peñasco least chipmunk. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The Service sent the SSA report to five independent peer reviewers, and three provided a review of the document. The Service also sent the SSA report to three partner agencies, including the State of New Mexico, U.S. Forest Service, and the Mescalero Apache Tribe, for review. We received reviews from the U.S. Forest Service and the State of New Mexico.

The Peñasco least chipmunk ( Neotamias minimus atristriatus ) is currently recognized as one of 17 subspecies of least chipmunk ( Neotamias [=Tamias] minimus ) (Wilson and Reeder 2005, p. 815). Least chipmunks are smaller than most other chipmunk species and belong to the family Sciuridae. The Peñasco least chipmunk is known from the Sacramento Mountains and White Mountains in Lincoln and Otero Counties in southern New Mexico.

Peñasco least chipmunks are grayish-brown mixed with cinnamon-buff on the rump and thighs (Sullivan 1993, p. 1), with a blackish head with white and cinnamon, and a whitish patch behind each ear. The sides of their bodies are light brown, and underparts are whitish with buff; their feet are light pink-cinnamon; the tail is blackish or brown with pinkish-cinnamon; and dark stripes on the back and head are blackish to blackish-brown, edged with tawny along the spine, and bordered with white on the face and sides (Sullivan 1993, pp. 1-2). The Peñasco least chipmunk has pale yellowish orange hindfeet, a light beige, yellowish, or orange belly, and dark underfur (Frey 2010, p. 11). A full species description and description of its habitat can be found in chapter 2 of the SSA report.

The Peñasco least chipmunk was first described as a new species, Eutamias atristriatus, in 1913 based on 10 specimens collected from ponderosa pine forest in the Sacramento Mountains in 1902 (Bailey 1913, entire). This taxonomy has been revised multiple times as the taxonomy of chipmunks and least chipmunks changed, including use of the synonyms Eutamias and Tamias for Neotamias. Howell (1929, entire) designated the taxon a subspecies of least chipmunk, Tamias minimus atristriatus. Conley (1970, entire) purported that the South Sacramento (= Sacramento Mountains) population was the only population of least chipmunks in New Mexico worthy of nomenclatural distinction based on morphological distinctiveness. However, Sullivan and Peterson (1988, p. 21) recommended the retention of N. m. atristriatus as a subspecies that included both the New Mexico White Mountains and Sacramento Mountains, based on more in-depth morphological and genetic analyses. Verts and Carraway (2001, entire) and Wilson and Reeder (2005, p. 815) continue to support N. m. atristriatus as a recognized subspecies of N. minimus. Least chipmunks are currently recognized as belonging to the genus Neotamias (Patterson and Norris 2016, p. 248). There is currently no disagreement regarding the distinctiveness of the subspecies from other subspecies of least chipmunk, nor from the sympatric gray-footed chipmunk ( N. canipes ). The Peñasco least chipmunk is thus currently recognized as a valid subspecies, N. minimus atristriatus (Wilson and Reeder 2005 p. 815).

Habitat occupied by Peñasco least chipmunk varies by population between the Sacramento and White Mountains. In the Sacramento Mountains, Peñasco least chipmunk habitat use has generally been mature, open ponderosa pine forest savanna and adjacent valley meadows (Frey and Hays 2017, p. 1). Specimens of the Peñasco least chipmunk from the Sacramento Mountains were originally described from the yellow pine zone (= ponderosa pine) (Bailey 1913, p. 130) and within the transition zone from the juncture of yellow pines and junipers up to the edge of spruce-fir forest (Bailey 1931, p. 91). However, the Peñasco least chipmunk has not been detected in the Sacramento Mountains since 1966, so our understanding of habitat use and distribution in that area is limited to historical records and reports.

In the White Mountains, the Peñasco least chipmunk is associated with the high-elevation subalpine Thurber's fescue meadow biotic community (Frey and Hays 2017, p. 34). This habitat is distinctly different from the lower elevation, montane meadow grassland communities within mixed conifer and ponderosa pine forest zones (Dyer and Moffett 1999, entire; Dick-Peddie 1993, pp. 101 104), as would be found in the Sacramento Mountains. In the White Mountains, our understanding of subspecies occurrence and habitat use is informed by capture information as recent as 2018, but is still limited by few observational records of the subspecies.

Least chipmunks forage mainly on the ground or in shrubs (Hoffmeister 1986, p. 15). They eat a variety of seeds of shrubs, forbs, and some conifers, and other plant parts and fungi as their main food sources; they also feed on animal foods such as arthropods, carrion, and bird eggs (Bailey 1931, p. 91; Vaughn 1974, pp. 770-772; Reid 2006, p. 212). The least chipmunk does not develop additional fat deposits in the fall, but relies primarily on brief periods of activity to consume cached food for survival over the winter (Verts and Carraway 2001, p. 7), hibernating (in this case, overwintering with periods of both torpor and activity) in special underground chambers (Reid 2006, p. 212). Peñasco least chipmunks in the White Mountains likely forage primarily on the seeds and flowers of forbs, particularly species of Asteraceae (Frey and Hays 2017, p. 34). Bailey (1931, p. 91) observed the subspecies foraging on sunflower ( Helianthus spp.) seeds along fencelines and on wheat ( Triticum sp.) and oats ( Avena sativa ) at the edges of agricultural fields in the Sacramento Mountains. The diet also includes flowers and fruits of gooseberry ( Ribes spp.) and wild strawberry ( Fragaria spp.), pinyon ( Pinus edulis ) nuts, Gambel oak ( Quercus gambelii ) acorns, insects, and other items (Sullivan 1993, p. 3). Like other least chipmunks, the Peñasco least chipmunk likely has relatively low water requirements, which may allow it to exploit the drier conditions of open subalpine meadows (Frey and Hays 2017, p. 34).

Least chipmunk breeding takes place soon after emergence from the hibernation chambers (Reid 2006, p. 212). In spring, females typically produce one litter of four to five pups (Skryja 1974, p. 223), but the size of the litter can range from three to eight, with young being born in May or June (Reid 2006, p. 212). For Peñasco least chipmunks, young are thought to be born in mid- to late-summer, as half-grown juveniles were observed historically in early September in the Sacramento Mountains (Bailey 1931, p. 91). The average lifespan of least chipmunks overall is 0.7 years (Erlien and Tester 1984, p. 2), but individuals have been known to live up to 6 years (Reid 2006, p. 212).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. 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. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS-R2-ES-2020-0042 on https://www.regulations.gov and on the New Mexico Ecological Services Field Office website at https://www.fws.gov/southwest/es/NewMexico/.

To assess Peñasco least chipmunk viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

To evaluate the current and future viability of the Peñasco least chipmunk, we assessed a range of conditions to allow us to consider the species' resiliency, representation, and redundancy. To maintain long-term viability, Peñasco least chipmunk requires multiple (redundancy) self-sustaining populations (resiliency) distributed across the landscape (representation). Maintaining representation in the form of genetic or ecological diversity is important to maintain the Peñasco least chipmunk's capacity to adapt to future environmental changes.

To analyze population-level resiliency, we identified and described the demographic and habitat conditions needed for resilient populations of Peñasco least chipmunk (Table 1). The demographic factors we analyzed include trap rate, population trends, connectivity between populations, and number of subpopulations within populations. The habitat factors we analyzed include suitable habitat size to support population viability, habitat availability trends, and habitat. For each of these demographic and habitat factors, we characterized the condition (High, Moderate, Low, and Very Low/Extirpated) of each factor for each population (Table 1) to assess overall population resiliency. Where more data were available, we assigned scores (High = 1, Moderate = 0, Low = −1, and Very Low/Extirpated = −2) to each demographic and habitat factor and calculated an overall score for each population. We averaged all of the demographic and habitat condition category scores for each population to determine the overall resiliency score for that population (Service 2018, p. 64).

The current condition of each demographic and habitat factor and the overall condition of each population of the Peñasco least chipmunk is displayed in Table 2. Historically, there were two known populations of Peñasco least chipmunk, the Sacramento Mountains population and the White Mountains population. Based on the demographic and habitat factors discussed in detail in the SSA (Service 2018, pp. 60-62), the Sacramento Mountains population is considered to be in Very Low/Extirpated overall condition. There have been no detections of Peñasco least chipmunk in the Sacramento Mountains since 1966, despite extensive survey effort, indicating that this population is likely extirpated. Even if it is still extant, it has no connectivity with other populations and likely no subpopulation structure (Service 2018, p. 11). The Sacramento Mountains have little to no remaining suitable habitat, and land use and management have severely decreased the condition of the resources upon which Peñasco least chipmunk depends.

For the White Mountains population, current habitat availability is moderate. Habitat has experienced a moderate change from historical conditions, and land use or management is not known to significantly reduce Peñasco least chipmunk resources. However, in terms of demographic factors, the White Mountains population has a low density and decreasing population trend. The population is the only remaining population of the subspecies, and the White Mountains population has no known subpopulation structure. Given these Low and Very Low condition demographic factors, the White Mountains population is in Low overall condition. The current resiliency of Peñasco least chipmunk is low to very low, with one population likely extirpated and the remaining population isolated with no subpopulation structure.

Maintaining representation in the form of genetic or ecological diversity is important to preserve the capacity of the Peñasco least chipmunk to adapt to future environmental changes. Because one of the two populations of Peñasco least chipmunk is likely extirpated, and the extant population persists in extremely low numbers, genetic diversity is likely extremely low. Peñasco least chipmunks in the White Mountains showed the lowest levels of within-population genetic variation out of nine least chipmunk populations in New Mexico, Arizona, and Colorado (Sullivan 1985, pp. 431-433). In addition, the subspecies has a historical distribution in two very different ecological settings: One in a high-elevation subalpine meadow zone in the White Mountains, and one in a lower elevation ponderosa pine zone in the Sacramento Mountains. Because the Sacramento Mountains may no longer support the subspecies, the Peñasco least chipmunk has already lost ecological representation across its range. Low genetic variation and the loss of one ecological setting results in low representation for the Peñasco least chipmunk (Service 2018, p. 65).

To be robust in the face of stochastic events, the Peñasco least chipmunk needs to have at least two resilient populations (Service 2018, p. 64). Historically there were only two known populations, one each in the White and Sacramento Mountains. Generally, the more populations a species has, and the wider the distribution of those populations, the more redundancy the species will exhibit. Redundancy reduces the risk that a large portion of the species' range will be negatively affected by a catastrophic natural or anthropogenic event ( e.g., wildfire) at a given point in time. Species (or subspecies) that are well-distributed across a wide geographic range are less susceptible to extinction and more likely to be viable than taxa that are confined to small areas where stochastic events are likely to affect all of the individuals simultaneously (Carroll et al. 2010, entire). Because one of the two populations of Peñasco least chipmunk is likely extirpated, the Peñasco least chipmunk currently lacks any redundancy (Service 2018, p. 65).

See the SSA report for the complete current condition analysis for the Peñasco least chipmunk (Service 2018, pp. 54-65).

We evaluated the past, current, and future stressors that affect the Peñasco least chipmunk's needs for long-term viability. Additionally, we evaluated several potential stressor sources that are not described here because the stressor source is predicted to have low impact on Peñasco least chipmunk viability. More information on these stressors, including interspecific competition, scientific collection, and climate change can be found in the SSA (Service 2018, pp. 50-52).

Stressors affecting the viability of the Peñasco least chipmunk include vegetation shifts, wildfire, forest encroachment, recreation, development, and land use (Factor A, disease (Factor C), nonnative species (Factors A and C), and small population size and lack of connectivity (Factor E). Considerations under Factor D are described below.

Peñasco least chipmunk habitat is afforded some protection under the Wilderness Act of 1964 (16 U.S.C. 1131-1136). Within the White Mountains, approximately 54 percent of the current range of the Peñasco least chipmunk is within the Lincoln National Forest White Mountain Wilderness Area. This designation limits management options and conservation efforts in designated wilderness areas to some degree. The Wilderness Act states that wilderness should be managed to preserve its natural conditions and yet remain untrammeled by man, and defines wilderness “. . . as an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habituation . . .” (16 U.S.C. 1131-1136). Within designated wilderness areas, no commercial activities are permitted, no permanent or temporary roads, no motorized equipment or any form of mechanical transport, and no structures are permitted within the area (16 U.S.C. 1131-1136). Habitat for the Peñasco least chipmunk appears to be relatively unaltered in the White Mountains Wilderness Area, except for the encroachment of trees into meadows (Service 2018, p. 35).

Additionally, the range of the Peñasco least chipmunk overlaps with designated Mexican spotted owl critical habitat; the management of that habitat for the Mexican spotted owl does allow for some level of grazing. This may result in changes to the plant community that do not adversely affect the prey base of the Mexican spotted owl but is detrimental to the specific plant community needs of the Peñasco least chipmunk (Service 2018, pp. 38-40).

Over the last ~150 years, land management practices have shifted the vegetative components of Peñasco least chipmunk habitat in the Sacramento Mountains, resulting in an overall lack of suitable habitat for the subspecies. The historically open, park-like stands of ponderosa pine forest that comprised Peñasco least chipmunk habitat have been replaced with high-density, small-diameter ponderosa pine, with encroaching Douglas fir ( Pseudotsuga menziesii ) and white fir ( Abies concolor ), and a lack of native grass meadow habitat (Service 2018, pp. 39-41).

These changes in vegetation composition (inclusion of less fire-tolerant species of trees such as Douglas fir and white fir) and structure (from low-density, large-diameter trees with few low branches to high-density, small-diameter trees with many low branches), coupled with the loss and conversion of native to nonnative grass meadows, alter the suitability of the habitat for the Peñasco least chipmunk in the Sacramento Mountains. Effective fire exclusion and suppression actions have also contributed to the changes in forest composition and structure and have resulted in the additional stressor source of altered fire regimes.

Forest encroachment into grasslands is occurring in both the Sacramento Mountains and in the White Mountains, although the causes for each are likely different. The causes for tree encroachment into meadows in the Sacramento Mountains is likely related to land use and land management practices, while the White Mountains are influenced by climatic events and successional encroachment processes. While some landscape restoration projects are planned ( i.e., the South Sacramento Forest Restoration Project) that may address some areas of meadow encroachment, no additional projects are planned within the historical range of the Peñasco least chipmunk either in the Sacramento Mountains or the White Mountains to control or limit tree encroachment into meadow habitat.

Agricultural land use in the Sacramento Mountains appears to have shifted from cultivation in the early part of the 20th century to pasture use. This conversion likely affected a potentially significant food resource ( i.e., crops) for Peñasco least chipmunks in the Sacramento Mountains, specifically James Canyon (Service 2018, p. 42). It is likely that the high-quality, abundant food resource of wheat and oat fields drew Peñasco least chipmunks to the fields and roads where the animals were easily observable, as early records noted that Peñasco least chipmunks were especially abundant along rail fences, eating oats and wheat at field edges (Bailey 1931, p. 91). However, Peñasco least chipmunks were also abundant in the open, mature ponderosa pine forests (Bailey 1931, p. 91). Peñasco least chipmunks were noted as abundant throughout the Sacramento Mountains during the early 1900s, in both natural open habitat and near agricultural fields (Service 2018, p. 43). The change in land use from crop fields to pasture for livestock likely impacted Peñasco least chipmunks by decreasing the availability of an abundant, high-quality food source. Grasslands in the bottom of canyons that are currently used for pasture or livestock are likely not usable by the Peñasco least chipmunk because the grasses are likely not tall enough to provide shelter and cover (Service 2018, p. 43).

U.S. Forest Service lands are managed for multiple uses. In the Sacramento Mountains, these uses currently include recreation, livestock grazing, and special use permits for a variety of actions. Recreational use includes camping, hiking, biking, and motorized vehicle use, among other activities. The historical role of livestock grazing and timber harvest are described in the SSA report (Service 2018, pp. 30-38) in terms of altering forest composition, structure, and fire regimes. However, grazing within the White Mountains Wilderness Allotment has been closed for 20 years and will remain closed (Williams, pers. comm. 2020).

The most significant recreational, development, and land use activities likely to affect the Peñasco least chipmunk in the White Mountains are related to the opening, operating, and maintaining of the Ski Apache Resort on Lookout Mountain (Service 2018, p. 44). Access roads to Ski Apache and the adjacent Buck Mountain were constructed in 1960 (Dyer and Moffett 1999, p. 451). The Resort opened in 1961 and has since been owned and operated by the Mescalero Apache Tribe (Ski Apache Resort 2018, entire). Ski Apache hosts both winter and summer recreation and occurs mostly on Forest Service land, operating under a Special Use permit issued by the Forest Service. Some of the activities also occur on Mescalero Apache Tribal lands. We address impacts and use of the area regardless of ownership. Summer use of Ski Apache Resort includes gondola rides, mountain biking, hiking, and zip-lining (Service 2018, p. 44).

In 2016, three Peñasco least chipmunks were observed on two survey trap lines on Lookout Mountain within Ski Apache Resort (Service 2018, p. 45). Lookout Mountain was selected to survey for several reasons, the main one being that it is located in the same large patch of subalpine meadow/tundra as that of Sierra Blanca Peak (Frey and Hays 2017, p. 9), where many historical records show that Peñasco least chipmunk were located. Two of the three Peñasco least chipmunk observations in 2016 were located just off the access road that leads to, and is in close proximity to, the Ski Apache zip line infrastructure. Vehicle use on the access road and human use for the zip line have the potential to be a stressor to the Peñasco least chipmunk due to vehicle strikes and disturbance from human presence.

A variety of pathogens and diseases have the potential to affect or have affected the Peñasco least chipmunk. Of these, sylvatic plague has the greatest likelihood of being a stressor to the subspecies (Service 2018, p. 46). The plague is caused by the bacteria Yersinia pestis, a highly virulent organism that can quickly cause lethal disease in susceptible mammals (Abbott and Rocke 2012, p. 7). Transmission of Y. pestis typically occurs through fleas, whereby fleas feed on infected hosts and move to new hosts. The plague is most commonly transmitted through fleas, but can also be transferred through inhalation, eating of infected animals, or through bites, scratches, or direct contact with infected animals, tissues, or fluids (Abbott and Rocke 2012, p. 18). Modes of transmission of Y. pestis in wildlife are likely similar, whereby flea transmission is most common, but other avenues may also occur.

Rodents are the major group of animals infected by Y. pestis, and some species may act as a reservoir or as an “amplifying host” for the organism (Abbott and Rocke 2012, p. 18). Generally, an amplifying host is a host in which disease agents, such as viruses or bacteria, increase in number (Abbott and Rocke 2012, p. 71); in this case, “amplifying hosts” also applies to hosts that are more uniformly susceptible to plague and undergo dramatic die-offs during outbreaks of plague (Abbott and Rocke 2012, p. 17). It is unknown if the plague has affected the Peñasco least chipmunk in the past, is currently affecting the subspecies now, or will in the future. However, there is supporting evidence that suggests that the plague has been and could be a significant stressor to the viability of Peñasco least chipmunk (Service 2018, p. 46).

The Y. pestis organism likely arrived in New Mexico at a time that is approximately coincident with observed declines of Peñasco least chipmunk populations (that is, beginning in the early 1950s through the 1960s). Chipmunks, in general, and least chipmunks more specifically, have been tested in the laboratory and are susceptible to the plague (Quan and Karman 1962, p. 128). Some epizootics caused by the plague have been observed in chipmunks and other ground squirrels (Smith et al. 2010, entire).

Feral hogs have become established as a nuisance species in New Mexico and elsewhere in the United States (USDA Wildlife Services 2010, entire). In New Mexico, feral hogs occur within Lincoln and Otero Counties. One of the last remaining locations in New Mexico with significant feral hog numbers is the Lincoln National Forest, including the 47,000-acre USFS White Mountain Wilderness Area (USDA 2019, pp. 112-114). This area includes the majority of the known locations of recent Peñasco least chipmunk occurrences (Service 2018, pp. 47-48). Feral hogs are voracious, flexible, and opportunistic omnivores (USDA Wildlife Services 2010, p. 6) and will persistently root in an area until the resources are depleted (USDA Wildlife Services 2010, p. 7).

Rooting can be extremely destructive to habitat. Feral hogs cause long-term degradation of native ecosystems and plant communities and spread of invasive weeds through their rooting behavior (USDA Wildlife Services 2010, pp. 10-12, 19-20). In addition to influencing habitat, feral hogs consume a multitude of vertebrate and invertebrate species (USDA Wildlife Services 2010, p. 13). In 2010, USDA Wildlife Services (2010, p. 14) reported that 90% of the small mammal species listed under the Act were in areas of expanding feral hog populations and documented how feral hogs could influence small mammal populations through heavy and persistent predatory activities. In addition to direct predation, feral hogs can strip an area of food resources and are competitors with native species for food and water resources (USDA Wildlife Services 2010 pp. 12-13). An active feral hog population control program in the White and Sacramento Mountains of New Mexico by the U.S. Department of Agriculture ended in 2018. It is anticipated that feral hog population in the White Mountains, including within the proposed Peñasco least chipmunk critical habitat, will exponentially increase as a result.

Additionally, feral hogs are susceptible to at least 30 viral and bacteriological diseases, 20 of which can be transmitted from non-human animals to humans, and at least 37 parasites have been identified (USDA Wildlife Services 2010, p. 15). Among the many diseases, pathogens, and parasites that feral hogs carry, in New Mexico feral hogs have tested positive for swine brucellosis and pseudorabies. While the ability of feral hogs to transfer disease to wildlife is not well-studied, pseudorabies virus is highly contagious, and rodents are reported as being susceptible (USDA Wildlife Services 2010, p. 15). The prevalence of antibodies of Y. pestis was reported for 17 species of mammals from the western United States (Abbott and Rocke 2012, p. 26); of those, feral hogs had the highest prevalence rate at 74%. Although the sample size for this assessment was relatively low (18 out of 23 were positive), these data demonstrate that feral hogs in both the Sacramento Mountains and White Mountains could contribute to disease dynamics in the small mammal communities in these mountain ranges (Abbott and Rocke 2012, p. 26).

Impacts from feral hogs may include rooting, predation, spreading diseases and parasites, spreading invasive weed species, and competition with native species for water and food resources (Service 2018, p. 48). We lack specific data demonstrating overlap of feral hog occurrence with Peñasco least chipmunk occurrence; however, feral hogs are known to occur in the vicinity of Peñasco least chipmunk habitat or areas formerly known to be occupied by the Peñasco least chipmunk (Service 2018, p. 48).

Compared to large populations, small populations are more vulnerable to extirpation from environmental, demographic, and genetic stochasticity (random natural occurrences), and unforeseen natural or unnatural catastrophes (Shaffer 1981, p. 131). Small populations are less able to recover from losses caused by random environmental changes (Shaffer and Stein 2000, pp. 308-310), such as fluctuations in reproduction (demographic stochasticity), sweeping losses from disease events, or changes in the frequency or severity of wildfires (environmental stochasticity).

Another type of random fluctuation, genetic stochasticity, results from: (1) Changes in gene frequencies due to the founder effect, which is the loss of genetic variation that occurs when a new population is established by a small number of individuals (Hedrick 2000, p. 226); (2) random fixation, or the complete loss of all but one allele at a locus (Hedrick 2000, p. 258); or (3) inbreeding depression, which is the loss of fitness or vigor due to mating among relatives (Hedrick 2000, p. 208). Additionally, small populations generally have an increased chance of genetic drift, or random changes in gene frequencies from generation to generation that can lead to a loss of variation, and inbreeding (Ellstrand and Elam 1993, p. 225). Allee effects, when there is a positive relationship between any component of individual fitness and either numbers or density of conspecifics (Stephens et al. 1999, p. 186), may also occur when a population is in decline (Dennis 1989, pp. 481- 538). In a declining population, an extinction threshold or “Allee threshold” (Berec et al. 2007, pp. 185-191) may be crossed, in which adults in the population either cease to breed or the population becomes so compromised that breeding does not contribute to population growth. Allee effects typically fall into three broad categories (Courchamp et al. 1999, pp. 405-410): Lack of facilitation (including low mate detection and loss of breeding cues), demographic stochasticity, and loss of heterozygosity. Environmental stochasticity amplifies Allee effects (Dennis 1989, pp. 481-538; Dennis 2002, pp. 389-401). In Peñasco least chipmunks, random fixation and loss of heterozygosity have been observed (Sullivan 1985, pp. 431-433). The extinction risk for a subspecies represented by few small populations is magnified when those populations are isolated from one another, as is the case for the White Mountains and the Sacramento Mountains (Service 2018, p. 50).

It is suspected that the White Mountains and Sacramento Mountains populations may have been physically separated over a long time period with little to no genetic interchange, based on morphometric differences in collected specimens (Sullivan 1985, pp. 424-425). However, connectivity could play an important role as it relates to the overall viability to the subspecies if it is found to be present in the Sacramento Mountains in the future. Connectivity between White Mountain and Sacramento populations would contribute to the number of reproductively active individuals in a population; mitigate the genetic, demographic, and environmental effects of small population size; and recolonize extirpated areas (Service 2018, pp. 48-49). Additionally, the fewer the populations a species or subspecies has, the greater the risk of extinction. The combination of a very small population in the White Mountains, a likely extirpated population in the Sacramento Mountains, and no population connectivity between the mountain ranges, synergistically interacting with the other stressors and potential stressors described above, greatly increases extinction risk for the Peñasco least chipmunk (Service 2018, p. 50). Because of this combination, the stressor of small population size is included in our analysis of future subspecies viability.

The White Mountains Wilderness Area within the Lincoln National Forest is currently closed to grazing and will remain closed for the recovery and protection of the Peñasco least chipmunk (Williams pers. comm. 2020). As part of the SSA, we also developed multiple future scenarios to capture the range of uncertainties regarding future threats and the projected responses by the Peñasco least chipmunk. Our scenarios included a continuing conditions scenario, which incorporated the current risk factors continuing on the same trajectory that they are on now. We also evaluated an optimistic scenario and a scenario with increased stressors. Because we determined that the current condition of the Peñasco least chipmunk was consistent with an endangered species (see Determination of Species Status, below), we are not presenting the results of the future scenarios in this proposed rule. Please refer to the SSA report (Service 2018) for the full analysis of future scenarios.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

The range of the Peñasco least chipmunk once included the Sacramento and White Mountains in Lincoln and Otero Counties in New Mexico. The Peñasco least chipmunk is now found in only one isolated population within the White Mountains. The one remaining population has low resiliency, meaning that the population has a low probability of remaining extant and withstanding periodic or stochastic disturbances under its current condition. Representation is low, with the loss of one of two populations within its historical range. Species-level genetic and ecological diversity is likely extremely low, as one population is likely extirpated and the remaining population is small. Redundancy has declined dramatically because the Peñasco least chipmunk remains on the landscape in only one population. As such, the Peñasco least chipmunk is at greater risk of extinction due to a catastrophic event when compared to historical conditions.

The Peñasco least chipmunk faces threats that put it at risk of extinction, including vegetation shifts, wildfire, forest encroachment, recreation, development, land use, and land management (Factor A, nonnative species (Factors A and C), disease (Factor C), and small population size and lack of connectivity (Factor E). We found small population size to be the main threat to the species currently. The current population is small and isolated, making it vulnerable to catastrophic or stochastic events. The risk of species extinction from a disease outbreak, large wildfire, or extreme drought is high. The one remaining population is currently small and isolated, and we expect it to remain so in the future. Neither ongoing management activities, nor existing regulatory mechanisms (Factor D), are sufficient to mitigate the threats facing the Peñasco least chipmunk.

Based on the assessment of the species' resiliency, representation, and redundancy, which are at levels that put the species at risk of extinction throughout its range, we find the Peñasco least chipmunk meets the definition of an endangered species. We find that a threatened species status is not appropriate for the Peñasco least chipmunk because it is currently at risk of extinction.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Peñasco least chipmunk is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Peñasco least chipmunk warrants listing as endangered throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Our review of the best available scientific and commercial information indicates that the Peñasco least chipmunk meets the definition of an endangered species. Therefore, we propose to list the Peñasco least chipmunk as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, as well as private organizations and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outlines, draft recovery plans, and the final recovery plans will be available on our website ( https://www.fws.gov/endangered ), or from our New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands.

If this species is listed, funding for recovery actions may be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of New Mexico may be eligible for Federal funds to implement management actions that promote the protection or recovery of the Peñasco least chipmunk. Information on our grant programs that are available to aid species recovery can be found at https://www.fws.gov/grants.

Although the Peñasco least chipmunk is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for the species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph may include, but are not limited to, management and any other landscape-altering activities on Federal lands including those administered by the U.S. Forest Service, issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers, and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Winter activities at the ski resort;

(2) Hiking on established trails; and

(3) Routine road maintenance.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

Activities that the Service believes could potentially harm the Peñasco least chipmunk and result in “take” include, but are not limited to:

(1) Unauthorized handling or collection of the species;

(2) Creation and modification of trails;

(3) Ski resort maintenance during summer months; and

(4) Organized mountain bike races.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Additionally, our regulations at 50 CFR 424.02 define the word “habitat” as follows: “for the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. The designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, 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.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, 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 consider unoccupied areas to be essential only where a critical habitat designation limited to geographical areas occupied by the species 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.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

As discussed in the SSA Report (Service 2018, p. 50), there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and the above proposed listing determination for the Peñasco least chipmunk, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the Peñasco least chipmunk and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Peñasco least chipmunk.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Peñasco least chipmunk is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the Peñasco least chipmunk.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as 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.

For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

We derive the specific physical or biological features essential for the Peñasco least chipmunk from studies of the species' habitat, ecology, and life history. Peñasco least chipmunk habitat is characterized as high-elevation subalpine habitat in the White Mountains, composed of Thurber's fescue ( Festuca thurberi ) meadows, where rock outcrops or talus are present (Frey and Hays 2017, p. 34). Subalpine Thurber's fescue meadow/grassland community occurs within openings in high-elevation spruce-fir forest and above tree line in the glacial cirque. These Thurber's fescue grasslands contain tall bunchgrasses, including Thurber's fescue, sedges, flowering forbs, and shrubs (Frey and Hays 2017, pp. 2-3). Bunchgrasses and forbs provide cover from predators. The elevation of subalpine habitat in the White Mountains ranges from 2,500 m to 3,597 m (8,200 ft to 11,800 ft). Forage for Peñasco least chipmunks consists of the seeds and flowers of forbs, particularly species of Asteraceae (Frey and Hays 2017, p. 34). The diet also includes flowers and fruits of gooseberry ( Ribes spp.) and wild strawberry ( Fragaria spp.), pinyon ( Pinus edulis ) nuts, Gambel oak ( Quercus gambelii ) acorns, insects, and other items (Sullivan 1993, p. 3).

The Peñasco least chipmunk is likely extirpated from the Sacramento Mountains, and the habitat no longer supports the species; therefore, we did not include the Sacramento Mountains in our critical habitat designation or analysis of physical or biological features. The habitat occupied by Peñasco least chipmunks is different for the subspecies in the White Mountains versus the Sacramento Mountains. A full description of the needs of individuals, populations, and the species is available in the SSA report.

In summary, we derive the specific physical or biological features essential to the conservation of Peñasco least chipmunk from studies of this species' habitat, ecology, and life history as described in the Background portion of this rule, above. Additional information can be found in the SSA Report (Service 2018) available on the internet at https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0042. We have determined that the following physical or biological features are essential to the conservation of the Peñasco least chipmunk:

(1) Areas within the White Mountains:

(a) Between elevations of 2,500-3,597 meters (8,200-11,800 feet),

(b) That contain rock outcrops or talus, and

(c) That are subalpine Thurber's fescue meadow/grassland communities found within openings of spruce-fir forest, above tree line in the glacial cirque, containing tall bunchgrasses, including Thurber's fescue, sedges, flowering forbs, and shrubs.

(2) Forage, including species of Asteraceae, flowers and fruits of gooseberry ( Ribes spp), wild strawberry ( Fragaria spp.), pinyon ( Pinus edulis ) nuts, Gambel oak ( Quercus gambelii ) acorns, and insects.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features that are essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the Peñasco least chipmunk may require special management considerations or protections to reduce the following threats: (1) Forest encroachment due to altered fire regime; (2) recreation, development, land use, and land management; (3) destruction of habitat by nonnative species (feral hogs); and (4) disease.

Management activities that could ameliorate these threats include, but are not limited to: Prescribed fire and forest management to maintain the open subalpine meadows with native vegetation; continued closure of the encompassing Forest Service allotment to grazing; disease management; and feral hog management.

In summary, we find that the occupied areas we are proposing to designate as critical habitat contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of Federal agencies that may take actions in designated critical habitat in order to eliminate, or to reduce to negligible levels, the threats affecting the physical and biological features of the unit.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the subspecies to be considered for designation as critical habitat.

We are proposing to designate critical habitat in areas within the geographical area that was occupied by the species at the time of listing. We also are proposing to designate specific areas outside the geographical area that was occupied by the species at the time of listing because we have determined that a designation limited to occupied areas would be inadequate to ensure the conservation of the species. Furthermore, we conclude there is a reasonable certainty that the unoccupied area will contribute to the conservation of the species and contains one or more of those physical or biological features essential to the conservation of the species. We have also determined that the unoccupied area falls within the regulatory definition of “habitat” at 50 CFR 424.02.

The current distribution of the Peñasco least chipmunk is much reduced from its historical range. We anticipate that recovery will require continued protection of the existing population and its habitat, and potentially reintroduction of Peñasco least chipmunk into historically occupied areas in the Sacramento Mountains, ensuring there are adequate numbers in both of the two historical locations. This strategy will help to ensure that catastrophic events, such as the effects of fire, cannot simultaneously affect all known populations. Rangewide recovery considerations, such as maintaining existing genetic diversity and striving for connectivity within portions of the species' current range to allow adequate movement to assure genetic diversity, were considered in formulating this proposed critical habitat.

Sources of data for this proposed critical habitat designation include multiple reports and discussions with species experts, including New Mexico Department of Game and Fish (see SSA report). We have also reviewed available information that pertains to the habitat requirements of this species. Sources of information on habitat requirements include studies conducted at occupied sites and published in peer-reviewed articles and agency reports, and data collected during monitoring efforts.

The proposed critical habitat designation does not include all areas known to have been occupied by the Peñasco least chipmunk historically; instead, it focuses on the currently occupied area within the historical range that retains the necessary physical or biological features that will allow for the maintenance and expansion of the existing population. We are not proposing any critical habitat in the Sacramento Mountains because we conclude that the area no longer has the ability to support the species.

We delineated occupied and unoccupied critical habitat unit boundaries using the following geospatial methodology:

(1) First, we compiled all known Peñasco least chipmunk observations ( i.e., captures) in the White Mountains from 1931-2018, mapped their locations, and eliminated duplicate records. This process provided a bounded estimate of the subspecies' known range.

(2) Using existing U.S. Forest Service vegetation mapping for the Lincoln National Forest, we identified and exported all vegetation classes that coincided with the known observations. The vegetation classes included (1) mixed grass-forb and (2) Gambel oak, which are consistent with physical habitat descriptions for the subspecies in the White Mountains. Vegetation characterized by meadow/grassland community within openings of spruce-fir forest are one of the physical or biological features essential to the conservation of the Peñasco least chipmunk.

(3) Next, we determined the elevation interval in which the White Mountains population has been observed. We used that interval to further define the extent of the grass-forb and Gambel oak vegetation classes. Although the upper limit of the occupied interval did not extend to the highest points within the critical habitat units, we assumed that the Peñasco least chipmunk is capable of occupying these higher elevations as the difference (roughly 100 meters or 330 feet) is not substantial. Therefore, we extended the interval to include the highest peaks within each unit. This process resulted in a basic model of potential habitat.

(4) Finally, we refined the output of step 3 (above) through aerial photo interpretation in order to correct for the coarse resolution imparted by the vegetation mapping. Essentially, this process allows the model to be more accurate and applicable at a finer scale.

The critical habitat area was mapped using ArcMap version 10.6.1 (Environmental Systems Research Institute, Inc. 2018), a Geographic Information Systems (GIS) computer application. We identified two critical habitat units in the White Mountains known to be occupied by Peñasco least chipmunks as of 2019. We identified a third critical habitat unit between these two occupied units that has the physical and biological features required by the Peñasco least chipmunk but has not yet been surveyed for occupancy.

We have determined that a designation limited to the two occupied units would be inadequate to ensure the conservation of the subspecies because there is only one remaining population, which has low resiliency and no redundancy, making it vulnerable to catastrophic or stochastic events and further compounding the risks of small population sizes. The risk of subspecies extinction from a disease outbreak, large wildfire, or extreme drought is high. A low-resiliency single population provides no redundancy for the species, and a single catastrophic event could cause species extinction.

Because we have determined known occupied areas alone are not adequate for the conservation of the species, we have evaluated whether any unoccupied areas are essential for the conservation of the species. We are proposing as critical habitat one unit situated between the two known occupied units that is currently considered unoccupied because of a lack of survey data. We have determined that it is essential for the conservation of the species as it provides important connectivity between the two occupied units and could support population expansion into this area, if not populated already. Limited functional habitat exists within the White Mountains, and connectivity between known locations of Peñasco least chipmunk is essential to the conservation of the subspecies because it provides more of the physical or biological features upon which the subspecies depends for feeding, sheltering and reproducing. This unit provides a link between the two known occupied units. The unit has all of the physical or biological features necessary for the conservation of the Peñasco least chipmunk; it's in the White Mountains, at elevations of 2,500-3,597 meters (8,200-11,800 feet), with rock outcrop, and the vegetation is characterized by meadow/grassland community within openings of spruce-fir forests.

Small, isolated populations of animals with restricted movement and low genetic diversity are more likely to become extirpated than larger populations with greater movement between sub-populations within them and greater genetic diversity. Due to the small population sizes found within the two occupied units, either or both could become extirpated from local catastrophic events or the deleterious effects of genetic bottlenecking resulting from inbreeding that reduces the viability of a population, if they had no connectivity. The unoccupied unit in between these two known occupied units has never been surveyed for Peñasco least chipmunk, due to its remoteness and difficulty to access. It does, however, maintain all the physical or biological features of the occupied areas. We analyzed this using remote GIS vegetation and landscape feature data from the U.S. Forest Service and the U.S. Department of Agriculture National Agricultural Imagery Program. It is possible the Peñasco least chipmunk is present in the unoccupied unit; however, with no confirmed records, we are treating it as unoccupied for purposes of this designation. Physical or biological features essential to the conservation of Peñasco least chipmunk are areas within the White Mountains, between elevations of 2,500-3,597 meters (8,200-11,800 feet), that contain rock outcrops, and vegetation associated with meadow/grassland communities within openings of spruce-fir forests. This unoccupied unit provides all of the physical or biological features to allow for breeding, feeding, sheltering and dispersal of Peñasco least chipmunk. The unoccupied unit is within the White Mountains with varying elevations between 2,500-3,597 meters (8,200-11,800 feet), and rock outcrops, and approximately 44 percent of this unit is classified as grass-forb mix or Gambel oak. We find that this unit currently contains the resources and conditions necessary to support multiple life processes ( i.e., breeding, feeding, sheltering and dispersal) of the Peñasco least chipmunk.

The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the proposed critical habitat designation in the discussion of individual units, below. We will make the coordinates or plot points or both on which each map is based available to the public on https://www.regulations.gov under Docket No. FWS-R2-ES-2020-0042.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by pavement, buildings, and other structures because such lands lack physical or biological features necessary for the Peñasco least chipmunk. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation under the Act with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We propose to designate as critical habitat lands that we have determined are occupied at the time of listing ( i.e., currently known to be occupied) and that contain one or more of the physical or biological features essential to support life-history processes of the species. We have determined that the known occupied areas are inadequate to ensure the conservation of the species. Therefore, we have also identified, and propose for designation as critical habitat, unoccupied areas that are essential for the conservation of the species. For those unoccupied areas, we have determined that it is reasonably certain that the unoccupied areas will contribute to the conservation of the species and contain one or more of the physical or biological features that are essential to the conservation of the species. We have also determined that the unoccupied areas fall within the regulatory definition of “habitat” at 50 CFR 424.02.

We are proposing to designate approximately 2,660 hectares (6,574 acres) in three units in New Mexico as critical habitat for the Peñasco least chipmunk. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Peñasco least chipmunk. The three distinct units we propose as critical habitat are: (1) Nogal Peak, (2) Crest Trail, and (3) Sierra Blanca. Two of the units are currently occupied by the subspecies and the occupancy status by the subspecies of one of the units is currently unknown but contains the physical and biological features and is essential to the conservation of the subspecies. All units proposed may require special management considerations or protection to address stressors associated with managing prescribed and wildland fire, road management and maintenance, development and use around Ski Apache Resort, feral hog management, and plague management. Table 4, below, shows the proposed units' names, land ownership, and approximate area. Land ownership is predominantly Federal. Unit 3 consists of Federal and Tribal lands.

Unit 1 consists of approximately 393 hectares (972 acres) of subalpine habitat within the Lincoln National Forest Wilderness Area and is occupied. This unit is within the critical habitat designation in Lincoln County, New Mexico, for the Mexican spotted owl, which is listed as a threatened species under the Act. Elevation ranges approximately 2,570-3,031 m (8,432-9,944 ft) above mean sea level (MSL). Mean elevation in Unit 1 is 2,772 m (9,094 ft) with a standard deviation of 70 meters (230 ft). Approximately 79 percent of Unit 1 is classified as grass-forb mix or Gambel oak. Unit 1 contains all the physical or biological features that are essential to the conservation of the species; it is within the White Mountains, between elevations of 2,500-3,597 meters (8,200-11,800 feet), with rock outcrops and talus, and 79 percent of the unit is characterized by meadow/grassland community within opening of spruce-fir forests. This unit is federally owned by the U.S. Forest Service; it is 100 percent within the Lincoln National Forest Wilderness Area. Threats to the unit include forest encroachment into the open meadows, grazing, and destruction of habitat by nonnative species (feral hogs); these can be ameliorated through prescribed fire and forest management to maintain the open subalpine meadows with native vegetation, continued closure of the encompassing Forest Service allotment to grazing, and feral hog management.

Unit 2 consists of approximately 910 hectares (2,249 acres) of subalpine habitat. Although it is considered unoccupied, Unit 2 contains the physical or biological features essential to the conservation of the species and serves as a connectivity corridor between Unit 1 and Unit 3. Due to the location between Units 1 and 3 and the overall suitability of the habitat, it is possible the Peñasco least chipmunk is present in the unoccupied unit; however, with no confirmed records, we are treating it as unoccupied for purposes of this designation. Approximately 89 percent of this unit is within the critical habitat designation for the Mexican spotted owl in Lincoln County, New Mexico. This unit is federally owned by the U.S. Forest Service and is 100 percent within the Lincoln National Forest Wilderness Area. Elevation ranges approximately 2,621-3,292 m (8,599-10,800 ft) above MSL. Mean elevation in Unit 2 is 2,876 m (9,436 ft) with a standard deviation of 139 meters (456 ft). Approximately 44 percent of Unit 2 is classified as grass-forb mix or Gambel oak. Unit 2 contains all the physical or biological features that are essential to the conservation of the species; it is within the White Mountains, between elevations of 2,500-3,597 meters (8,200-11,800 feet), with rock outcrops and talus, and 44 percent of the unit is characterized by meadow/grassland community within openings of spruce-fir forests.

Unit 3 includes approximately 1,357 hectares (3,353 acres) of subalpine habitat, contains the physical or biological features that are essential to the conservation of the species, and is known to be occupied. The proportion of Unit 3 located on Mescalero Tribal lands is approximately 581 hectares (1,435 acres) or 43 percent. The unit contains the Ski Apache Resort; the land is owned by the U.S. Forest Service, but managed under a permit by the Mescalero Apache Tribe. The resort occupies 543 hectares (1,431 acres), 40 percent of the unit. The remaining 17 percent is U.S. Forest Service land, part of the Lincoln National Forest Wilderness Area. Approximately 57 percent of the unit is also Mexican spotted owl critical habitat in Lincoln and Otero Counties, New Mexico. Elevation ranges approximately 2,763-3,638 m (9,065-11,936 ft) above MSL. Mean elevation in Unit 3 is 3,219 m (10,561 ft) with a standard deviation of 145 m (476 ft). Approximately 52 percent of Unit 3 is classified as grass-forb mix or Gambel oak. Unit 3 contains all the physical or biological features that are essential to the conservation of the species; it is within the White Mountains, between elevations of 2,500-3,597 meters (8,200-11,800 feet), with rock outcrops and talus, and 52 percent of the unit is characterized by meadow/grassland community within openings of spruce-fir forests. Threats to the unit include forest encroachment into the open meadows, recreation, development, land use, and land management, grazing, and destruction of habitat by nonnative species (feral hogs); these can be ameliorated through prescribed fire and forest management to maintain the open subalpine meadows with native vegetation, continued closure of the encompassing Forest Service allotment to grazing, and feral hog management.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.

Activities that the Services may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to:

(1) Management of the Ski Apache Resort to include maintaining ski runs or recreational paths that are clear of trees, maintaining existing roads through grading, and maintaining facilities that include structures and features for ski lifts, the gondola, and zip line;

(2) Forest management activities, including timber harvest, prescribed fire, etc.;

(3) Road maintenance activities; and

(4) Recreation site maintenance and development of new sites, including trails.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense (DoD) lands with a completed INRMP within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if we determine that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless we determine, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face and the legislative history are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.

Lands owned by the Mescalero Apache Tribe are included in this critical habitat proposal. We are considering these lands for exclusion from critical habitat (see Exclusions, below). However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information we obtain during the comment period and information about the economic impacts of the designation. Accordingly, we have prepared a draft economic analysis (DEA) concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES , above).

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary section 4(b)(2) exclusion analysis.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Peñasco least chipmunk (Industrial Economics, Incorporated (IEc) 2019).

We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out the geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. If there are any unoccupied units in the proposed critical habitat designation, the screening analysis assesses whether any additional management or conservation efforts may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, is what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the Peñasco least chipmunk and is summarized in the narrative below.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation.

In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Peñasco least chipmunk, first we identified, in the IEM dated July 2019, probable incremental economic impacts associated with certain activities. These activities include (1) management of the Ski Apache Resort, to include maintaining: ski runs or recreational paths that are clear of trees, existing roads through grading, and facilities that include structures and features for ski lifts, the gondola, and zip line (permitted by the U.S. Forest Service); and (2) road management, maintenance, and new construction (U.S. Forest Service). We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. If we list the species, in areas where the Peñasco least chipmunk is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list the species, we also finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation ( i.e., the difference between the jeopardy and adverse modification standards) for the Peñasco least chipmunk's critical habitat. Because the designation of critical habitat for the Peñasco least chipmunk was proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical and biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Peñasco least chipmunk would also likely adversely affect the essential physical and biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

We have identified and delineated three proposed critical habitat units, totaling approximately 2,660 hectares (6,574 acres), two of which are currently occupied by the Peñasco least chipmunk and one that is unoccupied but essential to the conservation of the subspecies. The two occupied units (Units 1 and 3) are considered occupied year-round for the purposes of consultation based on current survey data. In the occupied area, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Peñasco least chipmunk. While this additional analysis in the occupied critical habitat would require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

One of the proposed critical habitat units (Unit 2) is unoccupied. No surveys for Peñasco least chipmunk have been done in the unit. We assume any costs associated with this unit would be attributable to critical habitat rather than the listing of the species.

Federal agencies are the entities most likely to incur incremental costs associated with designating critical habitat, due to section 7 requirements. We do not anticipate any costs to State or local agencies, or impacts on property values related to the public's perception of additional regulation, because we do not expect the designation of critical habitat for the Peñasco least chipmunk to result in changes to New Mexico local regulations (IEc 2019, p. 16).

At most, no more than two Peñasco least chipmunk consultations (two informal) are anticipated in any given year (IEc 2019, p. 8). Most of the proposed critical habitat occurs within Lincoln National Forest Wilderness Area, where little work and no commercial activities occur; it is also existing Mexican spotted owl critical habitat. In the past 3 years there have not been any section 7 consultations in this area. The estimated incremental costs of the total critical habitat designation for the Peñasco least chipmunk in the first year are unlikely to exceed $5,000 (2019 dollars) (IEc 2019, p. 9). Thus, the annual administrative burden would not reach $100 million.

As we stated earlier, we are soliciting data and comments from the public on the DEA and all aspects of the proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic impact or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also otherwise decide to exercise the discretion to evaluate any other areas for possible exclusion. In addition, if we do conduct an exclusion analysis and we have received any information from experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Service's expertise, for purposes of the exclusion analysis we will assign weights to those impacts consistent with the information from experts in, or sources with firsthand knowledge about, those impacts, unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Under section 4(b)(2) of the Act, we consider whether there are lands where a national security impact might exist. In preparing this proposal, we have determined that the lands adjacent to the proposed designation of critical habitat for Peñasco least chipmunk are not owned or managed by the Department of Defense or Department of Homeland Security. We anticipate no impact on national security. However, during the development of a final designation we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are nonpermitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of Tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation.

There are currently no active HCPs or other management plans for the Peñasco least chipmunk. We anticipate no impact on current partnerships or HCPs from this proposed critical habitat designation.

Several Executive Orders, Secretarial Orders, and policies concern working with Tribes. These guidance documents generally confirm our trust responsibilities to Tribes, recognize that Tribes have sovereign authority to control Tribal lands, emphasize the importance of developing partnerships with Tribal governments, and direct the Service to consult with Tribes on a government-to-government basis.

A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS), Secretarial Order 3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206), is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, S.O. 3206 explicitly recognizes the right of Tribes to participate fully in the listing process, including designation of critical habitat. The Order also states: “Critical habitat shall not be designated in such areas unless it is determined essential to conserve a listed species. In designating critical habitat, the Services shall evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.” In light of this instruction, when we undertake a discretionary section 4(b)(2) exclusion analysis, we will always consider exclusions of Tribal lands under section 4(b)(2) of the Act prior to finalizing a designation of critical habitat, and will give great weight to Tribal concerns in analyzing the benefits of exclusion.

However, S.O. 3206 does not preclude us from designating Tribal lands or waters as critical habitat, nor does it state that Tribal lands or waters cannot meet the Act's definition of “critical habitat.” We are directed by the Act to identify areas that meet the definition of “critical habitat” ( i.e., areas occupied at the time of listing that contain the essential physical or biological features that may require special management or protection and unoccupied areas that are essential to the conservation of a species), without regard to landownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretaries' statutory authority.

Mescalero Apache Tribal lands are included in the proposed designation of critical habitat for the Peñasco least chipmunk. Approximately 581 hectares (1,435 acres) of Tribal lands occupied by the Peñasco least chipmunk meet the definition of critical habitat. We will consider these areas for exclusion from the final critical habitat designation to the extent consistent with the requirements of section 4(b)(2) of the Act. We have notified the Mescalero Apache Tribe and requested their feedback. We will continue to coordinate with the Mescalero Apache Tribe, as well as any other Tribal entity who wishes to provide information to the Service regarding this proposed listing and critical habitat designation. A final determination on whether the Secretary will exercise the discretion to exclude any of these areas from critical habitat for the Peñasco least chipmunk will be made when we publish the final rule designating critical habitat. During the development of a final designation, we will consider all information currently available or received during the public comment period. If we receive credible information regarding the existence of a meaningful impact supporting a benefit of excluding any area, we will undertake an exclusion analysis and determine whether those areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. We may also exercise the discretion to undertake exclusion analyses for other areas as well.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our draft economic analysis, we did not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or Tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. By definition, Federal agencies are not considered small entities, although the activities they fund or permit may be proposed or carried out by small entities. Consequently, we do not believe that the proposed critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for Peñasco least chipmunk in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the Peñasco least chipmunk, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with listing species and designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of the Peñasco least chipmunk, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical habitat designation. We invite the public to comment on the extent to which this proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule.

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. In a letter dated November 27, 2017, we informed the Mescalero Apache Tribe of our intent to conduct a status assessment for the Peñasco least chipmunk. On July 5, 2018, we shared the draft of the SSA report with the Mescalero Apache Tribe for their partner review. We will continue to work with Tribal entities during the development of a final rule for the designation of critical habitat for the Peñasco least chipmunk.

A complete list of references cited in this proposed rule is available on the internet at https://www.regulations.gov and upon request from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the New Mexico Ecological Services Field Office.

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Why we need to publish a rule. Under the Act, if we determine that a species may be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule.

What this document does. We propose to list the South Llano Springs moss as an endangered species under the Act, and we propose to designate critical habitat for the species on approximately 0.19 hectares (ha) (0.48 acres (ac)) in Edwards County, Texas.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that increased groundwater pumping from the Edwards-Trinity aquifer that supplies water for the springs that the South Llano Springs moss is dependent on, as well as flash floods, sedimentation, invasive plant species, small population size, a single population, and lack of genetic diversity, and cumulative impacts from these threats, threaten this plant species to the degree that listing it as an endangered species under the Act is warranted.

Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat.

We prepared a draft economic analysis of the proposed designation of critical habitat. In order to consider economic impacts, we prepared an analysis of the economic impacts of the proposed critical habitat designation. We hereby announce the availability of the draft economic analysis and seek public review and comment.

Peer review. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of four appropriate specialists regarding the species status assessment report. We received a response from one specialist, which informed this proposed rule. The purpose of peer review is to ensure that our listing determination and critical habitat designation are based on scientifically sound data, assumptions, and analyses. The peer reviewers we contacted have expertise in the biology, habitat, and threats to the species.

Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species is threatened instead of endangered, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. Such final decisions would be a logical outgrowth of this proposal, as long as we: (a) Base the decisions on the best scientific and commercial data available after considering all of the relevant factors; (2) do not rely on factors Congress has not intended us to consider; and (3) articulate a rational connection between the facts found and the conclusions made, including why we changed our conclusion.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule.

We particularly seek comments concerning:

(1) The species' biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent:

(a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(b) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or

(d) No areas meet the definition of critical habitat.

(6) Specific information on:

(a) The amount and distribution of the South Llano Springs moss habitat;

(b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of the species, should be included in the designation and why;

(c) Special management considerations or protection that may be needed in the critical habitat area we are proposing, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of the species. We particularly seek comments:

(i) Regarding whether occupied areas are adequate for the conservation of the species; and

(ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of the species and contain at least one physical or biological feature essential to the conservation of the species.

(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

(8) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas.

(9) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts.

(10) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(11) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service's website, in addition to the Federal Register . The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3).

On June 18, 2007, we received a formal petition from Forest Guardians (later named WildEarth Guardians) to list 475 species in the southwestern United States, including the South Llano Springs moss, as endangered or threatened species under the Act. On March 19, 2008, WildEarth Guardians filed a complaint that the Service failed to comply with the mandatory duty to make a preliminary 90-day finding. On January 6, 2009, we published in the Federal Register (74 FR 419) a 90-day finding that the petition did not present sufficient information to indicate that listing the South Llano Springs moss may be warranted. On December 16, 2009, we published a new 90-day finding, based on a re-evaluation of the information presented in the petition and readily available in our files, that the petition provided substantial information indicating that listing of the South Llano Springs moss may be warranted based on the present or threatened destruction, modification, or curtailment of habitat or range as a result of drought or changes in hydrology (74 FR 66866).

A species status assessment (SSA) team prepared an SSA report for the South Llano Springs moss. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The Service sent the SSA report to four independent peer reviewers and received one response. The Service also sent the SSA report to partners, including scientists with expertise with this species, for review. We received one review from the Texas Parks and Wildlife Department.

The South Llano Springs moss is an aquatic moss that grows on submerged or partially submerged rocks. The deep, loosely interwoven mats are blue-green to blackish-brown when shaded and yellow-green when exposed to full sun. Like all mosses, the South Llano Springs moss forms clonal colonies of leaf-bearing stems.

The South Llano Springs moss has an extremely limited range: It has only been documented in two locations and is thought to be extirpated from one of those. The remaining extant site is from Seven Hundred Springs, on the South Llano River in Edwards County, Texas. The extirpated site, referred to as the Redfearn site, was about 5 kilometers (km) (3.1 miles (mi)) downstream from Seven Hundred Springs in Kimble County, Texas, though the exact location is unknown. Both sites occur within the Edwards Plateau. Wyatt and Stoneburner (1980, pp. 514, 516) visited 10 other springs in the Llano and South Llano River watersheds in 1978 and 1979, but found no additional populations.

The South Llano Springs moss was discovered at Seven Hundred Springs in 1932, and was most recently confirmed there in 1979 (Wyatt and Stoneburner 1980, entire). When last observed, the South Llano Springs moss was abundantly dispersed in the spring outflow, partially submerged in shaded areas within an area of about 10 by 100 meters (m) (33 by 328 feet (ft)) between the springs and the river below on privately owned land (Wyatt and Stoneburner 1980, p. 516). Observation of the habitat from the opposite side of the river in 2017 indicated that the habitat appears to be in excellent condition (Service 2017, entire). This is the best available information we have for this site; consequently, we consider the Seven Hundred Springs population to be extant. The South Llano Springs moss was last documented at the Redfearn site in 1971. The two specimen labels from these collections state that they were collected “1 mile south of Telegraph” with one specimen collected on a dam and the other from limestone at the edge of the creek. On topographic maps, Telegraph is a location consisting of a single store that is not directly along the river; however, there is a road connecting Telegraph to the South Llano River with a bridge, and this may be the location from which Redfearn was measuring. Due to the vague location description, there is uncertainty around the exact location of the Redfearn site. In 2017, we conducted surveys along 5.7 km of the South Llano River, including the 2.25 km in which we believe Redfearn collected his specimens. All aquatic moss species encountered were collected and a sample of each of the four species encountered was sent to a bryologist at the Missouri Botanical Garden for identification. None of the species collected were found to be the South Llano Springs moss. This is the best available information we have for this site; consequently, we consider the Redfearn population to be extirpated. It is possible that the species does not occur anywhere else. However, few surveys for this species have been conducted. Consequently, it is possible that this species occurs elsewhere along Paint Creek or the South Llano River. The best available data indicate that only the Seven Hundred Springs population persists.

A thorough review of the taxonomy, life history, and ecology of the South Llano Springs moss is presented in the SSA report (version 1.1; Service 2018, entire).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an endangered species as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. 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. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological status review for the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be proposed for listing as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found on http://www.regulations.gov under Docket FWS-R2-ES-2020-0015.

To assess the viability of the South Llano Springs moss, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. This process used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

In this section, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

Based on the conditions of the only known current and historical populations, the South Llano Springs moss requires a constant flow of mineral-rich spring water or spring-fed river water over shallow limestone rocks. Seven Hundred Springs and the areas thought to contain the Redfearn sites are supported by spring flows within the Edwards-Trinity aquifer and the South Llano River watershed (Seven Hundred Springs and Big Paint Springs). These springs have never ceased flowing in recorded history. Water from these springs emerges at a very consistent temperature and is rich in travertine minerals. Rocks and plants immersed in the upper South Llano River quickly become encrusted with travertine- or tufa-like mineral deposits, to an unusual degree not seen in most springs in the Edwards-Trinity aquifer (Service 2017, p. 2). Thus, it is possible that high mineral concentrations, or the precipitation of minerals from solution, could be requirements for the establishment and growth of South Llano Springs moss individuals.

The water temperature of Seven Hundred Springs was consistently 21.5 degrees Celsius (°C) (70.7 degrees Fahrenheit (°F)) in June, and the pH ranged from 7.0 to 7.2 (Wyatt and Stoneburner 1980, p. 516). The species occurred in both shaded and exposed niches at Seven Hundred Springs (Wyatt and Stoneburner 1980, p. 516). Associated vascular plant species included maidenhair fern ( Adiantum capillus-veneris ), southern shield fern ( Thelypteris kunthii ), watercress ( Nasturtium officinale ), and members of the mint family (Lamiaceae) and composite family (Asteraceae) (Wyatt and Stoneburner 1980, p. 516). Associated moss species included Hygroamblystegium tenax and Eucladium verticillatum (Wyatt and Stoneburner 1980, p. 517).

Mosses closely related to the South Llano Springs moss reproduce both sexually and asexually. However, there is no evidence that sexual reproduction is occurring in the single remaining known site of occurrence, as no plants with female reproductive structures were observed in the wild population or during a 16-month propagation study in 1978 and 1979 (Wyatt and Stoneburner 1980, p. 517). The plants cultivated in captivity produced only male reproductive structures. It is possible that the known population may be a clone of a single or a few male individuals and that sexual reproduction is no longer possible for the species.

In addition to the habitat requirements described above, resilient populations of South Llano Springs moss need to be large enough that local stochastic events do not eliminate all individuals, allowing the overall population to recover from any one event. The larger a population is, the greater the chances that a portion of the population will survive. The minimum viable population size is not known for this species. However, the geographic extent is provided from the observations of Wyatt and Stoneburner (1980, p. 516). When last observed, the South Llano Springs moss grew in the spring outflow partially submerged in shaded areas within a 10 m (33 ft) zone between the springs and the river below (Wyatt and Stoneburner 1980, p. 516). We assume that the population could be as large as the spring flow and substrate allow in this zone. The area occupied by a moss population is a practical surrogate for abundance, provided that it is understood that this does not address the number of genetically unique individuals.

Recruitment is also needed for populations to be resilient. The colony at Seven Hundred Springs may be a clone of a single individual, or only male individuals, and is presumed incapable of sexual reproduction (Wyatt and Stoneburner 1980, p. 520). Unless female individuals are present, the colony of South Llano Springs moss at Seven Hundred Springs can persist and grow only through vegetative budding or through the establishment of fragments that happen to lodge in suitable niches. These mats can expand to occupy new habitats while the portion that established earlier dies. An individual remains alive as long as old stems die no faster than new stems develop. The same individual could migrate back and forth through available habitats for an unlimited period of time, and it is not inconceivable that the individuals we see today arose from spores that germinated many thousands of years ago. For the species to persist, the recruitment of new individuals must equal or exceed mortality.

Wyatt and Stoneburner (1980, pp. 519-520) estimated that the species' range may have been more extensive 10,000 years ago, and subsequently became restricted to this single location as the climate warmed and other springs periodically stopped flowing. To assess the climate changes that could affect this species into the future, we examined the climate parameters using both the representative concentration pathway (RCP) 4.5 and RCP 8.5 scenarios to provide a range of projected values. These models predict that by 2074 climate changes could result in a reduction of aquifer recharge and an increased duration and severity of droughts and heavy rainfall, thereby increasing the threats of interrupted spring flows and flash floods. Annual precipitation is highly variable in central Texas, and severe, multi-year droughts occurred during the 1950s and from 2006 through 2012. During these historical periods of drought, only the largest springs along the South Llano River, including Seven Hundred Springs, continued flowing, but at lower rates. Prolonged drought in combination with increased pumping from the Edwards-Trinity aquifer could increase the probability of interrupted flows of these springs and, consequently, the extirpation or extinction of the South Llano Springs moss. Despite the frequency of prolonged drought, the region is also subject to extremely heavy rainfall, often resulting from tropical storms in the Gulf of Mexico as well as the Pacific Ocean. All of these factors contribute to flash floods (high intensity, low duration floods) that can drastically change stream beds and the surrounding vegetation, potentially scouring the South Llano Springs moss from its rock substrate along the edge of the stream, or burying it beneath deposits of silt, sand, and gravel.

The amount of pumping from the Edwards-Trinity aquifer is one of the most important factors influencing storage in the aquifer and spring flows. Aquifer water levels are stable or have declined slightly over most of the Edwards-Trinity aquifer, but in some areas, heavy pumping has led to long-term declines in aquifer levels and diminished or interrupted spring flows (George et al. 2011, p. 35; Region F Water Planning Group 2015, pp. 1-34, 3-15; Plateau Region Water Planning Group 2016, pp. 7-11). These sources project relatively little growth in the human population in Edwards and Kimble Counties during the next 50 years. Conversely, population growth is projected to increase for five central Texas counties, which include the metropolitan areas of San Antonio, New Braunfels, San Marcos, Austin, Round Rock, and Georgetown, by 32 percent between 2017 and 2037, and by 53 percent between 2017 and 2050 (Texas Demographic Center 2017, p. 1). It is reasonably foreseeable that increased pumping may occur from the Edwards-Trinity aquifer for transfer to other regions to supply increased municipal water demands. This increased pumping could reduce water storage in the Edwards-Trinity aquifer and spring flows in the South Llano River. Loss of spring flows, even for a short time, would likely reduce or extirpate the only known remaining population of the South Llano Springs moss because the species requires constant immersion in flowing spring water to persist.

The Upper Llano River Watershed Protection Plan (Broad et al. 2016, pp. 51, 64-66, 86) identifies increased runoff, evapotranspiration, and sediment loading as impacts to the upper Llano River watersheds due to the encroachment of woody species. Recharge into the Edwards-Trinity aquifer in Edwards County has been reduced during prior periods of vegetation loss from overgrazing, resulting in increased runoff and the drying of some smaller springs (Brune 1981, p. 173). Aquifer recharge may also have been reduced by the encroachment of brush into formerly grass-dominated uplands (South Llano Watershed Alliance 2012, p. 9; Broad et al. 2016, pp. 40-41, 51). Aquifer recharge would also be reduced by an increase in evapotranspiration, due to increased temperatures.

Small populations are less able to recover from losses caused by random fluctuations in recruitment (demographic stochasticity) or variations in spring outflow (environmental stochasticity) (Service 2015, p. 12). In addition to population size, it is likely that population density also influences population viability, as sexual reproduction, if it occurs at all in the species' current situation, requires male and female mosses to be in close proximity. Small, reproductively isolated populations are also susceptible to the loss of genetic diversity, to genetic drift, and to inbreeding (Barrett and Kohn 1991, pp. 3-30). The loss of genetic diversity may reduce the ability of a species or population to resist pathogens and parasites, to adapt to changing environmental conditions, or to colonize new habitats. The combined demographic and genetic consequences of small population sizes may reduce population recruitment, leading to even smaller populations and greater isolation, and further decreasing the viability of the species. These factors may already have contributed to the decline of the South Llano Springs moss to its current state of extreme endemism in the upper South Llano River. All of the above stressors are exacerbated by the fact that the South Llano Springs moss likely consists of only one, small population.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we propose listing the South Llano Springs moss as an endangered species throughout all of its range. Only two very small populations of South Llano Springs moss have been documented, which were last observed in 1971 and 1979. One is now extirpated and the other is restricted to a 10 by 100 m (33 by 328 ft) zone between Seven Hundred Springs and the South Llano River (Wyatt and Stoneburner 1980, p. 516). Therefore, the species has an extremely low level of representation, and no redundancy, making it vulnerable to catastrophic events such as flash floods and droughts. During historic droughts, such as in the 1950s and 2006-2012, many regional springs ceased flowing and the flow of Seven Hundred Springs was greatly reduced. Projected climate changes include an increased frequency, duration, and severity of droughts (Factor E), thereby increasing the risk of interrupting the flow of Seven Hundred Springs and the desiccation and mortality of this obligately aquatic moss (Factor A). The amount of pumping from the Edwards-Trinity aquifer is one of the most important factors influencing storage in the aquifer and the spring flows on which the South Llano Springs moss relies. Groundwater pumping is likely to increase as the human population grows and as the severity and duration of droughts increases. Prolonged drought (Factor E), in combination with increased pumping from the Edwards-Trinity aquifer (Factor E), further increase the probability of interrupting the flow of Seven Hundred Springs (Factor A) and, consequently, the probability of extinction of the South Llano Springs moss.

The South Llano Springs moss has little or no genetic diversity (Factor E) because this species likely consists of clones of one or a few male individuals and is no longer capable of sexual reproduction (Factor E). Consequently, the species has very low representation and likely has very little ability to adapt to environmental changes. In addition the South Llano Springs moss has poor redundancy because there is only one small population remaining. One drought event that reduced the flow of Seven Hundred Springs could result in the extirpation of this species.

We find that the South Llano Springs moss is presently in danger of extinction throughout its entire range based on the small remaining single population that is likely genetically compromised. This status puts the species on the brink of extinction where normal stochastic events, such as drought, flooding, or a human-caused drop in the aquifer level could lead to further decline or loss of the species entirely. The only other known population has not been observed since 1971 and is considered likely extirpated. This one remaining population could be affected by a variety of threats acting in combination to reduce the overall viability of the species. The risk of extinction is high because the remaining population is small, with no known potential for natural recolonization. We find that a threatened species status is not appropriate for the South Llano Springs moss because of the species' current precarious condition due to its contracted range, small population size, and likely compromised genetics, because these stressors are severe, ongoing, and expected to continue into the future.

Therefore, after assessing the best available information, we determine that the South Llano Springs moss is in danger of extinction throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the South Llano Springs moss is in danger of extinction throughout all of its range, and accordingly, did not undertake an analysis of any significant portion of its range. Because we have determined that the South Llano Springs moss warrants listing as an endangered species throughout all of its range, our determination is consistent with the decision in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which the court vacated the aspect of the 2014 Significant Portion of its Range Policy that provided the Services do not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range.

Our review of the best available scientific and commercial information indicates that the South Llano Springs moss meets the definition of an endangered species. Therefore, we propose to list the South Llano Springs moss as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from protected status (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website ( http://www.fws.gov/endangered ), or from our Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration ( e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and tribal lands.

If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the South Llano Springs moss. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the South Llano Springs moss is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT ).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands, management and conservation projects conducted on private lands with support from the U.S. Fish and Wildlife Service Partners for Fish and Wildlife Program; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq. ) permits by the U.S. Army Corps of Engineers; construction and maintenance of roads or highways by the Federal Highway Administration; construction and maintenance of railways by the Federal Railroad Administration; and discharge permits from the Environmental Protection Agency.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export; remove and reduce to possession from areas under Federal jurisdiction; maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Recreational use of the streams, such as fishing, swimming, and canoeing, as these activities normally take place in the river or on the river bank and not in the spring itself, and;

(2) Normal residential landscaping activities as these activities do not take place in the spring, nor do they affect the quantity or quality of water in the spring.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:

(1) Removing, cutting, digging up, or damaging or destroying the South Llano Springs moss in knowing violation of any law or regulation of the state of Texas or in the course of any violation of a State criminal trespass law;

(2) Importing the South Llano Springs moss into, or exporting from, the United States;

(3) Delivering, receiving, carrying, transporting, or shipping the South Llano Springs moss in interstate or foreign commerce, by any means and in the course of a commercial activity, and;

(4) Selling or offering the South Llano Springs moss for sale in interstate or foreign commerce.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement “reasonable and prudent alternatives” to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, 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.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, 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 by the species 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.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts' opinions or personal knowledge.

Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or threats to the species' habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.

As discussed above under Proposed Listing Determination, there is currently no imminent threat of collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and this proposed listing determination, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the South Llano Springs moss and that those threats in some way can be addressed by section 7(a)(2) consultation measures. The species occurs wholly in the jurisdiction of the United States, and we are able to identify an area that meets the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met, and because there are no other circumstances the Secretary has identified for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the South Llano Springs moss.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the South Llano Springs moss is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

(i) Data sufficient to perform required analyses are lacking, or

(ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.”

When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)).

We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the South Llano Springs moss.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features essential to the conservation of the species” as 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. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkali soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

In considering whether features are essential to the conservation of the species, the Service may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the life-history needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance.

We derive the specific physical or biological features essential to the conservation of the South Llano Springs moss from studies of the species' habitat, ecology, and life history as described below. Additional information can be found in the SSA report available at http://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015. We have determined that the following physical or biological features are essential to the conservation of the South Llano Springs moss:

(1) The uninterrupted flow of spring water supplied by the Edwards-Trinity aquifer within the South Llano watershed.

(2) Relatively constant water temperature due to proximity to the point of spring outflow.

(3) A substrate of calcareous or travertine rock not more than 15 centimeters (cm) (6 inches (in)) below the surface of the water.

(4) Contaminant and sediment levels that do not exceed the tolerance limits of South Llano Springs moss and associated plant and animal species.

When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.

The features essential to the conservation of this species may require special management considerations or protection to reduce the following stressors: Reduction or loss of spring flow, erosion, and sedimentation. Management activities that could ameliorate these stressors include (but are not limited to): Prescribed fire, brush management, and grazing management to increase infiltration into the Edwards-Trinity aquifer and reduce runoff and subsequent flooding.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that meet the definition of critical habitat. While we acknowledge that the conservation of the species will depend on increasing the number of sites, we are unable at this time to delineate any specific unoccupied areas that are essential to the species' conservation. For an area to be considered essential unoccupied habitat, we must have reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one of more of the physical or biological features essential to the conservation of the species. The exact location of the Redfearn site is unknown and, although there are a number of other large springs emerging from the Edwards-Trinity aquifer, it is unknown if these sites would be biologically suitable for the species. In addition, there is uncertainty that the species could be transplanted successfully if suitable sites existed for reintroduction. Finally, the specific areas needed for conservation may depend in part on landowner willingness to restore and maintain the species' habitat in these areas.

In summary, for areas within the geographic area occupied by the species at the time of listing, we delineated critical habitat unit boundaries by evaluating the area of spring flow and submerged limestone within the geographic area occupied at the time of listing.

When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the South Llano Springs moss. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

We propose to designate as critical habitat lands that we have determined are occupied at the time of listing ( i.e., currently occupied) and contain one or more of the physical or biological features that are essential to support life-history processes of the species.

We propose one unit for designation based on one or more of the physical or biological features being present to support the South Llano Springs moss' life-history processes. This unit contains all of the identified physical or biological features and supports multiple life-history processes.

The critical habitat designation is defined by the map, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which the map is based available to the public at http://www.regulations.gov under Docket No. FWS-R2-ES-2020-0015, on our internet site at https://www.fws.gov/southwest/es/AustinTexas/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT ).

We propose to designate one unit of approximately 0.19 ha (0.48 ac) as critical habitat for the South Llano Springs moss, labeled Upper South Llano River Unit in Table 1 (below). The critical habitat area we describe below constitutes our current best assessment of areas that meet the definition of critical habitat for the South Llano Springs moss.

We present a brief description of the proposed unit, and the reasons why it meets the definition of critical habitat for the South Llano Springs moss, below.

The Upper South Llano River Unit consists of 0.19 ha (0.48 ac) within the outflow area of Seven Hundred Springs, in northeastern Edwards County, Texas. This unit extends from the points of discharge about 10 m (33 ft) downslope to the South Llano River, and spans a length of about 100 m (328 ft) along the river. The species was last documented at this site in 1979, and the unit is considered occupied. This entire unit is on privately owned land. This unit contains all of the physical or biological features essential to the conservation of the species. The physical or biological features in this unit may require special management consideration due to groundwater pumping causing loss or reduction of springflow flood-control projects; and development of areas adjacent to or within proposed critical habitat.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

We published a final rule with a revised definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq. ) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation.

Compliance with the requirements of section 7(a)(2) is documented through our issuance of:

(1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

(2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

(3) Are economically and technologically feasible, and

(4) Would, in the Service Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law) and, subsequent to the previous consultation, we have listed a new species or designated critical habitat that may be affected by the Federal action, or the action has been modified in a manner that affects the species or critical habitat in a way not considered in the previous consultation. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions.

The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and provide for the conservation of the species.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation.

Activities that the Services may, during a consultation under section 7(a)(2) of the Act, find are likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would impact the Edwards-Trinity aquifer and the springs and streams within the Hydrologic Unit Code (HUC)-12 watersheds of Paint Creek, Bluff Creek, and Little Paint Creek or within the upper South Llano River HUC-8 watershed. Depending on the activity and location, these actions could include, but are not limited to, groundwater pumping; discharge of contaminants; discharge of dredge or fill material; construction and maintenance of roads, railroads, and pipelines; and conservation and habitat management, which may include thinning of ashe juniper ( Juniperus ashei ), prescribed burning, and control of invasive aquatic plants, such as elephant ear ( Colocassia esculenta ). Potential effects of these activities include reduced spring flow at Seven Hundred Springs, increased runoff, flash flooding and scouring along the South Llano River, and contamination of the aquifer with toxic substances or excessive nutrient levels.

Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense (DoD) lands with a completed INRMP within the proposed critical habitat designation.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

The first sentence in section 4(b)(2) of the Act requires that we take into consideration the economic, national security, or other relevant impacts of designating any particular area as critical habitat. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES , above). To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.”

The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat ( e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act ( i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the South Llano Springs moss (IEc. 2020, entire).

We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a result of the designation. The screening analysis also assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species; these additional efforts may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM are what we consider our draft economic analysis (DEA) of the proposed critical habitat designation for the South Llano Springs moss; our DEA is summarized in the narrative below.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the South Llano Springs moss, first we identified, in the IEM dated January 7, 2020, probable incremental economic impacts associated with the following categories of activities: (1) Discharge permits (Environmental Protection Agency and U.S. Army Corps of Engineers); (2) stream dams and diversions, and dredge and fill of waterways (Environmental Protection Agency and U.S. Army Corps of Engineers); (3) transportation (U.S. Department of Transporation, Federal Highway Administration, and Federal Railroad Administration); and (4) conservation and habitat management (U.S. Fish and Wildlfie Service). We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If we list this species, in areas where the South Llano Springs moss is present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list this species, we also finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the South Llano Springs moss' critical habitat. Because the designation of critical habitat for the South Llano Springs moss is proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the South Llano Springs moss would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

The proposed critical habitat designation for the South Llano Springs moss includes one unit of occupied critical habitat, totaling 0.19 ha (0.48 ac), on private land. Because this area is occupied, any actions that may affect the species or its habitat would also affect designated critical habitat. As such, all activities with a Federal nexus occurring within the proposed critical habitat would be subject to section 7 consultation requirements regardless of critical habitat designation due to the presence of the listed species. Project modifications requested to avoid adverse modification are also likely to be the same as those needed to avoid jeopardy to the South Llano Springs moss. Therefore, only administrative costs are expected when considering adverse modification in section 7 consultations due to the proposed critical habitat designation. While this additional analysis would require time and resources by both the Federal action agency and the Service, we believe that these costs would be administrative in nature and would not be significant. Based upon past consultations in the area, it is conservatively estimated that three or fewer section 7 consultation actions (approximately one formal consultation, one informal consultation, and one technical assistance request) will occur annually in the proposed critical habitat area. These may include consultations with the U.S. Army Corps of Engineers, U.S. Department of Transportation, U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service for fish passage projects, riparian restoration, upland habitat restoration, prescribed fire, and brush management. The total annual incremental costs of critical habitat designation for the South Llano Springs moss are anticipated to be approximately $8,100 per year. Current development or other projects are not planned in the proposed critical habitat area. Therefore, future probable incremental economic impacts are not likely to exceed $100 million in any single year, and impacts that are concentrated in any geographic area or sector are not likely as a result of this critical habitat designation.

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts received during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation on the basis of economic impacts under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” Nevertheless, when designating critical habitat under section 4(b)(2), the Service must consider impacts on national security, including homeland security, on lands or areas not covered by section 4(a)(3)(B)(i). Accordingly, we will always consider for exclusion from the designation areas for which DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns.

We cannot, however, automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homeland-security impacts, it must provide a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If the agency provides a reasonably specific justification, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

In preparing this proposal, we have determined that the land within the proposed designation of critical habitat for the South Llano Springs moss is not owned, managed, or used by DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security. However, during the development of a final designation we will consider any additional information received through the public comment period on the impacts of the proposed designation on national security or homeland security to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs), or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the South Llano Springs moss, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Additionally, as described above, we are not proposing to exclude any particular areas on the basis of impacts to national security or economic impacts.

During the development of a final designation, we will consider any additional information received through the public comment period regarding other relevant impacts to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

Under the RFA, as amended, and as understood in the light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking only on those entities directly regulated by the rulemaking itself and, therefore, are not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, this critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, this critical habitat designation will not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that the designation of this proposed critical habitat would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we make the following finding:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule would significantly or uniquely affect small governments because the unit is very small and is entirely on private land. Small governments would be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions would not adversely affect the designated critical habitat. The designation of critical habitat imposes no obligations on State or local governments. Therefore, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the South Llano Springs moss in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for the South Llano Springs moss, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur.

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed area of designated critical habitat is presented on a map, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. We have determined that no tribal lands fall within the boundaries of the proposed designation of critical habitat for the South Llano Springs moss, so no tribal lands would be affected by the proposed designation.

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Austin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Austin Ecological Services Field Office.

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The additions read as follows: