This action, pursuant to 5 U.S.C. 553, proposes the termination of regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 946, as amended (7 CFR part 946), regulating the handling of potatoes grown in Washington. Part 946 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers operating within the production area.

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

In addition, this proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. The Agricultural Marketing Service (AMS) has determined this proposed rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to a marketing order may file with USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule proposes to terminate the Order and rules and regulations issued thereunder. The Order contains authority for the regulation of Irish potatoes grown in Washington. At a virtual meeting held on June 11, 2020, the Committee unanimously recommended termination of the Order.

Section 946.63(b) of the Order provides that USDA terminate or suspend any or all provisions of the Order when a finding is made that the Order does not tend to effectuate the declared policy of the Act. In addition, section 608c(16)(A) of the Act provides that USDA terminate or suspend the operation of any order whenever the order or any provision thereof obstructs or does not tend to effectuate the declared policy of the Act. Additionally, USDA is required to notify Congress no later than 60 days before the date on which the Order would be terminated.

Marketing Order No. 946 has been in effect since 1949 and has provided the potato industry in Washington with authority for grade, size, quality, maturity, pack, and container regulations, as well as authority for mandatory product inspection. The Committee has met regularly to evaluate the current status of the Washington potato industry and to consider recommendations for modification, suspension, or termination of the Order's regulatory requirements, which have been issued on a continuing basis. Committee meetings are open to the public and interested persons may express their views at these meetings. The USDA reviews Committee recommendations, including information provided by the Committee and from other available sources, and determines whether modification, suspension, or termination of the Order's regulatory requirements would tend to effectuate the declared policy of the Act.

Handling regulations requiring potatoes to be inspected and meet mandatory minimum grade, size, maturity, quality, pack, and container requirements were in effect for all types of potatoes until 2010. USDA temporarily suspended handling regulations for Russet type potatoes for one-year, effective July 24, 2010 (75 FR 43042), and subsequently extended that suspension indefinitely effective July 1, 2011 (76 FR 27850). Further, USDA temporarily suspended handling regulations for yellow fleshed and white type potatoes effective October 24, 2013 (78 FR 62967), also extending that suspension indefinitely effective July 1, 2014 (79 FR 26109). Lastly, USDA indefinitely suspended handling regulations for all red types of potatoes effective February 15, 2014 (79 FR 8253). The cumulative effect of these suspensions was the total suspension of handling regulations for all fresh potatoes under the Order after July 1, 2014. All suspensions listed above were conducted upon the recommendation of the Committee.

Following these regulatory suspensions, the Committee continued to levy assessments in order to maintain its functionality. The Committee felt that it should continue to fund its full operational capability in order to collect handler reports, track industry data, and preserve the authority to regulate handling, should that become relevant to the industry again sometime in the future.

The Committee met on January 22 and June 11, 2020, to discuss the current marketing environment of the Washington potato industry and the status of the Order. The Committee determined that the suspension of the Order's handling regulations have not negatively impacted the industry and that there is no longer a need for the Order. In addition, the Committee concluded that data collection and reporting functions of the Order are duplicative of the services provided to the industry by the Washington State Potato Commission and that termination of the Order would not materially impact the collection and dissemination of essential industry data.

At the meeting held via conference call on June 11, 2020, the Committee unanimously voted in favor of recommending that USDA to terminate the Order. In addition, the Committee recommended the Order's reporting and assessment requirements—the only regulatory activities still in effect—be suspended while USDA processes termination of the Order. The recommendation to suspend all remaining Order activities is a separate regulatory action from this rule. A proposed rule to suspend the Order's reporting and assessment requirements was published in the Federal Register October 13, 2020 (85 FR 64415).

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 26 handlers of Washington potatoes and approximately 250 potato producers in the production area subject to regulation by the Order.

Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $30,000,000, and small agricultural producers are defined as those having annual receipts of less than $1,000,000 (13 CFR 121.201).

According to USDA Market News, the average shipping point price for fresh Washington potatoes during the 2019 shipping season was approximately $15.79 per hundredweight. The Committee reported that 2019-2020 marketing year fresh potato shipments were 9,687,170 hundredweight. Using the average price and shipment information, the number of handlers, and assuming a normal distribution, most handlers had average annual receipts of less than $30,000,000 ($15.79 times 9,687,170 hundredweight equals $152,960,414, divided by 26 handlers equals $5,883,093 per handler). Thus, AMS concludes that the majority of handlers would meet the SBA definition of a small business.

USDA National Agricultural Statistics Service reported an average producer price of $8.20 per hundredweight for the 2019 crop. Given the number of Washington potato producers and assuming a normal distribution, average annual producer revenue is below $1,000,000 ($8.20 times 9,687,170 hundredweight equals $79,434,794, divided by 250 producers equals $317,739 per producer). Therefore, most producers of fresh Washington potatoes may be classified as small businesses under the SBA definition.

This rule proposes to terminate the Federal marketing order for Irish potatoes grown in Washington, and rules and regulations issued thereunder. The Order contains authority to regulate the handling of Irish potatoes grown in Washington. The Committee determined that regulating the handling of potatoes under the Order is no longer an effective marketing tool for the Washington potato industry. Evidence from the past 6 years of operating with suspended handling regulations showed that potatoes can be shipped from the production area in the absence of the Order's minimum requirements without a negative economic impact on the industry.

Secondly, the Committee determined that the data collection and reporting function of the Order is duplicative of the services provided to the industry by the Washington State Potato Commission. The termination of the Order would not materially impact the collection and dissemination of essential industry data to Washington State potato growers.

As such, the Committee concluded that the cost associated with the administration of the Order outweigh benefits of continuing the Order. This conclusion is based on the Committee's analysis of the 6-year period of regulatory suspension and findings that termination is not expected to negatively impact the marketing of fresh Washington potatoes because this action reduces costs to both handlers and producers. Therefore, in an action taken on June 11, 2020, the Committee unanimously recommended that USDA terminate the Order.

Section 946.63(b) of the Order provides that USDA to terminate or suspend any or all provisions of the Order when a finding is made that the Order does not tend to effectuate the declared policy of the Act. Furthermore, § 608c(16)(A) of the Act provides that USDA shall terminate or suspend the operation of any order whenever the order or provision thereof obstructs or does not tend to effectuate the declared policy of the Act. An additional provision requires that Congress be notified not later than 60 days before the date on which order would be terminated.

The Committee considered alternatives to this rule, including taking no action (which would keep the Order active but with the handling regulations suspended) and suspending all of the Order's remaining regulatory provisions but not terminating the Order. The Committee determined that neither option was a viable long-term solution, and subsequently, recommended that the Order be terminated.

This proposed rule is intended to solicit input and other available information from interested parties on whether the Order should be terminated. USDA will evaluate all available information prior to making a final action on this matter.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and Specialty Crops. Termination of the Order and reporting requirements prescribed therein, would reduce the reporting burden on Washington potato handlers by an estimated 9.7 hours per handler. Handlers would no longer be required to file forms with the Committee, which is expected to reduce industry expenses. This rule would not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Committee meetings are widely publicized throughout the Washington potato industry, and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the January 22 and June 11, 2020, meetings were public meetings, and all entities, both large and small, were able to express their views on these issues. Interested persons are invited to submit comments on this proposed rule, including regulatory and information collection impacts of this proposed action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on the proposed termination of Marketing Order 946, which regulates the handling of Irish potatoes grown in Washington. A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final action is made on this matter.

Based on the foregoing and pursuant to § 608c(16)(A) of the Act and § 946.63 of the Order, USDA is considering termination of the Order. If USDA decides to terminate the Order, trustees would be appointed to conclude and liquidate the Committee affairs and would continue in that capacity until discharged by USDA. In addition, USDA would notify Congress 60 days in advance of termination pursuant to § 608c(16)(A) of the Act.

For reasons set forth in the preamble, part 946 is proposed to be removed.

Pursuant to the Department of Energy's (DOE or the Department) statutory authority, including the Atomic Energy Act of 1954, as amended (AEA), and the Drug-Free Workplace Act of 1988, DOE promulgated a rule on July 22, 1992 (57 FR 32652), establishing minimum requirements for DOE contractor workplace substance abuse programs. The rule provided for drug testing of contractor employees in, and applicants for, testing designated positions (TDPs) at sites owned or controlled by DOE and operated under the authority of the AEA. The Department determined that possible risks of serious harm to the environment and to public health, safety, and national security justified the imposition of a uniform rule establishing a baseline workplace substance abuse program, including drug testing. The rule created a new Part 707 of Title 10 in the Code of Federal Regulations (CFR) entitled Workplace Substance Abuse Programs at DOE Sites.

On September 14, 2007, the Secretary of Energy (Secretary) issued a memorandum addressing drug testing for DOE positions that require access authorizations (security clearances). The memorandum stated the Secretary's determination that all Federal and contractor positions that require a security clearance, and all employees in positions that currently have security clearances, have the potential to significantly affect the environment, public health and safety, or national security. The Secretary determined that all such positions would be considered to be TDPs, which means they are subject to applicant, random, and for cause drug testing. The Secretary further determined, with regard to random drug testing, that employees in TDPs, other than those designated to be included in the 100 percent annual sample pool (primarily employees in the Human Reliability Program), be tested at a 30 percent annual sample rate. To implement the memorandum's provisions regarding TDPs for DOE contractor employees, the Department issued a final rule at 10 CFR part 707. See 73 FR 3861 (Jan. 23, 2008). However, the 2008 final rule contained incorrect section references. Whereas 10 CFR 707.7(a)(2) states that “positions identified in paragraph (b)(3) of this section shall provide for random tests at a rate equal to 30 percent of the total number of employees in testing designated positions for each 12-month period”, the correct reference should have been to paragraphs (b)(2) and (b)(3). Furthermore, the second sentence of 10 CFR 707.7(a)(2), 10 CFR 707.7(b)(2)(iii), and 10 CFR 707.14(e) each contain an incorrect reference to paragraph (b)(2) of 10 CFR 707.7. Since TDPs identified in paragraph (b)(2) should be tested at a 30 percent annual sample rate and do not require DOE approval for return to work after illegal drug use, the references to “(b)(2)” in the second sentence of 10 CFR 707.7(a)(2); in 10 CFR 707.7(b)(2)(iii); and in 10 CFR 707.14(e) should be removed. The proposed second sentence of 10 CFR 707.7(a)(2) would state that employees in the positions identified in paragraphs (b)(1) and (c) of this section will be subject to random testing at a rate equal to 100 percent of the total number of employees identified, and those identified in paragraphs (b)(1) and (c) of this section may be subject to additional drug tests. DOE proposes to replace the reference to (b)(2) with (c) in 10 CFR 707.7(b)(2)(iii). In accordance with the 2007 Secretarial memorandum, and because there is a continued need for these changes, DOE proposes to add a new requirement at 10 CFR 707.7(b)(2)(vi) that access authorization (security clearance) holders be tested. That proposed section would refer to all other personnel in positions that require an access authorization (security clearance), other than those identified in paragraphs (b)(1) and (c) of this section.

This proposed rule would continue to establish minimum requirements for the workplace substance abuse programs for DOE contractors and their employees, and would be promulgated pursuant to DOE's authority under section 161 of the AEA to prescribe such regulations as it deems necessary to govern any activity authorized by the AEA, including standards for the protection of health and minimization of danger to life or property (42 U.S.C. 2201(i)(3) and (p)) and section 8102 of the Drug Free Workplace Act of 1988, as amended (41 U.S.C. 8102).

This proposed rule would amend DOE's regulations on contractor workplace substance abuse programs at DOE sites to modify the random drug testing rate of contractor employees in TDPs, other than those in the 100 percent rate of testing pool, and to clarify that all positions requiring access authorizations (security clearances) are TDPs, as the Secretary established in 2007.

Currently, 10 CFR 707.7(a)(2) provides that contractor employees in positions identified in paragraphs 10 CFR 707.7(b)(2) will be subject to random testing at a rate equal to 100 percent of the total number of employees identified. The 2008 revisions to the rule incorrectly placed these TDPs in the random testing rate of 100 percent, which was never the intent of the Department. Rather, the employees identified in paragraph 10 CFR 707.7(b)(2) should have been placed in the 30 percent testing rate category and their return to work in TDPs after illegal drug use should not require DOE approval. This proposed rule would modify references to the employees identified in 10 CFR 707.7(b)(2) to be consistent with the Secretary's 2007 decision to decrease the random drug testing rate for certain TDPs. This proposed rule would also make clear that all positions requiring a security clearance are TDPs, as the Secretary had intended to establish in 2007.

This regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).

DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3281 (January 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this proposed rule is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.

DOE has determined that this proposed rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR part 1021, which applies to interpretive rulemakings that amend an existing rule or regulation that do not change the environmental effect of the rule or regulation being amended.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires that an agency prepare an initial regulatory flexibility analysis for any regulation for which a general notice of proposed rulemaking is required, unless the agency certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)).

This proposed rule would update DOE's regulations on workplace substance abuse programs for its contractor workers. This proposed rule applies only to activities conducted by DOE's contractors. The contractors who manage and operate DOE facilities would be principally responsible for implementing the rule requirements. DOE considered whether these contractors are “small businesses” as the term is defined in the Regulatory Flexibility Act (5 U.S.C. 601(3)). The Regulatory Flexibility Act's definition incorporates the definition of small business concerns in the Small Business Act, which the Small Business Administration (SBA) has developed through size standards in 13 CFR part 121. The DOE contractors subject to the proposed rule exceed the SBA's size standards for small businesses. In addition, DOE expects that any potential economic impact of this proposed rule on small businesses would be minimal because DOE contractors perform work under contracts to DOE or prime contractors at a DOE site. DOE contractors are reimbursed through their contracts for the costs of complying with workplace substance abuse program requirements. They would not, therefore, be adversely impacted by the requirements in this proposed rule. For these reasons, DOE certifies that this proposed rule, if promulgated, would not have a significant economic impact on a substantial number of small entities, and therefore, no regulatory flexibility analysis need be prepared.

This proposed rule does not impose any new collection of information subject to review and approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary Federal program. Title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate, which may result in costs to State, local or tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments.

This proposed rule does not impose a Federal mandate on State, local or tribal governments. The proposed rule would not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for the affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of the standards. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare, and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) Is a significant regulatory action under Executive Order 12866, or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This proposed rule would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

DOE will accept comments, data and information regarding this proposed rule before or until October 7, 2021. Interested individuals are invited to participate in this proceeding by submitting data, views, or arguments with respect to this proposed rule using the method described in the ADDRESSES section at the beginning of this proposed rule. To help the Department review the submitted comments, commenters are requested to reference the paragraph(s) to which they refer, e.g., 10 CFR 707.7(a)(2), where possible.

Submitting comments via https://www.regulations.gov . The https://www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE's Office of Worker Safety and Health Policy staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment. However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to https://www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through https://www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.

DOE processes submissions made through https://www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your comment.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two well-marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email to moriah.ferullo@hq.doe.gov . DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of the process for developing its regulations. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the rulemaking process.

The Secretary of Energy has approved publication of this notice of proposed rulemaking.

This document of the Department of Energy was signed on July 20, 2021, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register , the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons set out in the preamble, DOE proposes to amend part 707 of Chapter III of Title 10 of the Code of Federal Regulations as set forth below:

The revisions and addition read as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2020-0904; Project Identifier 2019-SW-041-AD” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may again revise this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this proposed AD.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this SNPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this SNPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this SNPRM. Submissions containing CBI should be sent to Hal Jensen, Aerospace Engineer, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 950 L'Enfant Plaza N SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued an SNPRM to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model EC225LP helicopters, with a left-hand side (LH) engine fuel supply (fuel supply) hose part number (P/N) 704A34416087 installed. The SNPRM published in the Federal Register on May 10, 2021 (86 FR 24783). In the SNPRM, the FAA proposed to require visually inspecting the LH fuel supply hose P/N 704A34416087 for twisting, and if needed, borescope inspecting the entire length of the inside of the fuel supply hose for twisting. Depending on the inspection results, the SNPRM would require reinstalling or removing the fuel supply hose from service. Additionally, the SNPRM would prohibit installing a certain part-numbered LH fuel supply hose on any helicopter unless that LH fuel supply hose is installed by following certain procedures described in the manufacturer's service bulletin.

The SNPRM was prompted by EASA AD 2019-0092, dated April 26, 2019 (EASA AD 2019-0092), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters (formerly Eurocopter) Model EC 225 LP helicopters, all serial numbers. EASA advised that an occurrence was reported where during an in-flight single engine power check, the LH side engine experienced a power loss. EASA stated that a subsequent investigation determined that the fuel flow to the affected engine was restricted by a twisted fuel supply hose. EASA stated that this condition, if not detected and corrected, could lead to a decrease of the LH engine power when accelerating to the power setting corresponding to OEI power, and subsequent reduced control of the helicopter.

Accordingly, EASA AD 2019-0092 required a one-time visual inspection of the fuel supply hose and depending on the inspection results, removing from service or replacing the affected part. EASA AD 2019-0092 also introduced re-installation requirements for a fuel supply hose that is being replaced or reinstalled.

Since the SNPRM was issued, EASA issued AD 2021-0156, dated July 2, 2021 (EASA AD 2021-0156), which supersedes EASA AD 2019-0092. EASA advises that Airbus Helicopters has developed an improved fuel supply hose P/N 704A34416101 and modification instructions to install the improved part. Accordingly, EASA AD 2021-0156 retains the requirements of EASA AD 2019-0092 and requires replacing the affected part with the improved part. EASA AD 2021-0156 also allows a terminating action for the inspection requirements once the improved part has been installed according to the installation requirements. Consequently, the FAA is revising the SNPRM to propose requiring installation of the improved part which would provide a terminating action for the previously proposed inspections.

The FAA received no comments on the first SNPRM or on the determination of the cost.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after determining the unsafe condition described previously is likely to exist or develop in other helicopters of these same type designs. Certain changes described above expand the scope of the first SNPRM. As a result, it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

The FAA reviewed Airbus Helicopters Alert Service Bulletin No. EC225-71A019, Revision 2, dated May 21, 2021, which specifies procedures for removing the fuel supply hose from the LH power plant, visually inspecting the fuel supply hose for twisting, and depending on inspection results, performing an endoscope inspection on the inside of the hose. This service information also specifies procedures required to install the improved fuel supply hose.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA also reviewed Airbus Helicopters Alert Service Bulletin No. EC225-71A019, Revision 1, dated February 28, 2019, which also specifies procedures for removing the fuel supply hose, visually inspecting the fuel supply hose for twisting, performing an endoscope inspection on the inside of the hose, and specifies procedures required to install a serviceable fuel supply hose.

For helicopters with a certain part-numbered LH fuel supply hose installed, this proposed AD would require visually inspecting the LH fuel supply hose for twisting, and if needed, borescope inspecting the entire length of the inside of the fuel supply hose for twisting. Depending on the inspection results, this proposed AD would require reinstalling or removing the fuel supply hose from service. Additionally, this proposed AD would prohibit installing a certain part-numbered LH fuel supply hose on any helicopter unless that LH fuel supply hose is installed by following certain procedures described in the manufacturer's service bulletin. Finally, this proposed AD would require modifying your helicopter by removing from service LH fuel supply hose P/N 704A34416087 and installing the improved LH fuel supply hose P/N 704A34416101. This modification would provide terminating action for the proposed inspection requirements.

EASA AD 2021-0156 requires compliance within 110 flight hours or 6 months, whichever occurs first after the effective date of EASA AD 2019-0092, while this proposed AD would require compliance within 110 hours time-in-service after the effective date of this AD. EASA AD 2021-0156 requires reporting information to Airbus Helicopters if the LH fuel supply hose is twisted on the inside, while this proposed AD would not. Additionally, EASA AD 2021-0156 is applicable to all serial-numbered EC225LP helicopters, whereas this proposed AD would apply to EC225LP helicopters with a certain LH fuel supply hose installed.

The FAA estimates that this AD, if adopted as proposed, would affect 28 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Visually inspecting the LH fuel supply hose for twisting would take about 1 work-hour for an estimated cost of $85 per helicopter and $2,380 for the U.S. fleet.

Replacing a LH fuel supply hose would take about 8 work-hours and parts would cost about $2,363 for an estimated replacement cost of $3043 per replacement.

Borescope inspecting the LH fuel supply hose would take about 8 work-hours for an estimated cost of $680 per helicopter.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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.

For the reasons discussed, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Monmouth Municipal Airport, Monmouth, IL, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2021-0732/Airspace Docket No. 21-AGL-29.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11E, Airspace Designations and Reporting Points, dated July 21, 2020, and effective September 15, 2020. FAA Order 7400.11E is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11E lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface to within a 6.3-mile (decreased from a 6.8-mile) radius of Monmouth Municipal Airport, Monmouth, IL.

This action is due to an airspace review caused by the decommissioning of the Galesburg VOR, which provided navigation information for the instrument procedures this airport, as part of the VOR MON Program.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

On October 9, 2021, the Chattanooga Open Water Swimmers notified the Coast Guard that it will be conducting the Swim the Suck from 9:30 a.m. to 11:30 a.m. on October 9, 2021. The swimmers will start at Suck Creek Boat Ramp and cross the river immediately and continue to swim downriver for 10 miles ending at TN River Gardens in Chattanooga, TN. The COTP has determined that potential hazards associated with the Swim the Suck swimming event will be a safety concern, and a temporary special local regulation is needed. This proposed rule is needed to the swimmerst in the navigable waters within the temporary special local regulation during the Swim the Suck event.

The purpose of this proposed rulemaking is to ensure the safety of life and the navigable waters within a 2.5 mile span of the river where the swimmers will be during the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The Coast Guard is issuing this notice of proposed rulemaking (NPRM) with a 15-day prior notice and opportunity to comment pursuant to section (b)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 553). This provision authorizes an agency to publish a rule in less than 30 days before its effective date for “good cause found and published with the rule.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for publishing this NPRM with a 15-day comment period because it is impracticable to provide a 30-day comment period because we must establish this safety zone by October 9, 2021. A 15-day comment period would allow the Coast Guard to provide for public notice and comment, but also update the proposed regulation soon enough that the length of the notice and comment period does not compromise safety.

The COTP is proposing to establish a special local regulation from 9:30 a.m. to 11:30 a.m. on October 9, 2021. The special local regulation would cover all navigable waters within 2.5 miles of the Swim the Suck event in the Tennessee River located between miles 452 and 454.5 in Chattanooga, TN. The duration of the zone is intended to ensure the safety of the swimmers in these navigable waters before, during, and after the scheduled 9:30 to 11:30 a.m. Swim the Suck event. No vessel or person would be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The proposed safety zone would last for 2 hours, after which time vessels will be able to transit freely. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation lasting 2 hours that would prohibit entry between miles 452 to 454.5 of the Tennessee River. Normally such actions are categorically excluded from further review under paragraph L[61] and L[63a] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov . To do so, go to https://www.regulations.gov , type USCG-2021-0678 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov , call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

The Coast Guard was notified by Chattajack LLC of a proposed rowing event on the Tennessee River. The event would take place on October 23, 2021 from 7 a.m. to 4 p.m. However, the requested river closure was for the first 2 hours of the race, from 7 a.m. to 9 a.m.. The COTP has determined that there is a need to protect the participants of the rowing event due to the high concentration of rowers at the start of the event between MM 462.7 and MM 465.5 on the Tennessee River. The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that there is a need to provide additional safety measures for the participants in the Chattajack rowing event, and a temporary special local regulation is needed. This propsed rule is needed to protect life and the marine environment in the navigable waters within the temporary special local regulation during the first two hours of the event.

The purpose of this proposed rulemaking is to ensure the safety of the participants in the Chattjack event within a 2.8 mile span of the river where there will be a high concentration of rowers.. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest as the temporary special local regulation has to be established by October 23, 2021 to provide for the safety of life on these navigable waters

This proposed rule would establish a special local regulation from 7 a.m. until 9 a.m. on October 23, 2021. The proposed temporary special local regulation would cover all navigable waters of the Tennessee River between miles 462.7 to 465.5. The duration of the regulated area is intended to protect the rowers in the Chattajack event during the period where there will be a high concentration of rowers. No vessel or person would be permitted to enter the special local regulation without obtaining permission from the COTP or a designated representative. Persons or vessels seeking to enter the special local regulation must request permission from the COTP or a designated representative on VHF-FM radio channel 16 or phone at 1-800-253-7465. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this special local regulation through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. The proppsed special local regulation would last for only two hours, after which time vessels will be able to transit freely. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the area, and the rule would allow vessels to seek permission to enter the area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the special local regulation may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation lasting 30 minutes that would prohibit entry within 2.8 miles of the Tennessee River. Normally such actions are categorically excluded from further review under paragraph L[61] and L[63a] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at https://www.regulations.gov . If your material cannot be submitted using https://www.regulations.gov , call or email the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:

Why we need to publish a rule. Under the Endangered Species Act, any species that is determined to be a threatened or endangered species requires critical habitat to be designated, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

What this document does. We propose the designation of critical habitat for the Miami tiger beetle, which is listed as endangered.

The basis for our action. 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.

Draft economic analysis of the proposed designation of critical habitat. In order to consider the economic impacts of critical habitat for the Miami tiger beetle, we compiled information pertaining to the potential incremental economic impacts for this proposed critical habitat designation. The information we used in determining the economic impacts of the proposed critical habitat is summarized in this proposed rule (see Consideration of Economic Impacts ) and is available at http://www.regulations.gov at Docket No. FWS-R4-ES-2021-0053 and at the Florida Ecological Services Field Office at http://ww.fws.gov/verobeach/ (see FOR FURTHER INFORMATION CONTACT ). We are soliciting public comments on the economic information provided and any other potential economic impact of the proposed designation. We will continue to reevaluate the potential economic impacts between this proposal and our final designation.

Public comment. We are seeking comments and soliciting information from the public on our proposed designation to make sure we consider the best scientific and commercial information available in developing our final designation. Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal. We will respond to and address comments received in our final rule.

We will seek peer review. We are seeking comments from independent specialists to ensure that our proposal is based on scientifically sound data and analyses. We have invited these peer reviewers to comment on our specific assumptions and conclusions in this critical habitat proposal.

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 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 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.

(2) Specific information on:

(a) The amount and distribution of Miami tiger beetle 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) Any additional areas occurring within the range of the species, in Miami-Dade County, that should be included in the designation because they (i) 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 (ii) 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.

(iv) We have identified 14 units in this proposal that were unoccupied at the time of listing that we find are essential to the conservation of the Miami tiger beetle. Please provide specific comments and information on:

• Whether each of these units are essential to the conservation of the Miami tiger beetle and should be included in critical habitat,

• whether there are specific units that are not essential and should not be included in critical habitat and why, and

• whether there are any other specific areas not currently proposed that are essential to the conservation of the Miami tiger beetle that should be included in critical habitat.

(3) Any additional areas occurring within the range of the species, i.e., South Florida, that should be included in the designation because they (a) are occupied at the time of listing and contain the physical and biological features that are essential to the conservation of the species and that may require special management considerations, or (b) are unoccupied at the time of listing and are essential for the conservation of the species.

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

(5) Information on the projected and reasonably likely impacts of climate change on Miami tiger beetle and proposed critical habitat.

(6) 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; any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, in particular, any impacts on small entities or families; and the benefits of including or excluding areas that exhibit these impacts.

(7) 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. In particular for those for which you think we should exclude any additional areas, please provide credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion.

(8) 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 final critical habitat determination

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.

Because we will consider all comments and information we receive during the comment period, our final designation may differ from this proposal. Based on the new information we receive (and any comments on that new information), 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.

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 virtually 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 December 22, 2015, we proposed to list the Miami tiger beetle as an endangered species under the Act (80 FR 79533) in the Federal Register . On October 5, 2016, we published our final determination in the Federal Register (81 FR 68985) and added the Miami tiger beetle as an endangered species to the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). At the time of our proposal we determined that critical habitat was prudent, but not determinable because we lacked specific information on the impacts of our designation. In our final listing rule, we stated we were in the process of obtaining information on the impacts of the designation. All previous Federal actions are described in detail in the proposal to list the Miami tiger beetle as an endangered species under the Act (80 FR 79533, December 22, 2015). Additional information may be found in the final rule to list the Miami tiger beetle as an endangered species (81 FR 68985, October 5, 2016).

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. Such designation also does not allow the government or public to access private lands. Such designation does not 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. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) 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; and (3) 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 based on 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 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.

As the regulatory definition of “habitat” reflects (50 CFR 424.02), 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) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. 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 the 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 those 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 final listing rule published on October 5, 2016 (81 FR 68985), there is currently imminent threat of take attributed to collection or vandalism identified under Factor B for this species. However, we have determined that the identification and mapping of critical habitat is not expected to increase any such threat because the location of the two extant populations of the Miami tiger beetle are currently known to the scientific community and public. Further, in our proposed listing determination for this species, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat, and that those threats in some way can be addressed by section 7(a)(2) consultation measures. Also, 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 the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the Miami tiger beetle.

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, we 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 Miami tiger beetle from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the Federal Register on October 5, 2016 (81 FR 68985).

The Miami tiger beetle is endemic to pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge in Miami-Dade County in South Florida. Descriptions of this habitat and its associated native plant species are provided in the proposed listing rule published on December 22, 2015 (80 FR 79533) (see Habitat section). Additional discussion may be found in the final listing rule published on October 5, 2016 (81 FR 68985). The Miami tiger beetle requires open or sparsely vegetated sandy areas within pine rockland habitat for thermoregulation (regulation of body temperature), foraging, reproduction, and larval development.

As a group, tiger beetles (Coleoptera: Cicindelidae) occupy ephemeral habitats where local extinction from habitat loss or degradation is common, so dispersal to establish new populations in distant habitat patches is a likely life history strategy for most species (Knisley 2015a, p. 10). Therefore, individuals of the species must be sufficiently abundant and occur within an appropriate dispersal distance to adjacent suitable habitat so they can repopulate areas following local extirpations. Barriers to dispersal can disrupt otherwise normal metapopulation dynamics and contribute to imperilment.

Development and agriculture have reduced pine rockland habitat by 90 percent in mainland south Florida. Pine rockland habitat decreased from approximately 183,000 ac (74,000 ha) in the early 1900s to only 3,707 ac (1,500 ha) in 2014 (Possley et al. 2014, p. 154). The largest remaining intact pine rockland (approximately 5,716 ac (2,313 ha)) is Long Pine Key in Everglades National Park (Everglades). Outside of the Everglades, less than 2 percent of pine rocklands on the Miami Rock Ridge remain, and much of what is left are small remnants scattered throughout the Miami metropolitan area, isolated from other natural areas (Herndon 1998, p. 1; URS Corporation Southern 2007, p. 1).

The extreme rarity of high-quality pine rockland habitats supporting the Miami tiger beetle elevates the importance of remnant sites that still retain some pine rockland species. We consider pine rockland habitat to be the primary habitat for the Miami tiger beetle.

We do not have specific information regarding a minimum viable population size for the Miami tiger beetle or the amount of habitat needed to sustain a viable population. Recovery plans for Cicindela puritana (Puritan tiger beetle) and C. dorsalis dorsalis (Northeastern beach tiger beetle) consider a minimum viable population size to be at least 500-1,000 adults (Hill and Knisley 1993, p. 23; Hill and Knisley 1994, p. 31). A minimum viable population size of 500 adults was estimated for the Salt Creek tiger beetle (Cicindela nevadica lincolniana) (79 FR 26014, May 6, 2014). The best available data regarding the minimum area and number of individuals necessary for a viable population for the Miami tiger beetle come from information regarding the closely related Highlands tiger beetle (Cicindelidia highlandensis); the information describes estimates of a minimum of 100 adult Highlands tiger beetles in an area of at least 2.5-5.0 ac (1.0-2.0 ha) (Knisley and Hill 2013, p. 42). This estimate is based on observations of population stability for the Highlands tiger beetle, as well as survey data and literature from other tiger beetle species (Knisley and Hill 2013, p. 42).

The Miami tiger beetle requires open or sparsely vegetated sandy areas within pine rockland habitat to meet their life-history requirements, as well as adjacent undeveloped habitat to facilitate dispersal and protect core habitat. Therefore, based on the information in the previous paragraph, we identify pine rockland habitats of at least 2.5-5.0 ac (1.0-2.0 ha) in size as a necessary physical feature for this species.

Food —Miami tiger beetles are active diurnal predators that use their keen vision to detect movement of small arthropods and run quickly to capture prey with their well-developed jaws (mandibles). Although we do not have specific information on Miami tiger beetle diets, observations by various entomologists indicate small arthropods, especially ants, are the most common prey for tiger beetles. Over 30 kinds of insects from many families have been identified as prey for tiger beetles, and scavenging is also common in some species (Knisley and Schultz 1997, pp. 39, 103; Willis 1967, pp. 196-197). Ants were the most common prey of tiger beetles in Florida (Choate 1996, p. 2). Miami tiger beetle larvae are sedentary sit-and-wait predators that capture small prey passing over or near (within a few inches (in) (centimeters (cm)) their burrows on the soil surface. Larvae prey on small arthropods, similar to adults. Alterations or reductions in the prey base through pesticide exposure could affect foraging in of Miami tiger beetles.

Water —The Miami tiger beetle requires inland sandy pine rockland habitat that has moderately drained to well-drained terrain. Rainfall varies from an annual average over 64 in (163 cm) in the northwest portion of Miami-Dade County to between 48 and 56 in (122 and 143 cm), respectively, in the rest of the county (Service 1999, p. 3-167). The water table in the Miami Rock Ridge outside of the Everglades seldom reaches the surface (Service 1999, p. 3-167). The existence of larvae in shallow permanent burrows throughout their development makes them susceptible to changes in groundwater levels. The effects of climate change and sea level rise, which predict higher intensity storms, more erratic rainfall ( i.e., alterations to the amount and seasonality and rainfall) and especially changes in water levels due to storm surge and salinization of the water table, could result in vegetation shifts that may impact the species. Based on this, we identify water (particularly appropriate hydrological regimes) as a necessary feature for the Miami tiger beetle to carry out its life processes.

Light —The Miami tiger beetle requires open areas of pine rockland habitat with ample sunlight for behavioral thermoregulation, so they can successfully perform their normal activities, such as foraging, mating, and oviposition. Vegetation encroachment and lack of adequate pine rockland management threatens the amount of light necessary for the Miami tiger beetle. We identify light as a necessary feature for the Miami tiger beetle to carry out its life processes.

Soil —The Miami tiger beetle is endemic to pine rockland habitat within the Miami Rock Ridge. The Miami Rock Ridge has oolitic limestone (composed of spherical grains packed tightly) at or very near the surface and solution holes occasionally from where the surface limestone is dissolved by organic acids. There is typically very little soil development, consisting primarily of accumulations of low-nutrient sand, marl, clayey loam, and organic debris found in solution holes, depressions, and crevices on the limestone surface (Florida Natural Areas Inventory (FNAI) 2010, p. 62). However, sandy pockets can be found at the northern end of the Miami Rock Ridge (Northern Biscayne Pinelands), beginning from approximately North Miami Beach and extending south to approximately SW 216th Street (Service 1999, p. 3-162).

These sandy substrates provide the appropriate nutrients, moisture regime, and soil chemistry necessary for Miami tiger beetle reproduction. Burrows in the sand are used for eggs and developing larvae. In addition these sandy areas support a community of insect prey that allows the species to persist. Soil compaction could impact the species and its habitat. Therefore, we identify substrates derived from calcareous limestone that provide habitat for the Miami tiger beetle to carry out its life processes to be a necessary feature for the Miami tiger beetle.

Summary —Based on the best available information, we conclude that the Miami tiger beetle requires open sandy areas in pine rockland habitat with little to no vegetation for thermoregulation, foraging, egg-laying, and larval development. We identify these characteristics as necessary physical and biological features for the species.

The life cycle of the Miami tiger beetle occurs entirely within pine rocklands. Females place a single egg into a shallow burrow dug into the soil. The egg hatches, apparently after sufficient soil moisture, and the first instar larva digs a burrow at the site of oviposition (egg-laying). Larvae are closely associated with their burrows, which provide cover and shelter for anywhere from 2 months to 1 year or more, depending on climate, food availability, and the number of cohorts per year (Knisley 2015b, p. 28). Larvae remain in their burrows until they are adults, only extending beyond the burrow entrance to subdue arthropod prey. The adult flight period for the Miami tiger beetle lasts approximately 5 months (mid-May to mid-October) (Knisley 2015b, p. 27). Both larvae and adults are visual predators and require open habitat to locate prey. Open areas with dense vegetation no longer provide suitable habitat. However, vegetation adjacent to open sandy areas may also be important, as it may provide thermal refugia for the beetles to escape from high ground temperatures (Knisley 2014, p. 1). Miami tiger beetle habitat can also be impacted from trampling, which causes soil compaction and can lead to lethal impacts to adults or larvae or impacts to their habitat.

Based on the best available information, we conclude that the Miami tiger beetle requires pine rocklands, specifically those containing open or sparsely vegetated sandy patches.

Miami tiger beetle reproduction and larval development occurs entirely within pine rocklands. Both larvae and adults occupy the same habitats—open sandy patches interspersed with vegetation. Vegetation encroachment into the open sandy habitat patches, barriers to dispersal, trampling of the surface soil, reductions in prey base, and collection of beetles are factors that may reduce the reproductive potential of the species. Therefore, based on the information above, we identify pine rockland habitats that can support the species growth, distribution, and population expansion as required for this species.

The Miami tiger beetle continues to occur in pine rockland habitats that are protected from incompatible human-use, but these areas are only partially representative of the species' historical, geographical, and ecological distribution because its range within these habitats has been reduced. The species is still found in pine rockland habitats, with open sandy areas of at least 2.5-5.0 ac (1.0-2.0 ha) in size. Representative pine rocklands are located on Federal, local, and private conservation lands that implement conservation measures benefitting the beetle.

Pine rockland is dependent on some degree of disturbance, most importantly from natural or prescribed fires (Loope and Dunevitz 1981, p. 5; Snyder et al. 2005, p. 1; Bradley and Saha 2009, p. 4; Saha et al. 2011, pp. 169-184; FNAI 2010, p. 62). These fires are a vital component in maintaining native vegetation and creating or maintaining open or sparsely vegetated sandy areas, within this ecosystem. Fires have historically burned in intervals of approximately 3 to 7 years (FNAI 2010, p. 3) typically started by lightning strikes during the frequent summer thunderstorms (FNAI 2010, p. 3). Without fire, successional climax from tropical pineland to rockland hammock is rapid, and the open areas required by the species are encroached with vegetation and leaf litter. In addition, displacement of native species by invasive, nonnative plants often occurs.

Mechanical control or thinning of pine rockland vegetation may be another means of maintaining pine rockland habitat, but it cannot entirely replace fire because it does not have the same benefits related to removal of leaf litter and nutrient cycling. In addition, it may lead to trampling of adult or larval tiger beetles. Natural and prescribed fire remains the primary and ecologically preferred method for maintaining pine rockland habitat.

Hurricanes and other significant weather events can contribute to openings in the pine rockland habitat (FNAI 2010, p. 62) needed by the Miami tiger beetle; however, they can also be a source of significant and direct risk to the species. Given the few, isolated populations of the Miami tiger beetle within a location prone to storm influences (located approximately 5 miles (8 kilometers) from the coast), the species is at substantial risk from stochastic environmental events such as hurricanes, storm surges, and other extreme weather that can affect recruitment, population growth, and other population parameters. The substantial reduction in the historical range of the beetle in the past 80 years, and the few remaining populations, make the species less resilient to impacts than when its distribution was more widespread.

Therefore, based on the information above, we identify pine rockland management through natural or prescribed fire, or other disturbance regimes that maintain pine rockland habitat, such as weather events, to be necessary for this species.

We derive the specific physical or biological features essential to the conservation of Miami tiger beetle from studies of the species' habitat, ecology, and life history. We have determined that the following physical or biological features are essential to the conservation of Miami tiger beetle:

1. South Florida pine rockland habitat of at least 2.5 ac (1 ha) in size that is maintained by natural or prescribed fire or other disturbance regimes; and

2. Open sandy areas within or directly adjacent to the south Florida pine rockland habitat with little to no vegetation that allows for or facilitates normal behavior and growth such as thermoregulation, foraging, egg-laying, larval development, and habitat connectivity, which promotes the overall distribution and expansion of the 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 threats: Vegetation encroachment of pine rockland habitat; loss of pine rockland habitat due to development that further fragments or degrades the few remaining pine rockland parcels in Miami-Dade County; collection of the species; climate change and sea level rise; pesticide exposure; and demographic and environmental stochasticity. These threats are exacerbated by having only two small populations in a restricted geographic range, making this species particularly susceptible to extinction in the foreseeable future. For a detailed discussion of threats, see Summary of Factors Affecting the Species in our proposed listing rule published in the Federal Register on December 22, 2015 (80 FR 79533). Additional information may be found in the final listing rule published on October 5, 2016 (81 FR 68985).

Some of these threats can be addressed by special management considerations or protection while others ( e.g., sea level rise, hurricanes, storm surge) are beyond the control of landowners and managers. However, even when landowners or land managers may not be able to control all the threats directly, they may be able to address the impacts of those threats.

Destruction of rock pinelands for economic development has reduced pine rockland habitat on the Miami Rock Ridge outside of the Everglades by over 98 percent, and remaining habitat in this area is highly fragmented. The Miami tiger beetle occurs on a mix of privately and publicly owned lands, only some of which are managed for conservation. Any occurrences of the beetle on private land or non-conservation public land are vulnerable to the effects of habitat degradation if natural disturbance regimes are disrupted, because the species requires active management to keep the habitat functional in the absence of such disturbances. Prolonged lack of fire in pine rockland habitat leads to vegetation encroachment into the open or sparsely vegetated sandy areas that are required by the beetle. Further development and degradation of pine rocklands increases fragmentation and decreases the conservation value of the remaining functioning pine rockland habitat. In addition, pine rocklands are expected to be further degraded and fragmented due to anticipated sea level rise, which would fully or partially inundate some pine rocklands within the Miami Rock Ridge and cause increases in the salinity of the water table and soils resulting in vegetation shifts. Also, portions of the Richmond Pine Rocklands are proposed for commercial development and some existing pine rockland areas are projected to be developed for housing as the human population grows and adjusts to changing sea levels.

Pesticides used in and around pine rockland habitat are a potential threat to the Miami tiger beetle through direct exposure to adults and larvae, secondary exposure from insect prey, overall reduction in availability of adult and larval prey, thus limiting foraging opportunities, or any combination of these factors. Based on Miami-Dade Mosquito Control's implementation of spray buffers around pine rocklands occupied by the Miami tiger beetle, mosquito control pesticides are not considered a current threat for the species. However, if these buffers were to change or Miami tiger beetles were found in habitat without restrictions of pesticide applications, then the threat of exposure would need to be reevaluated.

The features essential to the conservation of the Miami tiger beetle ( i.e., open or sparsely vegetated areas of pine rockland habitat that are at least 2.5-5.0 ac (1.0-2.0 ha) in size) may require special management considerations or protection to reduce threats. Actions that could ameliorate threats include, but are not limited to:

(1) Restoration and management of existing and potential Miami tiger beetle habitats throughout the Miami Rock Ridge using prescribed fire and control of invasive, nonnative plants;

(2) Protection of habitat adjacent to existing and new occurrences of the species to provide dispersal corridors, support the prey base, protect core habitat, and allow for appropriate habitat management;

(3) Use of pesticide spray buffers to prevent potential exposure to the species and probable limitation of foraging opportunities; and

(4) Establishment of additional populations within the Miami Rock Ridge through captive rearing and translocation of laboratory-reared individuals from wild populations.

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 proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing in 2016. We also are proposing to designate specific areas outside the geographical area 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. Although we do not have definitive information that these areas were historically or are currently occupied by the Miami tiger beetle, they are within the historical range of the species, contain remnant south Florida pine rockland habitat and the essential physical or biological features, and have been determined to be essential for the conservation of the species, as further discussed below. 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 since they have the abiotic and biotic features that currently or periodically contain the resources and conditions necessary to support one or more life processes of the Miami tiger beetle.

The historical range of the Miami tiger beetle is limited to Miami-Dade County, Florida, specifically within the Northern Biscayne Pinelands of the Miami Rock Ridge. Over 98 percent of the Miami Rock Ridge pine rocklands outside of the Everglades has been lost to development, reducing the current range of the Miami tiger beetle to the southern portion of the Northern Biscayne Pinelands, in the Richmond Pine Rocklands and Nixon Smiley Pineland Preserve.

We anticipate that recovery will require not only continued protection of the remaining extant populations and remnant pine rockland habitat but also establishment of populations in additional areas of Miami-Dade County to ensure there are adequate numbers of beetles and stable populations occurring over the entire geographic range of the Miami tiger beetle. This will help to reduce the chance that catastrophic events, such as storms, will simultaneously affect all known populations.

The two extant Miami tiger beetle populations are small and at risk of adverse effects from reduced genetic variation, an increased risk of inbreeding depression, and reduced reproductive output. In addition, the two populations are isolated from each other, decreasing the likelihood that they could be naturally reestablished if extirpation from one location would occur.

In selecting areas to propose for critical habitat designation, we used the conservation principles of the “three R's”: Resiliency, redundancy, and representation (Shaffer and Stein 2000, entire) for conserving imperiled species. Resiliency is the ability to sustain populations through the natural range of favorable and unfavorable conditions. Redundancy ensures an adequate number of sites with resilient populations such that the species has the ability to withstand catastrophic events. Representation ensures adaptive capacity within a species and allows it to respond to environmental changes. This can be facilitated by conserving not just genetic diversity, but also the species' associated habitat type variation. Implementation of this methodology has been widely accepted as a reasonable conservation strategy (Tear et al. 2005, p. 841).

In order to ensure sufficient representation for the Miami tiger beetle, we described the physical and biological features (as discussed above) and identified areas of habitat that contain at least one or more of the features to provide for reintroduction and expansion of the Miami tiger beetle. Redundancy is currently low as only two populations remain, both on remnant pine rockland sites. Redundancy can be improved through the introduction of additional populations of the Miami tiger beetle at other pine rockland sites. However, throughout the species' range, the amount of suitable remaining pine rockland is limited (low resiliency), and much of the remaining habitat may be significantly altered due to the effects of climate change over the next century. Therefore, we reviewed available sites containing pine rockland habitat within the historical range of the species and evaluated each site for its potential conservation contribution based on quality of habitat, spatial arrangement relative to the two extant populations and each other, and existing protections and management of the habitat and sites to determine additional areas that are essential for the Miami tiger beetle's conservation.

We have determined that the areas known to be occupied at the time of listing should be proposed for critical habitat designation. However, recognizing that occupied habitat alone is not adequate for the conservation of the Miami tiger beetle, we also used habitat and historical occurrence data to identify the historical range of the species and necessary habitat features to help us determine which unoccupied habitat areas are essential for the conservation of the species. To determine the general extent, location, and boundaries of critical habitat, the Service used Esri ArcGIS mapping software for mapping and calculating areas (Albers Conical Equal Area (Florida Geographic Data Library), North American Datum of 1983 (NAD 83) High Accuracy Reference Network (HARN)) along with the following spatial data layers:

(1) Historical and current records of Miami tiger beetle occurrences and distributions found in publications, reports, personal communications, and associated voucher specimens housed at museums and private collections (Knisley 2015b, entire);

(2) Geographic information system (GIS) data showing the location and extent of documented occurrences of pine rockland habitat (Cooperative Land Cover Version 3.3. FWC and FNAI, 2018);

(3) Aerial imagery (Esri ArcGIS online basemap World Imagery. South Florida Water Management District GIS Services, Earthstar Geographics, Miami-Dade County, Florida Department of Environmental Protection, Esri, HERE, Garmin, SafeGraph, Ministry of Economy, Trade, and Industry of Japan and the U.S. National Aeronautics and Space Administration, U.S. Geological Survey, Environmental Protection Agency, National Park Service, U.S. Department of Agriculture (USDA). 2019.; and

(4) GIS data depicting soils and to determine the presence of physical or biological features (U.S. Department of Agriculture 2020).

When designating critical habitat, we consider future recovery efforts and conservation of the species. We have determined that all currently known occupied habitat should be proposed for critical habitat designation because any further degradation or loss of the extant populations or occupied habitat would increase the Miami tiger beetle's susceptibility to local extirpation and ultimately extinction. The species occurs in two populations, Richmond and Nixon Smiley, separated from each other by approximately 3.1 mi (5 km) of urban development.

We are also including pine rockland habitat within the Richmond Pine Rocklands directly adjacent to sites with documented occurrences in the Richmond population. Due to their proximity to documented occurrences, the continuity of habitat, and presence of all of the physical or biological features, we have included these acres as part of the occupied habitat complex for this unit in accordance with 50 CFR 424.12(d). Additionally, we have determined these areas are essential for the conservation of the species because they protect the occupied sites within the Richmond population, provide dispersal corridors for the Richmond population, provide potential habitat for population expansion, and support prey-base populations. These areas are important to ensure redundancy for the species, and they improve the species' viability.

Lastly, we are including other suitable or potentially suitable pine rockland fragments outside of the Richmond Pine Rocklands and Nixon Smiley Pineland Preserve that are located within the beetle's historical range along the Northern Biscayne Pinelands of the Miami Rock Ridge but are not known to be currently occupied by the species. With only two known occupied areas, we have determined that these areas are essential for the conservation of the species because they will enable the establishment of new populations in additional areas that more closely approximate its historical distribution. Establishment of new populations will help ensure that there are adequate numbers of beetles in multiple populations over a wide geographic area, so that catastrophic events, such as storms, would be less likely to simultaneously affect all known populations.

The best available data regarding the minimum area and number of individuals necessary for a viable population come from information regarding the Highlands tiger beetle; the information describes estimates of a minimum of 100 adult Highlands tiger beetles in an area of at least 2.5-5.0 ac (1.0-2.0 ha) (Knisley and Hill 2013, p. 42). This estimate is based on observations of population stability for the Highlands tiger beetle, as well as survey data and literature from other tiger beetle species. From the remaining suitable or potentially suitable pine rockland fragments that were delineated for the Miami Rock Ridge, we excluded fragments below the 2.5-ac (1.0-ha) minimum area for a viable population. As such we evaluated the remaining unoccupied pine rockland habitat within and directly adjacent to the Northern Biscayne Pinelands of the Miami Rock Ridge to identify remnant pine rocklands with the highest quality habitat potential ( i.e., actively managed to support pine rocklands) and of sufficient size (patches at least 2.5 ac (1.0 ha)) to provide for the conservation of the Miami tiger beetle.

The two occupied critical habitat units were delineated around the only remaining extant Miami tiger beetle populations. They include the mapped extent of the populations that contain the physical or biological features essential to the conservation of the Miami tiger beetle. The two occupied units account for approximately 1,572 ac (636 ha) or 80 percent of the proposed designation of critical habitat for the Miami tiger beetle.

The delineation of proposed critical habitat included the area containing the extant populations based on occurrence records as well as all suitable habitat directly adjacent to those areas to allow for the continued protection and management of pine rockland habitat and to meet the needs of the species. Given the Miami tiger beetle's dependence on disturbance ( i.e., fires, storms, or mechanical treatments) to maintain optimal habitat, the amount and location of optimal habitat is temporally and spatially dynamic.

The Miami tiger beetle has been extirpated from its type-locality (the place where the species was first discovered) in North Miami and is historically unknown from any other locations. In addition to including areas of the two extant populations (Richmond Pine Rocklands and Nixon Smiley Pineland Preserve) in proposed critical habitat, we are proposing 14 unoccupied critical habitat units that we have determined are essential to the conservation of the Miami tiger beetle. These areas contain pine rockland habitat within the historical range in the Northern Biscayne Pinelands on the Miami Rock Ridge and encompass approximately 405 ac (164 ha) or 20 percent of proposed critical habitat. As discussed above, we have determined that recovery requires additional populations be established in high quality pine rockland habitat that is protected and actively managed. Following a review of available sites containing pine rockland habitat within the historical range of the species, we evaluated each site for its potential conservation contribution based on quality of habitat, spatial arrangement relative to the two extant populations and each other, and existing protections and management. This review led to our determination that the most viable sites for introduction and conservation of the Miami tiger beetle are the 14 unoccupied sites identified in this proposal. As a result, we concluded that these 14 sites, which each contain all of the physical or biological features, have the highest probability for the conservation of the species and are essential to the conservation of the species. Thus, we are proposing them as critical habitat for the Miami tiger beetle.

We used the best available data to delineate existing pine rockland habitat units that are of sufficient size to support introduced populations of Miami tiger beetles and that are spatially configured to support metapopulation dynamics and to minimize adverse impacts from stochastic events. In identifying these areas, we considered the following refining criteria:

(1) Areas of sufficient size to support ecosystem processes for populations of the Miami tiger beetle. The best available information indicates that appropriately sized units should be at a minimum 2.5-5.0 ac (1.0-2.0 ha). Large contiguous parcels of habitat are more likely to be resilient to ecological processes of disturbance and are more likely to support a viable population of the Miami tiger beetle. The unoccupied areas selected ranged from 7 ac (3 ha) in size to 89 ac (36 ha).

(2) Areas to maintain connectivity of habitat to allow for population expansion. Isolation of habitat can prevent recolonization of the Miami tiger beetle and result in local extirpation and ultimately extinction. To ameliorate the dangers associated with small populations or limited distributions, we have identified areas of critical habitat that will allow for the natural expansion of populations or support reintroductions.

(3) Restored pine rockland habitats may allow the Miami tiger beetle to disperse, recolonize, or expand from areas already occupied by the beetle. These restored areas generally are habitats within or adjacent to pine rocklands that have been affected by natural or anthropogenic factors but retain the essential physical or biological features that make them suitable for the beetle. These areas would help offset the anticipated loss and degradation of habitat occurring or expected from natural succession in the absence of disturbance, effects of climate change (such as sea level rise), or development.

In summary, for areas within the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:

(1) Evaluated habitat suitability of pine rockland habitat within the geographical area occupied at the time of listing (current), and selected those areas that contain all of the physical or biological features to support life-history functions essential for conservation of the species;

(2) Identified open sandy areas directly adjacent to occupied areas and with little to no vegetation that allow for or facilitate normal behavior and growth of the Miami tiger beetle, such as thermoregulation, foraging, egg-laying, larval development, and habitat connectivity, and which promote the overall distribution and expansion of the species.

The result was the inclusion of two units of critical habitat occupied by the Miami tiger beetle. Approximately 1,052 ac (426 ha) or 73 percent of the occupied units are existing critical habitat for other species.

For areas outside the geographical area occupied by the species at the time of listing, we delineated critical habitat unit boundaries using the following criteria:

(1) Areas with pine rockland habitat that contained the essential physical or biological features and were of sufficient size to support introduced populations of Miami tiger beetles;

(2) Areas that are spatially configured to support metapopulation dynamics, minimize adverse impacts from stochastic events, and maintain representation of the historical range of the species.

The result was the inclusion of 14 units of critical habitat not occupied by the Miami tiger beetle at the time of listing. These 14 units encompass approximately 405 ac (164 ha) or 20 percent of proposed critical habitat. All 14 units are either publicly owned or privately owned conservation lands ( i.e., Porter Pineland Preserve, which is owned and managed by the Audubon Society).

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 Miami tiger beetle. 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 essential physical or biological features in the adjacent critical habitat.

We are proposing for designation as critical habitat those lands that we have determined are occupied at the time of listing and which contain the physical or biological features to support life-history processes essential to the conservation of the species, and lands outside of the geographical area occupied at the time of listing that we have determined are essential for the conservation of the Miami tiger beetle.

The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the rule portion. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make shapefiles of the critical habitat units available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2021-0053, and on our internet site www.fws.gov/verobeach/.

We are proposing 16 units as critical habitat for the Miami tiger beetle. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Miami tiger beetle. Table 1 shows each critical habitat unit, its occupancy by the Miami tiger beetle at the time it was listed under the Act, and the extent of overlap with critical habitat previously designated for other federally listed species.

Approximately 73 percent (1,440 ac (583 ha)) of the critical habitat proposed for the Miami tiger beetle overlaps with currently designated Federal critical habitat for the Carter's small-flowered flax (Linum carteri var. carteri), the Florida brickell-bush (Brickellia mosieri), Bartram's scrub-hairstreak butterfly (Strymon acis bartrami), and the Florida leafwing butterfly (Anaea troglodyta floridalis). Further, approximately 4 percent (17 ac (7 ha)) of unoccupied critical habitat proposed is unique to the Miami tiger beetle, i.e., does not overlap with existing designated Federal critical habitat. Please refer to Table 1 above for the area of overlap with other federally designated critical habitat and to specific unit descriptions below for which currently designated Federal critical habitat overlaps with each proposed critical habitat unit for the Miami tiger beetle.

Tables 2 and 3 below show the approximate land ownership for each critical habitat unit and the proportion of critical habitat for each landownership category, respectively. All but 1 ac (0.6 ha) of the area proposed for designation is either publicly or privately owned for conservation.

In addition, over half of the proposed critical habitat for the Miami tiger beetle (1,219 ac (493 ha) or 62 percent) is under a Miami-Dade County Natural Forest Communities (NFC) designation. Miami-Dade County's NFC designation enacts regulations on habitat alterations to minimize damage to and protect environmentally sensitive forest lands, including pine rocklands. NFC regulations are designed to prevent clearing or destruction of native vegetation within preserved areas. Please see the unit descriptions below for the specific amount of each unit that is enrolled in the NFC program.

We present brief descriptions of each proposed critical habitat units and the justification for why each meets the definition of critical habitat for the Miami tiger beetle, below.

Unit 1 consists of approximately 10 ac (4 ha) of State-owned land in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential for the conservation of the species and is protected and actively managed to maintain a healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned or managed by Miami-Dade County, including this unit. These actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 1 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 8 ac (3 ha) or 80 percent of Unit 1 is enrolled in the NFC program.

Unit 2 consists of approximately 39 ac (16 ha) of State (38 ac (15 ha)) and county (1 ac (<1 ha)) owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remnant pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species identified for the Miami tiger beetle and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 1 ac (<1 ha) of Unit 2 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 28 ac (11 ha) or 72 percent of Unit 2 are enrolled in the NFC program.

Unit 3 consists of approximately 16 ac (6 ha) of State-owned land in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential for the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned or managed by Miami-Dade County, including this unit. The actions help improve habitat that could support the Miami tiger beetle.

All but 1 ac (<1 ha) of Unit 3 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 15 ac (6 ha) or 94 percent of Unit 3 is enrolled in the NFC program.

Unit 4 consists of approximately 11 ac (5 ha) of county-owned land in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 4 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 11 ac (4 ha) or 100 percent of Unit 4 is enrolled in the NFC program.

Unit 5 consists of approximately 89 ac (36 ha) of county-owned land in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 5 ac (2 ha) of Unit 5 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 84 ac (34 ha) or 94 percent of Unit 5 is enrolled in the NFC program.

Unit 6 consists of approximately 25 ac (10 ha) of State (20 ac (8 ha)) and county (5 ac (2 ha)) owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 3 ac (1 ha) of Unit 6 overlaps with designated critical habitat for Bartram's scrub-hairstreak butterfly, Carter's small-flowered flax, and Florida brickell-bush. Additionally, approximately 18 ac (7 ha) or 72 percent of Unit 6 is enrolled in the NFC program.

Unit 7 consists of approximately 48 ac (19 ha) of State-owned land in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle. The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned or managed by Miami-Dade County, including this unit. The actions help improve habitat that could support the Miami tiger beetle.

All but 1 ac (<1 ha) of Unit 7 overlaps with designated critical habitat for Bartram's scrub-hairstreak butterfly, Carter's small-flowered flax, and Florida brickell-bush. Additionally, approximately 32 ac (13 ha) or 67 percent of Unit 7 is enrolled in the NFC program.

Unit 8 consists of approximately 17 ac (7 ha) of county lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat in the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 8 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 14 ac (6 ha) or 82 percent of Unit 8 is enrolled in the NFC program.

Unit 9 consists of approximately 20 ac (8 ha) of county-owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 1 ac (<1 ha) of Unit 9 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 19 ac (8 ha) or 95 percent of Unit 9 is enrolled in the NFC program.

Unit 10 consists of approximately 21 ac (8 ha) of State-owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned or managed by Miami-Dade County, including this unit. The actions help improve habitat that could support the Miami tiger beetle.

All but 2 ac (<1 ha) of Unit 10 overlaps with designated critical habitat for Bartram's scrub-hairstreak butterfly, Carter's small-flowered flax, and Florida brickell-bush. Additionally, approximately 18 ac (7 ha) or 86 percent of Unit 10 is enrolled in the NFC program.

Unit 11 consists of approximately 8 ac (3 ha) of county-owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat within the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 11 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 7 ac (3 ha) or 86 percent of Unit 11 is enrolled in the NFC program.

Unit 12 consists of approximately 117 ac (47 ha) of county-owned lands in Miami-Dade County. This unit was occupied at the time of listing and is currently occupied by the Miami tiger beetle. While surveys of this site have been inconsistent in level of effort, timing, and frequency, they have primarily focused on the habitat previously known to be occupied: The open, sandy areas on the western half of the property.

This occupied habitat contains all of the physical or biological features, including pine rockland habitat (of sufficient size) with open or sparsely vegetated sandy areas that allow for thermoregulation, foraging, egg-laying, larval development, species dispersal, and population expansion, and natural or artificial disturbance regimes. The physical or biological features in this unit are protected and actively managed to maintain healthy pine rockland habitat. They may require additional special management considerations or protection to address threats of habitat loss and fragmentation, inadequate fire management, vegetation encroachment, collection, small population size, and sea level rise. In some cases, there are management actions being implemented to reduce some of these threats, and continued coordination with our partners and landowners are ongoing to implement needed actions. This unit is occupied by one of two extant populations of Miami tiger beetle, contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 2 ac (<1 ha) of Unit 12 overlaps with designated critical habitat for Bartram's scrub-hairstreak butterfly, Carter's small-flowered flax, and Florida brickell-bush. Additionally, approximately 112 ac (47 ha) or 96 percent of Unit 12 is enrolled in the NFC program.

Unit 13 consists of approximately 81 ac (33 ha) of State (76 ac (31 ha)) and county (5 ac (2 ha)) owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat in the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

All but 4 ac (1 ha) of Unit 13 overlaps with designated critical habitat for Bartram's scrub-hairstreak butterfly, Carter's small-flowered flax, and Florida brickell-bush. Additionally, approximately 62 ac (25 ha) or 77 percent of Unit 13 is enrolled in the NFC program.

Unit 14 consists of approximately 1,455 ac (589 ha) in Miami-Dade County. Landownership in this unit is split among Federal (488 ac (198 ha)), county (844 ac (341 ha)), and private (123 ac (50 ha)). This unit is currently occupied by the Miami tiger beetle, which has been documented from four contiguous parcels within the Richmond Pine Rocklands: Zoo Miami Pine Rockland Preserve (Zoo Miami), Larry and Penny Thompson Park, U.S. Coast Guard, and University of Miami's Center for Southeastern Tropical Advanced Remote Sensing property (CSTARS). Miami tiger beetles within the four contiguous occupied parcels in the Richmond population are within close proximity to each other with connecting patches of habitat with few or no barriers between parcels. Given the contiguous habitat with few barriers to dispersal, frequent adult movement among individuals is likely, and the occupied Richmond parcels probably represent a single population (Knisley 2015b, p. 10).

The unit also includes areas of pine rockland habitat containing all of the physical and biological features essential to the conservation of the species that are adjacent to sites with documented occurrences. The complex, including these parcels, contains all of the essential features (physical or biological features)—including pine rockland habitat (of sufficient size) with open or sparsely vegetated sandy areas that allow for thermoregulation, foraging, egg-laying, larval development, species dispersal, and population expansion, and natural or artificial disturbance regimes. The complex as a whole protects the occupied sites within the Richmond population, provides dispersal corridors for the Richmond population, provides potential habitat for population expansion, and supports prey-base populations. Being only one of two sites known to be currently occupied by the Miami tiger beetle, this complex is important to the Miami tiger beetle to ensure redundancy for the species and to contribute to the species' viability.

The physical or biological features in this unit may require additional special management considerations or protection to address threats of habitat loss and fragmentation, inadequate fire management, vegetation encroachment, collection, small population size, and sea level rise. In some cases, these threats are being addressed or coordinated with our partners and landowners to implement needed actions.

Approximately 776 ac (314 ha) or 53 percent of Unit 14 is enrolled in the NFC program. In addition, of the approximately 1,455 ac (589 ha) of critical habitat proposed for the Miami tiger beetle in Unit 14, about 937 ac (379 ha) overlap with designated critical habitat for Bartram's scrub-hairstreak butterfly, Florida leafwing butterfly, Carter's small-flowered flax, and Florida brickell-bush. Therefore, approximately 518 ac (210 ha) of proposed critical habitat in Unit 14 is unique to the Miami tiger beetle.

Unit 15 consists of approximately 14 ac (6 ha) of county-owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat in the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Natural Areas Management Division of Miami-Dade County Parks, Recreation and Open Spaces Department conducts nonnative species control, prescribed fire, and mechanical vegetation treatments on lands owned by Miami-Dade County. The actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 15 overlaps with designated critical habitat for Florida brickell-bush. Additionally, approximately 9 ac (4 ha) or 64 percent of Unit 15 is enrolled in the NFC program.

Unit 16 consists of approximately 7 ac (3 ha) of privately owned lands in Miami-Dade County. The unit is within the historical range of the Miami tiger beetle, although we are not aware of any records of historical occupancy of the unit. This unit includes remaining pine rockland habitat in the Northern Biscayne Pinelands of the Miami Rock Ridge. This unit includes all the physical or biological features essential to the conservation of the species and is protected and actively managed to maintain healthy pine rockland habitat.

This unit is currently unoccupied by the Miami tiger beetle but is essential for the conservation of the species because it serves to protect habitat needed to recover the species, reestablish wild populations within the historical range of the species, and maintain populations throughout the historical distribution of the species in Miami-Dade County. It also provides habitat for recovery in the case of stochastic events, should the Miami tiger beetle be extirpated from one of its current locations. Given this unit contains essential habitat features (all of the physical or biological features), is protected and actively managed, and has an appropriate spatial distribution falling within the range of the species, we are reasonably certain that the lands and habitat within this unit will contribute to the conservation of the Miami tiger beetle.

The Audubon Society, with the help of volunteers and other conservation groups, conduct nonnative species control, prescribed fire, and mechanical vegetation treatments on this privately owned parcel. The actions help improve habitat that could support the Miami tiger beetle.

The entirety of Unit 16 overlaps with designated critical habitat for Carter's small-flowered flax and Florida brickell-bush. Additionally, approximately 6 ac (2 ha) or 86 percent of Unit 16 is enrolled in the NFC program.

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 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 Corps 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, if subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. 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 Service may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat, or activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Miami tiger beetle. These activities include, but are not limited to:

(1) Actions that would significantly alter the hydrology or substrate, such as ditching or filling. Such activities may include, but are not limited to, road construction or maintenance, and residential, commercial, or recreational development.

(2) Actions that would significantly alter vegetation structure or composition, such as preventing the ability to conduct prescribed burns, residential and commercial development, and recreational facilities and trails.

(3) Actions that would introduce chemical pesticides into the pine rockland ecosystem in a manner that impacts the Miami tiger beetle. Such activities may include but are not limited to mosquito control and agricultural pesticide applications.

(4) Actions that would introduce nonnative species that would significantly alter vegetation structure or composition or the life history of the Miami tiger beetle. Such activities may include, but are not limited to, release of parasitic or predator species (flies or wasps) for use in agriculture-based biological control programs.

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 (DoD), 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.” No DoD lands with a completed INRMP are within the proposed critical habitat designation.

We are not aware of any DoD lands within the boundaries of the proposed designation or that would be directly affected by the designation if finalized as proposed. We have determined that the Corps, a branch of the DoD, retains ownership over a 121-ac (49-ha) parcel proposed for designation of critical habitat in Unit 14; of this parcel, 85 ac (34 ha) are forested but not managed for preservation of natural resources. These Corps lands are not considered a military instillation under the Sikes Act subject to an INRMP, so they do not meet the standards of section 4(a)(3)(B)(i) of the Act. As a result, we are not exempting any lands from this designation of critical habitat for the Miami tiger beetle pursuant to section 4(a)(3)(B)(i) of the Act.

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, 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. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. We have not proposed any areas for exclusion from critical habitat for the Miami tiger beetle. 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 obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed critical habitat designation, which is available for review and comment (see ADDRESSES ). 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. 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). Therefore, the baseline 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 Miami tiger beetle (IEc 2021, 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 the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs ( i.e., absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already 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.

If the proposed critical habitat designation contains any unoccupied units, the screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. 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 the proposed critical habitat designation contains any unoccupied units, the screening analysis assesses whether units are unoccupied because they require additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis of the proposed critical habitat designation for the Miami tiger beetle and is summarized in the narrative below.

Executive Orders (E.O.) 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 Miami tiger beetle, first we identified, in the IEM dated April 28, 2021, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (U.S. Coast Guard, Corps, FBP, and NOAA); (2) roadway and bridge construction; (3) agriculture; (4) dredging; (5) storage and distribution of chemical pollutants; (6) commercial or residential development; and (7) recreation (including construction of recreation infrastructure). 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. In areas where the Miami tiger beetle is present, Federal agencies already are 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 we finalize this proposed critical habitat designation, our consultation would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

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 Miami tiger beetle's critical habitat. Because the designation of critical habitat for the Miami tiger beetle is being proposed several years following the listing of the species, data, such as from consultation history, is available to help us discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. The following specific circumstances 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 Miami tiger beetle would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between protections or economic impacts associated with listing 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 Miami tiger beetle totals approximately 1,977 ac (800 ha) in 16 units in Miami-Dade County, Florida. Two of the 16 units are currently occupied by the Miami tiger beetle; the remaining 14 units are within the beetle's historical range but were not occupied at the time the species was listed in 2016 and are not known to be currently occupied. As previously stated, the 14 unoccupied critical habitat units encompass approximately 405 ac (164 ha) or 20 percent of proposed critical habitat for the Miami tiger beetle, of which only 17 ac (7 ha) or 4 percent are not currently designated as critical habitat for other federally listed species. Tables 1 through 3, above, set forth specific information concerning each unit, including occupancy, land ownership, and extent of overlap with existing Federal critical habitat (see Proposed Critical Habitat Designation).

Because the majority (80 percent) of the area designated is occupied, most 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 Miami tiger beetle. Therefore, only administrative costs are expected in approximately 80 percent of the proposed critical habitat designation. While the analysis for adverse modification of critical habitat will 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.

The remaining designated area is unoccupied and mostly (96 percent of the unoccupied area) overlaps with existing designated critical habitat for other pine rockland habitat species, including Carter's small-flowered flax, Florida brickell-bush, Bartram's scrub hairstreak butterfly, and the Florida leafwing butterfly. As a result, consultations for other listed species and critical habitats are likely to have already resulted in protections absent the critical habitat designation for the Miami tiger beetle, and recommendations for those species are anticipated to be sufficient to protect the Miami tiger beetle critical habitat. Further, any consultation requirements for listed species and resulting costs would be at least partially split among each overlapped species with not one species being the sole source of the entire costs. Accordingly, in these unoccupied areas, any conservation efforts or associated probable impacts would be considered incremental effects attributed to the critical habitat designation.

The probable incremental economic impacts of the Miami tiger beetle critical habitat designation are expected to be limited to additional administrative effort as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This is due to two factors: (1) A large portion of proposed critical habitat is considered to be occupied by the species (80 percent), and incremental economic impacts of critical habitat designation, other than administrative costs, are unlikely; and (2) in proposed areas that are not occupied by the Miami tiger beetle (20 percent), nearly all is designated critical habitat for other pine rockland species and the designation is not likely to result in additional or different project modifications from those that would already be anticipated absent the Miami tiger beetle designation. Because of the relatively small size of the critical habitat designation, the volume of lands that are State, county, or privately owned, and the substantial amount of lands that are already being managed for conservation, the numbers of section 7 consultations expected annually are modest (approximately 2 formal, 12 informal, and 14 technical assistance efforts annually across the designation).

Some potential private property value effects are possible due to public perception of impacts to private lands. The designation of critical habitat may cause some developers or landowners to perceive that private lands will be subject to use restrictions or litigation from third parties, resulting in costs. However, less than seven percent of the proposed critical habitat designation is privately owned land, leading to nominal incremental costs arising from changes in public perception of lands included in the designation.

Critical habitat designation for the Miami tiger beetle is unlikely to generate costs or benefits exceeding $100 million in a single year. Therefore, this rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866. In fact, the total annual incremental costs of critical habitat designation for the Miami tiger beetle is anticipated to be less than $48,000 per year, and economic benefits are also anticipated to be small.

As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as on all aspects of the proposed rule and our amended required determinations. During the development of a final designation, we will consider the information presented in the draft economic analysis and any additional information on economic impacts we receive 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 or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also exercise the discretion to evaluate any other particular areas for possible exclusion. Furthermore, when we conduct an exclusion analysis based on impacts identified by experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Service's expertise, we will give weight to those impacts consistent with the expert or firsthand information 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.

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), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland security concerns, or we have otherwise identified national security or homeland-security impacts from designating particular areas as critical habitat, we generally have reason to consider excluding those areas.

However, we cannot 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, we must conduct an exclusion analysis if the Federal requester provides credible information, including 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 we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, 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 section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion.

We have determined that some lands within Unit 14 of the proposed designation of critical habitat for the Miami tiger beetle are owned, managed, or used by the U.S. Coast Guard, which is part of the DHS.

As discussed in the Richmond Pine Rocklands (Unit 14) description above, the U.S. Coast Guard property is separated into two main areas: The COMMSTA Miami and the CEU. The COMMSTA houses transmitting and receiving antennas. The CEU plans and executes projects at regional shore facilities, such as construction and post-disaster assessments.

The U.S. Coast Guard parcel contains approximately 100 ac (40 ha) of standing pine rocklands. The remainder of the site, outside of the developed areas, is made up of scraped pine rocklands that are mowed three to four times per year for maintenance of a communications antenna field. While disturbed, this scraped area maintains sand substrate and many native pine rockland species, including documented occurrences of the Miami tiger beetle. The U.S. Coast Guard parcel has a draft management plan that includes management of pine rockland habitats, including vegetation control and prescribed fire and protection of lands from further development or degradation. In addition, the standing pine rockland area is partially managed through an active recovery grant to the Institute for Regional Conservation. Under this grant, up to 39 ac (16 ha) of standing pine rocklands will undergo invasive vegetation control.

Based on a review of the specific mission of the U.S. Coast Guard facility in conjunction with the measures and efforts set forth in the draft management plan to preserve pine rockland habitat and protect sensitive and listed species, we have made a preliminary determination that it is unlikely that the critical habitat, if finalized as proposed, would negatively impact the facility or its operations. As a result, we do not anticipate any impact on national security. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90.

As discussed above, we have determined that the Corps, a branch of the DoD, retains ownership over a 121-ac (49-ha)-parcel in Unit 14 of the proposed designation of critical habitat for the Miami tiger beetle. Over 85-ac (34-ha) of this parcel are forested but not managed for preservation of natural resources. The Corps does not have any specific management plan for the Miami tiger beetle or its habitat covering these lands. Activities conducted on this site are unknown, but we do not anticipate any impact on national security. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas 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 discussed above. Other relevant impacts may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. To identify other relevant impacts that may affect the exclusion analysis, 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 may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-to-government relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, public-health, community-interest, environmental, or social impacts that might occur because of the designation.

When analyzing other relevant impacts of including a particular area in a designation of critical habitat, we weigh those impacts relative to the conservation value of the particular area. To determine the conservation value of designating a particular area, we consider a number of factors, including, but not limited to, the additional regulatory benefits that the area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus, the educational benefits of mapping essential habitat for recovery of the listed species, and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat.

In the case of Miami tiger beetle, the benefits of critical habitat include public awareness of the presence of Miami tiger beetle and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for Miami tiger beetle due to protection from destruction or adverse modification of critical habitat. Continued implementation of an ongoing management plan that provides conservation equal to or more than the protections that result from a critical habitat designation would reduce those benefits of including that specific area in the critical habitat designation.

We evaluate the existence of a conservation plan when considering the benefits of inclusion. We consider a variety of factors, including, but not limited to, whether the plan is finalized; how it provides for the conservation of the essential physical or biological features; whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future; whether the conservation strategies in the plan are likely to be effective; and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

HCPs for incidental take permits under section 10(a)(1)(B) of the Act provide for partnerships with non-Federal entities to minimize and mitigate impacts to listed species and their habitat. In some cases, HCP permittees agree to do more for the conservation of the species and their habitats on private lands than designation of critical habitat would provide alone. We place great value on the partnerships that are developed during the preparation and implementation of HCPs.

CCAAs and SHAs are voluntary agreements designed to conserve candidate and listed species, respectively, on non-Federal lands. In exchange for actions that contribute to the conservation of species on non-Federal lands, participating property owners are covered by an “enhancement of survival” permit under section 10(a)(1)(A) of the Act, which authorizes incidental take of the covered species that may result from implementation of conservation actions, specific land uses, and, in the case of SHAs, the option to return to a baseline condition under the agreements. The Service also provides enrollees assurances that we will not impose further land-, water-, or resource-use restrictions, or require additional commitments of land, water, or finances, beyond those agreed to in the agreements.

When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans such as CCAAs, SHAs, and HCPs, we consider the following three factors:

(i) Whether the permittee is properly implementing the conservation plan or agreement;

(ii) Whether the species for which critical habitat is being designated is a covered species in the conservation plan or agreement; and

(iii) Whether the conservation plan or agreement specifically addresses the habitat of the species for which critical habitat is being designated and meets the conservation needs of the species in the planning area.

The proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of Miami tiger beetle: Coral Reef Commons Habitat Conservation Plan.

In preparing this proposal, we have determined that lands associated with the Coral Reef Commons HCP within the Richmond Pine Rocklands (Unit 14) are included within the boundaries of the proposed critical habitat.

As discussed in the Richmond Pine Rocklands (Unit 14) description above, Coral Reef Commons is a mixed-use community, which consists of 900 apartments, retail stores, restaurants, and parking. In 2017, an HCP and associated permit under section 10 of the Act was developed and issued for the Coral Reef Commons development. As part of the HCP and permit, an approximately 51-ac (21-ha) onsite preserve (same as the area for proposed critical habitat designation) was established under a conservation encumbrance that will be managed in perpetuity for pine rockland habitat and sensitive and listed species, including the Miami tiger beetle. In addition, an additional approximately 51-ac (21-ha) of the CSTARS site (discussed above) is an offsite mitigation area for Coral Reef Commons. Both the onsite preserve and the offsite mitigation area are being managed to maintain healthy pine rockland habitat through the use of invasive, exotic plant management, mechanical treatment, and prescribed fire, addressing both the habitat and conservation needs of the species. Since initiating the Coral Reef Commons HCP, pine rockland restoration efforts have been conducted within all of the management units in both the onsite preserve and the offsite mitigation area. A second round of prescribed fire began in February 2021. Currently, the onsite preserve meets or exceeds the success criteria described for proper implementation of the HCP.

Critical habitat within Unit 14 that is associated with the Coral Reef Commons HCP is limited to the onsite preserve and offsite mitigation area. Based on our review of the HCP and proposed critical habitat for the Miami tiger beetle, we do not anticipate requesting any additional conservation measures for the species beyond those that are currently in place. The Coral Reef Commons HCP covers the Miami tiger beetle; addresses the specific habitat of the species and meets the conservation needs of the species; and is currently being implemented properly. Therefore, at this time, we are considering excluding those specific lands associated with the Coral Reef Commons HCP that are in the preserve and offsite mitigation area from the final designation of critical habitat for the Miami tiger beetle. However, we will more thoroughly review the HCP, its implementation of the conservation measures for the Miami tiger beetle and its habitat therein, and public comment on this issue prior to finalizing critical habitat, and if appropriate, exclude from critical habitat for the Miami tiger beetle those lands associated with the Coral Reef Commons HCP that are in the preserve and offsite mitigation area.

We have further determined that there are no additional HCPs or other management plans for the Miami tiger beetle within the 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. There are no Tribal lands within the designated critical habitat for Miami tiger beetle.

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 17.90.

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 proposed 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 only 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. The RFA does not require evaluation of 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 would 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 will significantly affect energy supplies, distribution, or use. We do not foresee any energy development projects, supply distribution or use that may affect the proposed critical habitat units for the Miami tiger beetle. Further, in our evaluation of potential economic impacts, we did not find that this proposed critical habitat designation 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 will significantly or uniquely affect small governments because the government lands being proposed for critical habitat designation are owned by the Federal Government, including the U.S. Coast Guard (DHS), U.S. Army Corps of Engineers (DoD), NOAA, and FBP; or are State or local governments such as the State of Florida, and Miami-Dade County. None of these government entities fit the definition of “small governmental jurisdiction.” 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 Miami tiger beetle 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 Miami tiger beetle and 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 would 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 physical or biological features essential to the conservation of the species. The proposed areas of 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 regulations adopted pursuant to section 4(a) of 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 determined that there are no Tribal lands that were occupied by the Miami tiger beetle at the time of listing that contain the features essential for conservation of the species, and no Tribal lands unoccupied by the Miami tiger beetle that are essential for the conservation of the species. Therefore, we are not proposing to designate critical habitat for the Miami tiger beetle on Tribal lands. As a result, there are no Tribal lands affected by the proposed designation of critical habitat for this species.

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov.

The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service's Florida 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:

Section 3(5)(A) of the Act (16 U.S.C. 1531 et seq. ) 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.

Our implementing regulations at 50 CFR 424.12 describe our criteria for designating critical habitat. We are to consider physical and biological features essential to the conservation of the species. Our implementing regulations at 50 CFR 424.02 define the “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. In addition, our implementing regulations at 50 CFR 424.02 define “special management considerations or protection” as methods or procedures useful in protecting the physical or biological features essential to the conservation of listed species.

Section 4(b)(2) of the Act requires us to designate and make revisions to critical habitat for listed species 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 impact of specifying any particular area as critical habitat. The Secretary may exclude any particular area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

5 U.S.C. 553(e) gives interested persons the right to petition for the issuance, amendment, or repeal of a Federal rule. Section 4(b)(3)(D) of the Act (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to revise critical habitat for a species presents substantial scientific information indicating that the revision may be warranted. Our regulations at 50 CFR 424.14(i)(1)(i) state that “ ‘substantial scientific information' refers to credible scientific information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the revision proposed in the petition may be warranted. Conclusions drawn in the petition without the support of credible scientific information will not be considered ‘substantial information.’ ”

In determining whether substantial scientific information exists, we consider several factors, including information submitted with, and referenced in, the petition and all other information readily available in our files. Our regulations at 50 CFR 424.14(e)(4) require that when the petitioner requests removal of areas from currently designated critical habitat within the geographical area occupied by the species at the time it was listed, we consider whether the petition contains information indicating that areas petitioned to be removed from currently designated critical habitat do not contain the physical or biological features that are essential to the conservation of the species, or that these features do not require special management considerations or protection. Our regulations at 50 CFR 424.14(e)(5) require that, for areas petitioned to be added to or removed from designated critical habitat that were outside the geographical area occupied by the species at the time it was listed, the petitioner must present information indicating why the petitioned areas are essential (if areas are being added) or are not essential (if areas are being removed) for the conservation of the species.

To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notification of the finding promptly in the Federal Register . We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. If we find that a petition presents substantial scientific information indicating that the revision may be warranted, we are required to determine how we intend to proceed with the requested revision within 12 months after receiving the petition and promptly publish notification of such intention in the Federal Register .

In 1972, the jaguar was listed as endangered (37 FR 6476; March 30, 1972) in accordance with the Endangered Species Conservation Act of 1969 (ESCA), a precursor to the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq. ). Under the ESCA, the Service maintained separate listings for foreign species and species native to the United States. At that time, the jaguar was believed to be extinct in the United States; thus, the jaguar was included only on the foreign species list. The jaguar's range was described as extending from the international boundary of the United States and Mexico southward to include Central and South America (37 FR 6476; March 30, 1972). In 1973, the Act superseded the ESCA. The foreign and native lists were replaced by a single “List of Endangered and Threatened Wildlife” (List), which was first published in the Federal Register on September 26, 1975 (40 FR 44412). In the 1975 List, the jaguar's range again was described as including Central and South America (40 FR 44412, September 26, 1975, p. 40 FR 44418), but not the United States. On July 22, 1997, we published a final rule clarifying that endangered status for the jaguar extended into the United States (62 FR 39147).

The 1997 clarifying rule included a determination that designation of critical habitat for the jaguar was not prudent (62 FR 39147, July 22, 1997, p. 62 FR 39155). However, after several petitions and legal actions, on August 20, 2012, we published in the Federal Register (77 FR 50214) a proposed rule to designate critical habitat for the jaguar. In that proposed rule, we proposed to designate approximately 339,220 hectares (838,232 acres) as critical habitat in six units located in Pima, Santa Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico. The comment period opened August 20, 2012, and closed October 19, 2012.

On March 12, 2013, we received a report from the bi-national Jaguar Recovery Team entitled Jaguar Habitat Modeling and Database Update (Sanderson and Fisher 2013, entire) that included a revised habitat model for the jaguar in the proposed Northwestern Recovery Unit. This report recommended defining habitat patches of less than 100 square kilometers (km 2 ) (38.6 square miles (mi 2 )) in size as unsuitable for jaguars, as well as slight changes to some of the features comprising jaguar habitat. Therefore, we incorporated this information into the physical and biological features for the jaguar, resulting in changes to the boundaries as described in our August 20, 2012, proposed critical habitat rule.

On July 1, 2013, we published in the Federal Register (78 FR 39237) a revised proposed rule that described the revisions explained above to our proposed designation of critical habitat for the jaguar; with those revisions, the proposed critical habitat for the jaguar totaled approximately 347,277 hectares (858,137 acres) in six units located in Pima, Santa Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico. We also announced the availability of a draft economic analysis and draft environmental assessment of the revised proposed designation of critical habitat for jaguar and an amended required determinations section of the proposal. Additionally, we announced the reopening of the comment period. The comment period opened July 1, 2013, and closed August 9, 2013.

On August 15, 2013, the U.S. District Court for the District of Columbia granted the Service's motion to extend the deadline for publishing a final critical habitat designation for the jaguar to December 16, 2013. This rescheduled final rulemaking date allowed us to reopen the public comment period again, because we had received multiple requests to do so. On August 29, 2013, we announced the reopening of the comment period for an additional 15 days (78 FR 53390). The comment period opened August 29, 2013, and closed September 13, 2013.

From October 1 to October 17, 2013, the U.S. Federal Government entered a shutdown and curtailed most routine operations due to a lapse in appropriations. Due to this delay, the U.S. District Court for the District of Columbia granted the Service's motion to extend the deadline for submitting a final critical habitat designation for the jaguar to the Federal Register to no later than February 14, 2014. On February 12, 2014, we submitted the final rule to the Federal Register , and on March 5, 2014, the final rule to designate critical habitat for the jaguar published in the Federal Register (79 FR 12572). In that final rule, we designated approximately 309,263 hectares (764,207 acres) in Pima, Santa Cruz, and Cochise Counties, Arizona, and Hidalgo County, New Mexico. The rule went into effect on April 4, 2014.

On February 10, 2020, the U.S. District Court for the District of Arizona ruled on a crossclaim filed by Rosemont Copper Company in a lawsuit challenging the critical habitat designation for the jaguar Ctr. for Biological Diversity v. U.S. Fish and Wildlife Serv., 441 F. Supp. 3d 843 (D. Ariz. 2020) ( Ctr. for Biological Diversity )). The court upheld the Service's critical habitat designation, but found that critical habitat Unit 3 was unoccupied at the time of listing. This decision was appealed to the 9th Circuit Court of Appeals by Rosemont Copper Company. The case is currently stayed, and no final judgment on the matter has been entered.

On November 11, 2020, we received a petition from the petitioner (Rosemont Copper Company) requesting that critical habitat for the jaguar be revised under the Act, pursuant to section 4 of the Act (16 U.S.C. 1533) and 50 CFR 424.10 and 424.14. The petition requested approximately 20,234 hectares (50,000 acres) of land in the northern Santa Rita Mountains and an adjoining critical habitat subunit, including land containing the proposed Rosemont Copper Mine, be removed from the critical habitat designation for the jaguar. In particular, the petition seeks the removal of a portion of critical habitat Unit 3 and Subunit 4b. The Service found that Unit 3 was occupied by the jaguar at the time of listing, but, due to uncertainty regarding occupation at the time of listing, we also determined that Unit 3 was essential to the conservation of the species. We also found Subunit 4b was unoccupied at the time of listing but essential to the conservation of the species.

In the petition, the petitioner provided the following assertions to support its requested revisions:

The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(c). This finding addresses the petition.

The jaguar is the largest species of cat native to the Western Hemisphere. Jaguars are muscular cats with relatively short, massive limbs and a deep-chested body. They are cinnamon-buff in color with many black spots; melanistic forms are also known, primarily from the southern part of the range (Service 1997, p. 39147). Jaguars historically ranged from the southern United States to central Argentina (Swank and Teer 1989, p. 14; Caso et al. 2008, p. 2). Currently, they range from the southwestern United States to northern Argentina, are found in all countries except for El Salvador and Uruguay (Zeller 2007, all maps), and are estimated to occupy 51 percent of their historical range (Quigley et al. 2017, p. 3; Jędrzejewski et al. 2018, p. 10).

Jaguars breed year-round rangewide, but at the southern and northern ends of their range there is evidence for a spring breeding season. Gestation is about 100 days; litters range from one to four cubs (usually two). Cubs remain with their mother for nearly 2 years. Females begin sexual activity at 3 years of age, males at 4. Studies have documented few wild jaguars more than 11 years old. The list of prey consumed by jaguars rangewide includes more than 85 species (Seymour 1989, p. 340), such as peccaries (javelina), capybaras, pacas, armadillos, caimans, turtles, and various birds and fish. Javelina and deer are presumably mainstays in the diet of jaguars in the United States and Mexico borderlands (Service 1997, p. 39147).

Jaguars are known from a variety of habitats (for example, see Seymour 1989, p. 340). They show a high affinity to lowland wet habitats, typically swampy savannas or tropical rain forests. However, they also occur, or once did, in upland habitats in warmer regions of North and South America. Within the United States, jaguars have been recorded most commonly from Arizona, but there are also records from California, New Mexico, and Texas, and reports from Louisiana (Service 1997, p. 39147).

Section 4(b)(2) of the Act requires us to designate and revise critical habitat for listed species on the basis of the best scientific data available. Section 4(b)(3)(D)(i) requires us to make a finding as to whether the petition presents substantial scientific information indicating that the revision may be warranted. For the purposes of findings on petitions to revise critical habitat, we apply the definition of “substantial scientific information” set forth at 50 CFR 424.14(i)(1)(i).

As noted earlier, the court in Ctr. for Biological Diversity upheld our critical habitat determination for jaguar, but found that critical habitat Unit 3 was unoccupied at the time of listing. That decision has been appealed by the petitioner. The case is currently stayed. In an abundance of caution, we analyzed the petition under both 50 CFR 424.14(e)(4) and (e)(5). That is, we considered the petition as if Unit 3 was occupied at the time of listing and, separately, consistent with the District Court's judgment, as if Unit 3 was unoccupied at the time of listing. Under either analysis, we do not find that the petition meets the substantial scientific information standard.

In the first analysis, we considered whether the petition, pursuant to 50 CFR 424.14(e)(4), contains substantial scientific information indicating that areas to be removed from currently designated critical habitat within the geographical area occupied by the species at the time it was listed (Unit 3) do not contain the physical or biological features that are essential to the conservation of the species, or that these features do not require special management considerations or protection. The petition did not provide substantial scientific information that Unit 3, including the northern Santa Rita Mountains and the area around the proposed mine, no longer contains the physical or biological features of jaguar critical habitat, nor did the petition provide substantial scientific information that these features no longer require special management considerations or protection.

In the second analysis, we applied the standard set forth at 50 CFR 424.14(e)(5) to both Unit 3 and Subunit 4b. We find the petition does not contain substantial scientific information indicating that areas petitioned to be removed from critical habitat (the northern portion of Unit 3 and all of Subunit 4b) are not essential for the conservation of the species. Subunit 4b is essential to the conservation of the jaguar because it contributes to the species' persistence by providing connectivity from the Whetstone Mountains (Unit 4) to Mexico via Unit 3 (79 FR 12572, March 5, 2014, p. 79 FR 12589). The ability for jaguars in the Northwestern Recovery Unit (one of two recovery units deemed essential to the jaguar by the Jaguar Recovery Team; U.S. Fish and Wildlife Service 2018, p. 82) to use physical and biological habitat features in the borderlands region is ecologically important to the recovery of the species; therefore, maintaining connectivity to Mexico is essential to the conservation of the jaguar (79 FR 12572, March 5, 2014, p. 79 FR 12574). The petition states that there is no evidence that a jaguar has used Subunit 4b or would need to use the subunit to travel to and from Mexico because jaguars have more direct geographic connections to Mexico via the mountain ranges close to the border (Rosemont 2020, p. 12). However, because Subunit 4b is considered unoccupied, evidence of jaguar use is not a requirement to consider the subunit essential. Additionally, speculation about where a jaguar may or may not travel is not substantial scientific information according to our regulations at 50 CFR 424.14(i)(1)(i). Therefore, the petition does not provide substantial scientific information as to why this subunit is not essential or why it does not contribute to connectivity to Mexico.

Unit 3 was found to be unoccupied by the court, but the court determined that Unit 3 is essential to the recovery of the species (see Ctr. for Biological Diversity at 873). When designating critical habitat for the jaguar, we recognized that an argument could be made that no areas in the United States were occupied by the species at the time it was listed, or that only areas containing undisputed Class I records from between 1962 and 1982 were occupied (79 FR 12572, March 5, 2014, p. 79 FR 12582). For this reason, in our final critical habitat rule, we also analyzed whether or not these areas are essential to the conservation of the species. In the final rule, we determined that areas we considered occupied (such as Unit 3) are also essential to the conservation of the species because: (1) They have demonstrated recent (since 1996) occupancy by jaguars; (2) they contain features that comprise jaguar habitat; and (3) they contribute to the species' persistence in the United States by allowing the normal demographic function and possible range expansion of the Northwestern Recovery Unit, which is essential to the conservation of the species. The petition provides no substantial scientific information indicating why Unit 3 is not essential for the conservation of the species based on these three factors we identified in the critical habitat rule.

First, the petition does not provide information challenging that Unit 3 has demonstrated recent (since 1996) occupancy by jaguars. The petition acknowledges that a single male jaguar was detected in the Santa Rita Mountains from 2012-2015, one that was also detected in the Whetstone Mountains (Unit 4) in 2011. We have information in our files corroborating the presence of this jaguar in the Santa Rita Mountains from 2012-2015. Therefore, the petition does not provide substantial scientific information indicating Unit 3 does not demonstrate recent (since 1996) occupancy by jaguars.

Second, the petition does not provide information that Unit 3 does not contain features that comprise jaguar habitat. Instead, the petition states the International Union for the Conservation of Nature and Natural Resources rates the type of habitat found in the Santa Rita Mountains as “marginal” habitat for jaguars (Rosemont 2020, pp. 9-10). This information does not indicate that jaguar habitat is no longer present or essential in Unit 3. We acknowledge in the final rule designating jaguar critical habitat that the “more open, dry habitat of the southwestern United States has been characterized as marginal habitat for jaguars in terms of water, cover, and prey densities” (79 FR 12572, March 5, 2014, p. 79 FR 12573). We also acknowledge that “while habitat in the United States can be considered marginal when compared to other areas throughout the species' range, it appears that a few, possibly resident jaguars are able to use the more open, arid habitat found in the southwestern United States” (79 FR 12572, March 5, 2014, p. 79 FR 12573). It is for these reasons that we determined that all of the primary constituent elements discussed in the March 5, 2014, final rule must be present in each specific area to constitute critical jaguar habitat in the United States (79 FR 12572, March 5, 2014, p. 79 FR 12587). The petition does not provide evidence that all of the primary constituent elements are no longer present in Unit 3. Therefore, the petition does not provide substantial scientific information that Unit 3 does not contain features that comprise jaguar habitat.

Third, the petition does not provide information challenging the contribution of critical habitat to the species' persistence in the United States by allowing the normal demographic function and possible range expansion of the Northwestern Recovery Unit, which is essential to the conservation of the species. The petition states that the United States contains, at most, less than 1 percent of the worldwide jaguar habitat, and has no resident population of jaguars (Rosemont 2020, p. 9). This information relates to the status of the species and does not address whether or not Unit 3 allows for the normal demographic function and possible range expansion of the Northwestern Recovery Unit. The petition also states that removal of the northern Santa Rita Mountains and Subunit 4b represents a very small percentage of the total critical habitat—about 6.5 percent—that would be removed by the petitioned action and will not prevent the remaining critical habitat from functioning as intended for the support of the Northwest Recovery Unit (Rosemont 2020, pp. 13-14). The recovery function and value of critical habitat for the jaguar within the United States is to contribute to the species' persistence and, therefore, overall conservation by identifying areas that support some individuals during dispersal movements, that contain small patches of habitat (perhaps in some cases with a few resident jaguars), and that allow for cyclic expansion and contraction of the nearest core area and breeding population in the Northwestern Recovery Unit (79 FR 12572, March 5, 2014, p. 79 FR 12574). Removal of the northern Santa Rita Mountains would withdraw areas that currently provide the physical and biological features of jaguar critical habitat and in which confirmed jaguar detections occurred between 2012 and 2015 (U.S. Fish and Wildlife Service 2016, p. 295). In addition, removal of Subunit 4b eliminates half of the available connections to Mexico for Unit 4 (specifically to Subunit 4a), which is a unit in which the same jaguar that occupied the Santa Rita Mountains (Unit 3) was detected in 2011. The petition does not explain why these areas are no longer essential other than to assert that most critical habitat units would be unaffected, and that impacts to Unit 3 and Unit 4 would be minor and would not prevent the units from functioning as intended. This assertion does not demonstrate that changes have occurred to these areas such that the function they provide to jaguars, and the reason for which they were designated as critical habitat, is compromised. Therefore, the petition does not provide substantial scientific information that the northern Santa Rita Mountains in Unit 3 and all of Subunit 4b no longer function as critical habitat and are not essential in allowing for the normal demographic function and possible range expansion of the Northwestern Recovery Unit.

The petition discusses the 2013 biological opinion for the Rosemont Copper Mine, which was overturned by a court decision ( Ctr. for Biological Diversity at 873), and our 2019 amendments to the regulations at 50 CFR 424.12 in its request to revise critical habitat for jaguars. We reviewed the petition's argument and find that these documents are not relevant to the question of whether the petition contained substantial information to support the removal of areas from critical habitat. Neither line of discussion speaks to whether the areas petitioned for removal contain the physical or biological features essential to the conservation of the species or provides information that these features do not require special management considerations or protection (50 CFR 424.14(e)(4).

Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific or commercial information indicating the petitioned action may be warranted for the jaguar. Because the petition does not present substantial information indicating that revision of critical habitat for jaguar may be warranted, we do not intend to proceed with any such revision. However, we ask that the public submit to us any new information that becomes available concerning this species' habitat at any time by contacting the person listed under FOR FURTHER INFORMATION CONTACT , above.

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

The primary authors of this document are the staff members of the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

Why we need to publish a rule. Under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq. ), 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, unless, due to substantial disagreement regarding the sufficiency or accuracy of the available data, we extend the 1-year period for no more than 6 months to solicit additional data. 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 can only be completed by issuing a rule.

What this document does. We propose to list the pyramid pigtoe as a threatened species with a rule under section 4(d) of the Act. If made final, this action would add the species to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations (CFR) at 50 CFR 17.11(h) and add specific provisions pertaining to the pyramid pigtoe to 50 CFR 17.45.

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 threats to the pyramid pigtoe include habitat degradation or loss from a variety of sources ( e.g., dams and other barriers, resource extraction); degraded water quality from chemical contamination and erosion from development, agriculture, and mining operations; direct mortality from dredging; residual impacts (reduced population size) from historical harvest; and the proliferation of invasive, nonnative species. These threats also compound the negative effects associated with the species' small population size.

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. Critical habitat is not currently determinable. However, critical habitat is prudent, and we intend to propose critical habitat for the species within 1 year of publishing this rule, after acquiring the information to determine the areas warranting critical habitat designation.

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 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) Information on regulations that are necessary and advisable to provide for the conservation of the pyramid pigtoe and that the Service can consider in developing a 4(d) rule for the species. In particular, information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule.

(6) Which areas would be appropriate as critical habitat for the species and why areas should or should not be proposed for designation as critical habitat in the future.

(7) Specific information on:

(a) The amount and distribution of habitat for pyramid pigtoe that should be considered for proposed critical habitat;

(b) What may constitute “physical or biological features essential to the conservation of the species within the geographical range currently occupied by the species”;

(c) Where these features are currently found;

(d) Whether any of these features may require special management considerations or practices;

(e) What areas that are currently occupied and contain features essential to the conservation of the species should be included in the designation and why; and

(f) What unoccupied areas are essential for the conservation of the species and why.

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.

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 endangered instead of threatened, or we may conclude that the species does not warrant listing as either an endangered species or a threatened species. In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the 4(d) rule if we conclude it is appropriate in light of comments and new information received. For example, we may expand the prohibitions to include prohibiting take associated with additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species.

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 regulations at 50 CFR 424.16(c)(3).

In our 1989 Animal Notice of Review (a notice identifying animal taxa that are native to the United States and being considered for addition to the List of Endangered and Threatened Wildlife), we categorized the pyramid pigtoe (which we referred to as “pink pigtoe”) as a taxon not meeting the Act's legal definition of a species, based on our taxonomic understanding of information in published scientific literature at that time (54 FR 554, January 6, 1989). While taxonomic uncertainty remains regarding some populations identified as pyramid pigtoe, the species is recognized as valid in current scientific literature (see Background, below). On April 20, 2010, we received a petition from the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the pyramid pigtoe (referred to as “pink pigtoe” in our National Domestic Listing Workplan) as endangered or threatened species under the Act. On September 27, 2011, we published our determination that the petition contained substantial information indicating listing may be warranted (76 FR 59836). On April 17, 2019, CBD filed a complaint challenging the Service's failure to complete 12-month findings for these species within the statutory deadline. The Service and CBD reached a stipulated settlement agreement whereby the Service agreed to deliver a 12-month finding for the pyramid pigtoe to the Office of the Federal Register by August 31, 2021.

A species status assessment (SSA) team prepared an SSA report for the pyramid pigtoe. 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. 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 three appropriate specialists regarding the SSA. We received two responses. We also received SSA report reviews from one Federal agency and five State agency partners, including scientists with expertise in aquatic ecology, freshwater mussel biology, taxonomy, and conservation. In addition, more than 50 individuals at Federal or State agencies, colleges or universities, or consultants provided data used in the SSA report.

A thorough review of the taxonomy, life history, and ecology of the pyramid pigtoe (Pleurobema rubrum) is presented in the SSA report (version 1.0; Service 2021, pp. 19-36).

The pyramid pigtoe is a freshwater mussel, reddish to chestnut brown in color, with a smooth periostracum (outer shell surface) that darkens with age (Watters et al. 2009, p. 233). Juveniles may have green rays that typically disappear with age. The shell is thick, triangular, and medium-sized (up to 3.6 inches (in) (91 millimeters (mm)) (Williams et al. 2008, p. 564). It has a shallow sulcus (depressed channel) and high anteriorly directed beak that is elevated above the hinge line (Stansbery 1967, p. 3).

The pyramid pigtoe is found in medium to large rivers, in a mixture of sand, gravel, and cobble substrates. It currently occurs in Kentucky, Tennessee, Virginia, Ohio, Alabama, Oklahoma, Arkansas, Mississippi, and Louisiana. It is considered extirpated from Pennsylvania, West Virginia, Indiana, Illinois, Wisconsin, Minnesota, Iowa, Kansas, and Missouri. Extant populations of pyramid pigtoe occur in the Arkansas-White-Red, Lower Mississippi, Missouri, and Ohio River regions (Hydrologic Unit Code 2 scale, Seaber et al. 1987, pp. 3-4), and it is extirpated from the Missouri and Upper Mississippi River regions (Figure 1).

Relying on fish hosts for successful reproduction, the pyramid pigtoe has a complex life cycle similar to other mussels. In general, mussels are either male or female, but differences between sexes in shell shape are subtle (Haag 2012, p. 54). Males release sperm into the water column, which is taken in by the female through the incurrent aperture, where water enters the mantle cavity. The sperm fertilize eggs in the suprabranchial chamber (located above the gills) as ova are passed from the gonad to the marsupia (Yokley 1972, p. 357). Developing larvae remain in the gill chamber until they mature (called glochidia) and are ready for release. Once released, the glochidia draw nutrients from fish hosts and develop into juvenile mussels, dropping from the hosts weeks to months after initial attachment. Only a few glochidia reach the free-living juvenile stage, and mortality rates for the glochidial stage have been estimated at 99 percent, making this a critical phase in the life history of freshwater mussels (Jansen et al . 2001, p. 211).

The pyramid pigtoe is a short-term brooder and has been recorded as gravid in the Cumberland River in May, June, and July (Gordon and Layzer 1989, p. 50). Host fish species are minnows of the family Cyprinidae and genera Cyprinella, Erimystax, Lythrurus, and Notropis (Culp et al. 2009, p. 19). Similar to other species in its tribe, Pleurobemini (taxonomic rank above genus and below family), the pyramid pigtoe targets drift-feeding minnow species by releasing glochidia contained in packets called conglutinates (Haag 2012, p. 163). Following release from the female mussel, the semi-buoyant conglutinates drift in the water column where they are targeted by sight-feeding minnows (Culp et al, 2009, p. 21).

A relatively long-lived species, the pyramid pigtoe has a lifespan that likely averages 20 to 30 years, based on observations of the closely related Ohio pigtoe and round pigtoe (Slater 2018, p. 35; Watters et al. 2009, p. 299). Given the longevity of closely related species, it possibly lives up to 40-45 years in some locations (Ostby and Beaty 2016, p. 117).

The pyramid pigtoe exhibits a preference for sand and gravel in rivers but also may be found in coarse sand in larger rivers (Gordon and Layzer 1989, p. 31). They can be found at depths less than 3 ft (1 m) but in large rivers can be found commonly at depths of 13 to 20 ft (4 to 6 m) or greater (Parmalee and Bogan 1998, p. 193; Williams et al. 2008, p. 566). Adult freshwater mussels within the genus Pleurobema are suspension-feeders that filter water and nutrients to eat. Mussels may shift to deposit feeding, though reasons for this are poorly known and may depend on flow conditions or temperature. Their diet consists of a mixture of algae, bacteria, detritus, and microscopic animals (Gatenby et al. 1996, p. 606; Strayer et al. 2004, p. 430). It has also been surmised that dissolved organic matter may be a significant source of nutrition (Strayer et al. 2004, p. 431).

The pyramid pigtoe (Pleurobema rubrum) belongs to a complex of four morphologically similar species, which includes the Ohio pigtoe ( P. cordatum ), rough pigtoe ( P. plenum ) and round pigtoe ( P. sintoxia ). Since its original description as a species (Rafinesque 1820, p. 314), Pleurobema rubrum has undergone several scientific name changes, due to its widespread distribution, variability in shell shape and size throughout its range, and similarity in morphological characters to other closely related species. Additionally, based on shell characters alone, the pyramid pigtoe has been periodically considered a subspecies of the Ohio pigtoe (Ortmann 1911, p. 331). Since its initial description in 1820, the pyramid pigtoe has sometimes been referred to as pink pigtoe by commercial shell harvesters and biologists. However, the common name applied to the species in the scientific literature and in the Integrated Taxonomic Information System is pyramid pigtoe.

Genetic studies to clarify the taxonomic relationships among Pleurobema indicate potential differences between pyramid pigtoe populations occupying separate river drainages. Mitochondrial DNA samples from two specimens of pyramid pigtoe indicated the Duck River, Tennessee, specimen was genetically distinct from the St. Francis River, Arkansas, specimen (Campbell et al. 2005, p. 143). These same data were included in subsequent phylogenetic studies focused on Fusconaia (Burdick and White 2007, p. 372) and Pleurobema (Campbell et al. 2008, p. 714; Campbell and Lydeard 2012b, p. 27) with similar results. Phylogeographic structuring has been observed between pyramid pigtoe from the Ouachita and St. Francis drainages in Arkansas that may represent species-level variation (Christian et al. 2008, p. 9; Harris et al. 2009, p. 74). Additionally, an analysis that included all previously published and new data representing a broad sampling across Pleurobemini revealed that pyramid pigtoe and round pigtoe may represent a single species, with two out of three species delineation models indicating one lineage present in specimens identified as round pigtoe and pyramid pigtoe (Inoue et al. 2018, p. 694). However, one of the three models indicated separate lineages of the two species. While there is some uncertainty in the taxonomic identity of populations referred to as pyramid pigtoe, especially those outside the Ohio, Cumberland, and Tennessee basins, our SSA report analyzed the status of the single species currently recognized by the scientific community (Williams et al. 2017, p. 42; Graf and Cummings 2021, p. 19).

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 Service 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. However, it does 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 FWS-R4-ES-2021-0092 on http://www.regulations.gov and at https://www.fws.gov/Asheville/.

To assess pyramid pigtoe 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.

We assessed the best available information to identify the physical and biological needs to support individual fitness at all life stages for the pyramid pigtoe. Full descriptions of all needs are available in chapter 4 of the SSA report (Service 2021, pp. 29-36), which can be found in docket number FWS-R4-ES-2021-0092 on http://www.regulations.gov, and on our internet site https://www.fws.gov/Asheville/. To maintain viability, individual pyramid pigtoes need clean flowing water, appropriate water quality and temperatures (parameters listed in Service 2021, p. 29), low levels of sedimentation, and food and nutrients. Pyramid pigtoe habitat is in rivers with natural flow regimes. Perturbations that disrupt natural flow patterns ( e.g., dams) have a negative influence on pyramid pigtoe and host fish resilience. Pyramid pigtoe habitat must have adequate flow to deliver oxygen, enable passive reproduction, and deliver food.

At the population and species (rangewide) level, the pyramid pigtoe needs habitat connectivity and positive demographic attributes (population density and growth rate, age class structure, recruitment) to maintain viability (Service 2021, pp. 32-33). Dendritic, or branched, orientation of stream systems can enhance metapopulation persistence compared to linear or two-dimensional systems (Fagan 2002, p. 3,243). Tributary connection to river mainstems allows movement of host fishes and helps facilitate dispersal and colonization of appropriate habitat patches by mussels. A high degree of connection between habitat patches and occupied reaches is necessary, because mussels are heavily dependent on gene exchange and host fish movement and dispersal within river corridors to maintain viable populations (Newton et al. 2008, p. 425).

Fragmentation of stream habitat results in barriers to host fish movement, which in turn, influences mussel distributions, increasing the likelihood and compounding the significance of local extirpation events (Fagan 2002, p. 3,248). The pyramid pigtoe and other mussel species that use small host fishes, such as minnows and shiners (family Cyprinidae), are more susceptible to impacts from habitat fragmentation. This is due to increasing distance between suitable habitat patches and low likelihood of small host fish swimming over that distance as compared to large host fishes (Vaughn 2012, p. 7). Barriers to movement can cause isolated or patchy distributions of mussels, which may limit both genetic exchange and recolonization (Jones et al. 2006, p. 528).

Mussel abundance in a given river reach is a product of the number of mussel beds (aggregations of freshwater mussels) and the density of mussels within those beds. Healthy pyramid pigtoe populations have numerous individuals, with multiple age classes, and exhibit regular recruitment of new age classes. For pyramid pigtoe populations to be resilient, there must be multiple mussel beds of sufficient density such that local stochastic events do not eliminate the bed(s), allowing the mussel bed and the overall local population within a river reach to recover from any one event. A dendritic distribution (branching, such that there is not a line connecting a single upstream and downstream aggregation) over a large area also helps buffer against stochastic events that may impact populations. Mussels do not actively seek mates; rather, males release sperm into the water column, where it drifts until a female takes it in (Moles and Layzer 2008, p. 212). Therefore, successful individual reproduction and population viability require sufficient numbers of female mussels downstream of sufficient numbers of male mussels; higher density (number of mussels per unit area) increases the likelihood of fertilization.

We have determined that past and current threats to the pyramid pigtoe include habitat degradation or loss from a variety of sources ( e.g., dams and other barriers, resource extraction); degraded water quality from chemical contamination and erosion from development, agriculture, and mining operations; direct mortality from dredging; residual impacts (reduced population size) from historical harvest; and the proliferation of invasive, nonnative species. Cumulatively, these threats also contribute to the negative effects associated with the species' small population size in certain areas.

The following discussions include evaluations of three current threats and associated sources that are affecting the pyramid pigtoe and its habitat: (1) Habitat (including water quality) degradation or loss, (2) invasive and nonnative species, and (3) negative effects associated with small population size (Service 2021, pp. 51-83). We also considered impacts from climate change, but found no evidence linking climate change impacts to the current status of the pyramid pigtoe. We note that overutilization (commercial mussel harvest) was a threat historically and likely reduced the size of many populations such that they have not recovered to historical abundance levels, but it is not currently a threat. In addition, potential impacts from disease, parasites, and predation, as well as potential impacts to host species, were evaluated but were found to have minimal effects on viability of the pyramid pigtoe based on current knowledge (Service 2021, pp. 78-79). Although not a widespread threat, disease is likely affecting at least one population of pyramid pigtoe: The Clinch River mussel assemblage, which includes a pyramid pigtoe population, has recently undergone a die-off that is associated with a novel densovirus (Richard et al. 2020, entire). Finally, we also considered effects associated with enigmatic population declines (unexplained die-offs of large numbers of mussels over a short period of time), which have been documented in fresh water river mussel populations since the 1960s; despite speculation and repeated aquatic organism surveys and water quality monitoring, the causes of these events are largely unknown (Haag 2019, p. 43).

Predominant threats affecting each pyramid pigtoe population are listed in Table 1. Based on threat information in the literature or State Wildlife Action Plans, we categorized the threat level as low, moderate, or high depending on their magnitude and immediacy:

• Low—Threats to aquatic fauna far enough removed in time or space that they are currently exerting minimal influence on mussel populations.

• Moderate—Multiple threats linked to negative effects on mussels are present. Some threats currently acting on mussel habitat, reducing resource needs, and limiting recruitment and population growth.

• High—Multiple threats linked to negative effects on mussels are present and have been acting cumulatively on mussel habitat, prohibiting sustained recruitment and population growth.

Development and urbanization activities that may contribute to pyramid pigtoe habitat degradation or loss, including reduced water quality, occur throughout the species' range. The term “development” refers to urbanization of the landscape, including (but not limited to) land conversion for residential, commercial, and industrial uses and the accompanying infrastructure. The effects of urbanization may include alterations to water quality, water quantity, and habitat (both in-stream and streamside) (Ren et al. 2003, p. 649; Wilson 2015, p. 424). Urban development can lead to increased variability in streamflow, typically increasing the extent and volume of water entering a stream after a storm and decreasing the time it takes for the water to travel over the land before entering the stream (Giddings et al. 2009, p. 1). Deleterious effects on streams ( i.e., water collection on impervious surfaces that rapidly flows into storm drains and local streams), including those that may be occupied by the pyramid pigtoe, include:

• Water Quantity: Storm drains deliver large volumes of water to streams much faster than would naturally occur, often resulting in flooding and bank erosion that reshapes the channel and causes substrate instability, resulting in destabilization of bottom sediments. Increased, high-velocity discharges can cause pyramid pigtoe to become stressed, displaced, or killed by fast-moving water and the debris and sediment carried in it.

• Water Quality: Pollutants ( e.g., gasoline, oil drips, fertilizers) that accumulate on impervious surfaces may be washed directly into streams during storm events thereby directing killing pyramid pigtoe individuals.

• Water Temperature: During warm weather, rain that falls on impervious surfaces becomes superheated and can stress or kill pyramid pigtoe individuals when it enters streams.

Water infrastructure to support development, including water supply, reclamation, and wastewater treatment, results in pollution or contaminant discharges to streams. Right of way (ROW) crossings for waterlines and other utility lines also affect stream habitats. Direct impacts from utility crossings include direct exposure or crushing of individuals, sedimentation, and flow disturbance. The most significant cumulative impact involves cleared ROWs that result in direct runoff and increased stream temperature at the crossing locations. Maintenance or clearing of ROWs may entail herbicide applications that subsequently enter streams via stream runoff.

Most populations of pyramid pigtoe in urban areas with large human populations have been diminished or lost. Secondary impacts resulting from development, such as the increased contaminant introduction, stream disturbance caused by impervious surfaces, barrier construction, and forest conversion to other land use types such as agriculture or urban uses are likely acting cumulatively on the species. Increased human population growth projections indicate urban sprawl (a current process) will affect pyramid pigtoe populations in the Tennessee and Ohio basins (Terando et al. 2014, p. 7; Tayyebi et al. 2015, p. 110). In the Upper and Lower Duck River MUs, the species is currently impacted by rapid development encroaching from the city of Nashville and nearby smaller urban areas such as Columbia, TN (TWRA 2016, p. 15). The pyramid pigtoe population in the Muskingum River is downstream of the Tuscarawas River, which has been severely degraded by industrial development that continues to affect water quality (Hoggarth 1994, p. 3; Haefner and Simonson 2018, p. 1).

Threats to the pyramid pigtoe from development are partly mitigated by Federal lands. Several locations where the pyramid pigtoe occurs in water bodies located on or immediately adjacent to Federal lands receive some indirect benefits to viability such as lack of urbanization and land development pressure. These include the Pond Creek Refuge in Arkansas (Arkansas-White-Red basin) as well as Upper Ouachita, Felsenthal, and White River Refuges (Lower Mississippi basin), and Wheeler Refuge (Tennessee Basin) that are adjacent to large rivers where the pyramid pigtoe occurs. Mammoth Cave National Park also provides a level of localized protection against development pressures for the pyramid pigtoe population in the upper Green River, Kentucky (Ohio Basin).

On private lands, the Saline-Caddo-Ouachita Programmatic Safe Harbor Agreement and Candidate Conservation Agreement with Assurances programs are voluntary conservation programs that support ongoing stewardship for imperiled species, including the pyramid pigtoe. Large tracts of private land in the upper Saline and Ouachita River systems adjacent to streams and upland areas are covered under these programs. These lands are mostly upstream of pyramid pigtoe sites (Service 2015, p. 6) but could have a positive indirect long-term benefit to the species by reducing sediment and pollutant runoff and improving water quality downstream. Some private lands in pyramid pigtoe MUs also are managed for conservation through The Nature Conservancy (TNC) programs in the upper Green River in Kentucky, the upper Clinch/Powell River, Tennessee and Virginia, the Saline River in Arkansas, and the Paint Rock River in Alabama. In these watersheds, TNC has a few riparian inholdings that are protected from developments. In addition, within these watersheds, TNC implements community-based and partner-oriented projects to address aquatic species and instream habitat conservation by restoring and protecting streambanks and riparian zones.

Various small, isolated parcels of State land ( e.g., State parks, State forests, wildlife management areas) along MUs where the pyramid pigtoe occurs also provide a conservation benefit as a buffer to development. However, vast tracks of riparian lands in the range of the pyramid pigtoe are privately owned, without conservation programs, and the prevalence of privately owned lands along rivers is comparatively much larger than the species' occurrence on public lands. Limited overlap of the species' range with public lands and private lands with conservation programs diminishes their ability to protect the species, because the habitat protection benefits these lands provide are at significant risk of being negated by detrimental activities upstream or immediately downstream.

Transportation-related impacts include both road development and river navigation. Road development increases impervious surfaces as well as land clearing and habitat fragmentation. Roads are generally associated with negative effects on the biotic integrity of aquatic ecosystems, including changes in surface water temperatures and patterns of runoff, sedimentation, adding heavy metals (especially lead), salts, organics, and nutrients to stream systems (Trombulak and Frissell 2000, p. 18).

With regard to river navigation, dredging and channelization activities (as a means of maintaining waterways) have altered riverine habitats nationwide (Ebert 1993, p. 157). Channelization affects many physical characteristics of streams through accelerated erosion, increased bedload, reduced depth, decreased habitat diversity, geomorphic instability, and riparian canopy loss (Hartfield 1993, p. 139). All of these impacts contribute to loss of habitat for the pyramid pigtoe and host fishes. Increases in turbulence, suspended and deposited sediments, and turbidity resulting from river transportation and associated activities may affect mussel feeding and respiration (Aldridge et al. 1987, p. 25). In addition to dredging and channel maintenance, impacts associated with barge traffic, which includes construction of fleeting areas, mooring cells, docking facilities, and propeller wash, also destroy and disrupt mussel habitat (see Miller et al. (1989, pp. 48-49) as an example for disturbance from barges).

Transportation-related impacts across the range of the pyramid pigtoe include (but are not limited to) the following examples:

• Extensive stream channelization and snag removal has severely affected the freshwater mussel fauna and habitat in the Paint Rock River system, including the lower reaches of Estill Fork and Hurricane Creek (Ahlstedt 1995-96, p. 65). Even if active channelization activities are not currently occurring in rivers and streams occupied by the pyramid pigtoe, impacts of past actions can have permanent effects (Haag and Cicerello 2016, p. 60; Hubbard et al. 1993, p. 142; Watters 2000, p. 274).

• Commercial navigation previously took place in the lower Green and Barren Rivers, where navigation dams remain but are not in operation. Past dredging and navigation affected mussel beds in the mainstem Cumberland River, which has the last remaining population of pyramid pigtoe in the Cumberland River system (Hubbs 2012, p. 9).

• Currently, all three of the Tennessee River mainstem pyramid pigtoe MUs are likely affected to some extent by channel maintenance and navigation operations, due to their clustered distribution and proximity to navigation dams.

• Two navigation dams are operated on the Ouachita River, which is maintained by the Corps as a waterway, and affect three MUs.

Contaminants contained in point and non-point discharges can degrade water and substrate quality and adversely impact mussel populations. The effects of contaminants such as metals, chlorine, and ammonia are profound on juvenile mussels (Bartsch et al . 2003, p. 2,566; Augspurger et al. 2003, p. 2,571). Juvenile mussels may readily ingest contaminants bound to sediment particles (Newton and Cope 2007, p. 276). These contaminants also affect mussel glochidia, which are very sensitive to some toxicants (Goudreau et al. 1993, p. 221; Jacobson et al. 1997, p. 2,386; Valenti et al. 2005, p. 1,243). High levels of suspended solids alone (without bound contaminants) can result in mussel reproductive failure or low fertilization rates of long-term brooders, such as species of the genus Pleurobema (Gascho-Landis and Stoeckel 2015, p. 229).

Current State regulations regarding pollutants are designed to be protective of aquatic organisms; however, freshwater mussels may be more susceptible to some pollutants than the test organisms commonly used in bioassays. Additionally, water quality criteria may not incorporate data available for freshwater mussels (March et al. 2007, pp. 2,066-2,067). A multitude of bioassays conducted on 16 mussel species (summarized by Augspurger et al. 2007, pp. 2,025-2,028) show that freshwater mollusks are more sensitive than previously believed to some chemical pollutants, including chlorine, ammonia, copper, fungicides, and herbicide surfactants. Nickel and chloride were toxic to federally threatened mussel species at levels below the current criteria and are sensitive to sodium dodecyl sulfate (SDS), a surfactant commonly used in household detergents, for which water quality criteria do not currently exist (Gibson 2015, p. 80, p. 90; Gibson et al. 2018, pp. 247-250). None of the States in the range of the pyramid pigtoe have fully adopted the Environmental Protection Agency's 2013 recommended ammonia criteria for freshwater mollusks (78 FR 52192, August 22, 2013).

Contaminant inputs (including sediments) to pyramid pigtoe habitat stem from multiple threats, including urbanization, resource extraction, agriculture, and channel maintenance for navigation, diminishing water quality in many areas of the four basins where the species occurs. Examples of contaminant-related impacts in the range of the pyramid pigtoe include (but are not limited to) the following:

• Long-term declines and extirpation of mussels from reaches of the Upper Clinch MU in Virginia attributed, in part, to copper and zinc contamination originating from wastewater discharges at coal-fired power plants (Price et al. 2014, p. 12; Zipper et al. 2014, p. 9). Coal plants also are located on the Lower Green and Cumberland-Old Hickory MUs.

• Heavy metals toxicity to mussels has been documented in the Muskingum, Upper Clinch, and all Tennessee River MUs (Havlik and Marking 1987, pp. 4-9).

• A chemical spill from a tanker truck accident flowed into the Upper Clinch MU in Virginia and eliminated approximately 18,000 individuals of several mussel species (Jones et al. 2001, p. 20; Schmerfeld 2006, p. 12), including approximately 750 individuals of three federally listed species (Schmerfeld 2006, p. 12). A catastrophic chemical spill in 1999 affected approximately 10 miles of the Ohio River and resulted in the loss of an estimated 1 million mussels, including two federally listed species (Butler 2005, p. 24).

State and Federal water quality programs provide a level of protection to the pyramid pigtoe from development, agriculture, and river navigation activities by regulating storm water and point source (end of pipe) discharges to streams. Section 401 of the Federal Clean Water Act (CWA; 33 U.S.C. 1251 et seq. ) requires that an applicant for a Federal license or permit provide a certification that any discharges from the facility will not degrade water quality or violate water-quality standards, including those established by States. Section 404 of the CWA establishes a program to regulate the discharge of dredged and fill material into waters of the United States. Under the CWA, permits to fill wetlands and culvert, bridge, or realign streams or water features are issued by the U.S. Army Corps of Engineers. Current State regulations regarding pollutants are designed to be protective of aquatic organisms; however, as discussed above, freshwater mussels may be more susceptible to some pollutants than the aquatic biota for which water quality criteria are currently established.

Despite existing authorities such as the CWA, pollutants continue to impair the water quality in areas of the pyramid pigtoe's range. State and Federal regulatory mechanisms have helped reduce the negative effects of point source discharges since the 1970s, yet these regulations are difficult to implement and enforce. Although new water quality criteria are under development that will take into account more sensitive aquatic species, most current criteria do not. It is expected that several years will be needed to implement new water quality criteria throughout the species' range.

Agricultural activities occur across the range of the pyramid pigtoe and are a factor in its historical decline and localized extirpations. The advent of intensive row crop agricultural practices corresponds with freshwater mussel declines, and species extirpations, in the eastern United States (Peacock et al. 2005, p. 550). Nutrient enrichment and water withdrawals, threats commonly associated with agricultural activities, may be localized and limited in scope, and have the potential to affect individual pyramid pigtoe mussels. However, chemical control using pesticides may have broader impacts. Pesticides, including herbicides, fungicides, and insecticides as well as their surfactants and adjuvants, are highly toxic to juvenile and adult freshwater mussels (Bringolf et al. 2007, p. 2,092) and deleterious if not properly applied to agricultural operations. Waste from confined animal feeding and commercial livestock operations is another potential source of contaminants that come from agricultural runoff. The concentrations of these contaminants from fields or pastures may be at levels that can affect an entire population, especially given the highly fragmented distribution of the pyramid pigtoe.

Agencies such as the Natural Resources Conservation Service (NRCS) and the Soil and Water Conservation Districts provide technical and financial assistance to farmers and private landowners. Additionally, county resource development councils and university agricultural extension services disseminate information on the importance of minimizing land use impacts, specifically agriculture, on aquatic resources. These programs help identify opportunities for conservation through projects such as exclusion fencing and alternate water supply sources, which help decrease nutrient inputs and water withdrawals and help keep livestock off stream banks and shorelines, reducing erosion. However, the overall effectiveness of these programs over a large scale is unknown given the pyramid pigtoe's wide distribution and varying agricultural intensities in its range.

Whether for flood control, hydropower, river navigation, or as abandoned mill structures, dams and their impoundments are one of the most pervasive threats to pyramid pigtoe rangewide: 26 of 35 populations and all 4 major basins in the species' range are affected (Table 1). Dams have many impacts on stream ecosystems, and the effects of impoundments and barriers on aquatic habitats and freshwater mussels are relatively well-documented (Watters 2000, p. 261). Extinction and extirpation of many North American freshwater mussels can be traced to impoundment and inundation of riffle habitats in all major river basins of the central and eastern United States (Haag 2009, p. 107). Reductions in the diversity and abundance of mussels are primarily attributed to habitat shifts, alteration and disruption of connectivity, and diminished water quality as a result of reservoir construction (Neves et al. 1997, p. 63). The survival and reproductive success of mussels are influenced upstream of dams as flowing waters change to impounded waters, with increased depths and buildup of sediments, decreased dissolved oxygen, and drastic alteration of resident fish assemblages. Downstream of dams, biotic and physical habitat conditions provided by natural flow regimes are altered by minimal releases or scouring flows, seasonal dissolved oxygen depletion, and reduced or increased water temperatures. The number of fish species is greatly reduced where coldwater flow (hypolimnetic discharge) is released. Additionally, dams fragment habitat, limiting dispersal of mussels on their fish hosts, which leads to genetic isolation of mussel populations.

Predominant resource extraction threats in the range of the pyramid pigtoe stem from mining (primarily coal but including other mineral resources) and oil and gas exploration. Activities associated with coal mining and oil and gas drilling can contribute chemical pollutants to streams. Acid mine drainage is created from the oxidation of iron-sulfide minerals such as pyrite, forming sulfuric acid (Sams and Beer 2000, p. 3). This acid mine drainage may be associated with high concentrations of aluminum, manganese, zinc, and other constituents (Tennessee Department of Environment and Conservation (TDEC) 2014, p. 72). The metals, and the high acidity typically associated with acid mine drainage, can be acutely and chronically toxic to aquatic life (Jones 1964, p. 96). Implementation of the Surface Mining Control and Reclamation Act of 1977 (SMCRA; 30 U.S.C. 1201 et seq. ) has significantly reduced acid mine drainage from new coal mines; however, un-reclaimed areas mined prior to the SMCRA continue to generate acid mine drainage in portions of the pyramid pigtoe's range. Direct impacts to the pyramid pigtoe from acid mine drainage in most occupied river reaches are unlikely because coal mining sites tend to be adjacent to smaller headwater streams, but mining pollutants can be transferred downstream to pyramid pigtoe habitats.

Surface mining has been identified as a source of impairment for approximately 775 mi (1,247 km) of streams in Kentucky (Kentucky Department for Environmental Protection 2014, p. 66). Weathering of soils and rock broken apart to access coal seams typically increases alkalinity, total dissolved solids, salinity, and sedimentation and alters hydrology and physical habitat of streams receiving surface mine drainage, impacting fish and aquatic invertebrate communities ( e.g., Bernhardt and Palmer 2011, pp. 42-49; Linberg et al. 2011, entire; Hopkins and Roush 2013, pp. 585-586; Hitt and Chambers 2014, p. 923; Hitt et al. 2016, pp. 47-53). Mining continues to impair water quality in streams in the Cumberland Plateau and Central Appalachian regions of Tennessee and Kentucky (TDEC 2014, p. 62), which contain portions of the Tennessee and Cumberland River basins, and is the primary source of low pH impairment of 376 mi (605 km) of rivers in Tennessee (TDEC 2014, p. 53). Coal mining has resulted in discharges of industrial and mine wastes from coal mines and coal processing facilities in the Clinch and Powell Rivers (Ahlstedt et al. 2016, p. 8). Direct impacts to the pyramid pigtoe from acid mine drainage or total dissolved solids in most occupied river reaches are unlikely because coal mining sites tend to be adjacent to smaller headwater streams, but associated mining pollutants (fine sediments, metals, and salts) can be transferred downstream to medium and large river pyramid pigtoe habitats (Bernhardt and Palmer, 2011 p. 46).

Natural gas extraction in the Appalachians, including the Cumberland River basin, has negatively affected water quality through accidental spills and discharges, as well as increased sedimentation due to development of road construction, pipeline, drill pad construction, as well as tree removal required to clear the construction areas (Vidic et al. 2013, p. 6). Disposal of insufficiently treated brine wastewater, more saline than seawater, has specifically been found to adversely affect freshwater mussels (Patnode et al. 2015, p. 62). Potential threats from natural gas and oil exploration are also a concern in the White River basin.

Instream sand and alluvial gravel mining has been implicated in the destruction of mussel populations (Hartfield 1993, p. 138). Negative impacts associated with gravel mining include stream channel modifications such as altered habitat, disrupted flow patterns, and sediment transport (Hubbs et al. 2006, p. 170). Additionally, water quality modifications including increased turbidity, reduced light penetration, increased temperature, and increased sedimentation result from gravel mining. Commercial sand and gravel mining and dredging directly affects the pyramid pigtoe in the Tennessee River, specifically within the Lower Tennessee-Beech MU (Hubbs et al. 2006, p. 170). The Lower Cumberland Old Hickory MU has also been affected by gravel mining and dredging in the past (Sickel 1982, p. 4) that has resulted in permanent alteration of substrates and hydraulic patterns, contributing to habitat loss for freshwater mussels.

Invasive and nonnative species in the range of the pyramid pigtoe include the Asian clam, zebra mussel, black carp, and the plant species, hydrilla. These nonnative species impact the pyramid pigtoe through competitive interactions, water quality degradation, predation, and habitat alteration.

The Asian clam, found throughout the range of the pyramid pigtoe, alters benthic substrates, may filter native mussel sperm or glochidia, competes with native species for limited resources, and causes ammonia spikes in surrounding water when dying off en masse (Scheller 1997, p. 2). A typical settlement of the Asian clam occurs with a population density ranging from 100 to 200 clams per square meter, which may not be detrimental to native unionids; however, populations can grow as large as 3,000 clams per square meter, which would influence both food resources and competition for space for the pyramid pigtoe.

Within the range of the pyramid pigtoe, the zebra mussel occurs in the Ohio, Tennessee, and Arkansas-White-Red River basins. Native mussels, such as the pyramid pigtoe, are negatively affected by zebra mussels through direct colonization, reduction of available habitat, changes in the biotic environment, or a reduction in food sources (MacIsaac 1996, p. 292). One of the direct consequences of the invasion of zebra mussels is the local extirpation of native freshwater mussel populations from (1) attachment to the shells of native mussels, which can kill them (zebra mussels are sessile, and cling to hard surfaces); (2) affecting vertical and lateral movements of native mussels, due to heavy infestations, which can prevent valve closure; and (3) outcompeting native mussels and other filter-feeding invertebrates for food. This problem has been particularly acute in the Ohio and Tennessee River systems. Densities of zebra mussels attained 17,000 per square meter in the Tennessee River below Wilson Dam in 2017, although recent survey efforts indicate a decline from that population explosion (Garner 2018, pers. comm.).

The black carp, which feeds on mollusks, is listed as “injurious” under the Lacey Act and occurs in the Ohio, Tennessee, Lower Mississippi and Arkansas-White-Red basins where it overlaps populations of the pyramid pigtoe. It is highly likely that this nonnative fish will negatively impact native aquatic communities by direct predation, thus reducing populations of native mussels (Nico et al. 2005, p. 193). Because black carp attain a large size and have a lifespan reportedly over 15 years, they have the potential to cause significant harm to native mollusks by predation on multiple age classes (Nico et al. 2005, p. 77).

In addition to negative impacts of nonnative animals, the invasive nonnative plant hydrilla can affect native mussels by covering spawning areas for native fish, which may be hosts for glochidia, and can cause significant reductions in stream oxygen levels (Colle et al. 1987, p. 410). Hydrilla is widespread in the Ohio, Cumberland, and Tennessee River systems. In general, invasive aquatic plants grow uncontrolled and can cause habitat to fill in, affect flow dynamics, and increase water temperature, exacerbating drought impacts in stream habitats (Colle et al. 1987, p. 416).

The Aquatic Nuisance Species (ANS) Task Force, co-chaired by the Service and the National Oceanic and Atmospheric Administration (NOAA), encourages State and interstate planning entities to develop management plans describing detection and monitoring efforts of aquatic nuisance and nonnative species, prevention efforts to stop their introduction and spread, and control efforts to reduce their impacts. Management plan approval by the ANS Task Force is required to obtain funding under Section 1204 of the ANS Prevention and Control Act. Each state within the range of the pyramid pigtoe has either a plan approved by or submitted to the ANS Task Force, or a plan under development. These plans have been effective in terms of raising awareness at the state level of the severity of ecological damage that non-native and nuisance species are capable of, but many are in early stages of implementation. Although laws and efforts are in place which may be effective in controlling or diminishing non-native and invasive species, these organisms are a current and future threat to the pyramid pigtoe throughout its range.

Historically, an extensive, largely contiguous pyramid pigtoe population occurred through much of the eastern half of the United States, and there were limited barriers preventing genetic interchange among river systems. With the completion of hundreds of dams in the 1900s, many large-river pyramid pigtoe populations were lost, resulting in isolation of tributary populations. The population size of a long-lived species, such as the pyramid pigtoe, may take decades to decline to extirpation post-impoundment. At best, limited post-impoundment recruitment may be occurring in the isolated pyramid pigtoe populations, indicating that these small populations are not likely viable long term.

Currently, the pyramid pigtoe exhibits several traits that reduce population viability, including small population size and low fecundity at many locations compared to other mussels. Smaller population size puts the species at greater risk of extirpation from stochastic events ( e.g., drought) or anthropomorphic changes and management activities that affect habitat. In addition, smaller populations may have reduced genetic diversity, be less genetically fit, and more susceptible to disease during extreme environmental conditions (Frankham 1996, p. 1,505). Moreover, small and isolated populations are at higher risk of further loss of genetic variation due to genetic drift, thereby lessening the affected species' ability to adapt to a continuously changing environment. Lastly, the relatively low fecundity, coupled with low juvenile survivorship, limit the pyramid pigtoe's ability to withstand and recover from population losses. While several populations of pyramid pigtoe are at risk of extirpation due to their small size, other populations are large enough and sufficiently connected within their MU that they are regularly recruiting new cohorts. Therefore, small population size is a population-level threat but not currently a species-level or rangewide threat.

Climate change threats for freshwater mussels include alteration of natural stream flow and water temperature regimes as drought, precipitation, and temperature patterns shift. Population discontinuity and isolation is possible due to the dynamics in range shifts of mussels and their host fishes as a result of warming climates, based on life-history traits (Archambault et al. 2018, p. 880). However, the mechanisms behind these shifts and how they alter population connectivity and gene flow are uncertain, and there is no evidence linking climate change impacts specifically to the current status of the pyramid pigtoe.

Collectively, threats to the pyramid pigtoe have acted on the species to reduce the number of historical populations and fragment and reduce the size of extant populations. Currently, 15 of the 35 extant populations are small in size, represented by fewer than 10 individuals observed over the past 20 years. Factors such as low effective population size, genetic isolation, relatively low levels of fecundity and recruitment, and limited juvenile survival could affect the ability of these species to maintain current population levels and to rebound if a reduction in population occurs ( e.g., through predation, toxic releases or spills, or poor environmental conditions that inhibit successful reproduction). Additionally, fragmentation ( i.e., the breaking apart of habitat segments, independent of habitat loss (Fahrig 2003; p. 299)) and isolation contribute to the extinction risk that mussel populations face from stochastic events (see Haag 2012, pp. 336-338). Throughout the range of the pyramid pigtoe, impoundments fragment and isolate populations from one another, prevent dispersal, which reduces gene flow (Vaughn 2012, p. 6; Service 2018, pp. 59-60; Service 2019, p. 74), and compound other threats, such as the introduction of contaminants and pollution resulting from mining, oil and gas exploration, agricultural runoff, and untreated or poorly treated wastewater discharges.

Current (and future) conditions are described using the following categories that characterize the overall condition (resiliency) of the pyramid pigtoe populations:

• High—Population with more than 50 individuals reported since 2000, distributed over a more or less contiguous river or stream of at least 31 miles (mi) (50 kilometers (km)) in length, with evidence of recent recruitment. Water quality and habitat conditions remain optimal for recruitment, and multiple age classes are represented. Populations are not linearly distributed and occur in more than one stream within the river system.

• Medium—small restricted populations (10 to 50 individuals reported since 2000) generally distributed over a more or less contiguous length of river or stream of at least 6.2 mi (10 km) but less than 31 mi (50 km)), with some level of age class structure, but vulnerable to existing threats. Appropriate substrates are generally maintained with instream flows that mimic natural conditions. Water quality and habitat degradation may occur but not at a level that negatively affects both the density and extent of a population.

• Low—very small and highly restricted populations (fewer than 10 individuals reported since 2000), distributed over less than 6.2 mi (10 km) of river or stream, with little to no evidence of age class structure (only older individuals observable). Loss of mussel habitat or water quality degradation within the formerly occupied river or stream reach has been measured or observed, and imminent threats are documented. Population is linearly distributed and geographically restricted and is not likely to withstand stochastic events.

We assessed resiliency and redundancy based on management units (MUs) defined at the hydrologic unit code (HUC) scale (Seaber et al. 1987, entire; U.S. Geological Survey 2018, entire). Management units consisted of HUC-8 regions, which are analogous to medium-sized river basins across the United States. An MU consisting of a linear reach of stream could harbor one population or, if it contained a large gap in the species' distribution as a result of an impoundment or physiographic boundary, more than one population. If multiple tributaries were occupied (dendritic distribution) each tributary within the MU was considered to represent a population. A majority of MUs contained one population, given that the pyramid pigtoe occurs only in large or medium-sized rivers and not smaller tributaries.

Representation was assessed at the larger HUC-2 region (major basin) scale, and representation units were delineated to capture the variation in adaptive traits and genetic diversity. See chapter 2 in the SSA report for further explanation of the analysis methodology (Service 2021, pp. 20-22). Each major basin contains unique physiographic provinces and ecoregions. Therefore, the populations within each major basin may harbor basin-specific adaptive traits and as such species representation has been reduced from six basins to four basins. Historical connectivity between the major basins has been lost due habitat degradation and construction of impoundments and there is no opportunity for exchange of beneficial, or adaptive, genes between the basins.

The pyramid pigtoe's current range extends over nine States, including Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee, and Virginia. The species is considered extirpated in Indiana, Illinois, Iowa, Kansas, Minnesota, Missouri, Pennsylvania, West Virginia, and Wisconsin. Its current range is within four major HUC-2 regions (the Arkansas-White-Red, Lower Mississippi, Ohio, and Tennessee River regions, Figure 1). It is extirpated in the Missouri and Upper Mississippi River HUC-2 regions. Overall, the pyramid pigtoe formerly occupied at least 135 MUs but currently occurs in 28 MUs (Figure 2). Known populations have declined in number, from 151 historically to 35 today. Currently, 15 MUs have low resiliency, 9 MUs have medium resiliency, and 4 MUs have high resiliency (Table 2, in Future Conditions ).

In the SSA report, we forecast the pyramid pigtoe's response to plausible future scenarios of environmental conditions. The future scenarios project the range in magnitude and scope of threats into the future. Uncertainty is inherent in any risk assessment, so we must consider plausible conditions to make our determinations. When assessing the future, viability is not a specific state, but rather a continuous measure of the likelihood that the species will sustain populations over time.

The scenarios described in the SSA report represent two possible future conditions. Under scenario 1, the threat levels remain unchanged (threats continue to act on the species at the current rate), whereas under scenario 2 the threat levels increase. Both scenarios project existing regulatory mechanisms and voluntary conservation measures benefiting the species remaining in place. We did not analyze a scenario whereby threat levels lessen because the primary threats that have fragmented and isolated populations will persist. Developed areas, large dams, and most of the small and retired dams affecting the species will remain in place.

We included climate change in our future scenarios as a factor that would add to the negative impacts of the primary threats on the species' habitat. Climate change is expected to alter the natural flow regime through increased drought and flooding worsening desiccation, scour, and sedimentation in each MU. However, in our analysis the influence of climate change, as a secondary threat, does not alter the projected future viability of any population or management unit. Those future outcomes are driven by the primary threats of habitat alteration or loss, nonnative invasive species, and the effects of small population size.

Using the scenarios, we project the pyramid pigtoe's viability over 20 to 30 years. We selected this duration because the species is slow growing and long-lived and has relatively low fecundity; long-term trend information on pyramid pigtoe abundance and threats is not available across the species' range to contribute to meaningful alternative timeframes.

Future resiliency of pyramid pigtoe populations depends on the extent to which the species' needs are met for water quality, flow, substrate suitability, abundance and distribution of host fish species, and habitat connectivity. We projected the expected future resiliency of each population based on how events likely to occur under each scenario would affect the species' resource needs. Future resiliency of each population is classified as high, medium, low, or very low. Where multiple populations occur within an MU, the MU condition is the average of the population condition classifications; however, there are no management units where the population classifications vary ( i.e., all populations within the MU have the same classification). These projections are informed by development planning documents, peer-reviewed literature, vetting of initial condition ranking by mussel experts, and our best professional judgment. Very low condition populations will become extirpated; low condition populations will become functionally extirpated (no recruitment); medium condition populations will exhibit limited recruitment and be linearly distributed and thus will have impaired ability to recover from disturbances and will be vulnerable to catastrophic events; and high condition populations will consistently recruit and be distributed over long distances and in connected mainstem and tributary river reaches (see SSA report for detailed future condition category definitions, Service 2021, pp. 84-85).

Our analysis shows that whether threats remain constant or increase into the future, all 35 populations are expected to experience negative changes to their important habitat requisites or resource needs, and the condition of many of the populations would decrease (Table 2). Under scenario 1, we expect 23 populations will be in low or very low condition and 9 in medium condition, with no to little resiliency, respectively. The remaining 3 populations occurring within the Saline or Upper Ouachita Rivers, where the impact of impoundments is not as severe as elsewhere in the species' range, are expected to maintain a high condition. Under scenario 2, we expect 31 populations to be either functionally extirpated (low condition) or extirpated (very low condition) and 4 to be in medium condition. With increasing threat levels, the population condition of the Saline and Upper Ouachita Rivers decline, and, thus, within 20 to 30 years no high condition populations remain.

The viability implications associated with the expected change in population conditions can be discerned at the MU and HUC-2 scales. Under scenario 1, we expect 3 MUs (11 percent) remain in high condition; 9 MUs (32 percent), in medium condition; 12 MUs (43 percent), in low condition; and 4 (14 percent), in very low condition. Therefore, the species' ability to withstand natural environmental variation and threats will be greatly limited. Loss of the three MUs reduces the species' distribution, increasing its risk to catastrophic events. The pyramid pigtoe will continue to be represented in the Ohio, Tennessee, and Lower Mississippi basins, but reduced to six States (as compared to the current nine States) occupied by the species. Representation will be lost from the Arkansas-White-Red basin, as all of its MUs are expected to be in low condition. It will take many years (potentially beyond the 20- to 30-year timeframe analyzed), for full evaluation of the species' response to any current beneficial actions, such as removal of Lock and Dam 6 on the Green River, or the safe harbor agreements and candidate conservation agreements with assurances in the Upper Ouachita and Upper Saline Rivers.

Under scenario 2, none of the MUs are expected to be in high condition, 4 (14 percent) are in medium condition, 11 (39 percent) are in low condition, and 13 (46 percent) are in very low condition. Given no MUs will be in high condition, the species' ability to withstand natural environmental variation and threats will be substantially limited. Redundancy will also be substantially reduced with no high condition MUs remaining and the expected loss of 13 (46 percent) MUs. Loss of the species from the Arkansas-White-Red basin, with no high condition MUs in any basin, and potential extirpation of the species from the States of Virginia, Ohio, Oklahoma, and Mississippi will substantially reduce the species' genetic diversity, thereby decreasing its ability to adapt to changing environmental conditions.

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. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then 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.

As discussed under Threats, Federal and State lands and water quality regulations afford the pyramid pigtoe and its habitats some protection from land development, industrial, and transportation activities. Additionally, laws intended to reduce the threat of nonnative species are in place. Many populations of the pyramid pigtoe were extirpated or reduced prior to development of modern conservation programs and regulatory mechanisms. As such, historical threats no longer present on the landscape impart a legacy effect (small population size or degraded habitat) on some current populations. Further, some water quality regulations have not been fully adopted or consistently applied across the species' range. Therefore, despite the existing regulatory mechanisms in place, the combined threats and impacts of actions that occurred prior to the implementation of these regulatory mechanisms continue to negatively affect the pyramid pigtoe.

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 “in danger of extinction throughout all or a significant portion of its range” and a threatened species as a species “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 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.

Historically, the pyramid pigtoe occurred within 151 populations and 136 MUs, in 6 basins across 18 States (Figure 2). Currently, the species occurs within 35 populations and 28 MUs, in 4 basins across 9 States, which represents a 77 percent reduction of its historically occupied populations. Of the extant MUs, 4 are highly resilient, while 9 and 15 have medium and low resiliency, respectively. The threats leading to its current condition include past and ongoing habitat degradation or loss (Factor A), residual impacts from past harvest and overutilization (Factor B), and ongoing competition, predation, and habitat alteration from invasive, nonnative species (Factor E). Collectively, these threats reduce population abundance, thereby precipitating negative genetic and demographic effects associated with small population size (Factor E) within some of the smaller populations. Although downtrends from historical numbers are evident and declines are likely to continue, four high resilient MUs are distributed across two of the four occupied major river basins. These four MUs provide for current representation and redundancy of the species. Thus, after assessing the best available information, we conclude that the pyramid pigtoe is not in danger of extinction throughout all of its range. We, therefore, proceed with determining whether the pyramid pigtoe is likely to become endangered within the foreseeable future throughout all of its range.

The best available information suggests that the threats currently acting upon the pyramid pigtoe will continue into the foreseeable future. In areas experiencing human population and land development growth, these threats ( e.g., water quality and habitat degradation) are reasonably expected to increase over time, further reducing the species' resiliency, redundancy, and representation. Our foreseeable future (20 to 30 years) reflects the period of time over which we can reliably predict both the threats to the pyramid pigtoe and the pyramid pigtoe's response to those threats based on the best available information. Within the foreseeable future, even if threats were to remain at current levels and not increase, 23 of the 35 populations are projected to become extirpated or functionally extirpated (Table 2). Additionally, with no change in threat levels, the condition of one of the four high resilient populations will decline to medium resiliency and the remaining three high resilient populations would be confined to a single basin. At the MU scale, only 3 of the 28 extant MUs remain in high condition, with 17 MUs projected to become extirpated or functionally extirpated within 20 to 30 years. If threats increase, 19 populations will likely be extirpated within 20 to 30 years, leading to only 4 MUs persisting. These MUs will have limited recruitment potential and restricted distribution, thus impairing the species' ability to recover from disturbances and increasing its vulnerability to catastrophic events. In summary, threats currently acting on the species are likely to persist or increase in the foreseeable future, resulting in zero to three high resilient populations in one of its six historical major basins and resulting in a high risk of impacts from a single catastrophe or stochastic events. Thus, after assessing the best available information, we conclude that the pyramid pigtoe is likely to become in danger of extinction within the foreseeable future 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. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Center for Biological Diversity ), 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 that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for the pyramid pigtoe, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered.

For the pyramid pigtoe, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Habitat degradation or loss, invasive and nonnative species, and negative effects associated with small population size, including cumulative effects. Habitat degradation or loss, including diminished water quality, is a threat in all four basins occupied by the pyramid pigtoe, although the contribution by source ( e.g., agriculture, urbanization, mining, dredging) varies. Invasive or nonnative species also is a threat in each occupied basin. Lastly, large populations (number of individuals) occur in three of the four basins, and medium populations occur in all four basins.

We examined the Arkansas-White-Red basin (the only basin not containing any large populations) to determine if there is a concentration of threats because, of the three populations in the basin, two have a moderate threat level and one has a low threat level. All three of these populations are in a low current condition, and two of the three populations have small numbers of individuals. Thus, the cumulative effects of small population size with the other identified threats may be concentrated in this basin.

We then evaluated whether the Arkansas-White-Red basin may be biologically important to the overall species' viability, i.e., significant. This basin contains 3 of the 35 (8.6 percent) pyramid pigtoe populations. By length of river, the populations combined occupy about 5 percent of the species' range. Therefore, the populations in the Arkansas-White-Red basin minimally contribute to the overall viability of the species.

The pyramid pigtoe occurs in similar habitats across the four basins it occupies and does not use unique observable environmental characteristics attributable to any of the basins. The Arkansas-White-Red basin populations occur in stream habitat with substrate types and water quality similar to the other basins where the pyramid pigtoe performs the important life-history functions of breeding, feeding, and sheltering. The basin does not act as a refugium for the species or as an important spawning ground. In addition, the water quality is similar throughout the species' range, with impaired water quality occurring in all four basins. Because the pyramid pigtoe occurs in similar aquatic habitats, the Arkansas-White-Red basin population exhibits similar habitat use as populations in the remainder of the range.

Overall, we found no substantial information that would indicate the Arkansas-White-Red basin is a portion of the range that may be significant in terms of its overall contribution to the species' resiliency, redundancy, and representation, or that it is significant in terms of high-quality habitat or habitat that is otherwise important for the species' life history. Additionally, within each of the other three basins (or portions of the range) there was no concentration of threats that would indicate the species is facing elevated threats in those portions. As a result, we determined there is no portion of the pyramid pigtoe's range that constitutes a significant portion of the range where the species is currently endangered. Accordingly, we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts' holdings in Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Our review of the best available scientific and commercial information indicates that the pyramid pigtoe meets the definition of a threatened species. Therefore, we propose to list the pyramid pigtoe as a threatened species in accordance with sections 3(20) 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 following 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 Asheville 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 States of Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, Tennessee, and Virginia would be eligible for Federal funds to implement management actions that promote the protection or recovery of the pyramid pigtoe. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the pyramid pigtoe 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, consultation, or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the following:

(1) U.S. Army Corps of Engineers (channel dredging and maintenance; dam projects including flood control, navigation, hydropower, bridge projects, stream restoration, and Clean Water Act permitting).

(2) U.S. Department of Agriculture, including the Natural Resources Conservation Service and Farm Service Agency (technical and financial assistance for projects) and the Forest Service (aquatic habitat restoration, fire management plans, fire suppression, fuel reduction treatments, forest plans, mining permits).

(3) U.S. Department of Energy (renewable and alternative energy projects).

(4) Federal Energy Regulatory Commission (interstate pipeline construction and maintenance, dam relicensing, and hydrokinetics).

(5) U.S. Department of Transportation (highway and bridge construction and maintenance).

(6) U.S. Fish and Wildlife Service (issuance of section 10 permits for enhancement of survival, habitat conservation plans, and safe harbor agreements; National Wildlife Refuge planning and refuge activities; Partners for Fish and Wildlife program projects benefiting these species or other listed species; Wildlife and Sportfish Restoration program sportfish stocking).

(7) Environmental Protection Agency (water quality criteria, permitting).

(8) Tennessee Valley Authority (flood control, navigation, hydropower, and land management for the Tennessee River system).

(9) Office of Surface Mining Reclamation and Enforcement (land resource management plans, mining permits, oil and natural gas permits, abandoned mine land projects, and renewable energy development).

(10) National Park Service (aquatic habitat restoration, fire management plans, fire suppression, fuel reduction treatments, land management plans, mining permits).

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. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy.

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Exercising this authority under section 4(d), we have developed a proposed rule that is designed to address the pyramid pigtoe's conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the pyramid pigtoe.

As discussed above under Summary of Biological Status and Threats, we have concluded that the pyramid pigtoe is likely to become in danger of extinction within the foreseeable future primarily due to declines in water quality, alteration and deterioration of instream habitats, fragmentation and isolation of populations, and nonnative species. These threats, which are expected to be exacerbated by continued urbanization and land development, were central to our assessment of the future viability of the pyramid pigtoe. The provisions of this proposed 4(d) rule would promote conservation of the pyramid pigtoe by encouraging management of the landscape in ways that meet the conservation needs of the pyramid pigtoe and are consistent with land management considerations. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the pyramid pigtoe. This proposed 4(d) rule would apply only if and when we make final the listing of the pyramid pigtoe as a threatened species.

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.

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 or that involve some other Federal action such as funding, like those listed above under Available Conservation Measures. 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.

This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that a Federal agency determines “may affect” listed species or critical habitat continue to require consultation and actions that are “likely to adversely affect” a species require formal consultation and the formulation of a biological opinion.

This proposed 4(d) rule would provide for the conservation of the pyramid pigtoe by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce.

As discussed above under Summary of Biological Status and Threats, multiple factors are affecting the status of the pyramid pigtoe. A range of activities have the potential to affect the pyramid pigtoe, including declines in water quality, alteration and deterioration of instream habitats, fragmentation and isolation of populations, and nonnative species. These threats, which are expected to continue due to land development for urbanization, agriculture, and resource extraction, channel navigation, and dam operations were central to our assessment of the future viability of the pyramid pigtoe. Therefore, we prohibit actions resulting in the incidental take of the pyramid pigtoe by altering or degrading its habitat.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and/or intentional take would help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

The proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions for take associated with actions and activities that, while they may have some minimal level of disturbance to pyramid pigtoe, are not expected to negatively impact conservation and recovery efforts for the species. The proposed exceptions to these prohibitions include incidental take associated with (1) conservation efforts by the Service or State wildlife agencies, (2) channel restoration projects, (3) bank restoration projects, and (4) take necessary to aid a sick or injured specimen, or to salvage a dead specimen.

The first exception is for conservation and restoration efforts for pyramid pigtoe by the Service or State wildlife agencies, and including, but not limited to, collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into unoccupied areas within the historical range of the species. We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Service in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Service shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the pyramid pigtoe that may result in otherwise prohibited take without additional authorization.

The second and third exceptions are for channel and bank restoration projects for creation of natural, physically stable, ecologically functioning streams, taking into consideration connectivity with floodplain and groundwater aquifers. These exceptions include a requirement that bank restoration projects require planting appropriate native vegetation, including woody species appropriate for the region and habitat. We also propose language that would require surveys and relocation prior to commencement of restoration actions for pyramid pigtoe that would otherwise be negatively affected by the actions. We reiterate that these actions and activities may have some minimal level of take of pyramid pigtoe, but any such take is expected to be rare and insignificant and is not expected to negatively impact conservation and recovery efforts. Rather, we expect they would have a net beneficial effect on the species. Across the species' range, instream habitats have been degraded physically by sedimentation and by direct and indirect channel disturbance. The habitat restoration activities in the proposed 4(d) rule are intended to improve habitat conditions for the species in the long term.

Finally, the proposed 4(d) rule would allow take of pyramid pigtoe without a permit by any employee or agent of the Service or a State conservation agency designated by the agency for such purposes and when acting in the course of their official duties if such action is necessary to aid a sick or injured specimen, or to salvage a dead specimen which may be useful for scientific study. In addition, Federal and State wildlife law enforcement officers, working in coordination with Service field office personnel, may possess, deliver, carry, transport, or ship pyramid pigtoe taken in violation of the Act as necessary.

Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the pyramid pigtoe. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above).

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 earlier in this document, 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 proposed listing determination for the pyramid pigtoe, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the pyramid pigtoe 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 pyramid pigtoe.

Having determined that designation is prudent, under section 4(a)(3) of the Act we consider whether critical habitat for the pyramid pigtoe 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.”

For the pyramid pigtoe, the species' needs are sufficiently well known. However, there is some uncertainty regarding the taxonomic identity of populations outside the Ohio, Cumberland, and Tennessee River basins (see Background ), which is currently under investigation using different genetic markers than assessed thus far. Results of this taxonomic investigation, which may more accurately delineate the species' occupied range, are likely to be completed and submitted to a peer-reviewed journal within 1 year. In addition to this taxonomic investigation that may better determine critical habitat areas, a careful assessment of the economic impacts that may occur due to a critical habitat designation is ongoing, and we are in the process of acquiring the necessary information to perform that assessment. Because the information sufficient to perform a required analysis of the impacts of the designation is lacking, we find designation of critical habitat for the pyramid pigtoe to be not determinable at this time. The Act allows the Service an additional year to publish a critical habitat designation that is not determinable at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

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.

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 regulations adopted pursuant to section 4(a) of 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. There are no Tribal lands within or adjacent to known pyramid pigtoe occupied habitat. We will coordinate with Tribes whose lands are close to pyramid pigtoe populations.

A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Asheville 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 Asheville 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: