[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Proposed Rules]
[Pages 58648-58703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20370]



[[Page 58647]]

Vol. 87

Tuesday,

No. 186

September 27, 2022

Part II





 Department of the Interior





-----------------------------------------------------------------------





 Fish and Wildlife Service





-----------------------------------------------------------------------





50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status with Section 4(d) Rule for Florida Keys Mole Skink and 
Designation of Critical Habitat; Proposed Rule

  Federal Register / Vol. 87 , No. 186 / Tuesday, September 27, 2022 / 
Proposed Rules  

[[Page 58648]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2022-0104; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BG24


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status with Section 4(d) Rule for Florida Keys Mole Skink and 
Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Florida Keys mole skink (Plestiodon egregius egregius), a 
lizard subspecies from the Florida Keys, Florida, as a threatened 
species and designate critical habitat under the Endangered Species Act 
of 1973, as amended (Act). This determination also serves as our 12-
month finding on a petition to list the Florida Keys mole skink. After 
a review of the best available scientific and commercial information, 
we find that listing the species is warranted. Accordingly, we propose 
to list the Florida Keys mole skink as a threatened species with a rule 
issued under section 4(d) of the Act (``4(d) rule''). If we finalize 
this rule as proposed, it would add this species to the List of 
Endangered and Threatened Wildlife and extend the Act's protections to 
the species. We also propose to designate critical habitat for the 
Florida Keys mole skink under the Act. In total, approximately 7,068 
acres (2,860 hectares) within Monroe County in the Florida Keys, 
Florida, fall within the boundaries of the proposed critical habitat 
designation. We also announce the availability of a draft economic 
analysis of the proposed designation of critical habitat for the 
Florida Keys mole skink.

DATES: We will accept comments received or postmarked on or before 
November 28, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 14, 2022.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2022-0104, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2022-0104, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0104. For the proposed 
critical habitat designation, the coordinates or plot points or both 
from which the maps are generated are included in the decision file for 
this critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0104 and on the 
Service's website at https://www.fws.gov/office/florida-ecological-services/library. Additional supporting information that we developed 
for this critical habitat designation, including the conservation 
strategy, will be available on the Service's website, at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Lourdes Mena, Division Manager, 
Classification and Recovery, Florida Ecological Services Field Office, 
7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256-7517; 
[email protected]; telephone 904-731-3134. Individuals in the United 
States who are deaf, deafblind, hard of hearing, or have a speech 
disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Florida Keys mole skink meets the definition of a threatened species; 
therefore, we are proposing to list it as such and proposing a 
designation of its critical habitat. Both listing a species as an 
endangered or threatened species and designating critical habitat can 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process (5 U.S.C. 551 et seq.). Additionally, 
we are proposing a rule under section 4(d) of the Act because 
prohibitions of section 9 of the Act can be applied to threatened 
species only by issuing a section 4(d) rule.
    What this document does. We propose the listing of the Florida Keys 
mole skink as a threatened species with a rule under section 4(d) of 
the Act, and we propose the designation of critical habitat.
    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 human-made factors affecting its 
continued existence. We have determined that the Florida Keys mole 
skink is facing threats associated with climate change, specifically 
sea level rise, increased high tide flooding, and increased intensity 
storm events (Factor E), as well as threats due to habitat loss and 
degradation that result from development, and habitat disturbance 
(Factor A).
    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)

[[Page 58649]]

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.
    Section 4(d) of the Act states that the Secretary shall issue such 
regulations as she deems necessary and advisable to provide for the 
conservation of species listed as threatened species and 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.

Information Requested

    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, 
and the locations of any additional populations of this species;
    (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 human-made 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 of this species.
    (5) Information on regulations that are necessary and advisable to 
provide for the conservation of the Florida Keys mole skink and that we 
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) 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 regarding 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) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    (7) Specific information on:
    (a) The amount and distribution of Florida Keys mole skink habitat;
    (b) The importance, or role, of inland habitats, such as rockland 
hammocks and pine rocklands, and low-density development or disturbed 
areas to Florida Keys mole skink breeding, feeding, sheltering, or 
dispersal;
    (c) Any additional areas occurring within the range of the species, 
the Upper Keys, Middle Keys, Lower Keys, and Distal Sand Keys Regions 
of the Florida Keys in Monroe County, Florida, that should be included 
in the designation because they 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 are unoccupied at the time of listing and are 
essential for the conservation of the species; and
    (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.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (10) 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 and any additional information 
regarding probable economic impacts that we should consider.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular for those based on a 
conservation program or plan, and why. These may include Federal, 
State, county, local, or private lands with permitted conservation 
plans covering the species in the area such as habitat conservation 
plans, safe harbor agreements, or conservation easements, or non-
permitted conservation plans, agreements, or partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. 
Specific information we seek includes the effectiveness of the Monroe 
County Habitat Conservation Plan (HCP) on Big Pine Key and No Name Key 
in protecting pine rocklands and rockland hammock habitat and in 
providing for conservation of the Florida Keys mole skink. If you think 
we should exclude any additional areas, please provide information 
regarding the existence of an economic or other relevant impact 
supporting a benefit of exclusion.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    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, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any

[[Page 58650]]

species is an endangered or a threatened species must be made solely on 
the basis of the best scientific and commercial data available and 
section 4(b)(2) of the Act directs that the Secretary shall designate 
critical habitat on the basis of the best scientific information 
available. You may submit your comments and materials concerning this 
proposed rule by one of the methods listed in ADDRESSES. We request 
that you send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    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. For critical habitat, our final designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, or may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion. 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 
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.

Public Hearing

    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. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    On April 20, 2010, the Service received a petition from the Center 
for Biological Diversity to list 404 aquatic, riparian, and wetland 
species from the southeastern United States, including the Florida Keys 
mole skink, as endangered or threatened species under the Act. The 
subsequent 90-day finding (76 FR 59836, September 27, 2011) provided 
that the petition was substantial for 374 of the petitioned species 
including the Florida Keys mole skink. On October 5, 2017, the Service 
published a 12-month finding that the Florida Keys mole skink did not 
warrant listing under the Act (82 FR 46618).
    On September 23, 2019, the Center for Biological Diversity filed 
suit against the Service, alleging the Service did not use the best 
available scientific data regarding sea level rise and its impacts to 
the Florida Keys mole skink habitat in its 12-month finding and 
challenged the adequacy of our significant portion of the range 
analysis. On September 16, 2020, the Court vacated and remanded the 
challenged 12-month finding for the Florida Keys mole skink. In April 
2021, the Service was ordered, upon agreement with the Center for 
Biological Diversity, to submit a new finding to the Federal Register 
by September 15, 2022. This finding and proposed rule reflects the 
updated assessment of the status of the species based on the best 
available science, including an updated species status assessment for 
the Florida Keys mole skink (Service 2022, entire).

Supporting Documents

    A species status assessment (SSA) team prepared a revised SSA 
report for the Florida Keys mole skink (Service 2022, entire). 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 nine appropriate 
specialists regarding the updated SSA report. We received two 
responses.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
Florida Keys mole skink (Plestiodon egregius egregius) is presented in 
the SSA report (Service 2022, pp. 8-22). The Florida Keys mole skink is 
one of five distinct subspecies of mole skinks in Florida, all in the 
genus Plestiodon (previously Eumeces) (Brandley et al. 2005, pp. 387-
388) and is endemic to the Florida Keys. The Florida Keys mole skink is 
a small, slender lizard with a long, brilliantly colored tail (color 
variation from orange and red to faded pink) and short legs. Adults 
reach a total length of approximately 12.7 centimeters (cm) (5 inches 
(in)) (Florida Natural Areas Inventory (FNAI) 2001, p. 1). The age at 
first reproduction is estimated at 2 years, and generation time is 
approximately 4 years (McCoy 2010, p. 641).
    The Florida Keys mole skink is semi-fossorial (adapted to digging 
and living underground) and cryptic in nature. The Florida Keys mole 
skink moves through sand and soil using a swimming motion and prefers 
loose soils that allow for easy mobility. Loose soils are also 
conducive for burrowing and nesting (Christman 1992, p. 179). Ground 
cover, such as leaf litter, debris, and tidal wrack (organic material 
and other debris deposited at high tide) provide shelter and a food 
resource (insects and arthropods that live under ground cover) for 
Florida Keys mole skink. Florida Keys mole skinks are found on low-
lying islands with preferred habitats consisting of beaches, dunes, 
coastal berms, rockland hammocks, and pine rocklands. However, 
individuals have been detected in developed areas such as cemeteries, 
vacant lots, backyards, along roads, and golf courses (Mays and Enge 
2016, p. 10; Emerick 2017a, pers. comm.; iNaturalist 2020,

[[Page 58651]]

entire). Home range distances for Florida Keys mole skink are estimated 
at a maximum of 100 m (328 ft) (Gianopulos 2001, p. 81; Mushinsky et 
al. 2001, p. 54; McCoy et al. 2020, p. 8), and dispersal between 
islands is limited (Mercier 2018, pp. 18-21).
    The Florida Keys is a low-lying chain of small ancient coral reef 
islands extending 125 miles (mi) (201 kilometers (km)) southwest from 
the southeastern tip of the Florida peninsula. The Florida Keys are 
primarily mangrove islands composed of predominantly limestone 
substrate (ancient coral reef). The average elevation of the Florida 
Keys is less than 4.0 feet (ft) (1.2 meters (m)) above sea level 
(Service 2020, p. 9). Florida Keys mole skinks have been documented on 
23 islands throughout the Florida Keys (see figure, below). Fifteen of 
these islands have had detections in the last two decades (years 2000 
to 2021), four islands have relatively recent detections (years 1970 to 
1999), and four islands have historical detections (before 1970). 
Systematic surveys have not been conducted for the Florida Keys mole 
skink across all of the Florida Keys; therefore, the true spatial 
distribution of populations throughout the Florida Keys is unknown. 
Consequently, Florida Keys mole skink may occur on Florida Keys other 
than those reported.
[GRAPHIC] [TIFF OMITTED] TP27SE22.000

Regulatory and Analytical Framework

Regulatory Framework

    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. On 
July 5, 2022, the U.S. District Court for the Northern District of 
California vacated regulations that the Service (jointly with the 
National Marine Fisheries Service) promulgated in 2019 modifying how 
the Services add, remove, and reclassify threatened and endangered 
species and the criteria for designating listed species' critical 
habitat (Center for Biological Diversity v. Haaland, No. 4:19-cv-05206-
JST, Doc. 168 (CBD v. Haaland). As a result of that vacatur, 
regulations that were in effect before those 2019 regulations now 
govern listing and critical habitat decisions. Our analysis for this 
proposal applied those pre-2019 regulations. However, given that 
litigation remains regarding the court's vacatur of those 2019 
regulations, we also undertook an analysis of whether the proposal 
would be different if we were to apply the 2019 regulations. We 
concluded that the proposal would have been the same if we had applied 
the 2019 regulations. The analysis based on the 2019 regulations is 
included in the decision record for this proposal.
    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 
subspecies 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;

[[Page 58652]]

    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or human-made 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 species' expected response 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.'' Because 
the decision in CBD v. Haaland vacated our 2019 regulations regarding 
the foreseeable future, we refer to a 2009 Department of the Interior 
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in 
Section 3(20) of the Endangered Species Act'' (M-37021). That 
Solicitor's opinion states that the foreseeable future ``must be rooted 
in the best available data that allow predictions into the future'' and 
extends as far as those predictions are ``sufficiently reliable to 
provide a reasonable degree of confidence in the prediction, in light 
of the conservation purposes of the Act.'' Id. at 13.
    It is not always possible or necessary to define the 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' 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.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the Florida Keys mole skink, including an assessment of 
the potential threats to the species. The SSA report does not represent 
our decision on whether the Florida Keys mole skink 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 No. FWS-R4-ES-
2022-0104 on https://www.regulations.gov.
    To assess Florida Keys mole skink 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 Florida Keys mole 
skink's 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.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
Florida Keys mole skink 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.

Species Needs

    The SSA report contains a detailed discussion of the Florida Keys 
mole skink individual and population requirements (Service 2022, pp. 
16-23); we provide a summary here. Based upon the best available 
scientific and commercial information, and acknowledging existing 
ecological uncertainties, the resource and demographic needs for 
breeding, feeding, sheltering, and dispersal of the Florida Keys mole 
are characterized as:
     Beach and dune, coastal berm, rockland hammock, and pine 
rockland habitats that provide ground cover in the form of leaf litter 
and wrack material Florida Keys mole skinks need for nesting, arthropod 
and insect food sources, and cover;
     Dry, loose, sandy, permeable, or friable (crumbly in 
texture) soils for digging of nest cavities and for their swimming 
movement;
     Ground cover such as leaf litter, debris, or tidal wrack 
(for thermoregulation, food sources, cover from predators, and 
breeding); and
     Arthropod and insect food sources (found within the ground 
cover and wrack).

[[Page 58653]]

    Florida key mole skink abundance, distribution, and life history 
behaviors (nesting, breeding) are limited to (and defined by) the 
availability of these resources in the areas of beach and dune, coastal 
berm, rockland hammock, and pine rockland habitats. While ground cover 
and insect food sources appear sufficient and occur in adequate 
amounts, no ecological or quantitative studies have been completed on 
these factors.

Threats

    The main threats affecting the Florida Keys mole skink are related 
to shifts in climate as a result of increasing greenhouse gas 
emissions. Sea level rise, more frequent tidal flooding (increase of 
tides above the mean high tide), and increasing intensity of storm 
events (such as hurricanes) are the predominant threats to the Florida 
Keys mole skink and its habitat. Other threats to the Florida Keys mole 
skink include habitat loss and degradation that result from development 
and habitat disturbance. We also evaluated existing regulatory 
mechanisms and ongoing conservation measures. In the SSA, we considered 
additional threats: overutilization due to recreational, educational, 
and scientific use; disease; and oil spills and nonnative species. We 
concluded that, as indicated by the best available scientific and 
commercial information that these additional threats are currently 
having little to no impact on the Florida Keys mole skink, and thus 
their overall effect now and into the future is expected to be minimal. 
For full descriptions of all threats and how they impact the Florida 
Keys mole skink, please see the SSA report (Service 2022, pp. 31-51).
Climate Change
    The predominant threat currently affecting the Florida Keys mole 
skink and its habitat are the rapid and intense shifts in climate 
occurring as a result of increasing greenhouse gas emissions. The 
entire Florida Keys archipelago is being affected by sea level rise, 
more frequent high tide flooding, and increased intensity of storm 
events. In the SSA report and this proposed rule, we discuss the 
effects of climate change on the Florida Keys mole skink in terms of 
increasing sea level rise, more frequent tidal flooding, and increased 
intensity of storm events.
    Sea level rise--Within Florida, sea level rise is increasing at a 
faster rate than globally, making this species especially vulnerable to 
impacts from sea level rise across its entire range (Carter et al. 
2014, pp. 401-403; Park and Sweet 2015, entire; Sweet et al. 2017, p. 
25). Accelerated sea level rise in Florida is attributed to shifts in 
the Florida Current due to added ocean mass brought on by the melting 
Antarctic and Greenland ice packs and thermal expansion from warming 
oceans (Park and Sweet 2015, entire; Rahmstorf et al. 2015, entire; 
Deconto and Pollard 2016, p. 596; Sweet et al. 2017, p. 14).
    A majority of the Florida Keys are low-lying (average elevation 
less than 4.0 feet (ft) (1.2 meters (m)) (Service 2020, p. 9), making 
them highly susceptible to flooding, and at risk of inundation and 
saltwater intrusion (Florida Department of Environmental Protection 
(FDEP) 2012, p. 12; U.S. Geological Survey (USGS) 2017, n.p.). As sea 
level rises, existing Florida Keys mole skink habitats will become 
inundated and likely lost. As a result of sea level rise, higher tidal 
surges, coastal and inland flooding, and saltwater intrusion can 
further degrade and remove habitat (Carter et al. 2014, pp. 398-400, 
403; Wadlow 2016, entire). Because the Florida Keys mole skink inhabits 
low-lying islands, the species is especially vulnerable to sea level 
rise across its entire range.
    High Tide Flooding--One of the most noticeable impacts from sea 
level rise is the increased frequency of high tide flooding (Sweet et 
al. 2020, p. v). High tide flooding begins when coastal water levels 
exceed the mean higher high-water level (increase of tides above the 
mean high tide) (Sweet et al. 2014, entire). Frequent flooding above 
the high tide line is likely to cause flooded areas to become unusable 
to the Florida Keys mole skink (individuals cannot easily move through 
wet sand; individuals or nests will be washed away). Even prior to sea 
level rise inundation, Florida Keys mole skink habitats will likely 
undergo vegetation shifts triggered by changes to hydrology (wetter), 
salinity (higher), and more frequent storm surge and tidal flooding 
(that can result in beach erosion and salinization of soils), even if 
high tide or surge flooding is infrequent (Saha et al. 2011a, pp. 181-
182; Saha et al. 2011b, pp. 82-84; Sweet et al. 2020, pp. 1-4). If high 
tide or surge flooding occurs frequently, habitat could be highly 
degraded or eliminated prior to sea level rise inundation. Thus, high 
tide flooding is likely to result in removal of habitat, displacement 
of individuals landward to less suitable habitat, and loss of 
individual Florida Keys mole skinks due to drowning.
    Storm Events--Habitat for the Florida Keys mole skink can be 
degraded or removed by extreme storm events such as hurricanes, storm 
surges, and floods. Hurricane activity has been above normal since the 
Atlantic Multi-Decadal Oscillation (the natural variability of the sea 
surface temperature in the Atlantic Ocean) went into its warm phase 
around 1992 (National Oceanic and Atmospheric Administration (NOAA) 
2019, p. 1). Currently, while the incidence of tropical storms in 
southeast Florida (including the Florida Keys) is above normal, this 
frequency is expected to decrease with climate change, but the 
intensity of the storms is expected to increase (Service 2017, p. 7). 
The increased intensity could result in larger tidal storm surges, 
flood events, and greater destruction than historically documented 
(Service 2017, p. 7).
    Information on impacts of hurricanes to the Florida Keys mole skink 
and its habitat are lacking. However, there is information on impacts 
to habitat from hurricanes and other strong storms that have occurred 
in the region. In 2005, Hurricane Wilma (Category 3) passed just north 
of the Florida Keys causing maximum storm tides 5.0 ft to 6.0 ft (1.5 m 
to 1.8 m) above mean sea level in Key West and flooding in 
approximately 60 percent of the city, causing severe beach erosion 
(Kasper 2007, p. 6). On Boca Chica and Big Pine Key, Hurricane Wilma 
caused a storm surge of 5.0 ft to 8.0 ft (1.5 m to 2.4 m) (Kasper 2007, 
p. 9).
    In September of 2017, Hurricane Irma (Category 4) caused a storm 
surge of up to 7.8 ft (2.4 m) in the Lower Keys and Middle Keys (NOAA 
2018, pp. 3-4). Hurricane Irma altered whole dune ecosystems, removing 
sand, vegetation, and litter from these areas via wind and storm surge 
forces and uprooting many of the maritime hammock ecosystems (Emerick 
2017b, p. 6). After Hurricane Irma, Florida Keys mole skink surveys 
found low numbers of skinks on Sawyer Key in 2018, Content Key in 2020, 
Big Pine Key in 2018, and Long Key in 2018 (Zambrano 2021, pers. 
comm.). However, we do not have survey data from before Hurricane Irma 
to compare how numbers of Florida mole skinks may have changed as a 
result of the hurricane.
    Documented effects to habitat from past storm events can provide 
insight into the potential damage and loss to the Florida Keys mole 
skink habitat from future events. These storm events likely disturb and 
reduce the quantity and quality of Florida Keys mole skink resources 
(food, cover, nesting habitat), and such impacts may be significant 
depending upon the severity and proximity of the storm center. 
Conversely, when storms are not too destructive, vegetative material 
can be

[[Page 58654]]

deposited in localized areas high on the beach and ultimately provide 
habitat and increased insect food sources for skinks.
    The severity and duration of hurricane impacts to the Florida Keys 
mole skink and its habitat vary based on the intensity and scale of 
storm events. Localized impacts can vary greatly depending upon not 
only the strength of the storm but the direction of its approach and 
how quickly it moves through the area. Storm surges and their intensity 
can also vary depending on location. The heavy inundation and even 
complete overwash of some islands during hurricanes may explain the 
lack of Florida Keys mole skinks detected during post-storm surveys, 
even when an island has recovered and again contains high-quality 
suitable habitat. For example, Ohio Key was surveyed between 2015 and 
2017, and despite available high-quality suitable habitat and numerous 
searches, no Florida Keys mole skinks have been located on this island 
(Emerick 2017b, pers. comm.). However, we do not know if Ohio Key had 
Florida Keys mole skinks prior to these storm events, so it's possible 
that although the island contains suitable habitat, Florida Keys mole 
skinks were not present on the island. Heavy rainstorms, tropical 
storms, and hurricanes are part of this tropical island system. Over 
time, higher intensity storms may be a factor reducing the Florida Keys 
mole skink populations and thereby reducing overall population 
resiliency and the species' redundancy.
    In summary, impacts from climate change have the potential to 
reduce survival of Florida Keys mole skink at the individual, 
population, and species level. Sea level rise can degrade existing 
habitat that supports the Florida Keys mole skink, reducing the habitat 
features the species needs, and thus reducing population resiliency. 
Increased high tide flooding and increased intensity of storm events 
have the potential to further degrade Florida Keys mole skink habitat. 
Increased high tide flooding and storm events also have the potential 
to kill skinks directly or to reduce individual survival, which could 
then lead to a reduction in population resiliency and the species' 
redundancy. An increase in the intensity and frequency of storms or a 
direct hit from a strong hurricane could significantly reduce species 
abundance (reducing population resiliency), and potentially extirpate 
populations (limiting redundancy), making the Florida Keys mole skink 
more vulnerable to all other threats. There are no regulatory 
mechanisms or conservation measures that address the impacts of sea 
level rise, high tide flooding, or increased intensity of storm events.
Development
    Within the Florida Keys, human population growth and development 
has occurred at a high rate and much of the land available for 
development has been developed (Zwick and Carr 2006, p. 15; Carr and 
Zwick 2016, entire). The April 2020 human population census of Monroe 
County, Florida, was 82,874 individuals (U.S. Census Bureau 2021, 
n.p.), which is already higher than the 2060 population estimate of 
77,038 individuals (Carr and Zwick 2016, p. 28). An assessment of 
climate change on the Florida Keys assumed that the human population is 
directly related to remaining land area (Hoegh-Guldberg 2010, p. 14). 
Consequently, as land area is further reduced due to coastal flooding, 
erosion, and sea level rise, the human population in the Florida Keys 
is expected to decline in order to accommodate the loss of land and 
consequential negative effects on property values and the economy 
(Zhang et al. 2011, pp. 9-17; Hino et al. 2017, entire).
    The Florida Keys were designated as an Area of Critical State 
Concern in 1974 by the Florida Legislature (Sec.  380.0552 Florida 
Statutes) and local ordinances have been adopted to control development 
growth based on the Florida Keys' carrying capacity related to 
hurricane evacuation clearance time and to protect the natural 
environment (FDEO 2020, p. 1). A rate of growth ordinance has been 
adopted by Monroe County (MC-LDC Chapter 138) and building permit 
allocation system ordinances have been adopted by the municipalities 
within the Florida Keys: City of Key West (KW--Code of Ordinances Ch. 
108, Art. X), Village of Islamorada (Islamorada--Code of Ordinances 
Chapter 30, Art. IV, Div. 11), City of Marathon (CM-LDC Chapter 107, 
Art. 1). These ordinances were adopted in order to provide for the 
safety of residents in the event of a hurricane evacuation, to protect 
the significant natural resources, and to acquire environmentally 
sensitive lands as guided by the State of Florida's Area of Critical 
State Concern designation. These ordinances guide new development 
toward areas with infrastructure and away from flood zones and 
environmentally sensitive areas such as habitat for threatened or 
endangered species. It is projected that carrying capacity will be 
reached in 2023 within the municipalities (FDEO 2020, p. 4) and 2026 in 
the unincorporated Monroe County (MCCPLA 2020, p. 8) and at such a time 
new building permits will no longer be issued as dictated by the State 
of Florida's Area of Critical State Concern designation.
    Although much of the Florida Keys has been developed, land 
development ordinances are in place to guide the remaining new 
development away from environmentally sensitive areas, and land 
acquisition of environmentally sensitive lands are ongoing. We project 
new development will not pose a substantive threat to the Florida Keys 
mole skink. However, as they inhabit the same beaches, coastal berm, 
and hammock habitat that is desirable for residential and commercial 
development, activities related to conversion of remaining beach and 
coastal hammock habitat for new development and redevelopment can 
impact all of the Florida Keys mole skink's life stages.
    In addition to direct impacts from loss of habitat, disturbance to 
these habitats can reduce groundcover that provides shelter and 
supports food resources. Additionally, loss of habitat connectivity can 
impact the Florida Keys mole skink's ability to find mates and disperse 
to new locations. Roads and human-made structures fragment habitat and 
Florida Keys mole skink populations, leading to a reduction in 
population health (resiliency) and genetic differentiation 
(representation) (Jochimsen et al. 2004, p. 40). Although past 
development activities have reduced Florida Keys mole skink habitat, 
individual skinks show some tolerance to habitat alteration and have 
been documented in developed areas (Mays and Enge 2016, p. 10; Emerick 
2017a pers. comm.).
    The effects of development have the potential to continue to reduce 
habitat and individual survival of Florida Keys mole skink and, 
therefore, may decrease population resiliency. Resiliency may be 
further reduced due to loss of habitat connectivity and a decrease of 
dispersal of individuals within populations as habitat becomes 
fragmented.
Habitat Disturbance From Recreational Activities
    The Florida Keys are well known for their outdoor recreational 
activities, particularly waterfront and beachfront activities, which 
directly overlap with the habitats used by Florida Keys mole skinks. 
Hiking, camping, beach combing, and other activities in beach and dune, 
coastal berm, rockland hammock, and pine rockland habitats can cause 
direct disturbances to behavior and habitat of Florida Keys mole skink. 
Beach cleaning directly

[[Page 58655]]

removes wrack and vegetative material that act as shelter and a food 
resource for the Florida Keys mole skink. The behaviors (feeding, 
movement, and nesting) of individual skinks are likely disturbed by 
beach and inland recreational activities.
    Increased road traffic is a direct consequence of visitors and 
tourists as is the need for parking. Off-road parking sites, gravel 
lots, and boat trailer parking can disturb the dry soils and other 
areas used by Florida Keys mole skinks. Smaller off-road vehicles and 
golf carts are also sometimes used in communities to get around 
locally. These small vehicles use non-paved areas that can displace, 
disturb, or cause direct mortality of individual skinks.
Summary of Threats
    The primary threats impacting the Florida Keys mole skink and its 
habitat are related to climate change, specifically sea level rise, 
increased high tide flooding, and increased intensity of storm events. 
The effects of sea level rise, increased high tide flooding, and an 
increased intensity of storm events can degrade existing habitat that 
supports the Florida Keys mole skink, leading to reductions in the 
features that the species needs, and thus to population resiliency. The 
effects of sea level rise, increased high tide flooding, and an 
increased intensity of storm events are primarily habitat based, but 
some individual skinks could also be lost during high tide floods or 
large storms. Ongoing habitat degradation and loss associated with 
development and recreational activities will also continue to reduce 
available habitat for Florida Keys mole skink, thus decreasing 
population resiliency.
    Even minor threats that impact just a few individuals in a 
population need to be considered for their additive effects. For 
example, threats such as collection, disease, pesticides, oil spills, 
and nonnative species may have low impacts on their own, but combined 
with impacts of other threats, they could further reduce the relatively 
low numbers of Florida Keys mole skinks. These minor threats 
(collection, disease, pesticides, oil spills, and nonnative species) 
were considered cumulatively for their effects to the Florida Keys mole 
skink, and, while they may reduce the numbers for some individual 
populations, we currently do not consider these minor threats to have 
negative effects at the population level (Service 2022, pp. 36-39).
    The severity of threats may also be exacerbated by the Florida Keys 
mole skink's limited distribution. Currently, the existing regulatory 
mechanisms are not adequate to address the threats to the Florida Keys 
mole skink from sea level rise, high tide flooding, and increased 
intensity of storm events. However, regulatory mechanisms that address 
development or recreational activities provide some protections and 
conservation lands that overlap with some Florida Keys mole skink 
habitat provide a conservation benefit to the species (see Conservation 
Efforts and Regulatory Mechanisms, below).
    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.

Conservation Efforts and Regulatory Mechanisms

State Protections
    The Florida Keys mole skink species was State listed as threatened 
by Florida in 1974 but was changed to a State of Florida species of 
concern in 1978. In 2010, after a species status review by the Florida 
Fish and Wildlife Conservation Commission (FWC), the Florida Keys mole 
skink was again found warranted for listing as a State threatened 
species. A Florida Keys Mole Skink State Action Plan was developed in 
2013 (FWC 2013, entire). The goal of the plan is to secure the Florida 
Keys mole skink within its historical range (FWC 2013, pp. 8-19).
    As a threatened species under State law, intentional take and some 
forms of incidental take of the Florida Keys mole skink are prohibited. 
The FWC lists several measures to avoid and minimize take during 
development and habitat management activities, including avoiding and 
minimizing impacts to coastal strand, coastal dune, pine rockland, and 
tropical hardwood hammock habitats within the range of the Florida Keys 
mole skink (FWC 2016, p. 5). Specifically, these measures recommend 
avoiding the removal of microhabitat features and the prevention of 
activities that cause soil compaction. Some of these land management 
activities may be beneficial (e.g., beach habitat restoration 
activities) to the long-term quality of the natural habitats for the 
Florida Keys mole skink but can also result in local disturbance or 
direct mortality of individual skinks.
    The Florida Coastal Management Plan designates the Florida Keys as 
an Area of Critical Concern (FDEP 2014, p. 25). Through the Florida 
Forever program (and the previous State of Florida Conservation and 
Recreation Lands and Preservation 2000 Programs), the Monroe County 
Land Authority and the State of Florida have purchased 5,205 ha (12,862 
ac) of Florida Keys land for the protection of natural resources 
(Florida Department of Economic Opportunity 2020, p. 1, and FDEP 2020, 
pp. 199, 289). The protection of these lands from development provides 
direct and indirect conservation benefits for the Florida Keys mole 
skink.
    Several local government plans provide conservation actions for the 
benefit of the Florida Keys mole skink or provide indirect conservation 
benefits to the species. The Village of Islamorada, the City of 
Marathon, Monroe County, and the City of Key West also have 
comprehensive plans that incorporate native habitat and species 
protections, although they do not mention the Florida Keys mole skink 
specifically (City of Marathon 2013, entire; City of Key West, 2013, 
entire; Monroe County 2016a, entire; Village of Islamorada 2017, 
entire).
    The Florida Keys mole skink also occurs within numerous State 
Parks, including Zachary Taylor State Park (Key West), the Florida Keys 
Overseas Heritage Trail (Key West, Big Pine Key, Vaca Key, Long Key, 
Lower Matecumbe Key, Key Largo), Bahia Honda State Park (Bahia Honda 
Key), Long Key State Park (Long Key), Lignumvitae Key Botanical State 
Park (Lower Matecumbe Key), John Pennekamp Coral Reef State Park (Key 
Largo), and Dagny Johnson Key Largo Hammock Botanical State Park (Key 
Largo). Active management of these State Parks provides indirect 
benefits to the Florida Keys mole skinks by protecting and providing 
habitat through management of beach restoration and nourishment and 
providing nonnative plant and animal control.
National Wildlife Refuges and National Park Service Lands
    The Florida Keys mole skink occurs within multiple National 
Wildlife

[[Page 58656]]

Refuges including the National Key Deer Refuge on Content Key and Big 
Pine Key, the Key West National Wildlife Refuge on Marquesas Key and 
Boca Grande Key, the Crocodile Lake National Wildlife Refuge on Key 
Largo, and the Great White Heron National Wildlife Refuge on Sawyer Key 
and Content Key. The Florida Keys mole skink also occurs within Dry 
Tortugas National Park on Loggerhead Key in the Dry Tortugas. Specific 
management or conservation objectives for the Florida Keys mole skink 
are not identified in the management plans for these National Wildlife 
Refuges and National Park Service Lands; however, ongoing management 
activities including habitat restoration and nonnative species control 
provide benefits to the Florida Keys mole skink and its habitat.
Department of Defense Integrated Natural Resources Management Plans
    The Sikes Act Improvement Act (1997) led to Department of Defense 
(DoD) guidance regarding development of Integrated Natural Resources 
Management Plans (INRMPs) for promoting environmental conservation on 
military installations. There are occurrence records of Florida Keys 
mole skink on lands owned and managed by the DoD as part of the Naval 
Air Station Key West, on Boca Chica and Key West. The Naval Air Station 
Key West has a current and completed INRMP, covering land owned by the 
DoD on Boca Chica Key and Key West (Department of the Navy 2020). 
Though the Florida Keys mole skink is not specifically mentioned, the 
INRMP provides conservation and habitat management measures applicable 
to the species.

Current Condition

    For the purposes of this assessment, we divided the Florida Keys 
into four geographically representative units including the Upper Keys, 
Middle Keys, Lower Keys, and Distal Sand Keys. The average elevation 
for the Upper Keys is 4.8 ft (1.5 m); for the Middle Keys, is 4.29 ft 
(1.3 m); and for the Lower Keys, is 3.17 ft (1.0 m) (Monroe County 
2022b, p. 1). The Distal Sand Keys are low-lying (average less than 4.0 
ft (1.2 m)) sand islands and mangrove islands with the exception of 
Loggerhead Key, which has a peak elevation of 10.0 ft (3.0 m) (Monroe 
County 2022b, p. 1). Range-wide, the majority of islands within the 
Florida Keys are low-lying with an average elevation less than 4.0 ft 
(1.2 m) (Service 2020, p. 9).
    The current condition of the Florida Keys mole skink is described 
in terms of population resiliency, redundancy, and representation 
across the species. The analysis of these conservation principles to 
understand the species' current viability is described in more detail 
in the Florida Keys mole skink SSA report (Service 2022, pp. 43-51). 
Resiliency
    Islands contain genetically distinct lineages of the Florida Keys 
mole skink species (Mercier 2018, pp. 18-21). Thus, in order to analyze 
the species' resiliency, we delineated populations of Florida Keys mole 
skink by islands, where all detections on the same island represent a 
population (or groups of interbreeding individuals). We considered Key 
Largo to represent two different populations, based on the length of 
the island and distance between detection locations (greater than 4 mi 
(6.4 km)). Therefore, for our assessment of population resiliency, we 
considered everything north of U.S. Route 1 as the North Key Largo 
population and everything south of U.S. Route 1 as the Key Largo 
population.
    Due to the semi-fossorial and cryptic nature of the Florida Keys 
mole skink, abundance data are lacking, and no population trend data 
exist for this species. There are also no data available regarding the 
population structure or demographics of the Florida Keys mole skink. 
Therefore, we assessed resiliency based on the number of individuals 
detected on an island (multiple individuals indicates a larger 
population), and the number of locations within an area (greater than 
328 ft (100 m) apart) where individual Florida Keys mole skinks were 
observed (table 1). We chose the 328 ft (100 m) distance based on the 
estimated dispersal distance of individuals within other skink 
populations (Gianopulos 2001, p. 81; Mushinsky et al. 2001, p. 54; 
McCoy et al. 2020, p. 8; table 1).

         Table 1--Metrics Used for Population Resiliency Classifications for the Florida Keys Mole Skink
  [For current populations, the number of individuals detected and the number of locations (>100 meters apart)
      factor into whether the population is considered to have a low, moderate, high, or very high current
                                                  resiliency.]
----------------------------------------------------------------------------------------------------------------
                                      Number of individuals  Locations (>100 meters
           Last detection                   detected                 apart)                   Resiliency
----------------------------------------------------------------------------------------------------------------
Before 1970:
    Historical.....................  ......................  ......................  Unknown.*
1970-1999:
    Recent.........................  ......................  ......................  Unknown.*
2000-2021:
    Current........................  1.....................  1.....................  Low.
                                     >1 and <=10...........  1 or >1...............  Moderate.
                                     >10...................  1.....................  Moderate.
                                     >10...................  >1....................  High.
                                     >50...................  >1....................  Very high.
----------------------------------------------------------------------------------------------------------------
* For historical and recent populations, we do not have survey data to indicate current status of these
  populations and therefore consider the status to be unknown.

    Florida Keys mole skinks have been documented on 23 islands 
throughout the Florida Keys. Four populations are considered historical 
(no detections since 1970), five are considered relatively recent 
(skinks were detected between 1970 and 1999), and 15 are considered 
current (skinks were detected between 2000 and 2021). Of the 15 current 
populations, 2 are in the Upper Keys, 3 are in the Middle Keys, 8 are 
in the Lower Keys, and 2 are in the Distal Sand Keys (table 2). Based 
on the parameters outlined above (table 1), one current population is 
considered to have very high resiliency and two current populations are 
considered to have high resiliency. Six current populations are 
determined to be moderately resilient, and six current populations are 
considered to have low resiliency (Service 2022, pp. 46-47; table 2).

[[Page 58657]]



  Table 2--Resiliency Classifications for the 15 Current Populations of
                         Florida Keys Mole Skink
------------------------------------------------------------------------
            Region                    Island             Resiliency
------------------------------------------------------------------------
Upper Keys....................  Lower Matecumbe    Low.
                                 Key.              Moderate.
                                Key Largo........
Middle Keys...................  Boot Key.........  Moderate
                                Vaca Key.........  Low.
                                Long Key.........  Low.
Lower Keys....................  Key West.........  Low.
                                Boca Chica Key...  Moderate.
                                Sawyer Key.......  High.
                                Content Keys.....  Moderate.
                                Big Munson Island  Moderate.
                                Cook's Island....  Low.
                                Big Pine Key.....  Very High.
                                Bahia Honda Key..  High.
Distal Sand Keys..............  Marquesas Key....  Low.
                                Boca Grande Key..  Moderate.
------------------------------------------------------------------------

Redundancy
    Redundancy reduces the species' extinction risk if a portion of the 
species' range is negatively affected by a natural or anthropogenic 
catastrophic disturbance. In the Florida Keys, tropical storms and 
hurricanes are regular and common events. However, catastrophic events 
may include particularly strong or intense hurricanes or storms and the 
resulting winds, waves, and storm surges associated with these events. 
Increased frequency of such storms associated with climate change could 
further reduce the ability of Florida Keys mole skink populations to 
recover and could cause catastrophic impact to the species.
    For the Florida Keys mole skink to withstand catastrophic events 
such as hurricanes, it needs to have multiple, sufficiently resilient 
populations across its range. Of the 15 currently known populations of 
Florida Keys mole skink, only one population is considered to have very 
high resiliency, two populations are considered to have high 
resiliency, and all three of these populations are found on islands in 
the Lower Keys (table 2). Although all three high-resiliency 
populations are found within the Lower Keys, some redundancy is 
provided by the fact that at least one moderate-resiliency population 
is located in each of the other three regions (table 2).
Representation
    Representation describes the ability of a species to adapt to 
changing environmental conditions and is measured by the breadth of 
genetic or environmental diversity within and among populations. 
Overall, the genetic and environmental diversity of the Florida Keys 
mole skink is low, with no sign of morphological or behavioral 
differences between skinks on different islands (Branch et al. 2003, 
pp. 202-205; Technical Team Working Group 2016, pers. comm.; Mercier 
2017, pers. comm.).
    The species occurs on several islands across a narrow geographic 
and ecological range; there is little variation in habitat types across 
distance or elevation as occurs in wider ranging and more abundant 
species. The entire species is represented within the same tropical 
system. The amount of coastal sandy substrate and hammock habitat is 
limited and distributed in patches throughout the Florida Keys. The 
Florida Keys mole skink does not occur across different ecotones and 
does not have access to different ecotones or systems in which to 
adapt. However, within the narrow ecological range in which Florida 
Keys mole skink occurs, there are some differences in the substrates 
and habitat types available, specifically between the Upper Keys and 
Lower Keys regions. Given these factors, we consider overall 
representation of the Florida Keys mole skink to be relatively low.

Future Condition

    Climate change impacts related to sea level rise, increased high 
tide flooding, and increased storm intensity are the primary threats to 
the Florida Keys mole skink. Development can also have significant 
impacts on the Florida Keys mole skink and its habitat, but because 
most land available for development has already been developed, we did 
not include development in our future scenarios (see above section 
``Development'' and Service 2022, p. 52).
    As sea level rises, Florida Keys mole skink habitats will become 
inundated and lost. While conditions may allow some beaches to migrate 
upslope, sea level rise will most likely lead to an overall loss of 
beach habitats due to inundation. In addition to sea level rise, the 
Florida Keys mole skink may be affected by increased high tide flooding 
and increased intensity of storm events (stronger hurricanes and 
stronger storm surges), which are projected to increase in frequency 
and intensity and thus exacerbate habitat loss and degradation.
    For our evaluation of future condition, we used modeled projections 
of sea level rise (Sweet et al. 2017, pp. 11-13) and high tide flooding 
(Sweet et al. 2018, entire). We modeled threats for years 2040 and 2060 
(approximately 20 years and 40 years) into the future. This timeframe 
was chosen to capture sea level rise estimates before the sea level 
rise scenarios begin to diverge significantly due to uncertainty of the 
future of human carbon emissions (Sweet et al. 2017, pp. 11-13). 
Additionally, we focused on changes that are expected within the next 
40 years, because Florida Keys mole skink habitat is forecasted to be 
largely inundated by sea level rise in the Florida Keys beyond 2060 
(Service 2022, appendix D; table 3). A detailed estimate of Florida 
Keys mole skink future conditions for later timeframes (up to 2100) is 
provided in the SSA report (Service 2022, appendix D).
    For our sea level rise predictions, we used a suite of scenarios 
that describe the bounds of a range of plausible future conditions 
(intermediate, intermediate-high, high, and extreme), which are aligned 
with emissions-based, conditional probabilistic and global model 
projections of mean sea level rise (Sweet et al. 2017, pp. 11-13). We 
used the nearest local scenarios for specific sea level rise height 
values within the Florida Keys. Future sea level rise projections 
account for normal high tides (mean high tide for a given local 
station) (Sweet et al. 2017, entire; NOAA 2017, entire). In addition to 
normal high tides, minor, moderate, and

[[Page 58658]]

major flood events are also projected to increase in the future (Sweet 
et al. 2018, entire). Minor high tide flooding is defined as more 
disruptive than damaging and currently can be expected about 2 days per 
year (Sweet et al. 2018, p. 11). Minor high tide flooding is likely to 
increase to 7 to 15 days per year by 2030, and to 25 to 75 days per 
year by 2050, with much higher rates in many coastal locations, 
including much of coastal Florida and the Florida Keys (Sweet et al. 
2017, p. 37; Sweet et al. 2020, pp. v-vi). To account for minor high 
tide flooding events in the future, we included minor high tide 
flooding threshold values from local gauges in the Florida Keys. 
Detailed descriptions of sea level rise and high tide flooding data are 
available in the SSA report (Service 2022, pp. 25-27).
    Due to repeated habitat disturbance, we assume areas where high 
tide flooding occurs to have negative impacts on Florida Keys mole 
skink habitat and consider these areas to be degraded to the point of 
no longer representing suitable habitat. Repeated high tide flooding 
events are likely to degrade habitat (by moving the wrack line, 
rendering habitat unsuitable until waters recede) even before sea level 
is high enough to inundate habitat. Repeated habitat disturbance by 
high tide flooding also reduces the chance for an area to become 
repopulated by skinks following disturbance. While moderate and major 
high tide floods may degrade and remove habitat, it is less certain 
whether these floods will be frequent enough to render habitat 
unusable.
Habitat Impacts
    To assess the amount of Florida Keys mole skink habitat that would 
be lost or degraded due to sea level rise and high tide flooding for 
years 2040 and 2060, we evaluated the total potential habitat for each 
island with a current, recent, or historical population. Since Florida 
Keys mole skink have been documented in habitats away from the beach, 
we included all island habitat as potential habitat. Thus, total 
potential habitat was calculated as the entire island area subtracting 
areas not considered to be suitable habitat for Florida Keys mole 
skink, including freshwater, water, and impervious cover areas (Monroe 
County 2016b, entire). For each foot of sea level rise, plus the 
effects of high tide flooding, we calculated the percent area that 
would be inundated or degraded for each island with a current, recent, 
or historical population. We provide detailed descriptions of our 
methods in the SSA report, and we also provide calculations for some 
islands with data available for preferred habitats (including beach 
berm, coastal hammock, and preferred soils) (Monroe County 2016b, 
entire; Service 2022, pp. 59-60; appendix D).

 Table 3--Current Amount and Percentage of Potential Habitat Loss for Florida Keys Mole Skinks by 2040 and 2060 for Each 1-Foot Change in Sea Level Rise
   [These metrics are provided for individual populations on islands with a current (Years 2000-2021), recent (1970-1999), or historical (before 1970)
                           population. Total percent lost includes habitat lost due to sea level rise and high tide flooding.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           2040                                  2060
                                                                   Current  ----------------------------------------------------------------------------
                                                    Population    amount of    Percent of potential habitat      Percent of potential habitat lost per
            Region                  Island            status       habitat     lost per change in sea level               change in sea level
                                                                   (acres)  ----------------------------------------------------------------------------
                                                                                2 ft       3 ft       4 ft       3 ft       4 ft       5 ft       6 ft
--------------------------------------------------------------------------------------------------------------------------------------------------------
Upper Keys...................  Lower Matecumbe   Current........      866.3         43         69         90         69         90         98         99
                                Key.
                               Indian Key......  Historical.....       11.3         24         34         45         34         45         56         68
                               Upper Matecumbe   Historical.....      903.6         47         55         65         55         65         72         78
                                Key.
                               Plantation Key..  Recent.........    1,751.0         37         48         63         48         63         73         80
                               Key Largo.......  Current........   14,591.0         71         77         80         77         80         84         87
                               North Key Largo.  Recent.........    6,548.0         59         66         73         66         73         80         85
Middle Keys..................  Boot Key........  Current........      795.4         95         98         99         98         99        100        100
                               Vaca Key........  Current........      797.9         29         54         78         54         78         91         97
                               Grassy Key......  Historical.....      619.2         60         77         90         77         90         98         99
                               Long Key........  Current........    1,114.1         82         90         97         90         97         98         99
Lower Keys...................  Key West........  Current........    3,200.0         25         51         70         51         70         82         90
                               Boca Chica......  Current........    3,790.5         76         89         95         89         95         98         99
                               Sawyer Key......  Current........      111.1         97         99        100         99        100        100        100
                               Content Key.....  Current........      166.3         98         99        100         99        100        100        100
                               Big Munson......  Current........      128.0         93         96         99         96         99        100        100
                               Cook's Island...  Current........       61.2         89         92         95         92         95         98        100
                               Middle Torch....  Recent.........      758.8         83         97        100         97        100        100        100
                               Big Pine........  Current........    5,482.7         60         84         94         84         94         99        100
                               Scout Key.......  Recent.........       91.6         58         74         81         74         81         86         88
                               Bahia Honda Key.  Current........      351.3         78         86         90         86         90         93         96
Distal Sand Keys.............  Loggerhead Key..  Historical.....       53.8         18         23         28         23         28         35         47
                               Marquesas Key...  Current........    1,696.8         84         94        100         94        100        100        100
                               Boca Grande Key.  Current........      212.5         80         90        100         90        100        100        100
                                                                 ---------------------------------------------------------------------------------------
    Total....................  ................  ...............   44,102.4         61         72         80         72         80         85         88
--------------------------------------------------------------------------------------------------------------------------------------------------------

    2040 Projected Habitat Loss--Under the 2040 scenario, sea level 
rise and the effects of high tide flooding (hereafter referred to as 
just sea level rise), is projected to be between 2.0 ft and 4.0 ft (0.7 
m and 1.2 m) above the current mean high water line (table 3). Greatest 
impacts from sea level rise are projected within the Lower Keys, where 
the majority of the current populations are found; even under the 
lowest scenario of 2.0-ft (0.7-m) sea level rise, 9 of the 10 islands 
are projected to lose over half their potential habitat, which would 
include the loss of all current populations on those islands.
    2060 Projected Habitat Loss--Under the 2060 scenario, sea level 
rise is projected to be between 3.0 ft (0.9 m) and 6.0 ft (1.8 m) above 
the current mean high water line, throughout the Florida Keys (table 
3). The Upper Keys (where most of the historical and recent populations 
are located) are projected to have the least impacts from sea level 
rise, whereas the Lower Keys, and the current populations in that 
region, are projected to experience the greatest impacts from sea level 
rise (table 3).

[[Page 58659]]

Resiliency
    We assessed future resiliency, by evaluating the magnitude of sea 
level rise impacts on current populations of Florida Keys mole skink 
and their habitat. We also evaluated future resiliency for islands with 
recent and historical populations to assess how sea level rise impacts 
may affect areas where skinks have been located in the past. For many 
of the recent and historical populations, follow up survey data are 
lacking and it is possible that skinks still exist on these islands.
    We quantified the magnitude of change in population resiliency 
based on the percent of potential habitat that is projected to be lost 
or degraded by sea level rise. We used the percent of total potential 
habitat (usable land) to be impacted by sea level rise (lost and 
degraded) and based our resiliency assessment on those values. We 
represented the magnitude of a predicted change in resiliency where 
greater than 10 percent, but less than or equal to 50 percent, 
represents a slight decrease in resiliency; greater than 50 percent, 
but less than or equal to 75 percent, represents a moderate decrease; 
where greater than 75 percent, but less than or equal to 90 percent, 
represents a large decrease; and greater than 90 percent decrease 
represents the possibility of extirpation--as little or no unaltered 
habitat remains. In the SSA report, we provide these values for all 
populations up to 10.0 ft (3.0 m) sea level rise (Service 2022, 
appendix D).
BILLING CODE 4333-15-P

[[Page 58660]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.020

BILLING CODE 4333-15-C
    By 2040, three of the six populations with moderate resiliency and 
one of two populations with high resiliency are projected to be 
extirpated, even under the lowest sea level rise scenario of 2.0 ft 
(0.7 m). Under the highest sea level

[[Page 58661]]

rise scenario of 4.0 ft (1.2 m) in 2040, 12 of the 15 current 
populations of Florida Keys mole skink are projected to be extirpated, 
including Big Pine Key, the only current population with very high 
resiliency. However, because much of Big Pine Key population is located 
in one area, resiliency may be affected more than projected under lower 
sea level rise scenarios. For example, with just 2.0-ft (0.7-m) sea 
level rise, much of the exposed land on Big Pine Key is projected to be 
inundated, leaving only a narrow strip of beach where current Florida 
Keys mole skink detections occur (Service 2020, p. 17).
    Given the projected effects of sea level rise, we expect resiliency 
for all populations to decrease in the future, with the greatest 
impacts projected in the Lower Keys and Middle Keys, where most of the 
moderate or highly resilient populations currently occur. The most 
significant impacts of sea level rise are expected in 2040 with a 
projected 4.0 ft (1.2 m) sea level rise. Under the 4.0 ft (1.2 m) sea 
level rise scenario, one of the two current populations in the Upper 
Keys is projected to be extirpated, two of the three current 
populations in the Middle Keys are projected to be extirpated, 9 of the 
10 current populations in the Lower Keys are projected to be 
extirpated, and both current populations in the Distal Sand Keys are 
projected to be extirpated (table 3). Thus, by 2040, no current 
populations in the Distal Sand Keys are projected to remain, and only 
one population in each of the other regions (Upper Keys, Middle Keys, 
Lower Keys) is projected to remain with a 4.0 ft (1.2 m) sea level 
rise.
    Many islands with recent and historical populations, especially in 
the Upper Keys, are projected to be less impacted by sea level rise. 
Under the two highest sea level rise scenarios of 5.0 ft (1.5 m) and 
6.0 ft (1.8 m) in 2060, six of the eight recent and historical 
populations are projected to have remaining Florida Keys mole skink 
habitat (table 3). However, many of the recent and historical 
populations have not been surveyed since original detections were 
reported; thus, even if suitable habitat remains, it is unknown if 
Florida Keys mole skinks still exist on these islands.
Redundancy
    Redundancy is typically measured by the number and distribution of 
sufficiently resilient populations across a species' range. Of the 15 
current populations of Florida Keys mole skink, only one population is 
considered to have very high resiliency, and two populations are 
considered to have high resiliency. All three of these populations are 
located in the Lower Keys, an area that is expected to have some of the 
greatest impacts from sea level rise. Additionally, at the lowest sea 
level rise estimate of 2.0 ft (0.7 m), all islands with moderate and 
high resiliency populations are expected to lose substantial habitat, 
rangewide (table 3). Because the Florida Keys mole skink is endemic to 
the Florida Keys, losing even a few populations to the effects of sea 
level rise would result in a significant reduction in redundancy. With 
the projected loss of a substantial amount of habitat by 2040, and a 
loss of nearly all potential habitat in the Middle Keys, Lower Keys, 
and Distal Sand Keys by 2060, redundancy for the species is expected to 
be severely reduced.
    With the continued loss or degradation to Florida Keys mole skink 
habitat, we expect loss of island populations, thereby further reducing 
the species' ability to withstand catastrophic events such as 
hurricanes.
Representation
    The four representative regions (Upper Keys, Middle Keys, Lower 
Keys, and Distal Sand Keys) are at risk of losing some or all of their 
Florida Keys mole skink populations. The ability of the Florida Keys 
mole skink to adapt to changing environmental conditions is limited. 
The reduction in Florida Keys mole skink habitat will lead to fewer 
individuals and populations throughout the species' range. Because 
there is little interbreeding among populations, genetic 
differentiation will likely be lost each time a population is lost. 
Therefore, we expect representation of the Florida Keys mole skink to 
decrease in the future.

Determination of Florida Keys Mole Skink Status

    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 human-made factors affecting its 
continued existence.
    We presented summary evaluations of the primary threats analyzed in 
the SSA including development (Factor A) and climate change, 
specifically sea level rise, increased high tide flooding, and 
increased intensity of storm events (Factor E). We also evaluated 
existing regulatory mechanisms (Factor D) and ongoing conservation 
measures. In the SSA, we also considered additional threats: 
overutilization due to recreational, educational, and scientific use 
(Factor B); disease (Factor C); and oil spills and nonnative species 
(Factor E). We concluded that, as indicated by the best available 
scientific and commercial information, that these minor threats 
currently have little to no impact on Florida Keys mole skink and their 
habitat, and thus their overall effect now and into the future is 
expected to be minimal. However, we consider each of these minor 
threats in the determination for the species, because although minor 
threats may have low impacts on their own, combined with impacts of 
other threats, they could further reduce the already low number of 
Florida Keys mole skinks.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
found that impacts from climate change present the most substantial 
threat to the Florida Keys mole skink's viability. In the foreseeable 
future, we anticipate that threats associated with climate change, 
specifically sea level rise, high tide flooding, and storm events will 
continue to increase in magnitude and have the greatest influence on 
Florida Keys mole skink viability. Sea level rise will continue to 
result in the inundation and loss of habitat. More frequent and intense 
high tide flooding and storm events will accelerate habitat loss, may 
kill individual skinks, and will reduce overall population resiliency. 
Acting together, these threats will cause irreversible habitat 
degradation and loss. We also considered the effects of development, 
habitat disturbance, and minor threats including overutilization due to 
recreational, educational, and scientific use, disease, oil spills, and 
nonnative species for their cumulative effects.

[[Page 58662]]

    The Florida Keys mole skink has a current resiliency characterized 
by one population with very high resiliency, two populations with high 
resiliency, six populations with moderate resiliency, and six 
populations with low resiliency. Although all high-resiliency 
populations are found in the Lower Keys region, at least one moderate-
resiliency population is found in each of the other three regions. 
Accordingly, given its current resiliency and redundancy across its 
range, we conclude that the Florida Keys mole skink is not currently in 
danger of extinction throughout its range.
    We next considered whether the species is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range. In considering the foreseeable future for the Florida Keys 
mole skink, we analyzed expected changes in sea level rise and high 
tide flooding from 2040 to 2100 (Service 2022, pp. 52-63). That said, 
we focused on changes that are expected within the next 40 years (year 
2060), because almost all of Florida Keys mole skink habitat in the 
Florida Keys is forecasted to be lost by 2060. We determined that this 
timeframe represents a period for which we can reliably predict both 
the threats to the species and the species' response to those threats.
    By 2040, populations of Florida Keys mole skink may begin 
experiencing significant losses under the lowest scenario of 2.0-ft 
(0.7-m) sea level rise. One population with high resiliency and three 
of the six Florida Keys mole skink populations with moderate resiliency 
are projected to be extirpated by 2040, even under the lowest sea level 
rise scenario (2.0 ft (0.7 m)). Big Pine Key, the only population that 
currently has very high resiliency, is projected to be extirpated by 
2040, under a projected 4.0-ft (1.2-m) sea level rise. In total, 12 of 
the 15 current populations of Florida Keys mole skink are projected to 
be extirpated by 2040, with significant habitat loss projected for 
islands with remaining populations.
    After assessing the best available information, we conclude that 
the Florida Keys mole skink is not currently in danger of extinction 
but is likely to become in danger of extinction within the foreseeable 
future throughout all of its range. Overall, the species currently 
exhibits some population resiliency and redundancy, and representation 
is considered naturally low. Thus, after assessing the best available 
information, we determined that the Florida Keys mole skink is not 
currently in danger of extinction throughout all of its range. However, 
after assessing all the same threats for future condition, we 
determined that habitat loss and degradation resulting from sea level 
rise, high tide flooding, and increased intensity of storm events will 
affect the Florida Keys mole skink within the foreseeable future, such 
that the species is likely to become an endangered species within the 
foreseeable future throughout all of its range.

Status Throughout a Significant Portion 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, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), 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'' (Final Policy) (79 FR 37578; July 
1, 2014) that provided if the Services determine that a species is 
threatened throughout all of its range, the Services will not analyze 
whether the species is endangered in a significant portion 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 Everson, 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 Florida Keys mole skink, 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.
    We evaluated the range of the Florida Keys mole skink to determine 
if the species is in danger of extinction now in any portion of its 
range.The range of a species can theoretically be divided into portions 
in an infinite number of ways. We focused our analysis on portions of 
the species' range that may meet the definition of an endangered 
species. For the Florida Keys mole skink, we considered whether the 
threats or their effects on the species are greater in any biologically 
meaningful portion of the species' range than in other portions such 
that the species is in danger of extinction now in that portion.
    The statutory difference between an endangered species and a 
threatened species is the timeframe in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we considered 
the time horizon for the threats that are driving the Florida Keys mole 
skink to warrant listing as a threatened species throughout all of its 
range. We examined the following threats: climate change (including sea 
level rise, increased high tide flooding, and increased storm events), 
development, habitat disturbance, overutilization due to recreational, 
educational, and scientific use, disease, oil spills, and nonnative 
species, as well as cumulative effects of those threats. As discussed 
in our rangewide analysis, sea level rise, increased high tide 
flooding, and increased intensity of storm events are the primary 
threats to the Florida Keys mole skink in the future. We also 
considered development, habitat disturbance, and overutilization due to 
recreational, educational, and scientific use, disease, oil spills, and 
nonnative species for their cumulative effects. We then considered 
whether these threats or their effects are currently occurring (or may 
imminently occur) in any portion of the species' range with sufficient 
magnitude such that the species is in danger of extinction now in that 
portion of its range.
    Multiple populations currently exist in each region of the Florida 
Keys mole skink's current range, with at least one moderately resilient 
population in each region. The Florida Keys mole skink has a current 
resiliency characterized by one population with very high resiliency, 
two populations with high resiliency, six populations with moderate 
resiliency, and six populations with low resiliency. Although all high 
resiliency populations are found in the Lower Keys region, at least one 
moderate resiliency population is found in each of the other three 
regions. Given the low elevation of islands in the Florida Keys, all 
populations across the range are anticipated to experience effects from

[[Page 58663]]

climate change in the foreseeable future. Additionally, development, 
habitat disturbance and overutilization due to recreational, 
educational, and scientific use, disease, oil spills, and nonnative 
species are not concentrated in any portion of the species' range. We 
found no portion of the Florida Keys mole skink's range where threats 
are impacting individuals differently from how they are affecting the 
species elsewhere in its range. The best scientific and commercial data 
available indicate that the time horizon on which the species' 
responses to those threats are likely to occur is the foreseeable 
future. In addition, the best scientific and commercial data available 
do not indicate that any of the threats to the species and the species' 
responses to those threats are more immediate in any portions of the 
species' range. Therefore, we determine that the Florida Keys mole 
skink is not in danger of extinction now in any portion of its range, 
but that the species is likely to become in danger of extinction within 
the foreseeable future throughout all of its range. This does not 
conflict with the courts' holdings in Desert Survivors v. U.S. 
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 
2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 
946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did 
not apply the aspects of the Final Policy, including the definition of 
``significant'' that those court decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Florida Keys mole skink meets the 
definition of a threatened species. Therefore, we propose to list the 
Florida Keys mole skink as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of 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, 
including the Service, 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 goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan 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. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Florida Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of Florida would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Florida Keys mole skink. Information 
on our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/service/financial-assistance.
    Although the Florida Keys mole skink 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. 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.
    For the Florida Keys mole skink, Federal agency actions within the 
species' habitat that may require conference or consultation or both as 
described in the preceding paragraph include management and any other

[[Page 58664]]

landscape-altering activities such as mechanical treatment for 
vegetation management on Federal lands administered by the Service and 
the National Park Service. Other Federal agency actions under this 
category may include issuance of section 404 Clean Water Act (33 U.S.C. 
1251 et seq.) permits (including but not limited to, dredging and spoil 
area management and beach renourishment projects) by the U.S. Army 
Corps of Engineers or the State of Florida and construction and 
maintenance of roads or highways by the Federal Highway Administration.
    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 Act allows the Secretary to 
promulgate protective regulations for threatened species pursuant to 
section 4(d) of the Act. The discussion below regarding protective 
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (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 one or more of 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, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (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 [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] 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).
    In the early days of the ESA, the Service published at 50 CFR 
[17.31/17.71] a general protective regulation that would apply to each 
threatened species, unless we were to promulgate a separate species-
specific protective regulation for that species. In the wake of the 
court's CBD v. Haaland decision vacating a 2019 regulation that had 
made 50 CFR 17.31 inapplicable to any species listed as a threatened 
species after the effective date of the 2019 regulation, the general 
protective regulation applies to all threatened species, unless we 
adopt a species-specific protective regulation. As explained below, we 
are adopting a species-specific rule that sets out all of the 
protections and prohibitions applicable to the Florida Keys mole skink.
    The provisions of this proposed 4(d) rule would promote 
conservation of the Florida Keys mole skink by encouraging management 
of the habitat for Florida Keys mole skink in ways that facilitate 
conservation for Florida Keys mole skink. The provisions of this 
proposed rule are one of many tools that we would use to promote the 
conservation of the Florida Keys mole skink. This proposed 4(d) rule 
would apply only if and when we make final the listing of the Florida 
Keys mole skink as a threatened species.
    As mentioned previously in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they fund, authorize, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. In addition, section 
7(a)(4) of the Act requires Federal agencies to confer with the Service 
on any agency action that is likely to jeopardize the continued 
existence of any species proposed to be listed under the Act or result 
in the destruction or adverse modification of proposed critical 
habitat.
    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 Federal actions that are subject to 
the section 7 consultation process are actions on State, Tribal, local, 
or private lands that require a Federal permit (such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 
10 of the Act) or that involve some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    These requirements are the same for a threatened species with a 
species-specific 4(d) rule. For example, a Federal agency's 
determination that an action is ``not likely to adversely affect'' a 
threatened species will require the Service's written concurrence. 
Similarly, a Federal agency's determination that an action is ``likely 
to adversely affect'' a threatened species will require formal 
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the 
Florida Keys mole skink's conservation needs. As discussed previously 
in Summary of Biological Status and Threats, we have

[[Page 58665]]

concluded that the Florida Keys mole skink is likely to become in 
danger of extinction within the foreseeable future due to the 
degradation and loss of habitat primarily due to sea level rise, 
increased frequency of high tide flooding, and increased frequency of 
storm events. Section 4(d) requires the Secretary to issue such 
regulations as she deems necessary and advisable to provide for the 
conservation of each threatened species and authorizes the Secretary to 
include among those protective regulations any of the prohibitions that 
section 9(a)(2) of the Act prescribes for endangered species. We find 
that, if finalized, the protections, prohibitions, and exceptions in 
this proposed rule as a whole satisfy the requirement in section 4(d) 
of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the Florida Keys mole skink.
    The protective regulations we are proposing for Florida Keys mole 
skink incorporate prohibitions from section 9(a)(1) to address the 
threats to the species. Section 9(a)(1) prohibits the following 
activities for endangered wildlife: 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. This protective regulation includes 
all these prohibitions for the Florida Keys mole skink because the 
Florida Keys mole skink is at risk of extinction in the foreseeable 
future and we anticipate these prohibitions will help to slow the rate 
of habitat loss and fragmentation, slow the species' rate of decline, 
and decrease synergistic, negative effects from other ongoing or future 
threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the Florida Keys mole skink by prohibiting the 
following activities, unless they fall within specific exceptions or 
are otherwise authorized or permitted: importing or exporting; take (as 
set forth at 50 CFR 17.21(c)(1) with exceptions as discussed below); 
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.
    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 
take would help preserve the species' remaining populations, slow their 
rate of decline, and decrease synergistic, negative effects from other 
ongoing or future threats. Therefore, we propose to prohibit take of 
the Florida Keys mole skink, except for take resulting from those 
actions and activities specifically excepted by the 4(d) rule.
    Exceptions to the prohibition on take would include all the general 
exceptions to the prohibition against take of endangered wildlife, as 
set forth in 50 CFR 17.21 and certain other specific activities that we 
propose for exception, as described below.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
Florida Keys mole skink, are not expected to rise to the level that 
would have a negative impact (i.e., would have only de minimis impacts) 
on the species' conservation. The proposed exceptions to these 
prohibitions include mechanical treatment activities, prescribed fire 
activities, and nonnative plant or animal species eradication 
activities (described below) that are expected to provide conservation 
benefits and have negligible impacts to the Florida Keys mole skink and 
its habitat. Specifically, take associated with the following 
activities is excepted from the prohibitions:
    (1) Mechanical treatment activities conducted within Florida Keys 
mole skink habitat that are carried out in accordance with a habitat 
management plan developed by a Federal, State, or county entity in 
coordination with the Service as long as the treatments are used to 
maintain, restore, or enhance a natural diversity and abundance of 
habitats for native plants and wildlife.
    (2) Prescribed fire activities conducted within Florida Keys mole 
skink habitat that are carried out in accordance with a fire management 
plan developed by a Federal, State, or county entity in coordination 
with the Service as long as the treatments are used to maintain, 
restore, or enhance a natural diversity and abundance of habitats for 
native plants and wildlife. Prescribed fire activities include 
maintenance and creation of fire breaks, fire line installations, 
mechanical treatments to reduce fuel loads, and any other pre-fire 
preparations needed.
    (3) Nonnative plant or animal species eradication activities that 
are carried out in accordance with a habitat management plan developed 
by a Federal, State, or county entity in coordination with the Service 
as long as the treatments are used to maintain, restore, or enhance a 
natural diversity and abundance of habitats for native plants and 
wildlife.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
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 (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    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 us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must 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 us 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 Florida Keys mole skink that may result 
in otherwise prohibited take without additional authorization.
    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 our ability to 
enter into partnerships for the management and protection of the 
Florida Keys mole skink. However, interagency cooperation may be 
further

[[Page 58666]]

streamlined through planned programmatic consultations for the species 
between us and other Federal agencies, 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 we could 
provide or use, respectively, to streamline the implementation of this 
proposed 4(d) rule (see Information Requested, above).

III. Critical Habitat

Background

    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;
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. 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).
    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. We note that the court in CBD v. Haaland vacated the 
provisions from the 2019 regulations regarding unoccupied critical 
habitat. Therefore, the regulations that now govern designations of 
critical habitat are the implementing regulations that were in effect 
before the 2019 regulations.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. 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

[[Page 58667]]

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.

Prudency Determination

    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 a designation 
of critical habitat is not prudent when any of the following situations 
exist:
    (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; or
    (ii) Such designation of critical habitat would not be beneficial 
to the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    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 report and 
proposed listing determination for the Florida Keys mole skink, we 
determined that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to Florida Keys mole 
skinks. Therefore, because none of the circumstances enumerated in our 
regulations at 50 CFR 424.12(a)(1) have been met, we have determined 
that the designation of critical habitat is prudent for the Florida 
Keys mole skink.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
Florida Keys mole skink is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. This and other information represent the best scientific data 
available and led us to conclude that the designation of critical 
habitat is determinable for the Florida Keys mole skink.

Physical or Biological Features

    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 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features'' 
as the features that 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 absence of 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.
    As described in the Species Needs section in the Proposed Listing 
Determination, above, and the SSA report (Service 2022, pp. 30-31), the 
resource and demographic needs for breeding, feeding, sheltering, and 
dispersal of the Florida Keys mole skink are characterized as:
     Beach and dune, coastal berm, rockland hammock, and pine 
rockland habitats that provide ground cover in the form of leaf litter 
and wrack material skinks need for nesting, arthropod and insect food 
sources, and cover;
     Dry, loose, sandy, permeable, or friable (crumbly in 
texture) soils for digging of nest cavities and for their swimming 
movement;
     Ground cover such as leaf litter, debris, or tidal wrack 
(for thermoregulation, food sources, cover from predators, and 
breeding); and
     Arthropod and insect food sources (found within the ground 
cover of the habitat).

Habitats

    The Florida Keys mole skink is endemic to the Florida Keys and has 
been documented on 23 islands from Key Largo in the Upper Keys to 
Loggerhead Key of the Dry Tortugas in the Distal Sand Keys (see 
Background in Proposed Listing Determination, above). The species is 
most frequently surveyed on Lower Keys beaches, and therefore, that is 
where the species is most documented; specifically the area above mean 
higher high water (increase of tides above the mean high tide) where 
wrack is deposited and sand dunes occur (Emerick 2017b, p. 5; Service 
2022, pp. 24-27). However, beach formation is not common in the Florida 
Keys, and there are no naturally occurring beaches in the Upper Keys, 
yet the Florida Keys mole skink is still

[[Page 58668]]

found in this region (Clark 1990, p. 6; Zambrano 2021, pers. comm.). 
Though surveys have been limited mostly to beaches, with some in 
coastal berms hammocks, Florida Keys mole skinks have been documented 
in a variety of both natural and altered habitats along the coast and 
on the interior of islands (Service 2022, pp. 21, 24-27). Other habitat 
types they have been documented in include coastal cactus and rock 
barrens, rockland hammocks, pine rocklands, and small areas of habitat 
with suitable substrate within other mapped landcover types, such as 
urban open land and developed areas (FNAI 2011, entire; Emerick 2017b, 
pp. 4-5; iNaturalist 2020, entire; Zambrano 2021, pers. comm.).
    Most areas where the Florida Keys mole skink have been documented 
have an open canopy and are sparsely vegetated with herbaceous ground 
cover, shrubs, and small trees (beaches, coastal berms, rock barrens, 
urban open land) (FNAI 2010, pp. 77, 81, 109, 2015; Kawula and Redner 
2018, pp. 13-16). Florida Keys mole skinks have also been documented in 
coastal maritime hammock and rockland hammocks, both of which may have 
a closed canopy and are generally more vegetated but can have suitable 
substrate under the leaf litter (FNAI 2010, pp. 29-30, 91-92; Kawula 
and Redner 2018, pp. 9, 14). Florida Keys mole skinks have also been 
documented in pine rockland habitat, which has an open pine canopy with 
a mixed shrub and herb understory and requires fire approximately every 
3 to 7 years to maintain an open shrub layer (FNAI 2010, pp. 69-70; 
Kawula and Redner 2018, p. 12).
    Specific information on the amount of space needed for individual 
and population growth (dispersal distance, home range, and carrying 
capacity) for this species is lacking. The closest related species with 
information on home range and dispersal distances is the sand skink (P. 
reynoldsi), which occurs in scrub habitat on the Lake Wales Ridge of 
central Florida. Maximum dispersal distances for sand skinks in Florida 
scrub habitat have been documented at 115 ft (35 m) to 460 ft (140 m) 
although just a few adults were recorded at distances greater than 328 
ft (100 m) (Gianopulos 2001, p. 81; Mushinsky et al. 2001, p. 54; McCoy 
et al. 2020, p. 8). The larger home range distances of a few individual 
sand skinks beyond 328 ft (100 m) could be attributed to localized 
resource limitations. The total size of an area needed to support a 
population of sand skinks or Florida Keys mole skinks has not been 
determined (Service 2022, p. 29).
    While the amount of habitat necessary to support Florida Keys mole 
skink individual and population growth and normal behavior is unknown, 
preservation of the features described above is essential for the 
species to protect their home ranges. Therefore, based on the 
information above, we identify natural upland habitats (primarily sand 
beach, beach dune, coastal berm, rockland hammocks, and pine rocklands) 
as physical or biological features essential to the conservation of the 
Florida Keys mole skink.

Soils

    Florida Keys mole skinks require sandy soils for nesting that are 
generally dry and unconsolidated to allow for the digging of nest 
cavities and their swimming movement through substrate (Service 2022, 
p. 28). No nests have been identified for the Florida Keys mole skink, 
but nest depth is probably dependent upon substrate depth and is 
documented to vary greatly for other mole skinks from 0.13 in (0.33 cm) 
to 6.0 ft (1.83 m) (Neill 1940, p. 266; Hamilton and Pollack 1958, p. 
27). Because of the predominantly limestone, prehistoric coral reef, 
and rocky makeup of the Florida Keys archipelago, only a few areas 
provide the sandy, dry, unconsolidated soils considered preferred by 
the Florida Keys mole skink for nesting. In the Florida Keys, the 
sandy, dry, unconsolidated soil types are predominantly Beach and Bahia 
Fine sand and total only approximately 440 ac (178 ha) of soils in the 
archipelago (U.S. Department of Agriculture 2021 (USDA), p. 1). 
However, Florida Keys mole skinks have been documented in several other 
soil types that are also likely suitable for mole skink reproduction 
and movement based on their official soil series descriptions (dry, 
loose, sandy, permeable, or friable (crumbly in texture)) (USDA 2022, 
n.p.).
    Based on the information above, we consider suitable habitats 
containing dry, loose, sandy, permeable, or friable soils as a physical 
or biological feature essential to the conservation of the species.

Ground Cover

    Florida Keys mole skinks rely on ground cover over loose substrate 
as protection from predators and the insects existing in this ground 
cover as a food source. In this case, ground cover as a resource for 
the Florida Keys mole skink refers to a variety of materials such as 
leaf litter, logs, vegetative debris, and tidal wrack (deposited above 
the mean higher high-water level) rather than a strictly vegetative 
ground cover such as grass (Service 2022, p. 18). These ground cover 
and substrate conditions also provide areas for reproduction and 
thermoregulatory refugia.
    As a reptile, the Florida Keys mole skink is a cold-blooded 
(ectothermic) animal and therefore highly dependent on the air and soil 
temperature to thermoregulate (maintain body core temperature) (Mount 
1963, p. 362). The Florida Keys mole skink is specialized to live 
within a stable and relatively narrow thermal tropical environment. It 
is a thermoconformer, lacking the capacity to adjust or regulate to 
changes in temperature outside of this stable and relatively narrow 
thermal range in which it occurs (Gallagher et al. 2015, p. 62). Ground 
cover moderates soil temperatures and provides shade to assist in the 
skinks' thermoregulation in hot climates.
    Based on the information above, we consider suitable habitats 
containing appropriate ground cover including tidal wrack, leaf litter, 
or vegetative debris for protection from predators and temperature 
extremes, sources of food, and areas for reproduction as a physical or 
biological feature essential for the Florida Keys mole skink.

Food Source

    The Florida Keys mole skink preys on a variety of small insects 
(Hamilton and Pollack 1958, p. 26; Mount 1963, p. 364; Technical Team 
Working Group 2016, pers. comm.). The make-up of diets has been shown 
to shift seasonally with prey relative to abundance. Prey is also 
thought to be caught and eaten within ground cover material or 
underground (Mount 1963, p. 365). Since their feeding behavior is 
generalist and opportunistic (preying on those insects that are present 
and are of a size they can ingest), the prey-related requirements 
(abundance, diversity, range) to sustain a viable population of Florida 
Keys mole skink is unknown, but appear to be sufficient (Service 2022, 
pp. 28, 31).
    Based on the information above, we consider habitats containing 
appropriate ground cover for arthropod and insect food sources as a 
physical or biological feature essential for the Florida Keys mole 
skink.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological feature essential to 
the conservation of the Florida Keys mole skink from studies of the 
species' habitat, ecology, and life history. Additional information can 
be found in the Proposed Listing Determination,

[[Page 58669]]

above, and the SSA report (Service 2022, entire). We have determined 
that the following physical or biological feature is essential to the 
conservation of the Florida Keys mole skink:
    Natural habitats (including, but not limited to beaches, dunes, 
coastal berms, rockland hammocks, and pine rocklands) along the coast 
or on the interior of the Florida Keys that contain:
    (a) Suitable soils (dry, loose, sandy, permeable, or friable soils) 
for movement and nesting; and
    (b) Sufficient, appropriate ground cover (including, but not 
limited to tidal wrack deposited above the mean high-water line, leaf 
litter, and vegetative debris) for protection from predators and 
temperature extremes, sources of food, and areas for reproduction.

Special Management Considerations or Protection

    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 feature essential to the conservation of the Florida 
Keys mole skink may require special management considerations or 
protection to reduce threats posed by climate change (sea level rise, 
more frequent tidal flooding, and increasing intensity of storm 
events); recreational activities (beach cleaning to remove wrack and 
other vegetative material); and human-caused disasters and response 
activities (e.g., oil spills). For an in-depth discussion of threats, 
see Summary of Biological Status and Threats in the Proposed Listing 
Determination, above, and the SSA report (Service 2022, pp. 32-49).
    Management activities that could ameliorate these threats include 
(but are not limited to): maintaining and protecting suitable habitat 
within occupied areas; identifying areas where beach erosion is 
occurring or habitat is succeeding to mangrove swamp or other coastal 
wetlands due to sea level rise and implementing renourishment or 
restoration/protection activities further upland; conducting 
restoration and debris cleanup after storms while concurrently 
minimizing disturbance to Florida Keys mole skinks and their habitat; 
establishing protocols and agreements to allow storm-enhanced habitats 
to persist; coordinating with landowners and local managers to 
implement best management practices during regular beach cleaning 
activities; conducting public outreach and education at all occupied 
areas; and preparing disaster response plans and conducting trainings 
that consider Florida Keys mole skinks and their habitat.

Criteria Used To Identify Critical Habitat

    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. We 
also are proposing to designate specific areas outside the geographical 
area occupied by the species because we have determined those areas are 
essential for the conservation of the species. By the year 2040, 8 out 
of 15 areas occupied by the Florida Keys mole skink at the time of 
listing will lose 75 percent or more of their available habitat under 
the lowest projected sea level rise scenario of 2.0 ft (0.7 m), and 12 
of 15 occupied areas will lose 90 percent or more under the highest sea 
level rise scenario of 4.0 ft (1.2 m) (Service 2022, pp. 6-7). Islands 
with recent and historical populations of the Florida Keys mole skink 
are projected to be less affected by sea level rise under all scenarios 
(especially in the Upper Keys) than islands with current populations 
(see Future Condition in Proposed Listing Determination, above). 
Therefore, we identified suitable habitat within recently and 
historically occupied areas that met the definition of critical habitat 
and that are essential to provide for species redundancy into the 
foreseeable future. These unoccupied areas are both essential for the 
conservation of the species and contain habitat essential to the life 
history of the species.
    We developed the following criteria for determining the specific 
areas that contain the physical and biological feature essential to the 
conservation of the species:
    (1) Genetic differentiation and geographic extent--To maintain 
viability in populations of the Florida Keys mole skink that represent 
and conserve the genetic differentiation and habitat in each of the 
four geographic regions of the Florida Keys (see Current Condition in 
Proposed Listing Determination, above), critical habitat units should 
encompass all current populations, ensuring that each of the four 
geographic regions of the Florida Keys are represented.
    (2) Climate change resilience--To provide sufficient amounts of 
suitable habitat for the Florida Keys mole skink predicted to be less 
affected by sea level rise (see Future Condition in Proposed Listing 
Determination, above), critical habitat should include at least one 
unit that is less vulnerable to sea level rise within each of the four 
geographic regions of the Florida Keys.
    (3) Structural connectivity--To maintain, enhance, and establish 
connectivity within Florida Keys mole skink populations (see Summary of 
Biological Status and Threats in Proposed Listing Determination, 
above), critical habitat units should incorporate corridors for 
connectivity, dispersal, and refuge areas during high tide flooding and 
storm events.
    Sources of data used for the delineation of critical habitat units 
included:
    (1) Confirmed presence data compiled in our Geographic Information 
System database from 1862 through 2021 and provided by multiple 
databases maintained by museums, universities, and State agencies in 
Florida; State agency reports; and numerous survey reports for projects 
throughout the species' range.
    (2) Habitat and land use cover types from the Cooperative Land 
Cover map (version 3.5), developed by the Florida Fish and Wildlife 
Conservation Commission and Florida Natural Areas Inventory (FWC and 
FNAI 2021, entire), determined to be suitable for the species based on 
peer-reviewed articles on this species or similar species, and gray 
literature by researchers involved in wildlife biology and conservation 
activities.
    (3) Monroe County soil data layers from the U.S. Department of 
Agriculture's Natural Resources Conservation Service Web Soil Survey 
(USDA, entire) determined to be suitable for the species based on their 
official soil series descriptions (see Soils, above).
    (4) Composite shoreline data representing the mean high-water line 
from the National Oceanic and Atmospheric Administration's Office of 
Coastal Management (NOAA 2007, entire).
    (5) Global and regional sea level rise scenarios for the United 
States from the National Oceanic and Atmospheric Administration's 
National Ocean Service Center for Operational

[[Page 58670]]

Oceanographic Products and Services (Sweet et al. 2017).
    (6) Environmental Systems Research Institute's (ESRI's) 
Aeronautical Reconnaissance Coverage Geographical Information System 
(ArcGIS) online basemap aerial imagery (2018 to 2020) to cross-check 
Cooperative Land Cover data and ensure the presence of the physical or 
biological feature.
    For areas within the geographic area occupied by the Florida Keys 
mole skink at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria:
    (1) We determined occupied areas for this species by reviewing the 
best available scientific and commercial data on occurrence records. As 
discussed in the Background section of the Proposed Listing 
Determination, Florida Keys mole skinks are cryptic and adapted to 
living underground. Because of their cryptic nature, we determined that 
if suitable habitat containing the physical and biological feature was 
still present in an area where a Florida Keys mole skink had been 
detected between 2000 and 2021, that there was a high likelihood that 
the species would still be present. Therefore, based on the best 
available information, we defined occupied areas as islands with at 
least one current occurrence record ranging from 2000 to 2021.
    (2) We selected all suitable habitat that contained the physical or 
biological feature as determined using the data sources listed above, 
and within a 328 ft (100 m) radius (the estimated home range of Florida 
Keys mole skink, see Habitats, above), for all current, recent, and 
historical occurrence records. When the exact location of an occurrence 
record could not be determined for an island (a verified record, but 
only general location information, such as the name of the island, was 
provided), or the location was accurate but in unsuitable habitat 
(developed areas), all suitable habitat on the island was selected.
    (3) We selected additional suitable habitat that extended beyond 
the 328 ft (100 m) radius to include corridors for greater dispersal 
due to population expansions, localized resource limitations, and sea 
level rise, storm surge, or tidal flooding refugia areas for the 
species.
    (4) We then constrained the boundary of a critical habitat unit 
based on potential effects of physical barriers (for example, roads 
wider than two lanes, permanent water channels, or unsuitable habitat 
greater than 820 ft (250 m) wide) that cause habitat fragmentation or 
prevent connectivity and dispersal opportunities within units, as we 
consider that individuals would be unable or unlikely to pass such 
barriers (Mercier 2018, pp. 21-23). On the shorelines of critical 
habitat units, boundaries were constrained to whichever occurred 
furthest offshore including the habitat boundary (for upland habitats 
only), mean high water line, or shoreline that was visible in aerial 
imagery.
    For areas outside the geographic area currently occupied by the 
species at the time of listing, we looked at islands considered 
recently occupied (from 1970 to 1999) and historically occupied (prior 
to 1970) by the Florida Keys mole skink. We analyzed recently and 
historically occupied islands for those that contained suitable habitat 
and evaluated each site for its potential conservation contribution 
based on quality of habitat, vulnerability to climate change, 
specifically sea level rise, high tide flooding, and increased 
intensity of storm events, and existing protections and management of 
the habitat and sites. Based on these criteria, we identified five 
islands with recent or historical populations that contained 
appropriate habitat for the species and are essential for the 
conservation of the species, but that are considered unoccupied at the 
time of listing. For areas outside the geographic area occupied by the 
Florida Keys mole skink at the time of listing, we delineated critical 
habitat unit boundaries using the following criteria:
    (1) Based on the best available information, we defined unoccupied 
areas as islands with at least one recent (1970 to 1999) or historical 
(before 1970) occurrence record.
    (2) To ensure unoccupied areas would provide skink habitat into the 
future, we analyzed impacts to potential habitat on each island 
containing recent or historical occurrence records and included only 
those that will still have habitat remaining after the most extreme 
scenario of 6.0 ft (1.8 m) of sea level rise by the year 2060 (see 
Future Condition in Proposed Listing Determination, above).
    (3) We selected all suitable habitat that contained the physical or 
biological feature as determined using Criteria 2-4 outlined above for 
occupied units.
    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 
the physical or biological feature necessary for the Florida Keys mole 
skink. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the physical or biological feature in 
the adjacent critical habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain the physical or biological feature essential 
to support life-history processes of the species. We have also 
identified, and propose for designation as critical habitat, unoccupied 
areas that are essential for the conservation of the species. Nineteen 
units are proposed for designation based on current, recent, or 
historical occurrences and the physical or biological feature being 
present to support the Florida Keys mole skink's life-history 
processes.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2022-0104 and on our internet site (https://www.fws.gov/office/florida-ecological-services/library).

Proposed Critical Habitat Designation

    We are proposing to designate approximately 7,068 ac (2,860 ha) in 
19 units as critical habitat for the Florida Keys mole skink. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the Florida Keys mole skink. The 19 areas we propose as critical 
habitat are: (1) Key Largo, (2) Plantation Key, (3) Upper Matecumbe 
Key, (4) Indian Key, (5) Lower Matecumbe Key, (6) Long Key, (7) Vaca 
Key, (8) Boot Key, (9) Bahia Honda Key, (10) Scout Key, (11) Big Pine 
Key, (12) Cook's Island, (13) Big Munson Island, (14) Content Key, (15) 
Sawyer Key, (16) Key West, (17)

[[Page 58671]]

Boca Grande Key, (18) Marquesas Key, and (19) Loggerhead Key. Table 5 
shows the proposed critical habitat units, occupancy, land ownership, 
and the approximate area of each unit.

                                        Table 5--Proposed Critical Habitat Units for the Florida Keys Mole Skink
                [Area estimates reflect all land within critical habitat unit boundaries. Note: Area sizes may not sum due to rounding.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Ownership: acres [hectares]
                                                         --------------------------------------------------------------------------------   Total area:
               Unit                       Occupied?                                                                          Unknown/          acres
                                                              Federal          State           Local          Private        undefined      [hectares]
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Key Largo......................  Yes.................       608 [246]     2,176 [881]         85 [34]        158 [64]        130 [53]   3,157 [1,278]
2. Plantation Key.................  No..................               0         63 [26]         29 [12]        177 [72]           6 [2]       275 [111]
3. Upper Matecumbe Key............  No..................               0         24 [10]          18 [7]         93 [37]           5 [2]        140 [57]
4. Indian Key.....................  No..................               0          12 [5]               0               0               0          12 [5]
5. Lower Matecumbe Key............  Yes.................               0         34 [14]           6 [3]         41 [17]          13 [5]         95 [38]
6. Long Key.......................  Yes.................               0       350 [142]          20 [8]           2 [1]         32 [13]       405 [164]
7. Vaca Key.......................  Yes.................               0               0          1 [<1]         69 [28]           1 [1]         72 [29]
8. Boot Key.......................  Yes.................               0          14 [6]         <1 [<1]        206 [83]          1 [<1]        221 [90]
9. Bahia Honda Key................  Yes.................               0         57 [23]               0               0           8 [3]         65 [26]
10. Scout Key.....................  No..................               0           9 [4]         33 [13]           7 [3]           5 [2]         53 [21]
11. Big Pine Key..................  Yes.................     1,547 [626]       412 [167]         80 [32]         79 [32]         40 [16]     2,159 [874]
12. Cook's Island.................  Yes.................               0               0               0          13 [5]           2 [1]          15 [6]
13. Big Munson Island.............  Yes.................               0               0               0         50 [20]           1 [1]         51 [21]
14. Content Keys..................  Yes.................           6 [3]          1 [<1]               0               0           3 [1]          10 [4]
15. Sawyer Key....................  Yes.................          10 [4]               0               0               0          1 [<1]          11 [4]
16. Key West......................  Yes.................               0          15 [6]          10 [4]          16 [6]           1 [1]         42 [17]
17. Boca Grande Key...............  Yes.................         71 [29]               0               0               0               0         71 [29]
18. Marquesas Key.................  Yes.................        149 [60]               0               0               0               0        149 [60]
19. Loggerhead Key................  No..................         65 [26]               0               0               0               0         65 [26]
                                                         -----------------------------------------------------------------------------------------------
    Total.........................  N/A.................     2,456 [994]   3,168 [1,284]       283 [115]       911 [365]       250 [101]   7,068 [2,860]
--------------------------------------------------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Florida Keys mole 
skink, below.

Unit 1: Key Largo, Monroe County, Florida

    Unit 1 encompasses approximately 3,157 ac (1,278 ha) within Monroe 
County and the city of Key Largo, of the upper Florida Keys. This unit 
is considered occupied by the species and contains the physical or 
biological feature essential to its conservation. As no sandy beaches 
occur on Key Largo, the majority of Florida Keys mole skink habitat on 
the island is rockland hammock with small areas of other suitable 
habitats along the edges or within the unit. This unit includes Federal 
lands within Crocodile Lake National Wildlife Refuge (608 ac (246 ha)), 
State lands within Dagny Johnson Botanical State Park, John Pennekamp 
Coral Reef State Park, and the Florida Keys Wildlife and Environmental 
Area (2,176 ac (881 ha)), local lands (85 ac (34 ha)), and property in 
private or unknown or undefined ownership (288 ac (117 ha)). The 
entirety of Unit 1 overlaps with designated critical habitat for the 
American crocodile (Crocodilus acutus), Cape Sable thoroughwort 
(Chromolaena frustrata), and Florida semaphore cactus (Consolea 
corallicola).
    The habitat in the northern part of the unit(north of where U.S. 
Route 1 turns west to the Florida mainland) is surrounded by the 
Atlantic Ocean to the east and the Florida Bay to the west. Habitat 
consists primarily of contiguous habitat owned by several Federal 
agencies (National Park Service, U.S. Navy, U.S. Coast Guard, and the 
Service), in which the Service owns the majority as Crocodile Lake 
National Wildlife Refuge. The other Federal landowners have or are in 
the process of turning over ownership to the Service and records may 
not reflect this yet. The State of Florida owns and manages Dagny 
Johnson Key Largo Hammock Botanical Park. Monroe County, local 
government, and private entities own additional habitat within the 
northern part of the unit. The physical and biological feature in the 
northern part of the unit may require special management considerations 
or protection such as identifying areas where beach erosion is 
occurring or habitat is succeeding to mangrove swamp or other coastal 
wetlands due to sea level rise and implementing renourishment or 
restoration/protection activities further upland; conducting 
restoration and debris cleanup after storms while concurrently 
minimizing disturbance to Florida Keys mole skinks and their habitat; 
and conducting public outreach and education to address threats from 
climate change (e.g., sea level rise, high tide flooding, and storm 
events).
    The habitat in the southern part of the unit (south of where U.S. 
Route 1 turns west to the Florida mainland) is surrounded or fragmented 
by residential and commercial development. The majority of habitat 
consists of lands owned by private entities and the State of Florida 
(John Pennekamp Coral Reef State Park). Smaller portions of habitat are 
owned by Monroe County. Habitat connectivity among occurrences is 
lacking within the southern part of the unit; fragmentation is from 
residential and light commercial development, as well as canals and 
two-lane roads. The physical and biological feature in the southern 
part of the unit may require special management considerations or 
protection such as identifying areas where beach erosion is occurring 
or habitat is succeeding to mangrove swamp or other coastal wetlands 
due to sea level rise and implementing renourishment or restoration/
protection activities further upland; conducting restoration and debris 
cleanup after storms while concurrently minimizing disturbance to 
Florida Keys mole skinks and their habitat; and conducting public 
outreach and education to address threats from climate change (e.g., 
sea level rise, high tide flooding, and storm events).

Unit 2: Plantation Key, Monroe County, Florida

    Unit 2 encompasses approximately 275 ac (111 ha) in Monroe County 
and

[[Page 58672]]

the village of Islamorada, of the upper Florida Keys. This unit is 
considered unoccupied. As few sandy beaches occur on Plantation Key, 
the majority of Florida Keys mole skink habitat on the island is 
rockland hammock with small areas of other suitable habitats along the 
edges or within the unit. This unit includes State lands within the 
Florida Keys Wildlife and Environmental Area (63 ac (26 ha)), local 
lands (29 ac (12 ha)), and property in private or unknown/undefined 
ownership (183 ac (74 ha)). The entirety of Unit 2 overlaps with 
designated critical habitat for the American crocodile. The habitat in 
this unit is surrounded or fragmented by residential and commercial 
development. Threats from development are moderate, and threats from 
climate change are low in this unit because of its higher elevation 
(see Summary of Biological Status and Threats in Proposed Listing 
Determination, above).
    Although it is currently considered unoccupied, the Florida Keys 
mole skink was documented on the island in the past (FNAI 2011, 
entire), and it is possible that the lack of current detections could 
be due to lack of surveys. Also, this unit constitutes habitat for the 
species because it contains the physical or biological feature 
necessary for the life history of the species. This unit is essential 
for the conservation of the species because it will still provide 
habitat for potential reintroductions in the case of sea level rise (as 
described in Future Condition in Proposed Listing Determination, above, 
and Service 2022, pp. 61-70) or stochastic events (such as hurricanes), 
should other areas of suitable habitat be destroyed, or the Florida 
Keys mole skink be extirpated from one of its currently occupied 
locations.

Unit 3: Upper Matecumbe Key, Monroe County, Florida

    Unit 3 encompasses approximately 140 ac (57 ha) in Monroe County 
and the village of Islamorada, of the upper Florida Keys. This unit is 
considered unoccupied. As few sandy beaches occur on Upper Matecumbe 
Key, the majority of Florida Keys mole skink habitat on the island is 
rockland hammock with small areas of other suitable habitats along the 
edges or within the unit. This unit includes State lands within the 
Lignumvitae Key Botanical and Indian Key Historic State Parks (24 ac 
(10 ha)), local lands (18 ac (7 ha)), and property in private or 
unknown/undefined ownership (97 ac (39 ha)). The majority (94 percent) 
of Unit 3 overlaps with designated critical habitat for the American 
crocodile and Cape Sable thoroughwort. The habitat in this unit is 
surrounded or fragmented by residential and commercial development. 
Threats from development and climate change are moderate in this unit 
(see Summary of Biological Status and Threats in Proposed Listing 
Determination, above).
    Although it is currently considered unoccupied, the Florida Keys 
mole skink was documented on the island in the past (FNAI 2011, 
entire), and it is possible that the lack of current detections could 
be due to lack of surveys. Also, this unit constitutes habitat for the 
species because it contains the physical or biological feature 
necessary for the life history of the species. This unit is essential 
for the conservation of the species because it will still provide 
habitat for potential reintroductions in the case of sea level rise (as 
described in Future Condition in Proposed Listing Determination, above, 
and Service 2022, pp. 61-70) or stochastic events (such as hurricanes), 
should other areas of suitable habitat be destroyed, or the Florida 
Keys mole skink be extirpated from one of its currently occupied 
locations. Additionally, a portion of this unit is on State lands, 
where reintroductions would be likely.

Unit 4: Indian Key, Monroe County, Florida

    Unit 4 encompasses approximately 12 ac (5 ha) within Monroe County 
and the village of Islamorada, of the upper Florida Keys. This unit is 
considered unoccupied. The habitat in this unit is classified by the 
Cooperative Landcover Classification map (FWC and FNAI 2021) as 
mangrove swamp but is more accurately described as ruderal 
(historically cleared area with recolonizing native vegetation) with a 
mangrove and Keys tidal rock barren fringe (FDEP 2012, entire). The 
unit encompasses the entire island of Indian Key, which is owned by the 
State as part of Indian Key Historic State Park. The habitat in this 
unit is contiguous since there is very little development on the 
island, which is only accessible by boat. The threat of development is 
low due to designation as a state park and threats from climate change 
are low because of its higher elevation (see Summary of Biological 
Status and Threats in Proposed Listing Determination, above).
    Although it is currently considered unoccupied, the Florida Keys 
mole skink was documented on the island in the past (FNAI 2011, 
entire), and it is possible that the lack of current detections could 
be due to lack of surveys. Also, this unit constitutes habitat for the 
species because it contains the physical or biological feature 
necessary for the life history of the species. This unit is essential 
for the conservation of the species because it will still provide 
habitat for potential reintroductions in the case of sea level rise (as 
described in Future Condition in Proposed Listing Determination, above, 
and Service 2022, pp. 61-70) or stochastic events (such as hurricanes), 
should other areas of suitable habitat be destroyed, or the Florida 
Keys mole skink be extirpated from one of its currently occupied 
locations. Additionally, the entire unit is on State lands, where 
reintroductions would be likely.

Unit 5: Lower Matecumbe Key, Monroe County, Florida

    Unit 5 encompasses approximately 95 ac (38 ha) in Monroe County and 
the village of Islamorada, of the upper Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. As few sandy beaches 
occur on Lower Matecumbe Key, the majority of Florida Keys mole skink 
habitat on the island is rockland hammock with small areas of other 
suitable habitats along the edges or within the unit. This unit 
includes State lands that are part of Lignumvitae Key Botanical State 
Park (34 ac (14 ha)), local lands (6 ac (3 ha)), and property in 
private or unknown/undefined ownership (54 ac (22 ha)). The majority 
(99 percent) of Unit 5 overlaps with designated critical habitat for 
the American crocodile, Cape Sable thoroughwort, and piping plover 
(Charadrius melodus). The habitat in this unit is surrounded and/or 
fragmented by residential and commercial development. The physical and 
biological feature in this unit may require special management 
considerations or protection identifying areas where beach erosion is 
occurring or habitat is succeeding to mangrove swamp or other coastal 
wetlands due to sea level rise and implementing renourishment or 
restoration/protection activities further upland; conducting 
restoration and debris cleanup after storms while concurrently 
minimizing disturbance to Florida Keys mole skinks and their habitat; 
establishing protocols and agreements to allow storm-enhanced habitats 
to persist; conducting public outreach and education; and preparing 
disaster response plans and conducting trainings that consider Florida 
Keys mole skinks and their habitat to address threats from climate 
change (e.g., sea level rise, high tide flooding, and storm events) and 
human-

[[Page 58673]]

caused disasters and response activities (e.g., oil spills).

Unit 6: Long Key, Monroe County, Florida

    Unit 6 encompasses approximately 405 ac (164 ha) within Monroe 
County and the city of Layton, of the middle Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Long Key 
is a mix of sand beach, beach dune, coastal berm, rockland hammock, and 
some suitable upland mangrove fringe areas. This unit includes State 
lands that are part of Long Key State Park (350 ac (142 ha)), local 
lands (20 ac (8 ha)), and property in private or unknown/undefined 
ownership (34 ac (14 ha)). The majority (99 percent) of Unit 6 overlaps 
with designated critical habitat for the American crocodile, Cape Sable 
thoroughwort, and loggerhead sea turtle (Caretta caretta). The habitat 
in this unit is primarily contiguous with residential and commercial 
development located on both ends of the unit. The physical and 
biological feature in this unit may require special management 
considerations or protection such as identifying areas where beach 
erosion is occurring or habitat is succeeding to mangrove swamp or 
other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 7: Vaca Key, Monroe County, Florida

    Unit 7 encompasses approximately 72 ac (29 ha) within Monroe County 
and the city of Marathon, within the middle Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. As few sandy beaches 
occur on Vaca Key, the majority of Florida Keys mole skink habitat on 
the island is rockland hammock with small areas of upland mangrove 
habitats along the edges or within the unit. This unit includes local 
lands (1 ac (less than 1 ha)) and property in private or unknown or 
undefined ownership (71 ac (29 ha)), 62 ac (25 ha) of which are part of 
Crane Point Hammock, a preserve owned by the Florida Keys Land and Sea 
Trust Incorporated. The habitat in this unit is surrounded or 
fragmented by residential and commercial development. The physical and 
biological feature in this unit may require special management 
considerations or protection such as identifying areas where beach 
erosion is occurring or habitat is succeeding to mangrove swamp or 
other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; and conducting public outreach and 
education to address threats from climate change (e.g., sea level rise, 
high tide flooding, and storm events).

Unit 8: Boot Key, Monroe County, Florida

    Unit 8 encompasses approximately 221 ac (90 ha) within Monroe 
County and the city of Marathon, within the middle Florida Keys. This 
unit is considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Boot Key 
is a mix of coastal berm, rockland hammock, and some suitable upland 
mangrove fringe areas. This unit includes State lands (14 ac (6 ha)) 
and property in private or unknown or undefined ownership (207 ac (84 
ha)). The habitat in this unit is primarily contiguous as very little 
development occurs on the island, which is only accessible by boat. The 
physical and biological feature in this unit may require special 
management considerations or protection such as identifying areas where 
beach erosion is occurring or habitat is succeeding to mangrove swamp 
or other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 9: Bahia Honda Key, Monroe County, Florida

    Unit 9 encompasses approximately 65 ac (26 ha) within Monroe County 
in the lower Florida Keys. This unit is considered occupied by the 
species and contains the physical or biological feature essential to 
its conservation. Habitat on Bahia Honda Key is a mix of sand beach, 
beach dune, coastal berm, maritime hammock, and some suitable upland 
mangrove fringe areas. This unit is almost entirely within Bahia Honda 
State Park (57 ac (23 ha)), with approximately 8 ac (3 ha) of unknown/
undefined ownership. The majority (98 percent) of Unit 9 overlaps with 
designated critical habitat for the loggerhead sea turtle and piping 
plover. The habitat in this unit is primarily contiguous with low-
intensity development located on both ends of the unit. The physical 
and biological feature in this unit may require special management 
considerations or protection such as identifying areas where beach 
erosion is occurring or habitat is succeeding to mangrove swamp or 
other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 10: Scout Key, Monroe County, Florida

    Unit 10 encompasses approximately 53 ac (21 ha) within Monroe 
County in the lower Florida Keys. This unit is considered unoccupied. 
Habitat on Scout Key (also called West Summerland Key) is a mix of 
beach dune and rockland hammock with small areas of other suitable 
habitats along the edges or within the unit. This unit includes State 
lands (9 ac (4 ha)), local lands (33 ac (13 ha)), and property in 
private or unknown/undefined ownership (12 ac (5 ha)). The habitat in 
this unit is primarily contiguous with

[[Page 58674]]

boy scout and girl scout camps located on the southwest end of the 
unit. Threats from development and climate change are moderate in this 
unit (see Summary of Biological Status and Threats in Proposed Listing 
Determination, above).
    Although it is currently considered unoccupied, the Florida Keys 
mole skink was documented on the island in the past (FNAI 2011, 
entire), and it is possible that the lack of current detections could 
be due to lack of surveys. Also, this unit constitutes habitat for the 
species because it contains the physical or biological feature 
necessary for the life history of the species. This unit is essential 
for the conservation of the species because it will still provide 
habitat for potential reintroductions in the case of sea level rise (as 
described in Future Condition in Proposed Listing Determination, above, 
and Service 2022, pp. 61-70) or stochastic events (such as hurricanes), 
should other areas of suitable habitat be destroyed, or the Florida 
Keys mole skink be extirpated from one of its currently occupied 
locations. Additionally, a portion of the unit is on State lands, where 
reintroductions would be likely.

Unit 11: Big Pine Key, Monroe County, Florida

    Unit 11 encompasses approximately 2,159 ac (874 ha) within Monroe 
County and the town of Big Pine Key, in the lower Florida Keys. This 
unit is considered occupied by the species and contains the physical or 
biological feature essential to its conservation. The habitat in the 
northern part of the unit (north of U.S. Route 1) is a mix of pine 
rockland and rockland hammock with small areas of other suitable 
habitats along the edges or within the unit. In the southern part of 
the unit (south of U.S. Route 1), the habitat is a mix of beach dune, 
coastal berm, and rockland hammock with small areas of other suitable 
habitats bordering or within the unit. This unit includes Federal lands 
within the National Key Deer Refuge (1,547 ac (626 ha)), State lands 
(412 ac (167 ha)), local lands (80 ac (32 ha)), and property in private 
or unknown or undefined ownership (120 ac (49 ha)). The majority (73 
percent) of Unit 11 overlaps with designated critical habitat for the 
Cape Sable thoroughwort, Florida semaphore cactus, Bartram's scrub-
hairstreak butterfly (Strymon acis bartrami), and Florida leafwing 
butterfly (Anaea floridalis). The habitat in the northern part of the 
unit is surrounded or fragmented by residential communities, light 
commercial development, and two-lane roads (primarily in the central 
and southern portions of the northern part of the unit). The habitat in 
the southern part of the unit is primarily contiguous with residential 
development to the west of the unit. The physical and biological 
feature in this unit may require special management considerations or 
protection such as identifying areas where beach erosion is occurring 
or habitat is succeeding to mangrove swamp or other coastal wetlands 
due to sea level rise and implementing renourishment or restoration/
protection activities further upland; conducting restoration and debris 
cleanup after storms while concurrently minimizing disturbance to 
Florida Keys mole skinks and their habitat; establishing protocols and 
agreements to allow storm-enhanced habitats to persist; conducting 
public outreach and education; and preparing disaster response plans 
and conducting trainings that consider Florida Keys mole skinks and 
their habitat to address threats from climate change (e.g., sea level 
rise, high tide flooding, and storm events) and human-caused disasters 
and response activities (e.g., oil spills).

Unit 12: Cook's Island, Monroe County, Florida

    Unit 12 encompasses approximately 15 ac (6 ha) within Monroe County 
and the town of Big Pine Key, in the lower Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Cook's 
Island is mostly coastal berm with some areas of suitable upland 
mangroves along the edges of the unit. This unit is almost entirely in 
private ownership (13 ac (5 ha)), with approximately 2 ac (1 ha) of 
unknown or undefined ownership. The habitat in this unit is primarily 
contiguous with low-density residential development scattered along the 
southern shoreline of the island, which is only accessible by boat. The 
physical and biological feature in this unit may require special 
management considerations or protection such as identifying areas where 
beach erosion is occurring or habitat is succeeding to mangrove swamp 
or other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 13: Big Munson Island, Monroe County, Florida

    Unit 13 encompasses approximately 51 ac (21 ha) within Monroe 
County and the town of Big Pine Key, in the lower Florida Keys. This 
unit is considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Big Munson 
Island is a mix of sand beach, coastal berm, and rockland hammock with 
small areas of other suitable habitats along the edges or within the 
unit. This unit is almost entirely in private ownership by the Boy 
Scouts of America (50 ac (20 ha)), with approximately 1 ac (1 ha) of 
unknown or undefined ownership. Approximately half (52 percent) of Unit 
13 overlaps with designated critical habitat for the Cape Sable 
thoroughwort. The habitat in this unit is contiguous since very little 
development occurs on the island, which is accessible only by boat. The 
physical and biological feature in this unit may require special 
management considerations or protection such as identifying areas where 
beach erosion is occurring or habitat is succeeding to mangrove swamp 
or other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 14: Content Key, Monroe County, Florida

    Unit 14 encompasses approximately 10 ac (4 ha) within Monroe County 
in the lower Florida Keys. This unit is considered occupied by the 
species and contains the physical or biological feature essential to 
its conservation. Habitat on Content Key is a mix of sand beach, 
coastal berm, and some suitable upland mangrove fringe areas. This unit 
includes Federal lands within the

[[Page 58675]]

National Key Deer Refuge and the Great White Heron National Wildlife 
Refuge (6 ac (3 ha)), State lands (1 ac (less than 1 ha)), and property 
with unknown/undefined (3 ac (1 ha)). The habitat in this unit is 
contiguous since there is no development on the island, which is 
accessible only by boat. The physical and biological feature in this 
unit may require special management considerations or protection such 
as identifying areas where beach erosion is occurring or habitat is 
succeeding to mangrove swamp or other coastal wetlands due to sea level 
rise and implementing renourishment or restoration/protection 
activities further upland; conducting restoration and debris cleanup 
after storms while concurrently minimizing disturbance to Florida Keys 
mole skinks and their habitat; establishing protocols and agreements to 
allow storm-enhanced habitats to persist; conducting public outreach 
and education; and preparing disaster response plans and conducting 
trainings that consider Florida Keys mole skinks and their habitat to 
address threats from climate change (e.g., sea level rise, high tide 
flooding, and storm events) and human-caused disasters and response 
activities (e.g., oil spills).

Unit 15: Sawyer Key, Monroe County, Florida

    Unit 15 encompasses approximately 11 ac (4 ha) within Monroe County 
in the lower Florida Keys. This unit is considered occupied by the 
species and contains the physical or biological feature essential to 
its conservation. Habitat on Sawyer Key is a mix of beach dune, 
rockland hammock, and some suitable upland mangrove fringe areas. This 
unit is almost entirely in Federal ownership as part of the Great White 
Heron National Wildlife Refuge (10 ac (4 ha)), with approximately 1 ac 
(less than 1 ha) of unknown or undefined ownership. The habitat in this 
unit is contiguous since there is no development on the island, which 
is accessible only by boat. The physical and biological feature in this 
unit may require special management considerations or protection such 
as identifying areas where beach erosion is occurring or habitat is 
succeeding to mangrove swamp or other coastal wetlands due to sea level 
rise and implementing renourishment or restoration/protection 
activities further upland; conducting restoration and debris cleanup 
after storms while concurrently minimizing disturbance to Florida Keys 
mole skinks and their habitat; establishing protocols and agreements to 
allow storm-enhanced habitats to persist; conducting public outreach 
and education; and preparing disaster response plans and conducting 
trainings that consider Florida Keys mole skinks and their habitat to 
address threats from climate change (e.g., sea level rise, high tide 
flooding, and storm events) and human-caused disasters and response 
activities (e.g., oil spills).

Unit 16: Key West, Monroe County, Florida

    Unit 16 encompasses approximately 42 ac (17 ha) within Monroe 
County and the city of Key West, in the lower Florida Keys. This unit 
is considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Key West 
is mostly sand beach and a few small patches of rockland hammock. This 
unit includes State lands within Fort Zachary Taylor State Park (15 ac 
(6 ha)), local lands (10 ac (4 ha)), and property in private or 
unknown/undefined ownership (17 ac (7 ha)). Under section 4(a)(3)(B)(i) 
of the Act, we are exempting Naval Air Station Key West lands within 
this unit (8 ac (3 ha)) from the critical habitat designation because 
the U.S. Navy within the DoD has an approved INRMP that provides 
benefits to the Florida Keys mole skink and its habitat (see 
Exemptions, below). The habitat in this unit is surrounded or 
fragmented by residential and commercial development. The physical and 
biological feature in this unit may require special management 
considerations or protection such as identifying areas where beach 
erosion is occurring or habitat is succeeding to mangrove swamp or 
other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; coordinating with landowners and local 
managers to implement best management practices during regular beach 
cleaning activities; conducting public outreach and education; and 
preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events), recreational activities (beach cleaning to remove wrack 
and other vegetative material), and human-caused disasters and response 
activities (e.g., oil spills).

Unit 17: Boca Grande Key, Monroe County, Florida

    Unit 17 encompasses approximately 71 ac (29 ha) within Monroe 
County, in the Distal Sand Region of the Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Boca 
Grande Key is a mix of sand beach, beach dune, coastal berm, rockland 
hammock and some suitable upland mangrove fringe areas. This unit is 
entirely in Federal ownership as part of the Key West National Wildlife 
Refuge. The majority (95 percent) of Unit 17 overlaps with designated 
critical habitat for the Cape Sable thoroughwort, loggerhead sea 
turtle, and piping plover. The habitat in this unit is contiguous since 
there is no development on the island, which is accessible only by 
boat. The physical and biological feature in this unit may require 
special management considerations or protection such as identifying 
areas where beach erosion is occurring or habitat is succeeding to 
mangrove swamp or other coastal wetlands due to sea level rise and 
implementing renourishment or restoration/protection activities further 
upland; conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills).

Unit 18: Marquesas Key, Monroe County, Florida

    Unit 18 encompasses approximately 149 ac (60 ha) within Monroe 
County, in the Distal Sand Region of the Florida Keys. This unit is 
considered occupied by the species and contains the physical or 
biological feature essential to its conservation. Habitat on Marquesas 
Key is mostly coastal berm with a thin sandy shoreline. This unit is 
entirely in Federal ownership as part of the Key West National Wildlife 
Refuge. The entirety of Unit 18 overlaps with designated critical 
habitat for the loggerhead sea turtle and piping plover. The habitat in 
this unit is contiguous since there is no development on the island, 
which is accessible only by boat. The physical and biological feature 
in this unit may require special

[[Page 58676]]

management considerations or protection such as identifying areas where 
beach erosion is occurring or habitat is succeeding to mangrove swamp 
or other coastal wetlands due to sea level rise and implementing 
renourishment or restoration/protection activities further upland; 
conducting restoration and debris cleanup after storms while 
concurrently minimizing disturbance to Florida Keys mole skinks and 
their habitat; establishing protocols and agreements to allow storm-
enhanced habitats to persist; conducting public outreach and education; 
and preparing disaster response plans and conducting trainings that 
consider Florida Keys mole skinks and their habitat to address threats 
from climate change (e.g., sea level rise, high tide flooding, and 
storm events) and human-caused disasters and response activities (e.g., 
oil spills) (see Special Management Considerations or Protection, 
above).

Unit 19: Loggerhead Key, Monroe County, Florida

    Unit 19 encompasses approximately 65 ac (26 ha) within Monroe 
County, in the Distal Sand Region of the Florida Keys. This unit is 
considered unoccupied. Habitat on Loggerhead Key is sand beach and 
coastal uplands. This unit is entirely in Federal ownership as part of 
the Dry Tortugas National Park. Approximately 31 percent of Unit 19 
overlaps with designated critical habitat for the loggerhead sea 
turtle. The habitat in this unit is contiguous since there is very 
little development on the island, which is accessible only by boat. The 
threat of development is low due to designation as a national park and 
threats from climate change are low because of its higher elevation 
(see Summary of Biological Status and Threats in Proposed Listing 
Determination, above).
    Although it is currently considered unoccupied, the Florida Keys 
mole skink was documented on the island in the past (FNAI 2011, 
entire), and it is possible that the lack of current detections could 
be due to lack of surveys. Also, this unit constitutes habitat for the 
species because it contains the physical or biological feature 
necessary for the life history of the species. This unit is essential 
for the conservation of the species because it will still provide 
habitat for potential reintroductions in the case of sea level rise (as 
described in Future Condition in Proposed Listing Determination, above, 
and Service 2022, pp. 61-70) or stochastic events (such as hurricanes), 
should other areas of suitable habitat be destroyed, or the Florida 
Keys mole skink be extirpated from one of its currently occupied 
locations. Additionally, the entire unit is on National Park lands, 
where reintroductions would be likely.

Effects of Critical Habitat Designation

Section 7 Consultation

    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 February 11, 2016 (81 FR 7214) (although we 
also published a revised definition after that (on August 27, 2019), 
that 2019 definition was subsequently vacated by the court in CBD v. 
Haaland). Destruction or adverse modification means a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the conservation of a listed species. Such alterations may 
include, but are not limited to, those that alter the physical or 
biological features essential to the conservation of a species or that 
preclude or significantly delay development of such features.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action;
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction;
    (3) Are economically and technologically feasible; and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (a) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) 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; (c) 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 (d) if a new 
species is listed or critical habitat

[[Page 58677]]

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.

Application of the ``Destruction or Adverse Modification'' Standard

    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 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. Factors considered in making these 
determinations may include the extent of the proposed action, including 
its temporal and spatial scale relative to the critical habitat unit 
within which it occurs; the specific purpose for which that unit was 
identified and designated as critical habitat; and the impact of the 
proposed action on the unit's likelihood of serving its intended 
conservation function or purpose and how this may appreciably diminish 
the value of the critical habitat designation as a whole.
    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 we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to:
    (1) Actions that would change the habitat or land cover type, if 
impacts are the extent and scale that they appreciably diminish the 
value of critical habitat as a whole. Such activities may include, but 
are not limited to, residential, commercial, or recreational 
development and road construction. These activities could further 
fragment tracts of suitable habitat, inhibiting dispersal by the 
Florida Keys mole skink between remaining areas of suitable habitat.
    (2) Actions that would significantly alter the substrate, such as 
excavation or filling, if impacts are to the extent and scale that they 
appreciably diminish the value of critical habitat as a whole. Such 
activities may include, but are not limited to, residential, 
commercial, or recreational development, and road construction or 
maintenance. These activities could remove soils necessary for the 
movement and burrowing (nesting) of the Florida Keys mole skink.
    (3) Actions that would alter the ground cover (e.g., tidal wrack, 
leaf litter, or vegetative debris), if impacts are to the extent and 
scale that they appreciably diminish the value of critical habitat as a 
whole. Such activities may include, but are not limited to, road 
maintenance, habitat management activities (such as beach 
renourishment, shoreline armoring, nonnative species control, 
prescribed fire), and recreational management activities (such as beach 
raking or other cleaning methods to remove wrack or debris). These 
activities could remove the ground cover that the Florida Keys mole 
skink relies on for protection from predators and temperature extremes, 
sources of food, and areas for reproduction.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an INRMP by November 17, 2001. An INRMP integrates 
implementation of the military mission of the installation with 
stewardship of the natural resources found on the base. Each INRMP 
includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, 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 DoD, or designated for its use, that are 
subject to an integrated natural resources management plan prepared 
under section 101 of the Sikes Act Improvement Act of 1997 (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.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. We analyzed INRMPs 
developed by military installations located within the range of the 
proposed critical habitat designation for the Florida Keys mole skink 
to determine if they meet the criteria for exemption from critical 
habitat under section 4(a)(3) of the Act. The following areas are DoD 
lands with completed, Service-approved INRMPs within the proposed 
critical habitat designation.

Approved INRMPs

Naval Air Station Key West
    We have determined that approximately 150 ac (61 ha) of beach, 
coastal berm, coastal uplands, rockland hammock, mangrove, and Keys 
tidal rock barren habitat on Boca Chica Key and 8 ac (3 ha) of beach 
habitat on Key West contain the physical or biological feature 
essential to the conservation of the Florida Keys mole skink. These 
specific lands are owned and managed by the DoD as part of the Naval 
Air Station Key West. The Naval Air Station Key West has a current and 
completed INRMP, covering land owned by the DoD on Boca Chica Key and 
Key West (Department of the Navy 2020, entire). Though the Florida Keys 
mole skink is not specifically mentioned, the INRMP provides 
conservation and habitat management measures applicable to the species. 
The Service has approved these conservation and management measures, 
and the INRMP has been signed.
    The goals listed in the Naval Air Station Key West INRMP include 
protecting and maintaining the land and water resources by continuation 
and enhancement of ecologically appropriate and best management 
practices compatible with the military mission, and protecting, 
maintaining, and restoring native vegetation communities and threatened 
and/or endangered species, including resident

[[Page 58678]]

and migratory animal populations while supporting the military mission 
(Department of the Navy 2020, pp. 1-4). In the Wildlife Management 
section of the INRMP, the main objective is to preserve, protect, and 
manage wildlife and their habitats to ensure healthy productive 
populations (Department of the Navy 2020, p. ES-5). Several specific 
actions under that objective should benefit the Florida Keys mole 
skink, including actions to protect natural communities necessary for 
the continuation of healthy wildlife populations and actions to avoid 
habitat fragmentation (Department of the Navy 2020, pp. 4-30-4-31).
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that the identified lands 
are subject to the Naval Air Station Key West INRMP and that 
conservation efforts identified in the INRMP will provide a benefit to 
Florida Keys mole skink. Therefore, lands within this installation are 
exempt from critical habitat designation under section 4(a)(3) of the 
Act. We are not including approximately 158 ac (64 ha) of habitat (150 
ac (61 ha) as a separate unit on Boca Chica Key and 8 ac (3 ha) as part 
of Unit 16 on Key West) in this proposed critical habitat designation 
because of this exemption.

Consideration of Impacts Under Section 4(b)(2) 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act, 81 FR 7226 (Feb. 11, 2016) (2016 Policy)--
both of which were developed jointly with the National Marine Fisheries 
Service (NMFS). We also refer to a 2008 Department of the Interior 
Solicitor's opinion entitled ``The Secretary's Authority to Exclude 
Areas from a Critical Habitat Designation under Section 4(b)(2) of the 
Endangered Species Act'' (M-37016). We explain each decision to exclude 
areas, as well as decisions not to exclude, to demonstrate that the 
decision is reasonable.
    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. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Consideration of Economic 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.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. 
Section 3(f) of E.O. 12866 identifies four criteria when a regulation 
is considered a ``significant'' rulemaking, and requires additional 
analysis, review, and approval if met. The criterion relevant here is 
whether the designation of critical habitat may have an economic effect 
of greater than $100 million in any given year (section 3(f)(1)). 
Therefore, our consideration of economic impacts uses a screening 
analysis to assess whether a designation of critical habitat for the 
Florida Keys mole skink is likely to exceed the economically 
significant threshold.
    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 Florida Keys mole skink (Industrial Economics 
Incorporated [IEc] 2022, entire). We began by conducting a screening 
analysis of the proposed designation of critical habitat in order to 
focus our analysis on the key factors that are likely to result in 
incremental economic impacts. The purpose of the screening analysis is 
to filter out particular geographic areas of critical habitat that are 
already subject to such protections and are, therefore, unlikely to 
incur incremental economic impacts. In particular, the screening 
analysis considers baseline costs (i.e., absent critical habitat 
designation) and

[[Page 58679]]

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. 
Ultimately, the screening analysis allows us to focus our analysis on 
evaluating the specific areas or sectors that may incur probable 
incremental economic impacts as a result of the designation. The 
presence of the listed species in occupied areas of critical habitat 
means that any destruction or adverse modification of those areas will 
also jeopardize the continued existence of the species. Therefore, 
designating occupied areas as critical habitat typically causes little 
if any incremental impacts above and beyond the impacts of listing the 
species. Therefore, the screening analysis focuses on areas of 
unoccupied critical habitat. If there are any unoccupied units in the 
proposed critical habitat designation, the screening analysis assesses 
whether any additional management or conservation efforts may incur 
incremental economic impacts. This screening analysis, combined with 
the information contained in our IEM, constitute what we consider to be 
our draft economic analysis of the proposed critical habitat 
designation for the Florida Keys mole skink; our draft economic 
analysis is summarized in the narrative below.
    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 
Florida Keys mole skink, first we identified, in the IEM dated March 
31, 2022, probable incremental economic impacts associated with the 
following categories of activities: (1) residential and commercial 
development; (2) road construction and maintenance; (3) habitat 
management activities (such as beach renourishment, shoreline armoring, 
nonnative species control including mechanical or herbicide 
applications, and prescribed fire); and (4) recreational activities and 
associated developments (such as campgrounds, trails, and visitor 
facilities) and management activities (such as beach raking or other 
cleaning methods to remove wrack and debris). We considered each 
industry or category individually. Additionally, we considered whether 
the activities have any Federal involvement. Critical habitat 
designation generally will not affect activities that do not have any 
Federal involvement; under the Act, designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies. If we list the species, in areas where the Florida 
Keys mole skink is present, Federal agencies would be required to 
consult with the Service under section 7 of the Act on activities they 
fund, permit, or implement that may affect the species. If, when we 
list the species, we also finalize this proposed critical habitat 
designation, our consultations 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 would 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 
Florida Keys mole skink's critical habitat. Because the designation of 
critical habitat for Florida Keys mole skink is being proposed 
concurrently with the listing, it has been our experience that it is 
more difficult to discern which conservation efforts are attributable 
to the species being listed and those which will result solely from the 
designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical or biological feature identified for critical 
habitat is the same feature essential for the life requisites of the 
species, and (2) any actions that would likely adversely affect the 
essential physical or biological feature of occupied critical habitat 
are also likely to adversely affect the Florida Keys mole skink. The 
IEM outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the 
designation of critical habitat for this species. This evaluation of 
the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the Florida Keys mole 
skink totals approximately 7,068 ac (2,860 ha) in 19 units in Monroe 
County, Florida (see Proposed Critical Habitat Designation, above). 
Land ownership across the units includes Federal lands (35 percent), 
State lands (45 percent), local lands (4 percent), private lands (13 
percent), and lands with unknown/undefined ownership (4 percent). 
Fourteen of the 19 units are currently occupied by the Florida Keys 
mole skink; the remaining 5 units are within the species' historical 
range but are not known to be currently occupied. Approximately 84 
percent of the proposed critical habitat for the Florida Keys mole 
skink overlaps with currently designated Federal critical habitat for 
other species. Further, only about 22 percent (120 ac (48 ha)) of 
unoccupied proposed critical habitat does not overlap with existing 
designated Federal critical habitat (IEc 2022, p. 4).
    When an action is proposed in an area of designated critical 
habitat, and the proposed activity has a Federal nexus, the need for 
section 7 consultation is triggered. Any incremental costs associated 
with consideration of potential effects to the critical habitat are a 
result of this consultation process. For all occupied areas, the 
economic costs of critical habitat designations will most likely be 
limited to additional administrative efforts to consider adverse 
modification in section 7 consultations, as the listing of the species 
is happening concurrently with critical habitat designation, and all 
occupied units would still need to undergo section 7 consultation due 
to listing regardless of critical habitat designation. While this 
additional analysis 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. In total, a critical habitat 
designation for the Florida Keys mole skink is unlikely to generate 
costs or benefits exceeding $100 million in a single year. Because of 
the relatively small size of the critical habitat designation, the 
volume of lands that are State, county, or privately owned, the amount 
of land that is already being managed for conservation, and the 
significant overlap with other species' designated critical habitat, 
the numbers of section 7 consultations expected annually are modest 
(approximately one formal, two informal, and four technical assistance 
efforts annually across the designation; IEc 2022, p. 25).
    Overall, we expect that agency administrative costs for 
consultation, incurred by the Service and the consulting Federal 
agency, would be minor (less than $6,000 per consultation effort) and, 
therefore, would not be significant (IEc 2022, p. 26). The total annual 
incremental costs of critical habitat designations for the Florida Keys 
mole skink are anticipated to be approximately $10,200 per year (IEc 
2022, p. 27).

[[Page 58680]]

    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, due to the speculative 
nature of this perception, costs are not able to be quantified. 
Regardless, only 13 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.
    Incremental costs may occur outside of the section 7 consultation 
process if the designation of critical habitat triggers additional 
requirements or project modifications under State or local laws, 
regulations, or management strategies. These types of costs typically 
occur if the designation increases awareness of the presence of the 
species or the need for protection of its habitat. Given that the 
Florida Keys mole skink is covered by existing State protections, 
project proponents may already be aware of the presence of the species. 
For example, the Florida Keys mole skink is listed as threatened under 
Florida's endangered and threatened species rule. The species is 
further protected through habitat management and conservation under 
Florida's Imperiled Species Management Plan, the Florida Keys Wildlife 
and Environmental Area Management Plan, and Florida State park 
management plans. Therefore, designating critical habitat is unlikely 
to provide information to State or local agencies that would result in 
new regulations or actions (IEc 2022, p. 28).
    We are soliciting data and comments from the public on the draft 
economic analysis discussed above, as well as on all aspects of this 
proposed rule and our required determinations. During the development 
of a final designation, we will consider the information presented in 
the 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 424.19. 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.

Consideration of National Security Impacts

    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, the 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 
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.
    Under section 4(b)(2) of the Act, we also consider whether a 
national security or homeland security impact might exist on lands 
owned or managed by DoD or DHS. In preparing this proposal, we have 
determined that, other than the land exempted under section 
4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP 
(see Exemptions, above), the lands within the proposed designation of 
critical habitat for the Florida Keys mole skink are not owned or 
managed by DoD or DHS. Therefore, we anticipate no impact on national 
security or homeland security. However, if through the public comment 
period we receive information that we determine indicates that there is 
a potential for 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 424.19.

Consideration of Other Relevant Impacts

    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 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, social, or other

[[Page 58681]]

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.
    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.
Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act
    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. We also provide 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 (e.g., CCAAs, SHAs, and 
HCPs), we anticipate consistently excluding such areas if incidental 
take caused by the activities in those areas is covered by the permit 
under section 10 of the Act and the CCAA/SHA/HCP meets all of the 
following three factors (see the 2016 Policy for additional details):
    a. The permittee is properly implementing the CCAA/SHA/HCP and is 
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully 
implementing the commitments and provisions in the CCAA/SHA/HCP, 
Implementing Agreement, and permit.
    b. The species for which critical habitat is being designated is a 
covered species in the CCAA/SHA/HCP, or very similar in its habitat 
requirements to a covered species. The recognition that the Services 
extend to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    c. The CCAA/SHA/HCP specifically addresses that species' habitat 
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 the Florida Keys mole skink: Habitat Conservation Plan for Florida 
Key Deer and Other Protected Species on Big Pine Key and No Name Key, 
Monroe County, Florida.
    In preparing this proposal, we have determined that lands 
associated with the HCP for Florida Key Deer and Other Protected 
Species on Big Pine Key and No Name Key within Big Pine Key (Unit 11) 
are included within the boundaries of the proposed critical habitat for 
the Florida Keys mole skink. However, we have determined that the HCP 
does not include the Florida Keys mole skink as a ``covered species,'' 
and the Florida Keys mole skink is not mentioned specifically anywhere 
in the HCP document. Because it is not a ``covered species,'' the HCP 
will not trigger surveys or conservation measures for this species. The 
HCP expires in 2023, though the county is applying for an extension to 
2026, which may provide an opportunity to add the Florida Keys mole 
skink.
    At this time, we are not considering the exclusion of any areas 
within the proposed critical habitat for the Florida Keys mole skink 
that are covered by permitted plans. However, we are requesting 
information supporting a benefit of excluding any areas from the HCP 
for Florida Key Deer and Other Protected Species on Big Pine Key and No 
Name Key. Based on our evaluation of the information we receive, we may 
determine that we have reason to exclude one or more areas from the 
final designation.
Non-Permitted Conservation Plans, Agreements, or Partnerships
    Shown below is a non-exhaustive list of factors that we consider in 
evaluating how non-permitted plans or agreements affect the benefits of 
inclusion or exclusion. These are not required elements of plans or 
agreements. Rather, they are some of the factors we may consider, and 
not all of these factors apply to every plan or agreement.
    (i) The degree to which the record of the plan, or information 
provided by proponents of an exclusion, supports a conclusion that a 
critical habitat designation would impair the realization of the 
benefits expected from the plan, agreement, or partnership.
    (ii) The extent of public participation in the development of the 
conservation plan.
    (iii) The degree to which agency review and required determinations 
(e.g., State regulatory requirements) have been completed, as necessary 
and appropriate.
    (iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) reviews or similar reviews occurred, and the nature of 
any such reviews.
    (v) The demonstrated implementation and success of the chosen 
mechanism.

[[Page 58682]]

    (vi) The degree to which the plan or agreement provides for the 
conservation of the essential physical or biological feature for the 
species.
    (vii) Whether there is a reasonable expectation that the 
conservation management strategies and actions contained in a 
management plan or agreement will be implemented.
    (viii) Whether the plan or agreement contains a monitoring program 
and adaptive management to ensure that the conservation measures are 
effective and can be modified in the future in response to new 
information.
    The proposed critical habitat designation includes areas that are 
covered by the following non-permitted plans providing for the 
conservation of the Florida Keys mole skink: Florida Keys Wildlife and 
Environmental Area Management Plan and several Florida Keys State Park 
Unit Management Plans.
    In preparing this proposal, we have determined that lands 
associated with the Florida Keys Wildlife and Environmental Area (Units 
1 and 2), Dagny Johnson Key Largo Hammock Botanical State Park (Unit 
1), John Pennekamp Coral Reef State Park (Unit 1), Lignumvitae Key 
Botanical State Park (Units 3 and 5), Indian Key Historic State Park 
(Unit 4), Long Key State Park (Unit 6), Bahia Honda State Park (Unit 
9), and Fort Zachary Taylor State Park (Unit 16) are included within 
the boundaries of the proposed critical habitat for the Florida Keys 
mole skink. While the Florida Keys mole skink is mentioned within four 
of these plans and monitoring is included as an objective in three (two 
of which are only for opportunistic monitoring), specific management 
objectives for the species are not discussed.
    At this time, we are not considering the exclusion of any areas 
within the proposed critical habitat for the Florida Keys mole skink 
that are covered by non-permitted plans because these areas are managed 
for conservation. However, we are requesting information supporting a 
benefit of excluding any areas covered by the Florida Keys Wildlife and 
Environmental Area Management Plan or the Florida Keys State Park Unit 
Management Plans. Based on our evaluation of the information we 
receive, we may determine that we have reason to exclude one or more 
areas from the final designation.
Tribal Lands
    In preparing this proposal, we have determined that there are no 
Tribal lands or resources that are included within the boundaries of 
the proposed critical habitat for the Florida Keys mole skink.

Summary of Exclusions Considered Under Section 4(b)(2) of the Act

    At this time we are not considering any exclusions from the 
proposed designation based on economic impacts, national security 
impacts, or other relevant impacts--such as partnerships, management, 
or protection afforded by cooperative management efforts--under section 
4(b)(2) of the Act. Some areas within the proposed designation are 
included in an HCP or State land management plans; however, the Florida 
Keys mole skink is not a covered species within those plans, nor is the 
species discussed in the plans. In this proposed rule, we are seeking 
information from the public supporting a benefit of excluding any areas 
that would be used in an exclusion analysis that may result in the 
exclusion of areas from the final critical habitat designation. (Please 
see DATES and ADDRESSES for instructions on how to submit comments.)

Required Determinations

Clarity of the Rule

    We are required by E.O.s 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.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    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.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and Service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we

[[Page 58683]]

considered the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. 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.

Energy Supply, Distribution, or Use--Executive Order 13211

    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 this 
proposed critical habitat designation would significantly affect energy 
supplies, distribution, or use, as there are no energy facilities 
within the boundaries of the proposed critical habitat units for the 
Florida Keys mole skink. Therefore, this action is not a significant 
energy action, and no statement of energy effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

    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 Florida Keys mole skink 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 Florida Keys 
mole skink, and it concludes that, if adopted, this designation of 
critical habitat does not pose significant takings implications for 
lands within or affected by the designation.

[[Page 58684]]

Federalism--Executive Order 13132

    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 Federal 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.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 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 feature 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.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    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.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    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 (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)).

Government-to-Government Relationship With Tribes

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

References Cited

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

Authors

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

Signing Authority

    Martha Williams, Director of the U.S. Fish and Wildlife Service, 
approved this action on August 30, 2022, for publication. On September 
15, 2022, Martha Williams authorized the undersigned to sign the 
document electronically and submit it to the Office of the Federal 
Register for publication as an official document of the U.S. Fish and 
Wildlife Service.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.11 in paragraph (h) by adding an entry for ``Skink, 
Florida Keys mole'' to the List of Endangered and Threatened Wildlife 
in alphabetical order under REPTILES to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 58685]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
            Reptiles
 
                                                  * * * * * * *
Skink, Florida Keys mole........  Plestiodon          Wherever found....  T              [FEDERAL REGISTER
                                   egregius egregius.                                     Citation when
                                                                                          Published as a Final
                                                                                          Rule]; 50 CFR
                                                                                          17.42(q);\4d\ 50 CFR
                                                                                          17.95(c).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.42 by adding paragraphs (j) through (q) to read as 
follows:


Sec.  17.42  Special rules--reptiles.

* * * * *
    (j) [Reserved]
    (k) [Reserved]
    (l) [Reserved]
    (m) [Reserved]
    (n) [Reserved]
    (o) [Reserved]
    (p) [Reserved]
    (q) Florida Keys mole skink (Plestiodon egregius egregius).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to Florida Keys mole skink. Except as 
provided under paragraph (q)(2) of this section and Sec. Sec.  17.4 and 
17.5, it is unlawful for any person subject to the jurisdiction of the 
United States to commit, to attempt to commit, to solicit another to 
commit, or cause to be committed, any of the following acts in regard 
to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Mechanical treatment activities conducted within Florida Keys 
mole skink habitat that are carried out in accordance with a habitat 
management plan developed by a Federal, State, or county entity in 
coordination with the Service, as long as the treatments are used to 
maintain, restore, or enhance a natural diversity and abundance of 
habitats for native plants and wildlife.
    (B) Prescribed fire activities conducted within Florida Keys mole 
skink habitat that are carried out in accordance with a fire management 
plan developed by a Federal, State, or county entity in coordination 
with the Service, as long as the treatments are used to maintain, 
restore, or enhance a natural diversity and abundance of habitats for 
native plants and wildlife. Prescribed fire activities include 
maintenance and creation of fire breaks, fire line installation, 
mechanical treatments to reduce fuel loads, and any other pre-fire 
preparations needed.
    (C) Nonnative plant or animal species eradication activities that 
are carried out in accordance with a habitat management plan developed 
by a Federal, State, or county entity in coordination with the Service, 
as long as the treatments are used to maintain, restore, or enhance a 
natural diversity and abundance of habitats for native plants and 
wildlife.
0
4. Amend Sec.  17.95 in paragraph (c) by adding an entry for ``Florida 
Keys Mole Skink (Plestiodon egregius egregius)'' after the entry for 
``Loggerhead Sea Turtle, Northwest Atlantic Ocean DPS (Caretta 
caretta)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (c) Reptiles.
* * * * *
    Florida Keys Mole Skink (Plestiodon egregius egregius)
    (1) Critical habitat units are depicted for Monroe County, Florida, 
on the maps in this entry.
    (2) Within these areas, the physical or biological feature 
essential to the conservation of the Florida Keys mole skink consists 
of natural habitats (including, but not limited to beaches, dunes, 
coastal berms, rockland hammocks, and pine rocklands) along the coast 
or on the interior of the Florida Keys that contain:
    (i) Suitable soils (dry, loose, sandy, permeable, or friable soils) 
for movement and nesting; and
    (ii) Sufficient, appropriate ground cover (including, but not 
limited to tidal wrack deposited above the mean high-water line, leaf 
litter, and vegetative debris) for protection from predators and 
temperature extremes, sources of food, and areas for reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF RULE].
    (4) Data layers defining map units were created using ESRI ArcGIS 
mapping software along with various spatial data layers. ArcGIS was 
also used to calculate the size of habitat areas. The projection used 
in mapping and calculating distances and locations within the units was 
Albers Conical Equal Area (Florida Geographic Data Library), NAD 1983 
HARN. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site at 
https://www.fws.gov/office/florida-ecological-services/library, at 
https://www.regulations.gov at Docket No. FWS-R4-ES-2022-0104, and at 
the field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:

Figure 1 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (5)
BILLING CODE 4333-15-P

[[Page 58686]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.001

    (6) Unit 1: Key Largo, Monroe County, Florida.
    (i) Unit 1 consists of 3,157 ac (1,278 ha) in Monroe County, 
Florida, in the upper Florida Keys. This unit includes Federal lands 
within Crocodile Lake National Wildlife Refuge (608 ac (246 ha)), State 
lands within Dagny Johnson Botanical State Park, John Pennekamp Coral 
Reef State Park, and the Florida Keys Wildlife and Environmental Area 
(2,176 ac (881 ha)), local lands (85 ac (34 ha)), and property in 
private or unknown/undefined ownership (288 ac (117 ha)). The unit 
originates on the north end of Key Largo, just south of the Ocean Reef 
Club, and continues contiguously south to U.S. Route 1, after which it 
continues intermittently to just north of Ocean Drive. There is one 
disjunct portion of the unit,

[[Page 58687]]

approximately 4.5 miles south of Ocean Drive, between Dove Road and 
Snapper Lane.
    (ii) Maps of Unit 1 follow:

Figure 2 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP27SE22.002

Figure 3 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (6)(ii)

[[Page 58688]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.003

    (7) Unit 2: Plantation Key, Monroe County, Florida.
    (i) Unit 2 consists of 275 ac (111 ha) in Monroe County, Florida, 
in the upper Florida Keys. This unit includes State lands within the 
Florida Keys Wildlife and Environmental Area (63 ac (26 ha)), local 
lands (29 ac (12 ha)), and property in private or unknown/undefined 
ownership (183 ac (74 ha)). The unit originates on the north end of 
Plantation Key just south of Ocean Drive and continues intermittently 
until the south end of the island.
    (ii) Map of Unit 2 follows:

Figure 4 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (7)(ii)

[[Page 58689]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.004

    (8) Unit 3: Upper Matecumbe Key, Monroe County, Florida.
    (i) Unit 3 consists of 140 ac (57 ha) in Monroe County, Florida, in 
the upper Florida Keys. This unit includes State lands within the 
Lignumvitae Key Botanical and Indian Key Historic State Parks (24 ac 
(10 ha)), local lands (18 ac (7 ha)), and property in private or 
unknown/undefined ownership (97 ac (39 ha)). The unit originates on the 
north end of Upper Matecumbe Key and continues intermittently until the 
south end of the island.
    (ii) Map of Unit 3 follows:

Figure 5 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (8)(ii)

[[Page 58690]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.005

    (9) Unit 4: Indian Key, Monroe County, Florida; and Unit 5: Lower 
Matecumbe Key, Monroe County, Florida.
    (i) Unit 4 consists of 12 ac (5 ha) in Monroe County, Florida, in 
the upper Florida Keys. The unit encompasses the entire island of 
Indian Key, which is owned by the State as part of the Indian Key 
Historic State Park.
    (ii) Unit 5 consists of 95 ac (38 ha) in Monroe County, Florida, in 
the upper Florida Keys. This unit includes State lands that are part of 
Lignumvitae Key Botanical State Park (34 ac (14 ha)), local lands (6 ac 
(3 ha)), and property in private or unknown/undefined ownership (54 ac 
(22 ha)). The unit originates on the north end of Lower Matecumbe Key 
and continues intermittently until the south end of the island.
    (iii) Map of Unit 4 and Unit 5 follows:

Figure 6 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (9)(iii)

[[Page 58691]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.006

    (10) Unit 6: Long Key, Monroe County, Florida.
    (i) Unit 6 consists of 405 ac (164 ha) in Monroe County, Florida, 
in the middle Florida Keys. This unit includes State lands that are 
part of Long Key State Park (350 ac (142 ha)), local lands (20 ac (8 
ha)), and property in private or unknown/undefined ownership (34 ac (14 
ha)). The unit originates on the north end of the southern hook of Long 
Key and continues until the south end of the island, with a portion 
extending north along U.S. Route 1 to Long Key Lake Drive.
    (ii) Map of Unit 6 follows:

Figure 7 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (10)(ii)

[[Page 58692]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.007

    (11) Unit 7: Vaca Key, Monroe County, Florida; and Unit 8: Boot 
Key, Monroe County, Florida.
    (i) Unit 7 consists of 72 ac (29 ha) in Monroe County, Florida, in 
the middle Florida Keys. This unit includes local lands (1 ac (<1 ha)) 
and property in private or unknown/undefined ownership (71 ac (29 ha)). 
The unit includes most of the Crane Point Hammock Preserve, which is 
located on the north side of U.S. Route 1, and two smaller areas to the 
east.
    (ii) Unit 8 consists of 221 ac (90 ha) in Monroe County, Florida, 
in the middle Florida Keys. This unit includes State lands (14 ac (6 
ha)) and property in private or unknown/undefined ownership (207 ac (84 
ha)). The unit originates on the east end of the southern shore of Boot 
Key and continues up the middle and along the northwestern shoreline of 
the island.
    (iii) Map of Unit 7 and Unit 8 follows:

Figure 8 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (11)(iii)

[[Page 58693]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.008

    (12) Unit 9: Bahia Honda Key, Monroe County, Florida.
    (i) Unit 9 consists of 65 ac (26 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit is almost entirely within Bahia Honda 
State Park (57 ac (23 ha)), with approximately 8 ac (3 ha) of unknown 
or undefined ownership. The unit originates on the east end of the 
southern shore of Bahia Honda Key and continues along the southern 
shore until the west end of the island, with a small area on the 
northwestern shore of the island.
    (ii) Map of Unit 9 follows:

Figure 9 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (12)(ii)

[[Page 58694]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.009

    (13) Unit 10: Scout Key, Monroe County, Florida.
    (i) Unit 10 consists of 53 ac (21 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit includes State lands (9 ac (4 ha)), 
local lands (33 ac (13 ha)), and property in private or unknown/
undefined ownership (11 ac (5 ha)). The unit originates on the east end 
of Scout Key (also called West Summerland Key) and continues to the 
west end of the island just east of the entrance to the Boy Scout Camp, 
with a small area on the southern shore of the island.
    (ii) Map of Unit 10 follows:

Figure 10 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (13)(ii)

[[Page 58695]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.010

    (14) Unit 11: Big Pine Key, Monroe County, Florida.
    (i) Unit 11 consists of 2,159 ac (874 ha) in Monroe County, 
Florida, in the lower Florida Keys. This unit includes Federal lands 
within the National Key Deer Refuge (1,547 ac (626 ha)), State lands 
(412 ac (167 ha)), local lands (80 ac (32 ha)), and property in private 
or unknown/undefined ownership (120 ac (49 ha)). The northern part of 
the unit extends from near the northern tip of Big Pine Key south to 
U.S. Route 1, and the southern part of the unit originates on the 
eastern end of Long Beach, just south of the Big Pine Key Resort, and 
extend west to where the low-density residential developments begin.
    (ii) Map of Unit 11 follows:

Figure 11 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (14)(ii)

[[Page 58696]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.011

    (15) Unit 12: Cook's Island, Monroe County, Florida; and Unit 13: 
Big Munson Island, Monroe County, Florida.
    (i) Unit 12 consists of 15 ac (6 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit is almost entirely in private 
ownership (13 ac (5 ha)), with approximately 2 ac (1 ha) of unknown or 
undefined ownership. The unit stretches along the entire southern shore 
of Cook's Island.
    (ii) Unit 13 consists of 51 ac (21 ha) in Monroe County, Florida, 
in the lower Florida Keys. This unit is almost entirely in private 
ownership by the Boy Scouts of America (50 ac (20 ha)), with 
approximately 1 ac (1 ha) of unknown or undefined ownership. The unit 
stretches along the entire southern shore of Big Munson Island with a 
portion extending to the north on the western end.
    (iii) Map of Unit 12 and Unit 13 follows:

Figure 12 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (15)(iii)

[[Page 58697]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.012

    (16) Unit 14: Content Key, Monroe County, Florida.
    (i) Unit 14 consists of 10 ac (4 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit includes Federal lands within the 
National Key Deer Refuge and the Great White Heron National Wildlife 
Refuge (6 ac (3 ha)), State lands (1 ac (<1 ha)), and property with 
unknown or undefined ownership (3 ac (1 ha)). The unit stretches along 
most of the northern shore of the middle island of Content Keys.
    (ii) Map of Unit 14 follows:

Figure 13 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (16)(ii)

[[Page 58698]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.013

    (17) Unit 15: Sawyer Key, Monroe County, Florida.
    (i) Unit 15 consists of 11 ac (4 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit is almost entirely in Federal 
ownership as part of the Great White Heron National Wildlife Refuge (10 
ac (4 ha)), with approximately 1 ac (<1 ha) of unknown or undefined 
ownership. The unit stretches along the entire western and northern 
shore of the westernmost island of Sawyer Key.
    (ii) Map of Unit 15 follows:

Figure 14 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (17)(ii)

[[Page 58699]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.014

    (18) Unit 16: Key West, Monroe County, Florida.
    (i) Unit 16 consists of 42 ac (17 ha) in Monroe County, Florida, in 
the lower Florida Keys. This unit includes State lands within Fort 
Zachary Taylor State Park (15 ac (6 ha)), local lands (10 ac (4 ha)), 
and property in private or unknown/undefined ownership (17 ac (7 ha)). 
The unit originates on the southwest end of Key West and continues 
intermittently along the beach shoreline to the east until the sand 
beach stops south of the Key West International Airport. There are two 
disjunct portions of the unit to the northwest, one just north of the 
western end of the airport and the other on Stock Island, within the 
Key West Tropical Forest and Botanical Garden.
    (ii) Map of Unit 16 follows:


[[Page 58700]]


Figure 15 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (18)(ii)
[GRAPHIC] [TIFF OMITTED] TP27SE22.015

    (19) Unit 17: Boca Grande Key, Monroe County, Florida.
    (i) Unit 17 consists of 71 ac (29 ha) in Monroe County, Florida, in 
the Distal Sand Region of the Florida Keys. This unit is entirely in 
Federal ownership as part of the Key West National Wildlife Refuge. The 
unit stretches along the entire western and southern shore of Boca 
Grande Key.
    (ii) Map of Unit 17 follows:

Figure 16 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (19)(ii)

[[Page 58701]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.016

    (20) Unit 18: Marquesas Key, Monroe County, Florida.
    (i) Unit 18 consists of 149 ac (60 ha) in Monroe County, Florida, 
in the Distal Sand Region of the Florida Keys. This unit is entirely in 
Federal ownership as part of the Key West National Wildlife Refuge. The 
unit originates at the western tip of the north shore of the 
northernmost Marquesas Keys and continues west until the coastal berm 
stops.
    (ii) Map of Unit 18 follows:

Figure 17 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (20)(ii)

[[Page 58702]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.017

    (21) Unit 19: Loggerhead Key, Monroe County, Florida.
    (i) Unit 19 consists of 65 ac (26 ha) in Monroe County, Florida, in 
the Distal Sand Region of the Florida Keys. The unit encompasses the 
entire island of Loggerhead Key, which is in Federal ownership as part 
of the Dry Tortugas National Park.
    (ii) Map of Unit 19 follows:

Figure 18 to Florida Keys Mole Skink (Plestiodon egregius egregius) 
paragraph (21)(ii)

[[Page 58703]]

[GRAPHIC] [TIFF OMITTED] TP27SE22.018

* * * * *

Madonna Baucum,
Chief, Policy and Regulations Branch, U.S. Fish and Wildlife Service.
[FR Doc. 2022-20370 Filed 9-26-22; 8:45 am]
BILLING CODE 4333-15-C