[Federal Register Volume 87, Number 193 (Thursday, October 6, 2022)]
[Proposed Rules]
[Pages 60612-60638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21537]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2022-0083; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF84


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Lassics Lupine 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 Lassics lupine (Lupinus constancei), a plant species native to 
northern California, as an endangered 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 Lassics lupine. After a review of the best available 
scientific and commercial information, we find that listing the species 
is warranted. If we finalize this rule as proposed, it would add this 
species to the List of Endangered and Threatened Plants and extend the 
Act's protections to the species. We also propose to designate critical 
habitat for the Lassics lupine under the Act. In total, approximately 
512 acres (ac) (207 hectares (ha)) in Humboldt and Trinity Counties, 
California, fall within the boundaries of the proposed critical habitat 
designation. In addition, we announce the availability of a draft 
economic analysis (DEA) of the proposed designation of critical habitat 
for the Lassics lupine.

DATES: We will accept comments received or postmarked on or before 
December 5, 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 21, 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-R8-ES-2022-0083, 
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-R8-ES-2022-0083, 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: 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-R8-ES-2022-0083 and on the 
Service's website at https://www.fws.gov/office/arcata-fish-and-wildlife. Additional supporting information that we developed for this 
critical habitat designation will be available on the Service's 
website, at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Tanya Sommer, Field Supervisor, Arcata 
Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521; 
telephone 707-822-7201. 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 endangered 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 
Lassics lupine meets the definition of an endangered 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.
    What this document does. We propose to list the Lassics lupine as 
an endangered species under the Act, and we propose the designation of 
critical habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Lassics lupine is in 
danger of extinction primarily due to woody vegetation encroachment, 
pre-dispersal seed predation, fire, and reduced soil moisture due to 
drought associated with ongoing climate change.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

[[Page 60613]]

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 pollination, reproduction, and dispersal;
    (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 manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status of this species.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species; or
    (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.''
    (6) Specific information on:
    (a) The amount and distribution of Lassics lupine habitat;
    (b) Any additional areas occurring within the range of the species 
in Humboldt and Trinity Counties, California, that should be included 
in the designation because they either 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;
    (c) 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.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (9) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts and any additional information 
regarding probable economic impacts that we should consider.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, 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 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 
threatened instead of endangered, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. For critical habitat, our final designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, or may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion.

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

[[Page 60614]]

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 January 15, 2016, we were petitioned to list the Lassics lupine 
as an endangered species under the Act by Dave Imper, Sydney Carothers, 
the Center for Biological Diversity, and the California Native Plant 
Society (CNPS) (Imper et al. 2016, entire). On September 14, 2016, we 
published in the Federal Register (81 FR 63160) a 90-day finding 
stating that the petition presented substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. This proposed rule constitutes our 12-month finding on that 
petition.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the Lassics lupine (Service 2022, entire). The SSA team was composed of 
Service biologists, and the report was prepared 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 four appropriate 
specialists, with expertise in rare plant conservation and Lassics 
lupine biology, regarding the SSA report. We received four responses. 
Comments from peer reviewers have been incorporated into our SSA report 
as appropriate.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
Lassics lupine (Lupinus constancei) is presented in the SSA report 
(version 1; Service 2022, pp. 11-18).
    The following species description is largely paraphrased from the 
original species description and the Jepson Manual, 2nd edition (Nelson 
and Nelson 1983, entire; Baldwin et al. 2012, pp. 772-775). Lassics 
lupine is a tap-rooted, herbaceous perennial that grows to a height of 
less than 15 centimeters (cm) (6 inches (in)) from a short, slightly 
woody stem. The leaves and stem are covered in relatively long, shaggy 
hairs, and the plant is cespitose (growing close to the ground). Like 
other plants in the genus Lupinus, the leaves are palmately compound 
and generally clustered around the base.
    Like other flowers of the family Fabaceae (legumes), the flowers of 
Lassics lupine are pea-like and composed of five unique petals. The 
flowers are pink and white with some variation between the individual 
petals. The flowers are arranged in a dense inflorescence called a 
raceme, meaning individuals flowers emerge on short stalks (pedicel) 
along a central axis. Mature plants can produce up to 20 or more 
inflorescences (clusters of flowers), but they typically produce fewer. 
Lassics lupine flowers develop into a fruit called a legume that splits 
in two halves (pods) that produce between one and five seeds, with an 
average of two seeds per fruit (Kurkjian 2012b, p. 5).
    Lassics lupine reproduction occurs entirely through seed, and like 
many members of the legume family, they exhibit seed dormancy, meaning 
there is a physical barrier that prevents moisture from entering seeds 
(i.e., an impermeable seed coat) (Guerrant 2007, p. 13). This seed coat 
prevents germination and allows the plant to form a persistent seed 
bank. This seed coat appears relatively robust upon inspection, and 
germination trials suggest that scarification (intentionally damaging 
the seed coat) is necessary for germination to occur in laboratory 
conditions (Guerrant 2007, p. 14). This suggests that abrasion or other 
damage to the seed coat is necessary for germination in natural 
conditions.
    It is unknown exactly when the majority of Lassics lupine seeds 
typically germinate, but it is thought to occur shortly after snow has 
melted (which is typically between March and May) and temperatures 
begin to rise. Plants can flower and produce seed within their second 
year but more often, they take several years to reproduce (CDFW 2018, 
p. 13; Kurkjian 2012b, entire). Lassics lupine typically blooms from 
June to July but can start producing flowers as early as May (for 
example, plants were blooming in May in both 2020 and 2021) (Baldwin et 
al. 2012, p. 772).
    Lassics lupine may be capable of self-pollination, based on 
evidence of partial fruit development in flowers that were 
experimentally hand-pollinated and excluded from pollinator visits 
(Crawford and Ross 2003, p. 3). However, Lassics lupine is also visited 
at high rates by three bee species: yellow-faced bumblebee (Bombus 
vosnesenskii), black-tailed bumblebee (Bombus melanopygus), and a mason 
bee species (Osmia spp.) (Crawford and Ross 2003, p. 2). All three of 
the bee species appear to be capable pollinators given that they are 
large enough to trigger the mechanism that releases pollen from the 
individual flowers, but no pollination experiments have taken place to 
quantify the rate or efficacy of these pollinator species (Crawford and 
Ross 2003, p. 3).
    Lassics lupine is documented to occur between 1,700-1,800 meters 
(m) (5,600-5,800 feet (ft)) in elevation around Mount Lassic and Red 
Lassic on the border of Humboldt and Trinity Counties, California. The 
species is currently described in two elemental occurrences, or 
populations, as delineated by the California Natural Diversity Database 
(CNDDB). CNDDB considers populations to be spatially explicit if they 
are separated by a 0.4-kilometer (km) (0.25-mile (mi)) interval.
    Lassics lupine occurs on or in the vicinity of serpentine soils in 
the Lassics Mountains, mainly on barren slopes with very shallow soil 
and low organic matter, or less commonly, near edges of Jeffrey pine 
(Pinus jeffreyi) forests. Most plants occur in areas with little to no 
tree overstory and can occur on flat or steep slopes with high 
proportions of gravel or cobble on the surface.
    Two populations comprise the total of Lassics lupine occurrences: 
the Red Lassic and Mount Lassic populations (see figure 1, below). Over 
the previous 5 years of monitoring, the Red Lassic population has 
ranged in size from 0-125 individuals, and the Mount Lassic population 
has ranged in size from 67-481 individuals. Rangewide totals of adult 
plants have ranged from fewer than 200 to approximately 1,000 
individuals over the previous 5 years of monitoring.
BILLING CODE 4333-15-P

[[Page 60615]]

[GRAPHIC] [TIFF OMITTED] TP06OC22.073


[[Page 60616]]


BILLING CODE 4333-15-C

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued final rules that revised the regulations in 
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify 
threatened and endangered species and the criteria for designating 
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August 
27, 2019). At the same time the Service also issued final regulations 
that, for species listed as threatened species after September 26, 
2019, eliminated the Service's general protective regulations 
automatically applying to threatened species the prohibitions that 
section 9 of the Act applies to endangered species (collectively, the 
2019 regulations).
    However, on July 5, 2022, the U.S. District Court for the Northern 
District of California vacated the 2019 regulations (Center for 
Biological Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. 
Cal. July 5, 2022) (CBD v. Haaland)), reinstating the regulations that 
were in effect before the effective date of the 2019 regulations as the 
law governing species classification and critical habitat decisions. 
Accordingly, in developing the analysis contained in this proposal, we 
applied the pre-2019 regulations, which may be reviewed in the 2018 
edition of the Code of Federal Regulations at 50 CFR 424.02, 424.11(d), 
and 424.12(a)(1) and (b)(2)). Because of the ongoing litigation 
regarding the court's vacatur of the 2019 regulations, and the 
resulting uncertainty surrounding the legal status of the regulations, 
we also undertook an analysis of whether the proposal would be 
different if we were to apply the 2019 regulations. That analysis, 
which we described in a separate memo in the decisional file and posted 
on https://www.regulations.gov, concluded that we would have reached 
the same proposal if we had applied the 2019 regulations because under 
either regulatory scheme we find that critical habitat is prudent for 
Lassics lupine and that the occupied areas proposed for critical 
habitat are adequate to ensure the conservation of the species.
    On September 21, 2022, the U.S. Circuit Court of Appeals for the 
Ninth Circuit stayed the district court's July 5, 2022, order vacating 
the 2019 regulations until a pending motion for reconsideration before 
the district court is resolved (In re: Cattlemen's Ass'n, No. 22-
70194). The effect of the stay is that the 2019 regulations are 
currently the governing law. Because a court order requires us to 
submit this proposal to the Federal Register by September 30, 2022, it 
is not feasible for us to revise the proposal in response to the Ninth 
Circuit's decision. Instead, we hereby adopt the analysis in the 
separate memo that applied the 2019 regulations as our primary 
justification for the proposal. However, due to the continued 
uncertainty resulting from the ongoing litigation, we also retain the 
analysis in this preamble that applies the pre-2019 regulations and we 
conclude that, for the reasons stated in our separate memo analyzing 
the 2019 regulations, this proposal would have been the same if we had 
applied the pre-2019 regulations.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the 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.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define 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' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-

[[Page 60617]]

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 species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R8-ES-2022-0083 on https://www.regulations.gov and at https://www.fws.gov/office/arcata-fish-and-wildlife.
    To assess Lassics lupine's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the 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 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Species Needs for the Lassics Lupine

Individual Needs
    Individual Lassics lupines occur on gravelly, shallow serpentine or 
clastic soils that are relatively free of competing vegetation. It is 
unknown if soil microbes are necessary for germination of seeds, but 
increased germination success and plant vigor has been described in 
trials with native soil (presumably populated with soil microbes) from 
the Lassics (Guerrant 2007, pp. 14-15). Cross-pollination between 
Lassics lupine individuals is dependent on pollination by bees 
(Crawford and Ross 2003, entire).
    Plants need a sufficient amount of sunlight and moisture. A 
sufficient amount of insolation (the amount of solar radiation reaching 
a given area) is necessary for Lassics lupine to reproduce, with 
increased vigor being documented in areas with higher insolation. 
However, too much insolation leads to decreased soil moisture. Plants 
typically occur either on north aspects, which provide orographic 
shading (when an obstacle, in this case a mountain peak, blocks solar 
radiation for at least part of day based on aspect), or on south 
aspects with some shading from nearby trees. Available soil moisture 
throughout the growing season is important for Lassics lupine to 
reproduce and to avoid desiccation.
    In summary, individual Lassics lupine plants require native, 
shallow serpentine or clastic soils; a suitable range of solar 
insolation; sufficient moisture throughout the growing season; and 
access to pollinators (Service 2022, table 3.2).
Population Needs
    To be adequately resilient, populations of Lassics lupine need 
sufficient numbers of reproductive individuals so that they are able to 
withstand stochastic events (expected levels of variation in 
environmental or demographic characteristics). For example, populations 
must be large enough to withstand annual variation in moisture levels 
that may cause mortality to some individuals. A minimum viable 
population (MVP) has not yet been calculated for Lassics lupine. 
However, we do know that the current population sizes are too small to 
withstand current rates of seed predation without significant 
management efforts, based on negative population growth rates and high 
probabilities of quasi-extinction (a population collapse that is 
predicted to occur when the population size reaches some given lower 
density, defined as 10 or fewer adult plants for the Lassics lupine) 
across all sites without significant management efforts (Kurkjian et 
al. 2017, entire).
    In the SSA report, we estimated MVP for Lassics lupine by 
comparison to surrogate species (species with similar life histories). 
Based on our analysis (Service 2022, table 3.1), we suggest an 
estimated MVP in the intermediate range (250 to 1,500 individuals) 
would be a sufficient number to withstand stochastic events. This 
provisional MVP range will be revised in the future if accumulated data 
allow a more precise calculation.
    Sufficient annual seed production and seedling establishment is 
necessary to offset mortality of mature Lassics lupine plants within a 
population. Because large individuals produce more seed (Kurkjian 
2012a, entire), their loss could have detrimental effects on the 
overall population. Sensitivity analyses across all sites demonstrated 
that survival and growth of reproductive plants had the most influence 
on population growth rate, followed by vegetative plants and seeds, and 
then seedlings (Kurkjian et al. 2017, p 867). Cross-pollination between 
Lassics lupine individuals presumably contributes to genetic exchange 
within and between populations and subpopulations, and potentially 
between populations, and is dependent on sufficient abundance and 
diversity of pollinators (Crawford and Ross 2003, entire).
    Gravelly or rocky habitat that is relatively free of forest 
encroachment and other vegetative competition is important for 
population persistence. Historically, these serpentine barrens were 
shaped by geologic forces and presumably kept free of forest and shrub 
encroachment by fire, perhaps both natural and anthropogenic. With a 
reduced fire frequency compared to historical levels, this habitat is 
susceptible to encroachment by native successional species such as 
Jeffrey pine, incense cedar (Calocedrus

[[Page 60618]]

decurrens), and pinemat manzanita (Arctostaphylos nevadensis) 
(Carothers 2008, entire). Lassics lupine requires relatively open 
canopy and limited competition from other plants for the limited 
moisture available during the growing season (Imper 2012, p. 142).
Species Needs
    In order for the Lassics lupine to sustain itself in the wild over 
time, it should have a sufficient number (redundancy) of secure, 
sustainable populations (resiliency) that are well-distributed 
throughout its geographic range and throughout the variety of 
ecological settings in which the species is known to exist 
(representation). Suitable habitat must be available, and the number 
and distribution of adequately resilient populations must be sufficient 
for the species to withstand catastrophic events.
    The historical extent and distribution of Lassics lupine is not 
precisely known. The species was possibly more abundant and more 
widespread in the past, although historical population boundaries are 
unknown. A comparison of soils from areas occupied by Lassics lupine to 
nearby areas that appear similar, but are not occupied, indicated that 
there are few sites that meet the species' specific soil requirements 
(Imper 2012, p. 27). This suggests that the distribution was not 
significantly more widespread than it is now, although vegetation 
encroachment has affected areas adjacent to and edges of the extant 
populations and there has been retraction of population boundaries of 
up to 20-30 percent in recent years (Service 2022, figure 4.2; Imper 
and Elkins 2016, pp. 16-18). Given the specialized adaptations to the 
harsh environment it occupies currently, it is unlikely that Lassics 
lupine ever occurred in a diverse range of ecological requirements, and 
the current distribution is likely a reflection of complex geological 
processes that shaped the Lassics Range. Additionally, it is unclear 
whether the species maintains sufficient genetic variability to persist 
under changing environmental conditions.

Threats

    In this proposed rule, we discuss those threats in detail that 
could meaningfully impact the status of the species including six 
threats analyzed in the SSA report for the Lassics lupine (Service 
2022): vegetation encroachment (Factor A), seed predation and herbivory 
(Factor C), fire (Factor A), climate change effects (Factor E), and 
invasive species (Factor A). We also evaluate existing regulatory 
mechanisms (Factor D) and ongoing conservation measures.
    In the SSA, we also considered the following additional threats: 
overutilization due to commercial, recreational, educational, and 
scientific use (Factor B); disease (Factor C); and recreation (Factor 
E). We concluded that, as indicated by the best available scientific 
and commercial information, these threats are currently having little 
to no impact on the Lassics lupine, and thus their overall effect now 
and into the future is expected to be minimal. Therefore, we will not 
present summary analyses of those threats in this document, but we will 
consider them in our overall assessment of impacts to the species. For 
full descriptions of all threats and how they impact the species, 
please see the SSA report (Service 2022, pp. 22-33).
    We note that, by using the SSA framework (Service 2016) 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.
Vegetation Encroachment
    Lassics lupine's density and vigor are highest in areas with 
sufficient insolation and when relatively free of competition for light 
and water (Imper 2012, p. 140). Since the 1930s, forest and chaparral 
vegetation communities in the range of the Lassics lupine have expanded 
in both distribution and density (Carothers 2017, entire; Service 2022, 
figures 4.1 and 4.2). On the north slope of Mount Lassic, Jeffrey pine 
and incense cedar have expanded; on the south slope of Mount Lassic, 
chaparral has matured and become more dense (Carothers 2017, p. 2). 
Increased distribution of the forest and chaparral communities in the 
areas surrounding Lassics lupine populations over the last 90 years may 
be due to fire suppression (Carothers 2017, entire). Based on suitable 
soil types and aspect, the north slope of Mount Lassic may have 
supported Lassics lupine in the past, connecting the three 
subpopulations that currently make up the Mount Lassic population.
    The effects of vegetation encroachment on Lassics lupine 
populations are twofold. There is a subsequent increase in canopy cover 
and leaf litter, which reduces habitat suitability. There is also an 
increase in seed predators, which decreases fecundity. With an increase 
in the distribution and density of trees on the north slope of Mount 
Lassic, there is a subsequent increase in canopy cover and reduced 
insolation. Available soil moisture has been shown to decrease more 
rapidly in forested areas in the spring and summer (Imper 2012, p. 
140). Additionally, these areas are now covered in a dense layer of 
leaf litter and forest duff, which may suppress the germination of 
Lassics lupine seeds and increase the risk of catastrophic fire by 
providing fuel in otherwise barren areas that likely burned at low 
severity in the past (Carothers 2017, p. 4; Imper 2012, pp. 139-140).
    Overall, vegetation encroachment influences fecundity, habitat 
quality, and survival throughout the range of the species and 
especially on the edges of the Mount Lassic population. Ultimately, 
vegetation encroachment has a strong influence on the amount of 
available habitat and limits current population sizes of the Lassics 
lupine. We expect that vegetation encroachment on occupied Lassics 
lupine habitat will continue to increase into the future.
Seed Predation and Herbivory
    Seed predation by small mammals is one of the most influential 
threats to Lassics lupine (Crawford and Ross 2003, p. 4; Kurkjian et 
al. 2017, p. 862). This threat has been observed and documented at 
significant levels since monitoring began in 2001. Pre-dispersal seed 
predation (removal of seeds while they are still attached to the plant, 
resulting in seed mortality) was first observed at high rates, with 72 
percent of observed inflorescences suffering from almost complete 
predation (n=67; Crawford and Ross 2003, p. 3). Seed predation has been 
shown to have severe impacts on small or rare plant populations, 
including Lassics lupine (Dangremond et al. 2010, p. 2261; Kurkjian et 
al. 2017, entire). Since 2005, monitoring of small mammal populations 
has been conducted annually. Several species have been identified as 
Lassics lupine seed consumers, primarily deer mice

[[Page 60619]]

(Peromyscus spp.), chipmunks (Tamias spp.), and the California ground 
squirrel (Otospermophilus beecheyi).
    For other species, increased risk of seed predation has been 
demonstrated to be higher in areas close to vegetation (Myster and 
Pickett 1993, p. 384; Notman et al. 1996, p. 224; McCormick and Meiners 
2000, p. 11; Dangremond et al. 2010, entire). Over the past 20 years, 
research on Lassics lupine habitat has demonstrated that small mammal 
seed predators are most abundant in the chaparral habitat, followed by 
bare serpentine habitat, with the lowest abundance documented in the 
forest habitat (CDFW 2018, appendix B). There is a high probability of 
movement between the chaparral and serpentine communities and an 
intermediate probability of movement between the forest and serpentine 
communities (Cate 2016, pp. 36-40). The proximity of vegetated 
communities to the serpentine barrens likely provides shelter and food 
for seed predators, and there is an increased likelihood that seeds 
adjacent to chaparral habitats will be subject to increased pre-
dispersal seed predation (Kurkjian 2011, pp. 2-3). Studies of seed 
production in 2010 and 2011 estimated that only 2 to 5 percent of 
Lassics lupine seed escaped predation (Kurkjian 2012a, pp. 14-15).
    A population viability analysis (PVA) has shown that pre-dispersal 
seed predation has the potential to drive Lassics lupine to extinction 
(Kurkjian 2012b, entire; Kurkjian et al. 2017, entire). Without 
factoring in the potential effects of other threats or catastrophic 
events, the PVA estimates that the probability of quasi-extinction 
(defined as 10 or fewer adult plants) in the next 50 years is between 
68 and 100 percent and is very likely to occur within the first 20 
years. If all reproductive plants are caged, preventing seed predation, 
the probability of quasi-extinction is reduced to between 0.0 and 1.8 
percent over the next 50 years (Kurkjian et al. 2017, pp. 867-868). 
This research demonstrates the significant influence that pre-dispersal 
seed predation has on the species and emphasizes the importance of 
caging reproductive plants until seed predation can be addressed by 
other means. Post-fire small mammal monitoring and seed surrogate 
trials suggest that pre-dispersal seed predation risk decreased in the 
first 2 years following the 2015 Lassics Fire, as small mammal density 
declined in some areas. This effect appeared to be transient.
    After observations of unusually high pre-dispersal seed predation 
rates, Six Rivers National Forest and Service staff made the decision 
to start caging reproductive Lassics lupine plants in 2003. Cages are 
generally deployed in May or June around accessible adult plants. Cages 
are constructed of various types of wire mesh and are designed to allow 
pollinators to access flowers, while simultaneously preventing seed 
predators and herbivores from accessing adult plants. Cages are removed 
after seeds are released and before winter snow prevents access to the 
site. Caging has occurred at various levels, and after severe 
population declines in 2015, it was expanded to include a majority of 
reproductive individuals. This expanded caging effort has been credited 
with the positive overall population trends since 2016 (Service 2022, 
figure 5.3).
    Herbivory of flowers and vegetation has also been observed during 
annual demographic monitoring and on cameras placed near plants to 
document the suite of predators; in some instances, herbivores consume 
entire plants or excavate the plant to a sufficient depth to cause 
death (CDFW 2018, p. 24). While the observation of these events has 
been rare, so are the opportunities to observe such events. In some 
years, there has been documentation of 1 to 3 plants per year being 
removed entirely through herbivory. Given the frequency of observed 
herbivory, the overall impact to populations is unknown.
    In summary, seed predation is affecting the reproduction of Lassics 
lupine across its range, which in turn influences population size and 
viability. This is having species-level effects and is mitigated by 
annual efforts to cage individual Lassics lupine plants to prevent 
small mammal seed predators from accessing mature fruits (see 
Conservation Efforts and Regulatory Mechanisms, below, for more 
information). Seed predation, likely influenced by vegetation 
encroachment, is a significant influence on Lassics lupine viability 
and may increase into the future as vegetation encroachment increases. 
However, the effects of seed predation are being reduced due to ongoing 
conservation efforts.
Fire
    Historical fire return intervals in the Lassics Range are unknown 
but have been estimated to be approximately every 12.7 years across the 
Mad River Ranger District of Six Rivers National Forest (Carothers 
2017, p. 4) and every 20 years across the range of Jeffrey pine, 
although they may be longer for relatively open stands with reduced 
fuels, such as serpentine barrens similar to where Lassics lupine 
populations occur (Munnecke 2005, p. 2). There is little recorded 
information regarding fire history prior to the 1900s, although prior 
to 1865, local Tribes in the general area used fire with some 
regularity to manage the understory (Carothers 2017, p. 4).
    A total of 18 fires have been recorded in the Lassics Botanical and 
Geologic Area between 1940 and 2014, with 71 percent under 2 hectares 
(ha) (5 acres (ac)) in size (Carothers 2017, p. 5). Most of these were 
caused by lightning and were largely fought by small crews using hand 
tools. A thorough analysis of historical and current fire regimes on 
National Forest lands in California demonstrated a significant decline 
in fire frequency in northwestern California since 1908 (Safford and 
Van de Water 2014, entire). Fire return intervals are estimated to have 
declined by 70-80 percent within the Lassics Botanical and Geological 
Special Interest Area (Carothers 2017, p. 7). These results indicate 
that fire intervals are shorter, and fire is less frequent in the 
Lassics Range than it was prior to fire suppression.
    The Lassics Fire, which was caused by lightning and centered on 
Mount Lassic, burned roughly 7,490 ha (18,500 ac) in August 2015. The 
fire burned in high severity through the chaparral on the south side of 
Mount Lassic and through the entire Red Lassic population. The forested 
area on the north side of Mount Lassic burned at mixed severity, and 
areas dominated by serpentine barrens burned at low severity. The 
Lassics Fire caused direct mortality of many individuals, killing all 
individuals at Red Lassic, and a portion of individuals at Mount 
Lassic. Additionally, at Red Lassic, the fire killed the Jeffrey pine, 
which appear critical to survival of Lassics lupine individuals there 
for the shade they provide (Imper 2012, pp. 138-139). As of 2019, these 
trees were still standing and providing some shade but are at risk of 
falling over, which would reduce shade and potentially cause direct 
mortality of plants beneath them. The fire did not burn at a high 
enough severity to reduce the density or distribution of Jeffrey pine 
in the forested area north of Mount Lassic. The chaparral area on the 
south side of Mount Lassic burned at high severity and reduced the 
canopy cover of these species temporarily; however, those areas have 
since resprouted and the vegetation is returning rapidly, along with an 
invasive grass that is known to follow fire.
    In 2016, the year following the fire, there was a substantial flush 
of Lassics lupine seedlings observed across all

[[Page 60620]]

sites. Given the mortality of all adults in the Lassic Fire at Red 
Lassic, we know that all the seedlings at Red Lassic were the result of 
germination from the soil seed bank. Seed bank germination also 
contributed significantly to the population at Mount Lassic, where the 
fire effects were patchier. It is unknown what effect this level of 
germination had on the number of seeds remaining in the soil seed bank.
    In summary, future fires could have both positive and negative 
effects on Lassics lupine individuals and populations, depending on 
severity. Fires that eliminate or reduce encroaching vegetation could 
have positive effects due to a reduced abundance of small mammal seed 
predators and increased habitat suitability where insolation and 
available soil moisture are limited. Mixed and high severity fires have 
the potential to kill vegetative and adult plants and potentially 
reduce the seed bank. Fire is a significant influence on the viability 
of Lassics lupine.
Climate Change
    Observed changes in the climate system indicate that the surface of 
the earth is getting warmer, and the amounts of snow and ice have 
diminished (IPCC 2014, p. 2). These changes have been occurring for 
decades, and the last three decades have been successively warmer than 
any prior decade since 1850 (IPCC 2014, p. 2). The Fifth Assessment 
Report of the International Panel on Climate Change (IPCC) reported 
with very high confidence that some ecosystems are significantly 
vulnerable to climate-related extremes such as droughts and wildfires 
(IPCC 2014, p. 8). Average annual temperatures in California have risen 
by approximately 2 degrees Fahrenheit ([deg]F) in the last 100 years 
(Frankson et al. 2017, p. 4). Projections indicate that warming trends 
in the western United States will continue and likely increase while 
projections of future precipitation are less conclusive (Dettinger 
2015, p. 2088). Even if precipitation increases in the future, as many 
models indicate, temperature rises will decrease snowpack duration and 
increase the rate of soil moisture loss during dry spells, further 
reducing the water available in the soil (Kim et al. 2002, pp. 5-7; 
Frankson et al. 2017, p. 4). This is expected to increase not only the 
frequency and duration of droughts but also the frequency and severity 
of wildfires (Frankson et al. 2017, p. 4).
    Snowmelt date, summer precipitation, and late summer temperatures 
all appear to be affecting the distribution, mortality, reproduction, 
and recruitment of Lassics lupine (Imper 2012, entire). Survival of 
Lassics lupine tends to be lower in years when snowpack melts early, 
particularly if it is not followed by summer rain (Imper 2012, p. 143). 
The average snow fall is projected to decrease with rising 
temperatures, reducing water storage in the snowpack (Frankson et al. 
2017, p. 4). Desiccation is a common form of death for this plant that 
lives in shallow soils on exposed mountaintops. Low rainfall and high 
temperatures in the summer have detrimental effects at a population 
level.
    Climate data collected since 2005 at the Zenia Forest Service Guard 
Station, roughly 15 km (9.5 mi) southeast of the Lassics and 460-520 m 
(1,500-1,700 ft) lower in elevation, show that annual average 
temperatures have been increasing (California Data Exchange Center 
2021, unpaginated). This increase in annual temperature has the 
potential to negatively influence Lassics lupine by reducing the amount 
and duration of snowpack in the winter as well as increasing mortality 
due to desiccation during the summer.
    When extreme weather events occur, the entire species is affected 
due to its limited geographic range. Climate change increases the 
likelihood of such extreme events now and into the future. 
Additionally, because Lassics lupine already occurs on the highest 
peaks in the area, there is no habitat at higher elevations available 
for Lassics lupine to move into as climatic conditions at lower 
elevations become unsuitable, nor are there additional populations 
spread throughout the landscape to help the species recover from these 
events.
    Climate change is influencing individual survival and overall 
population sizes rangewide. Climate change, through increasing 
temperatures and reduced snowpack, is a significant influence on the 
viability of Lassics lupine.
Invasive Species
    Cheatgrass (Bromus tectorum) is a highly invasive species that 
occurs throughout most of North America and is most prominent and 
invasive in the Rockies, Cascades, and Sierra Nevada mountain ranges 
(Zouhar 2003, unpaginated). It is well-adapted to frequent fires, often 
emerging as a strong competitor in a post-fire environment and can 
increase the frequency of fires by creating a highly flammable 
environment (Zouhar 2003, unpaginated). Another way cheatgrass alters 
the environment is by adding nitrogen and creating a positive feedback 
loop that promotes dominance of cheatgrass (Stark and Norton 2015, p. 
799). Additionally, input of nitrogen into serpentine ecosystems can 
alter the ability of the native plant community to resist invasion 
(Going et al. 2009, p. 846).
    Serpentine soils are more resistant to invasion by nonnative plant 
species than the communities found in adjacent matrix soils (Going et 
al. 2009, p. 843); however, nonnative plant species can become more 
prevalent on small patches of serpentine, particularly where patches of 
serpentine are small or fragmented (Harrison et al. 2001, p. 45). Thus, 
the presence of cheatgrass could make the Lassics lupine population at 
Mount Lassic more vulnerable to secondary invasions.
    Previously, nonnative, invasive plants have not been reported as a 
threat to Lassics lupine in monitoring reports provided by the U.S. 
Forest Service (USFS) (Carothers 2019 and Carothers 2020, entire), the 
petition to list (Imper 2016, entire), or the status review conducted 
by CDFW (2018, entire). However, field observations made by Service 
staff indicate that cheatgrass is present adjacent to the Mount Lassic 
population and the invasion has increased in recent years (Service 
2022, figure 4.4; Hutchinson 2020, field observation). Dense stands of 
cheatgrass were also noted in 2019 and 2020, in the vicinity of the Red 
Lassic population, but not within the population (Hutchinson 2020, 
field observation). Other Bromus ssp. have been documented on 
serpentine soils, with an increased prevalence along edges of small 
patches of serpentine (Harrison et al. 2001, p. 45).
    In general, nonnative, invasive plant species compete with native 
species for resources such as sunlight, water, and nutrients. While 
there is no evidence that cheatgrass is currently competing with 
Lassics lupine for these basic resource needs, the presence of this 
highly invasive species near the largest population is a concern 
because it could increase the frequency of fires in the area, add 
nitrogen to the soils, and increase the likelihood of invasion by other 
nonnative species. Currently, invasive species (particularly 
cheatgrass) are increasing in the areas adjacent to the Mount Lassic 
population and could influence fire severity but are not currently 
impacting Lassics lupine's viability. However, the impact of invasive 
species could increase in the future.

Conservation Efforts and Regulatory Mechanisms

    The Lassics lupine was listed as endangered in 2019 by the 
California Fish and Game Commission (CFGC

[[Page 60621]]

2019, entire). State listing of the Lassics lupine ensures, among other 
things, that individuals conducting research that involves handling of 
the plant or plant material, including seeds, must be authorized under 
the California Fish and Game Code at section 2081(a). Additionally, 
projects that might impact the plant must be evaluated for significance 
under the California Environmental Quality Act. The CNPS categorizes 
this species as a California Rare Plant with a rank of 1B.1, meaning 
that it is rare, threatened, or endangered in California and elsewhere, 
and is seriously endangered in California. It has a State rank of S1, 
defined as critically imperiled or at very high risk of extinction due 
to extreme rarity, and a global rank of G1, meaning critically 
imperiled (CNPS 2021, unpaginated).
    Both the Red Lassic and Mount Lassic populations are within the 
Lassics Botanical and Geologic Area Special Interest Area of Six Rivers 
National Forest. Management of unique botanical features is directed by 
the Special Interest Management Strategy with a goal of managing for 
rare species and the natural processes that support them (USDA 1998, 
entire). Additionally, the Mount Lassic population, and 2,833 ha (7,000 
ac) of the Mount Lassic Range, is within the Mount Lassic Wilderness 
Area, part of the Northern California Coastal Wild Heritage Act of 2006 
(Pub. L. 109-362, October 17, 2006, 120 Stat. 2064). Designation as 
wilderness affords protection from most direct anthropogenic threats 
except from trampling from foot traffic and illegal off-highway vehicle 
(OHV) use. Additionally, Lassics lupine is designated a sensitive 
species by the Six Rivers National Forest, meaning that management 
decisions made by the Forest will not result in a trend towards Federal 
listing or loss of viability (USDA 1997, entire).
    A conservation strategy has been signed by the Six Rivers National 
Forest and is focused on Lassics lupine monitoring and research, as 
well as potential conservation actions for the species. This strategy 
does not currently include a commitment to allocate funds for 
conservation actions, but does outline goals and objectives, documents 
studies and management efforts to date, and identifies key actions that 
should be initiated or continued. Management efforts proposed in the 
strategy include continued caging of reproductive plants, continued 
monitoring, investigating the role of fire in population viability, 
continued seed banking and propagation efforts, and experimental 
prescribed burning (USDA 2020a, entire). Caging of reproductive plants 
currently requires a substantial commitment of time from Service staff, 
Six Rivers National Forest staff, and volunteers. Changes in staff and 
available resources mean that implementation has fluctuated in the past 
and this could continue into the future.
    Attempts to augment the populations or establish populations in 
nearby areas with similar soil types have been largely unsuccessful. 
Additionally, seed is banked in two locations; 74 seeds have been 
deposited at the Berry Botanic Garden in Portland, Oregon, and 439 
seeds have been deposited at the National Laboratory for Genetic 
Resource Preservation (NLGRP) in Fort Collins, Colorado. The 
conservation strategy and the Six Rivers National Forest will 
prioritize augmenting the collection at NLGRP (USDA 2020b, p. 1).

Species Condition

    To assess the current condition of the Lassics lupine, we used 
recent monitoring data and results from the recent PVA (Kurkjian 2017, 
entire) to score the current condition of each analysis unit based on 
our assessment of habitat and demographic variables. For each analysis 
unit, we assess habitat quantity, habitat quality, and abundance of 
Lassics lupine.
    Habitat variables were categorized using largely qualitative 
information while demographic variables were analyzed quantitatively, 
which corresponds with the best available information for each 
variable. Each variable in an analysis unit was assigned a current 
condition of high, moderate, or low (Service 2022, table 5.1). The 
average score was then used to rate the overall current condition of 
each analysis unit. When a score fell between two condition categories, 
the overall current condition was assigned consistent with the 
condition of the majority of the parameters. In other words, if two of 
the three parameters were low and one was moderate, the overall 
condition was rated as low. A population that is in low condition is 
one where resources are in overall low condition. A similar definition 
applies to moderate and high conditions.
    Habitat quantity is a description of the relative size of available 
habitat based on both available soil type information and the amount of 
habitat available compared to historical conditions. This information 
was qualitatively scored based on the most recently available site 
observations. Because Lassics lupine has likely always been narrowly 
restricted, we chose not to assess the total area occupied by each 
analysis unit but rather to look at the relative size of each analysis 
unit. Furthermore, because Lassics lupine is highly influenced by 
vegetation encroachment (habitat that supports pre-dispersal seed 
predators), we also considered the amount of habitat available 
currently compared with historical habitat availability based on aerial 
photographs.
    Habitat quality is a description of the solar insolation, 
influenced by aspect and canopy cover, for each analysis unit. Because 
solar insolation directly influences available soil moisture, and both 
influence the survival and vigor of Lassics lupine individuals and 
populations, we used solar insolation as a surrogate to describe 
habitat quality. Lassics lupine demonstrates higher fecundity and vigor 
in areas with a suitable range of solar insolation. Areas with suitable 
solar insolation are defined as either occurring on the north aspect of 
a slope (most areas in the Mount Lassic population) or are located 
nearby within moderately open canopy Jeffrey pine forests where trees 
provide some shade. Suboptimal areas are those with either slightly too 
much shading or slightly too little shading, and unsuitable areas are 
those without any shading from either orographic cover or adjacent 
trees. Areas within a suitable range of solar insolation conditions 
were defined as ``high'' condition, areas within a suboptimal range of 
solar insolation as ``moderate'' condition, and unsuitable areas as 
``low'' condition. This information was also qualitatively scored based 
on recent site observations.
    Abundance is often used as a metric to assess the overall status of 
plant species. Abundance data represent the total number of adult 
vegetative and reproductive plants present in each analysis unit. 
Abundance categories were defined as ``low'' (fewer than 100 plants), 
``moderate'' (100 to 500 plants), and ``high'' (more than 500 plants). 
These rating categories were derived using the estimated overall MVP 
adapted from Pavlik (1996, p. 137). Rather than use abundance data from 
one year, we report a range of years that reflects the range observed 
most recently derived from data collected during annual monitoring from 
2015-2020 by Six Rivers National Forest staff and volunteers (see 
chapter 5 of the SSA report for more details). We considered that 
abundance is significantly higher than it would be without the current 
practice of caging a large portion of adult plants each year. Caging 
has occurred at some level since approximately 2003, with the 
percentage of caged plants increasing gradually over time; current 
caging

[[Page 60622]]

levels vary from 60-100 percent, varying between population and year.
    We assessed the two populations (Red Lassic and Mount Lassic) as 
delineated by CNDDB, which defines populations as groups of individual 
plants that are separated by approximately 0.4 km (0.25 mi). We then 
further considered three subpopulations of the Mount Lassic population 
for a total of four analysis units, three of which are subpopulations 
of Mount Lassic (i.e., Saddle, Terrace, and Forest) and one of which is 
the Red Lassic population. There are also Lassics lupine plants outside 
of the transects we analyzed. These individuals largely occur on steep 
slopes that are not accessible to surveyors without causing significant 
erosion or damage to plants and surveys are generally conducted with 
binoculars in order to avoid disturbing the soil.
    The results of our analysis are presented in table 1 below, and 
additional detail on populations, analysis units, and individuals 
outside those units is available in the SSA report (Service 2022, pp. 
36-39)

        Table 1--Current Condition Data for Each Analysis Unit With Overall Current Condition Summarized
----------------------------------------------------------------------------------------------------------------
                                                                       Abundance range       Overall current
                             Habitat quantity       Habitat quality         (mean)              condition
----------------------------------------------------------------------------------------------------------------
Red Lassic...............  Relatively small,     Unsuitable (south         0-125 (78)   Low.
                            reduced from          aspect without tree
                            historical amounts.   cover).
Saddle...................  Relatively            Suitable solar          30-284 (172)   Moderate.
                            moderately-sized,     insolation.
                            but reduced from
                            historical amounts.
Terrace..................  Relatively small,     Suitable solar           33-113 (59)   Low.
                            reduced from          insolation.
                            historical amounts.
Forest...................  Relatively small,     Suboptimal (north          4-84 (35)   Low.
                            reduced from          aspect combined
                            historical amounts.   with moderate
                                                  canopy).
----------------------------------------------------------------------------------------------------------------

    Having assessed the current condition of the two known populations, 
we now consider the resiliency, redundancy, and representation of the 
Lassics lupine. In total, two of the three subpopulations of the Mount 
Lassic population are considered in low overall current condition and 
one is in overall moderate current condition. As described above, our 
abundance metric spans a range of years and demonstrates fluctuations 
in numbers of flowering plants. Also, as described above under Species 
Needs for the Lassics Lupine, current population sizes are too small to 
withstand current rates of seed predation without significant 
management efforts. Most species' populations fluctuate naturally, 
responding to various factors such as weather events, disease, and 
predation. These factors have a relatively minor impact on species with 
large, stable local populations and a wide and continuous distribution. 
However, populations that are small, isolated by habitat loss or 
fragmentation, or impacted by other factors are more vulnerable to 
extirpation by natural, randomly occurring events (such as predation or 
stochastic weather events), and to genetic effects that impact small 
populations (Purvis et al. 2000, p. 1949). Small populations are less 
able to recover from random variation in their population dynamics and 
environment (Shaffer and Stein 2000, pp. 308-310), such as fluctuations 
in recruitment (demographic stochasticity), variations in rainfall 
(environmental stochasticity), or changes in the frequency of 
wildfires.
    While some analysis units have high to moderate habitat quality, 
the overall current conditions are driven by small population sizes and 
a limited amount of available habitat. The Red Lassics population is 
also in overall low current condition. Resiliency is low for both 
populations.
    With regard to redundancy, there are currently close to 1,000 
Lassics lupine adult plants existing in two populations in a roughly 1-
square-kilometer area. One of the populations is in overall low 
condition while the other population is comprised of three 
subpopulations of which two are in low condition and one is in moderate 
condition. When considering the overall condition of the Mount Lassic 
population (the three subpopulations plus plants outside of the 
transects), it is still in overall low condition. Our analysis of 
redundancy concludes that both populations are in low resiliency and a 
single catastrophic event could heavily impact both populations even 
though the populations are well-distributed throughout the species' 
historical range. Thus, species redundancy is reduced from the 
historical condition.
    With regard to representation, as a narrow endemic, the Lassics 
lupine is highly specialized and restricted to its ecological niche. 
Suitable habitat is narrowly distributed on mountaintops and is 
becoming increasingly limited due to encroachment of forest and 
chaparral vegetation. Both populations share similar features, with the 
differences being largely related to the aspect on which each is 
positioned and amounts of canopy cover and corresponding insolation and 
soil moisture. Both populations are susceptible to seed predation and 
vegetation encroachment. The best available data do not indicate any 
potential genetic differentiation across the range of the species, and 
representation units correspond with our analysis units, which 
generally align with different ecological settings. Although 
populations and subpopulations of the species remain extant across each 
of the ecological settings, resiliency is low for both populations.
    Representation is not only gauged by ecological and genetic 
diversity, but also by the species' ability to colonize new areas. 
Currently, populations of Lassics lupine are small and isolated by 
tracts of unsuitable habitat. The lack of connectivity between 
populations and overall small size may result in reduced gene flow and 
genetic diversity, rendering the species less able to adapt to novel 
conditions. Further, the lack of available and unoccupied suitable 
habitat leaves less opportunity for an adaptable species to exploit new 
resources outside of the area it currently occupies. Thus, while 
ecological diversity is generally low for this highly specialized 
species, the limited availability of unoccupied habitat in suitable 
condition also likely limits the potential for this species to adapt to 
environmental changes.
    As mentioned previously, quantitative data on habitat condition 
could be misleading for a narrow endemic, so we relied on qualitative 
assessments relative to historical availability of habitat and the 
expert opinion of those familiar with the populations as the best 
scientific data available. Detailed genetic information is not 
available for

[[Page 60623]]

this species, nor do we know the minimum number of individuals that 
would be required to sustain a population, or the minimum number of 
populations required to sustain the species. Nonetheless, the evidence 
that does exist points to a species that is heavily impacted by 
variable weather patterns and by high rates of seed predation, likely 
exacerbated by vegetation encroachment.

Future Condition

    As part of the SSA, we also developed three future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the Lassics lupine. Our 
scenarios examined possible future impacts of seed predation, climate 
change, and fire. Because we determined that the current condition of 
the Lassics lupine was consistent with an endangered species (see 
Determination of Lassics Lupine's Status, below), we are not presenting 
the results of the future scenarios in this proposed rule. Please refer 
to the SSA report (Service 2022, pp. 42-50) for the full analysis of 
future scenarios.

Determination of Lassics Lupine's 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 manmade factors affecting its 
continued existence.

Status Throughout All of Its Range

    In this proposed rule, we present summary evaluations of six 
threats analyzed in the SSA report for the Lassics lupine (Service 
2022): vegetation encroachment (Factor A), seed predation and herbivory 
(Factor C), fire (Factor A), climate change effects (Factor E), and 
invasive species (Factor A). We also evaluate existing regulatory 
mechanisms (Factor D) and ongoing conservation measures.
    In the SSA, we also considered the following additional threats: 
overutilization due to commercial, recreational, educational, and 
scientific use (Factor B); disease (Factor C); and recreation (Factor 
E). We concluded that, as indicated by the best available scientific 
and commercial information, these threats are currently having little 
to no impact on the Lassics lupine, and thus their overall effect now 
and into the future is expected to be minimal. However, we consider 
them in our determination of status for the Lassics lupine, because 
although these minor threats may have low impacts on their own, 
combined with impacts of other threats, they could further reduce the 
already low number of Lassics lupines.
    For full descriptions of all threats and how they impact the 
species, please see the SSA report (Service 2022, pp. 22-33).
    Based on historical records, it appears that the Lassics lupine has 
always had a limited range. However, in recent decades, the species has 
experienced a reduction of its range. As woody vegetation encroachment 
(Factor A) has affected occupied Lassics lupine habitat, the population 
of small mammals has increased, resulting in pre-dispersal seed 
predation (Factor C) that has affected up to 95 percent of flowering 
plants. Ongoing efforts to cage all adult plants have greatly reduced 
the magnitude of pre-dispersal seed predation, and our assessment of 
population abundance and habitat quality for the species from recent 
surveys indicates that the Lassics lupine population size is relatively 
stable. While population levels are currently stable, given the high 
rates of seed predation documented prior to caging (>95% of seeds 
consumed pre-dispersal), they would not be stable without the annual 
effort of caging individual plants. Caging is not guaranteed to 
continue and requires significant investment of time and resources 
twice per year to implement. Additionally, habitat quantity and quality 
are reduced compared to historical levels with the remaining 
populations being small in size and occupying a small area. The current 
abundance and recruitment levels are sustained only through management 
actions, specifically caging of a large proportion of reproductive 
individuals.
    In recent years, fire (Factor A) impacted the Red Lassic 
population, killing both individual Lassics lupine plants and the 
overstory that was providing necessary shade to the species. Any future 
mixed- or high-severity fire could provide further loss of adult 
Lassics lupine plants and damage the habitat features necessary for 
their survival. Additionally, earlier snowmelt date, reduced summer 
precipitation, and higher summer temperatures associated with climate 
change (Factor E) have resulted in a loss of soil moisture in the 
shallow soils where the Lassics lupine is found. Further, invasive 
species (Factor A) are encroaching near Lassics lupine populations, 
although the magnitude of this threat is currently low.
    Under the current condition, the Lassics lupine remains distributed 
throughout its historical range, but resiliency is low for both 
populations and across all ecological settings. Overall current 
condition is ranked as low in three of the four analysis units. 
Although representation is maintained at current levels throughout the 
range, population resiliency and species redundancy are both low, 
especially as compared to historical conditions. The current small size 
of Lassics lupine populations makes the species less able to withstand 
the threats that are currently impacting the species.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that the Lassics lupine is currently facing high-
magnitude threats from vegetation encroachment, pre-dispersal seed 
predation, fire, and reduced soil moisture associated with ongoing 
effects of climate change. Although ongoing management actions are 
helping to reduce the magnitude of seed predation, the majority of 
Lassics lupine individuals are concentrated in a single population that 
has a reduced ability to withstand both catastrophic events and normal 
year-to-year fluctuations in environmental and demographic conditions. 
These threats are impacting the species now. Thus, after assessing the 
best available information, we determine that the Lassics lupine is in 
danger of extinction throughout all of its range. We find that a 
threatened species status is not appropriate for the Lassics lupine 
because the magnitude and imminence of the threats acting on the 
species now result in the Lassics lupine meeting the definition of an 
endangered species.

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

[[Page 60624]]

future throughout all or a significant portion of its range. We have 
determined that the Lassics lupine is in danger of extinction 
throughout all of its range and accordingly did not undertake an 
analysis of any significant portion of its range. Because the Lassics 
lupine warrants listing as endangered throughout all of its range, our 
determination does not conflict with the decision in Center for 
Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020), 
because that decision related to significant portion of the range 
analyses for species that warrant listing as threatened, not 
endangered, throughout all of their range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Lassics lupine meets the Act's 
definition of an endangered species. Therefore, we propose to list the 
Lassics lupine as an endangered species in accordance with sections 
3(6) 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 Arcata Fish and Wildlife 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.
    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 California would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Lassics lupine. 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 Lassics lupine 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.
    Examples of actions that may be subject to the section 7 processes 
are land management or other landscape-altering activities on Federal 
lands administered by the USFS (Six Rivers National Forest) as well as 
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. Examples of 
Federal agency actions that may require consultation for the Lassics 
lupine could include prescribed burning, monitoring, or research 
activities that impact the Lassics lupine and any other landscape-
altering activities on Federal lands administered by the USFS (Six 
Rivers National Forest). Given the difference in triggers for 
conferencing and consultation, Federal agencies should coordinate with 
the local Service

[[Page 60625]]

Field Office (see ADDRESSES) with any specific questions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered plants. 
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR 
17.61, make it illegal for any person subject to the jurisdiction of 
the United States to import or export; remove and reduce to possession 
from areas under Federal jurisdiction; maliciously damage or destroy on 
any such area; remove, cut, dig up, or damage or destroy on any other 
area in knowing violation of any law or regulation of any State or in 
the course of any violation of a State criminal trespass law; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce, 
by any means whatsoever and in the course of a commercial activity; or 
sell or offer for sale in interstate or foreign commerce an endangered 
plant. Certain exceptions apply to employees of the Service, the 
National Marine Fisheries Service, other Federal land management 
agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered plants under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.62. With regard to 
endangered plants, a permit may be issued for scientific purposes or 
for enhancing the propagation or survival of the species. The statute 
also contains certain exemptions from the prohibitions, which are found 
in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. Based on the best available information, 
the following actions are unlikely to result in a violation of section 
9, if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    (1) Vegetation management practices, including herbicide use, that 
are carried out in accordance with any existing regulations, permit and 
label requirements, and best management practices;
    (2) Research activities that are carried out in accordance with any 
existing regulations and permit requirements;
    (3) Vehicle use on existing roads in compliance with the Six Rivers 
National Forest land management plan; and
    (4) Recreational use (e.g., hiking and walking) with minimal ground 
disturbance on existing designated trails.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized collecting, handling, removing, possessing, 
selling, delivering, carrying, or transporting of the species, 
including import or export across State lines and international 
boundaries; and
    (2) Destruction or alteration of the species by unauthorized 
vegetation management, trail maintenance, or research activities.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Arcata Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

II. 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, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. 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

[[Page 60626]]

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.
    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, if one has been developed; articles in peer-reviewed journals; 
conservation plans or strategies developed by States or counties or in 
partnership with other Federal agencies; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of 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 Lassics lupine, we determined 
that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to the Lassics lupine. 
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 Lassics 
lupine.

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 
Lassics lupine 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 Lassics lupine.

Physical or Biological Features Essential to the Conservation of the 
Species

    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

[[Page 60627]]

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.

Geological Substrate and Soils

    The Lassics lupine occurs on or in the vicinity of serpentine soils 
in the Lassics Mountains, mainly on barren slopes with very shallow 
soil and low organic matter, or less commonly, near edges of Jeffrey 
pine forests. Most plants occur on flat or steep slopes with high 
proportions of gravel or cobble on the surface. The Lassics Range 
occurs in the central Franciscan Belt of the California Coast Ranges. 
This area is characterized by moderately steep to very steep slopes and 
a complex assemblage of rocks primarily composed of the Franciscan 
Complex, the Coast Range Ophiolite, and the Great Valley Sequence 
(Kaplan 1984, p. 203; Krueger 1990, p. 1). The sources of these 
complexes range from oceanic crusts to underlying mantle that was 
forced to the surface by thrusts originating from great distances. The 
serpentine rocks are present due to extreme disruptions of faulting and 
folding (Alexander 2008, p. 1). These soil parent materials and the 
natural erosion on the landscape determine the soil features present 
today. Both fluvial erosion and mass wasting have been important 
geologic processes in the Lassics area (Alexander 2008, p. 1).
    Lassics lupine occurs across four described soil units that are all 
characterized as either serpentine and/or clastic (composed of pieces 
of older rocks) sedimentary rocks (Alexander 2008, pp. 2-3). Serpentine 
soils in general are characterized by their relatively high levels of 
magnesium and iron, while being simultaneously low in calcium, 
nitrogen, potassium, and phosphorus (Kruckeberg 1985, p. 18; Alexander 
2011, p. 28). Additional soil analyses demonstrated that all soils 
supporting Lassics lupine are characterized by similar sand content (81 
to 91 percent) and similar concentrations of heavy minerals and 
nutrients (specifically phosphorus, potassium, calcium, copper, iron, 
zinc, total carbon, total nitrogen, and extractable aluminum) when 
compared with nearby soils. Nearby soils that do not support Lassics 
lupine revealed lower sand content and slightly higher pH. Few 
additional sites meet the Lassics lupine soil requirements identified 
by these two investigations. Given the narrow range of suitable soils, 
it is unlikely that the species was significantly more widespread in 
the area historically (Imper 2012, pp. 1-28).
    The Lassics lupine occurs in an area that typically experiences 
hot, dry summers and snow coverage for up to 7 months a year from late 
fall through spring. The soils are fast draining and generally 
infertile, as described above. The general inability for the 
surrounding soil to retain moisture and/or nutrients results in 
potentially increased impacts from climate variables such as rainfall, 
snowmelt, and soil temperature.
    Both Lassics lupine populations occur at the top of the Little Van 
Duzen River watershed, which drains into the Van Duzen River, the Eel 
River, and then the Pacific Ocean. The primary sources of water for 
Lassics lupine plants are snowmelt and rainfall, some of which is 
available as groundwater after weather events.
    Lassics lupine habitat is typically covered in snow for many winter 
months, with soil temperatures close to freezing and high moisture 
content. Demographic monitoring data suggest that earlier snowmelt 
dates are negatively correlated with survival of Lassics lupine plants 
that year, especially during years of lower summer rainfall (Imper 
2012, pp. 142-143). The date of snowmelt is influenced by the amount 
and type of precipitation in the winter (rain versus snow) and 
temperatures. Increased snow cover later in the season is assumed to 
provide greater water infiltration into the soils, therefore increasing 
the amount of available moisture to Lassics lupine plants and 
decreasing desiccation of overwintering plants.
    Soil temperatures increase dramatically after snow has melted due 
to lack of cover and vary with aspect. These temperatures continue to 
increase into August. Soil moisture typically remains high in the weeks 
following snowmelt and then decreases gradually, with some spikes based 
on summer precipitation events. Areas occupied by Lassics lupine have 
both high light levels and high available soil moisture in August 
compared to unoccupied habitat nearby (Imper 2012, pp. 91-92). Most 
areas are located on a north aspect or have some tree cover, both of 
which decrease insolation and increase available soil moisture. Some 
areas occupied by Lassics lupine are adjacent to mature trees and 
experience lower soil temperatures due to shading and decreased 
insolation; these areas generally appear to be less suitable for 
Lassics lupine based on decreased reproductive vigor and growth rates. 
Most of these forested areas experience rapid decreases in available 
soil moisture earlier in the growing season, likely due to water 
demands of nearby trees (Imper 2012, pp. 91-92). The exception to this 
is the Red Lassic population where there is a seasonally wet area 
perched above the population that allows for increased moisture to be 
available later in the season.
    When it occurs, summer rainfall appears to be beneficial for 
Lassics lupine's survival, with lower mortality in years with more 
precipitation during the growing season (Imper 2012, pp. 142-143). In 
late summer, when available soil moisture is low and soil temperatures 
are high, there is the risk of desiccation of seedlings and mature 
plants. In years when summer rainfall is low and summer temperatures 
are high, there is increased mortality. The effects of these conditions 
are exacerbated by early or decreased snowmelt.
    Therefore, suitable soils are generally fast-draining and include 
serpentine and clastic soils, with very shallow soil and low organic 
matter. These soils are also characterized as receiving sufficient snow 
and rain for seed germination and moisture for growing plants; 
containing relatively high levels of magnesium and iron, while being 
simultaneously low in calcium, nitrogen, potassium, and phosphorus; and 
having relatively high sand content.

Ecological Community

    The area immediately surrounding Lassics lupine habitat is 
characterized by Jeffery pine and incense cedar forest, chaparral, and 
largely unvegetated serpentine barrens. The predominant canopy cover is 
provided by Jeffrey pine and incense cedar, with white fir (Abies

[[Page 60628]]

concolor) being prevalent on nonserpentine forest soils of the Lassics 
(Alexander 2008, entire). The primary chaparral species are pinemat 
manzanita, mountain whitethorn (Ceanothus cordulatus), buckbrush 
(Ceanothus cuneatus), and various herbaceous species. Chaparral 
habitats occur primarily on the south-facing slopes and forest habitats 
on the north-facing slopes.
    The majority of Lassics lupine plants occur on serpentine barrens 
around Mount Lassic with patchy, or no, tree and shrub cover. Several 
small herbs and geophytes, including other rare species, occur on these 
serpentine barrens and have been documented over the past few decades 
(for more detail see Nelson and Nelson 1983, entire; Cate 2016, pp. 7-
8; Imper and Elkins 2016, p. 11). Some plants occur in closed-canopy 
Jeffrey pine-incense cedar forest farther downslope on the north aspect 
of Mount Lassic. Plants in this area show decreased vigor and growth, 
assumed to be attributed to reduced light and water and increased leaf 
litter (Imper 2012, p. 140). A third habitat setting, at Red Lassic, is 
dominated by Jeffrey pine and pinemat manzanita and occurs on a south 
to southeast aspect.
    Most Lupinus species require outcrossing for effective 
fertilization of flowers. All Lupinus species have specialized 
pollination mechanisms that require animal pollinators to carry pollen 
from one individual to another. While the Lassics lupine may be capable 
of some level of self-pollination, it is also visited at high rates by 
three bee species: yellow-faced bumblebee, black-tailed bumblebee, and 
a mason bee species (Osmia spp.) (Crawford and Ross 2003, p. 2). All 
three of the bee species appear to be capable pollinators given that 
they are large enough to trigger the mechanism that releases pollen 
from the individual flowers (Crawford and Ross 2003, p. 3).
    Successful transfer of pollen among Lassics lupine populations may 
be inhibited if populations are separated by distances greater than 
pollinators can travel and/or if a pollinator's nesting or foraging 
habitat and behavior is negatively affected (Cranmer et al. 2012, p. 
562; Dorchin et al. 2013, entire). Flight distances are generally 
correlated with body size in bees; larger bees are able to fly farther 
than smaller bees (Gathmann and Tscharntke 2002, entire; Greenleaf et 
al. 2007, pp. 592-594). There is evidence to suggest that larger bees, 
which are able to fly longer distances, do not need their habitat to 
remain contiguous, but it is more important that the protected habitat 
is large enough to maintain floral diversity (Greenleaf et al. 2007, p. 
594). While researchers have reported long foraging distance for 
solitary bees, the majority of individuals remain close to their nest; 
thus, foraging distance tends to be 1,640 ft (500 m) or less (Antoine 
and Forrest 2021, p. 152). The most common bee and wasp pollinators 
have a fixed location for their nest, and thus their nesting success is 
dependent on the availability of resources within their flight range 
(Xerces 2009, p. 14).
    Many insect communities are known to be influenced not only by 
local habitat conditions, but also the surrounding landscape condition 
(Klein et al. 2004, p. 523; Xerces 2009, pp. 11-26; Tepedino et al. 
2011, entire; Dorchin et al. 2013, entire; Inouye et al. 2015, pp. 119-
121). In order for genetic exchange of Lassics lupine to occur, 
pollinators must be able to move freely between populations. 
Alternative pollen and nectar sources (other plant species within the 
surrounding vegetation) are needed to support pollinators during times 
when Lassics lupine is not flowering. Conservation strategies that 
maintain plant-pollinator interactions, such as maintenance of diverse, 
herbicide-free nectar resources, would serve to attract a wide array of 
insects, including pollinators of Lassics lupine (Cranmer et al. 2012, 
p. 567). Therefore, Lassics lupine habitat must also support 
populations of bee species that, in turn, require abundant, diverse 
sources of pollen and nectar.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the Lassics lupine from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2022, entire; 
available on https://www.regulations.gov under Docket No. FWS-R8-ES-
2022-0083). We have determined that the following physical or 
biological features are essential to the conservation of Lassics 
lupine:
    (1) A plant community that consists of the following:
    (a) Areas of open to sparse understory to ensure competition with 
Lassics lupine is inhibited. When sparse understory is present, the 
composition is predominantly native vegetation.
    (b) Suitable solar insolation levels to support growth. These 
suitable levels can be achieved by the appropriate combination of 
canopy cover and aspect, with hotter and drier west-facing slopes 
needing moderate and more protective canopy cover compared to cooler 
north-facing slopes where there can be little to no canopy cover.
    (c) A diversity and abundance of native plant species whose 
blooming times overlap to provide pollinator species with pollen and 
nectar sources for foraging throughout the seasons and to provide 
nesting and egg-laying sites; appropriate nest materials; and 
sheltered, undisturbed habitat for hibernation and overwintering of 
pollinator species and insect visitors.
    (2) Sufficient pollinators, particularly bees, for successful 
Lassics lupine reproduction and seed production.
    (3) Suitable soils and hydrology that consist of the following:
    (a) Open, relatively barren, upland sites categorized as receiving 
sufficient snow and rain for seed germination and moisture for growing 
plants.
    (b) Soils that are generally fast-draining, including serpentine or 
clastic (composed of pieces of older rocks) soils, with very shallow 
soil and low organic matter.
    (c) Soils characterized by their relatively high levels of 
magnesium and iron, while being simultaneously low in calcium, 
nitrogen, potassium, and phosphorus.
    (d) Soils characterized by relatively high sand content.

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 features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats: pre-dispersal seed predation, native woody 
vegetation encroachment, invasive species encroachment, and the ability 
to withstand drought due to climate change. Management activities that 
could ameliorate these threats include, but are not limited to: (1) 
Caging plants to reduce the threat of pre-dispersal seed predation; (2) 
habitat restoration activities that include the removal of woody 
vegetation; (3) removal of nonnative, invasive species; and (4) 
augmentation and reintroduction programs to expand Lassics lupine 
populations.

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

[[Page 60629]]

accordance with the Act and our implementing regulations at 50 CFR 
424.12(b), we review available information pertaining to the habitat 
requirements of the species and identify specific areas within the 
geographical area occupied by the species at the time of listing and 
any specific areas outside the geographical area occupied by the 
species to be considered for designation as critical habitat. We are 
not currently proposing to designate any areas outside the geographical 
area occupied by the species because we have not identified any 
unoccupied areas that are essential for the species' conservation.
    We are proposing to designate one occupied critical habitat unit 
for Lassics lupine. The one unit is comprised of approximately 512 ac 
(207 ha) of land in California, and is completely on lands under 
Federal (USFS) land ownership. The unit was determined using location 
information for Lassics lupine after extant population boundaries were 
collected in 2018 by Six Rivers National Forest staff around Mount 
Lassic with global positioning system (GPS) units. This dataset was 
provided to the Arcata Fish and Wildlife Office. This unit includes the 
physical footprint of where the plants currently occur, as well as 
their immediate surroundings out to 1,640 ft (500 m) in every direction 
from the periphery of each population. This area of surrounding habitat 
contains components of the physical and biological features (i.e., the 
pollinator community and its requisite native vegetative assembly), 
necessary to support the life-history needs of Lassics lupine.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, roads, and other structures because such lands 
lack physical or biological features necessary for the Lassics lupine. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat. We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. The critical habitat unit is proposed for designation based on 
all of the physical or biological features being present to support the 
Lassics lupine'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-R8-ES-
2022-0083 and on our internet site at https://www.fws.gov/office/arcata-fish-and-wildlife.

Proposed Critical Habitat Designation

    We are proposing one unit as critical habitat for the Lassics 
lupine. The critical habitat area, Mount Lassic, that we describe below 
constitutes our current best assessment of areas that meet the 
definition of critical habitat for the Lassics lupine. Table 2 shows 
the proposed critical habitat unit and its approximate area.

                         Table 2--Proposed Critical Habitat Unit for the Lassics Lupine
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                     Size of unit
         Critical habitat unit             Land ownership by type      in acres               Occupied?
                                                                      (hectares)
----------------------------------------------------------------------------------------------------------------
Mount Lassic Unit......................  Federal (USFS)...........       512 (207)  Yes.
----------------------------------------------------------------------------------------------------------------

    We present brief a description of the critical habitat unit, and 
reasons why it meets the definition of critical habitat for the Lassics 
lupine, below.

Mount Lassic Unit

    Unit 1 consists of 512 ac (207 ha) of USFS land. This unit is 
located on the border of Humboldt and Trinity Counties, surrounding 
Mount Lassic and Red Lassic peaks. All of this unit is on Federal land 
managed solely by the Six Rivers National Forest. This unit is 
currently occupied and contains two populations of Lassics lupine 
consisting of less than 4 ac (1.6 ha) total. This unit is essential to 
the recovery of Lassics lupine because it includes all the habitat that 
is occupied by Lassics lupine across the species' range. This unit 
currently has all the physical or biological features essential to the 
conservation of the species, including open to sparsely vegetated areas 
with low native plant cover and stature; nesting, egg-laying, and 
foraging habitat for pollinator species and insect visitors; and 
suitable soils with appropriate textures and chemistry. This unit faces 
threats from encroaching woody vegetation and high-severity fire and 
drought due to climate change. Cheatgrass occurs within and adjacent to 
this unit and while it is not currently affecting the currently 
occupied habitat directly, special management may be required to 
mitigate future impacts to Lassics lupine habitat. It is likely that 
there is room for expansion of the species in this unit provided that 
woody vegetation management occurs to further limit pre-dispersal seed 
predation and improve the quality of solar insolation.

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

[[Page 60630]]

modification on February 11, 2016 (81 FR 7214) (although we also 
published a revised definition after that (on August 27, 2019) (84 FR 
44976). Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat 
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: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

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 as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that 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, wildfire operations and 
management within or adjacent to occupied areas. Such activities could 
include, but are not limited to, construction of new access roads, use 
of heavy equipment, and use of fire retardant. These activities could 
significantly reduce the species' population size and range, and remove 
corridors for pollinator movement, seed dispersal, and population 
expansion or significantly fragment the landscape and decrease the 
resiliency and representation of the species throughout its range.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act 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. No DoD lands with a completed INRMP are within the 
proposed critical habitat designation for the Lassics lupine.

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

[[Page 60631]]

Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, February 11, 
2016), 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 annual effect 
on the economy of $100 million or more (section 3(f)(1)). Therefore, 
our consideration of economic impacts uses a screening analysis to 
assess whether a designation of critical habitat for the Lassics lupine 
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 Lassics lupine (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 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. If the proposed 
critical habitat designation contains any unoccupied units, 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 (DEA) of 
the proposed critical habitat designation for the Lassics lupine; our 
DEA 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 Lassics lupine, first we 
identified, in the IEM dated March 16, 2022, probable incremental 
economic impacts associated with the following categories of 
activities: fuels reduction, trail maintenance, invasive plant removal, 
habitat restoration, Forest Route 1S07 operation and maintenance, 
protective plant caging and population

[[Page 60632]]

monitoring, prescribed fire, population management, and cattle 
exclusion. 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 Lassics lupine 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 we list the species and 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 
Lassics lupine's critical habitat. Because the designation of critical 
habitat for the Lassics lupine 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 features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm to constitute jeopardy to 
the Lassics lupine would also likely adversely affect the essential 
physical or biological features of critical habitat. The IEM outlines 
our rationale concerning this limited distinction between baseline 
conservation efforts and incremental impacts of the designation of 
critical habitat for this species. This evaluation of the incremental 
effects has been used as the basis to evaluate the probable incremental 
economic impacts of this proposed designation of critical habitat.
    The proposed critical habitat designation for the Lassics lupine 
consists of a single unit totaling 512 ac (207 ha). This unit is 
occupied and falls entirely within federally owned land within the 
boundary of the Six Rivers National Forest.
    The screening analysis concluded that the anticipated number of 
consultations and associated costs will be small and will be limited to 
administrative efforts to consider adverse modification. This is 
because the single critical habitat unit is relatively small and 
because it occurs entirely on Federal lands, including a large portion 
of the unit that is in a designated wilderness area. The analysis 
predicts that there will be approximately 10 formal consultations over 
the next 10 years and will result in approximately $5,400 in 
incremental costs per year (IEc 2022, p. 10, exhibit 3). Few other 
additional costs are anticipated. Overall, the additional 
administrative burden is anticipated to fall well below the $100 
million annual threshold.
    We are soliciting data and comments from the public on the DEA 
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 DEA 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) of the Act 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, 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.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Lassics 
lupine are not owned or managed by the DoD or DHS, and, therefore, we 
anticipate no impact on national security or homeland security. 
However, during the development of a final designation we will consider 
any additional information received through the public comment period 
on the impacts of the proposed designation on national security or 
homeland security to determine whether any specific areas should be 
excluded from the final critical habitat designation under

[[Page 60633]]

authority of section 4(b)(2) of the Act 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 
impacts that might occur because of the designation.
    We have not identified any areas to consider for exclusion from 
critical habitat based on other relevant impacts because there are no 
HCPs or conservation agreements, other than the conservation strategy 
developed by Six Rivers National Forest, for the Lassics lupine that 
may be impaired by designation of, or exclusion from, critical habitat. 
However, during the development of a final designation, we will 
consider all information currently available or received during the 
public comment period that we determine indicates that there is a 
potential for the benefits of exclusion to outweigh the benefits of 
inclusion. If we evaluate information regarding a request for an 
exclusion and we do not exclude, we will fully describe our rationale 
for not excluding in the final critical habitat determination. We may 
also exercise the discretion to undertake exclusion analyses for other 
areas as well, and we will describe all of our exclusion analyses as 
part of a final critical habitat determination.

Summary of Exclusions Considered Under 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.
    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 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 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

[[Page 60634]]

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 because there are no energy supply or 
distribution facilities within the bounds of the proposed critical 
habitat. 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 only Federal lands are 
involved in the proposed designation. 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 Lassics lupine 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 Lassics lupine, 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.

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

[[Page 60635]]

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 features essential to the 
conservation of the species. The proposed areas of critical habitat are 
presented on maps, and the proposed rule provides several options for 
the interested public to obtain more detailed location information, if 
desired.

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 (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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 Lassics lupine.

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 Arcata Fish and Wildlife 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 Arcata 
Fish and Wildlife Office.

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.  17.12, in paragraph (h), the List of Endangered and 
Threatened Plants, by adding an entry for ``Lupinus constancei'' in 
alphabetical order under FLOWERING PLANTS to read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

 
----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
         Scientific name               Common name          Where listed         Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
                                                Flowering Plants
 
                                                  * * * * * * *
Lupinus constancei...............  Lassics lupine.....  Wherever found.....  E               [Federal Register
                                                                                              citation when
                                                                                              published as a
                                                                                              final rule]; 50
                                                                                              CFR 17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 60636]]

0
3. Amend Sec.  17.96, in paragraph (a), by adding an entry for ``Family 
Fabaceae: Lupinus constancei (Lassics lupine)'', immediately following 
the entry for ``Family Fabaceae: Astragalus pycnostachyus var. 
lanosissimus (Ventura Marsh milk-vetch)'', to read as follows:


Sec.  17.96   Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Fabaceae: Lupinus constancei (Lassics lupine)

    (1) The critical habitat unit is depicted for Humboldt and Trinity 
Counties, California, on the map in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Lassics lupine consist of the 
following components:
    (i) A plant community that consists of the following:
    (A) Areas of open to sparse understory to ensure competition with 
Lassics lupine is inhibited. When sparse understory is present, the 
composition is predominantly native vegetation.
    (B) Suitable solar insolation levels to support growth. These 
suitable levels can be achieved by the appropriate combination of 
canopy cover and aspect, with hotter and drier west-facing slopes 
needing moderate and more protective canopy cover compared to cooler 
north-facing slopes where there can be little to no canopy cover.
    (C) A diversity and abundance of native plant species whose 
blooming times overlap to provide pollinator species with pollen and 
nectar sources for foraging throughout the seasons and to provide 
nesting and egg-laying sites; appropriate nest materials; and 
sheltered, undisturbed habitat for hibernation and overwintering of 
pollinator species and insect visitors.
    (ii) Sufficient pollinators, particularly bees, for successful 
Lassics lupine reproduction and seed production.
    (iii) Suitable soils and hydrology that consist of the following:
    (A) Open, relatively barren, upland sites categorized as receiving 
sufficient snow and rain for seed germination and moisture for growing 
plants.
    (B) Soils that are generally fast-draining, including serpentine or 
clastic (composed of pieces of older rocks) soils, with very shallow 
soil and low organic matter.
    (C) Soils characterized by their relatively high levels of 
magnesium and iron, while being simultaneously low in calcium, 
nitrogen, potassium, and phosphorus.
    (D) Soils characterized by relatively high sand content.
    (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 FINAL RULE].
    (4) Data layers defining the map unit were created based on surveys 
conducted with global positioning system (GPS) units collecting in 
WGS84 coordinates, and the critical habitat unit was then mapped using 
Universal Transverse Mercator (UTM) Zone 10N coordinates. The map in 
this entry, as modified by any accompanying regulatory text, 
establishes the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which the map is based are 
available to the public at the Service's internet site at https://www.fws.gov/office/arcata-fish-and-wildlife, at https://www.regulations.gov at Docket No. FWS-R8-ES-2022-0083, 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) Mount Lassic Unit, Humboldt and Trinity Counties, California.
    (i) The Mount Lassic Unit consists of 512 acres (207 hectares) of 
land in Humboldt and Trinity Counties. The entirety of the unit falls 
within the boundary of the Six Rivers National Forest.
    (ii) Map of Mount Lassic Unit follows:

Figure 1 to Family Fabaceae: Lupinus constancei (Lassics lupine) 
paragraph (5)
BILLING CODE 4333-15-P

[[Page 60637]]

[GRAPHIC] [TIFF OMITTED] TP06OC22.074


[[Page 60638]]


* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-21537 Filed 10-5-22; 8:45 am]
BILLING CODE 4333-15-C