The Energy Policy and Conservation Act, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. These products include MHLFs, the subject of this document. (42 U.S.C. 6292(a)(19))  3 EPCA prescribed initial energy conservation standards for MHLFs, and directed DOE to conduct two cycles of rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(hh)(1)(A), 42 U.S.C. 6295(hh)(2)(A), and 42 U.S.C. 6295(hh)(3)(A)).

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6297(d))

EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE evaluate the energy conservation standards for each type of covered product, including those at issue here, and publish either a notification of determination that the standards do not need to be amended, or a NOPR that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)). In making a determination that the standards do not need to be amended, DOE must evaluate whether amended standards (1) will result in significant conservation of energy, (2) are technologically feasible, and (3) are cost effective as described under 42 U.S.C. 6295(o)(2)(B)(i)(II). (42 U.S.C. 6295(m)(1)(A); 42 U.S.C. 6295(n)(2)). Under 42 U.S.C. 6295(o)(2)(B)(i)(II), DOE must determine whether the benefits of a standard exceed its burdens by, to the greatest extent practicable, considering the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered products which are likely to result from the imposition of the standard. If DOE determines not to amend a standard based on the statutory criteria, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2)).

In proposing new standards, DOE must evaluate that proposal against the criteria of 42 U.S.C. 6295(o), as described in the following section, and follow the rulemaking procedures set out in 42 U.S.C. 6295(p). (42 U.S.C. 6295(m)(1)(B) If DOE decides to amend the standard based on the statutory criteria, DOE must publish a final rule not later than two years after energy conservation standards are proposed. (42 U.S.C. 6295(m)(3)(A)).

DOE completed the first of these required rulemaking cycles in 2014 by publishing a final rule amending performance standards for MHLFs manufactured on or after February 10, 2017. 79 FR 7746 (February 10, 2014) (“2014 Final Rule”). Additionally, DOE completed the second rulemaking cycle reviewing current standard and determined not to amend the energy conservation standards for MHLFs by publishing a final rule in 2021. 86 FR 58763 (October 25, 2021) (“2021 Final Determination”). The current energy conservation standards are located in title 10 of the Code of Federal Regulations (“CFR”) part 431, section 31.326. The currently applicable DOE test procedures for MHLFs appear at 10 CFR 431.324. 4

DOE is publishing this RFI pursuant to EPCA's requirement that DOE must reevaluate the energy conservation standards no later than 3 years after making a determination not to amend standards, (42 U.S.C. 6295(m)(3)(B), and to collect data and information to inform its decision consistent with its obligations under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)). Furthermore, DOE may not prescribe an amended or new standard that will not result in significant conservation of energy or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(B))

The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 5 For example, the United States has now rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing greenhouse gas (“GHG”) emissions in order to limit the rise in mean global temperature. 6 As such, energy savings that reduce GHG emission have taken on greater importance. In evaluating the significance of energy savings, DOE considers primary energy and full-fuel cycle (“FFC”) effects when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards. Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

(1) The economic impact of the standard on the manufacturers and consumers of the affected products;

(2) The savings in operating costs throughout the estimated average life of the product compared to any increases in the initial cost, or maintenance expenses;

(3) The total projected amount of energy and water (if applicable) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

Further, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)).

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I-1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE will ultimately rely to determine whether (and if so, how) to amend the standards for MHLF.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking. Section 6(d)(2) of appendix A states that the public comment period for pre-NOPR rulemaking documents will vary depending upon the circumstances of the particular rulemaking but will not be less than 75 calendar days. DOE is opting to deviate from this provision by specifying a public comment period of 30 days for this RFI. As noted, the 2021 Final Determination was published on October 25, 2021. The methodologies and information upon which DOE seeks comment in this RFI are based on the analysis conducted for the 2021 Final Determination. Because stakeholders have been made recently familiar with the subjects covered in this RFI through the 2021 Final Determination and are not reviewing new information, DOE has determined that 30 days is sufficient a period for providing comments.

In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended standards for MHLFs may be warranted.

This RFI covers equipment that meets the definition of MHLF, as codified at 10 CFR 430.2. An MHLF is defined as a light fixture for general lighting application designed to be operated with a metal halide lamp and a ballast for a metal halide lamp. 42 U.S.C. 6291(64); 10 CFR 431.322. DOE has also defined several terms related to MHLF in 10 CFR 431.322.

The Energy Independence and Security Act of 2007, Public Law 110-140 (December 19, 2007) (“EISA 2007”), established energy conservation standards for MHLFs with ballasts designed to operate lamps with rated wattages between 150 watts (“W”) and 500 W and excluded three types of fixtures within the covered wattage range from energy conservation standards: (1) fixtures with regulated-lag ballasts; (2) fixtures that use electronic ballasts and operate at 480 volts (“V”); and (3) fixtures that are rated only for 150 watt lamps, are rated for use in wet locations as specified by the National Fire Protection Association (“NFPA”) in NFPA 70, “National Electrical Code 2002 Edition,” and contain a ballast that is rated to operate at ambient air temperatures above 50 Celsius (“°C”) as specified by Underwriters Laboratory (“UL”) in UL 1029, “Standard for Safety High-Intensity-Discharge Lamp Ballasts.” (42 U.S.C. 6295(hh)(1)(A)-(B)). In the 2014 Final Rule, DOE also promulgated standards for the group of MHLFs with ballasts designed to operate lamps rated 50 W-150 W and 501 W-1,000 W. DOE also promulgated standards for one type of previously excluded fixture: A 150 W MHLF rated for use in wet locations and containing a ballast that is rated to operate at ambient air temperatures greater than 50 °C— i.e., those fixtures that fall under 42 U.S.C. 6295(hh)(1)(B)(iii). DOE continued to exclude from standards MHLFs with regulated-lag ballasts and 480 V electronic ballasts. In addition, due to a lack of applicable test method for high-frequency electronic (“HFE”) ballasts, in the 2014 Final Rule, DOE did not establish standards for MHLFs with HFE ballasts. 79 FR 7746, 7754-7756.

Although current standards for MHLFs require them to contain a ballast that meets or exceeds a minimum ballast efficiency, the entity responsible for certifying compliance with the applicable standard is the MHLF manufacturer or importer. The MHLF manufacturer may opt to use a third-party to certify on its behalf, such as the ballast manufacturer. However, the MHLF manufacturer or importer is ultimately responsible for certifying compliance to DOE. See generally 42 U.S.C. 6291(10)-(12) and 10 CFR 429.12.

DOE seeks feedback on whether definitions related to MHLFs in 10 CFR 431.322 require any revisions—and if so, how those definitions should be revised. DOE also seeks input on whether additional definitions are necessary for DOE to clarify or otherwise implement its regulatory requirements related to MHLFs.

The market and technology assessment that DOE routinely conducts when analyzing the impacts of a potential new or amended energy conservation standard provides information about the MHLF industry that will be used in DOE's analysis throughout the rulemaking process. DOE uses qualitative and quantitative information to characterize the structure of the industry and market. DOE identifies manufacturers, estimates market shares and trends, addresses regulatory and non-regulatory initiatives intended to improve energy efficiency or reduce energy consumption, and explores the potential for efficiency improvements in the design and manufacturing of MHLF. DOE also reviews equipment literature, industry publications, and company websites. Additionally, DOE considers conducting interviews with manufacturers to improve its assessment of the market and available technologies for MHLFs.

When evaluating and establishing energy conservation standards, DOE may divide covered products into classes based on the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6295(q)(1)). In making a determination whether capacity or another performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. ( Id. )

For MHLF, the current energy conservation standards specified in 10 CFR 431.326 are based on 24 equipment classes determined according to performance-related features that provide utility to the consumer, in terms of input voltage, rated lamp wattage, and designation for indoor versus outdoor applications. Table II-1 lists the current 24 equipment classes for MHLFs.

In the 2014 Final Rule, DOE adopted standards that would result in the benefits of energy savings, emissions reductions, and net present value (“NPV”) at each representative equipment class that outweighed the potential reduction in industry net present value (“INPV”) for manufacturers. In doing so, DOE did not adopt standards for MHLFs designed to be operated with lamps rated greater than 1,000 W and less than or equal to 2,000 W. 79 FR 7746, 7834-7836. Furthermore, because DOE adopted the same standards for indoor and outdoor equipment classes that are tested at the same input voltage and operate lamps of the same wattage, DOE omitted the indoor/outdoor distinction when codifying the table of standards into 10 CFR 431.326(c). In the 2014 Final Rule, DOE analyzed indoor and outdoor fixtures separately because these two types of fixtures offer different performance-related features. When electronic ballasts are used in outdoor applications, they require additional transient protection because of the potential for voltage surges in outdoor locations. Indoor fixtures with electronic ballasts also have an added feature to provide 120 V auxiliary power functionality for use in the event of a power outage. Based on these different features, DOE established separate equipment classes for indoor and outdoor fixtures, but adopted the same minimum energy conservation standards for these classes. 79 FR 7746, 7763-7764. In the 2021 Final Determination, for the same reasons noted above, DOE continued to analyze MHLFs under separate equipment classes for indoor and outdoor fixtures. 86 FR 58763, 58769. As noted previously, DOE did not amend standards in the 2021 Final Determination.

DOE seeks feedback on the current MHLF equipment classes and whether changes to these individual equipment classes and their descriptions should be made or whether certain classes should be merged or separated ( e.g., indoor and outdoor, wattage ranges). Specifically, DOE requests comment on whether the features associated with indoor and/or outdoor fixtures ( e.g., thermal management, transient protection, auxiliary power functionality) remain in the market today.

DOE is also aware that new configurations and features are available for MHLFs that may not have been available at the time of the last energy conservation standards analysis. Based on DOE's review of the market, DOE found metal halide dimming ballasts available from multiple manufacturers that could be used in MHLFs. DOE has identified both step-level dimming and continuous dimming metal halide systems that are dimmable down to 50 percent of rated power.

DOE seeks information regarding any new equipment classes it should consider for inclusion in its analysis. Specifically, DOE requests information on any performance-related features ( e.g., dimmability, etc. ) that may provide unique consumer utility and data detailing the corresponding impacts on energy use that would justify separate equipment classes ( i.e., explanation for why the presence of these performance-related features would increase energy consumption).

In describing which MHLFs are included in each equipment class, DOE incorporates by reference the 2002 version of NFPA 70, “National Electrical Code”  8 and the 2007 version of UL 1029, “High-Intensity-Discharge Lamp Ballasts”  9 in DOE's regulations through 10 CFR 431.323. NFPA 70 is a national safety standard for electrical design, installation, and inspection, and is also known as the National Electrical Code. UL 1029 is a safety standard specific to high intensity discharge (“HID”) lamp ballasts; a metal halide lamp ballast is a type of HID lamp ballast. Both NFPA 70 and UL 1029 are used to describe the applicable equipment class for MHLFs (see section II.B.1 of this document). DOE has found that a 2020 version of NFPA 70  10 (“NFPA 70-2020”) and a 2022 version of UL 1029  11 (“UL 1029-2022”) are now available.

DOE seeks comment on whether incorporating by reference the updated industry standards, NFPA 70-2020 and UL 1029-2022, will impact the MHLFs included in each equipment class in DOE's regulations.

In analyzing the feasibility of potential new or amended energy conservation standards, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. In consultation with interested parties, DOE intends to develop a list of technologies to consider in its analysis. That analysis will likely include a number of the technology options DOE previously considered during the 2021 Final Determination for MHLFs. A complete list of those prior options appears in Table II-2.

DOE seeks information on the technologies listed in Table II-2 regarding their applicability to the current market and how these technologies may impact the efficiency of MHLFs as measured according to the DOE test procedure. DOE also seeks information on how these technologies may have changed since they were considered in the 2021 Final Determination analysis. Specifically, DOE seeks information on the range of efficiencies or performance characteristics that are currently available for each technology option.

DOE seeks comment on other technology options that it should consider for inclusion in its analysis and if these technologies may impact equipment features or consumer utility of MHLFs.

The purpose of the screening analysis is to evaluate the technologies that improve equipment efficiency to determine which technologies will be eliminated from further consideration and which will be passed to the engineering analysis for further consideration.

DOE determines whether to eliminate certain technology options from further consideration based on the following criteria:

(1) Technological feasibility. Technologies that are not incorporated in commercial equipment or in working prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production of a technology in commercial equipment and reliable installation and servicing of the technology could not be achieved on the scale necessary to serve the relevant market at the time of the compliance date of the standard, then that technology will not be considered further.

(3) Impacts on equipment utility or equipment availability. If a technology is determined to have significant adverse impact on the utility of the equipment to significant subgroups of consumers, or result in the unavailability of any covered equipment type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as equipment generally available in the United States at the time, it will not be considered further.

(4) Adverse impacts on health or safety. If it is determined that a technology will have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-Pathway Proprietary Technologies. If a design option utilizes proprietary technology that represents a unique pathway to achieving a given efficiency level, that technology will not be considered further due to the potential for monopolistic concerns.

Technology options identified in the technology assessment are evaluated against these criteria using DOE analyses and inputs from interested parties ( e.g., manufacturers, trade organizations, and energy efficiency advocates). Technologies that pass through the screening analysis are referred to as “design options” in the engineering analysis. Technology options that fail to meet one or more of the five criteria are eliminated from consideration.

In the 2021 Final Determination, for magnetic ballasts, DOE screened out the technology option of using laminated sheets of amorphous steel. DOE determined that using amorphous steel could have adverse impacts on consumer utility because increasing the size and weight of the ballast may limit the places a consumer could use the ballast. DOE did not screen out any other technology options in that rulemaking. 86 FR 58763, 58771.

DOE requests feedback on what impact, if any, the five screening criteria described in this section would have on each of the technology options listed in Table II-2 with respect to MHLFs. Similarly, DOE seeks information regarding how these same criteria would affect any other technology options not already identified in this document with respect to their potential use in MHLFs.

With respect to the screened-out technology option of laminated sheets of amorphous steel, DOE seeks information on whether this option would, based on current and projected assessments, remain screened out under the five screening criteria described in this section. Additionally, DOE seeks information on what steps, if any, could be (or have already been) taken to facilitate the introduction of this technology option as a means to improve the energy performance of MHLFs and the potential to impact consumer utility of MHLFs.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of MHLFs. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of equipment cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency equipment, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each equipment class, DOE estimates the baseline cost, as well as the incremental cost for the equipment at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the life-cycle cost (“LCC”) and payback period (“PBP”) analyses and the national impact analysis (“NIA”)). The following sections provide further detail on DOE's engineering analysis and seek public input on specific issues pertinent to MHLFs, the subject of this rulemaking.

DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) relying on observed efficiency levels in the market ( i.e., the efficiency-level approach), or (2) determining the incremental efficiency improvements associated with incorporating specific design options to a baseline model ( i.e., the design-option approach). Using the efficiency-level approach, the efficiency levels established for the analysis are determined based on the market distribution of existing equipment (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market). Using the design option approach, the efficiency levels established for the analysis are determined through detailed engineering calculations and/or computer simulations of the efficiency improvements from implementing specific design options that have been identified in the technology assessment. DOE may also rely on a combination of these two approaches. For example, the efficiency-level approach (based on actual equipment on the market) may be extended using the design option approach to interpolate to define “gap fill” levels (to bridge large gaps between other identified efficiency levels) and/or to extrapolate to the maximum technologically feasible (“max-tech”) efficiency level (particularly in cases where the max-tech level exceeds the maximum efficiency level currently available on the market).

For each established equipment class, DOE selects a baseline model as a reference point against which any changes resulting from new or amended energy conservation standards can be measured. The baseline model in each equipment class represents the characteristics of common or typical equipment in that class. Typically, a baseline model is one that meets the current minimum energy conservation standards and provides basic consumer utility. Consistent with this analytical approach, DOE tentatively plans to consider the current minimum energy conservations standards (which went into effect February 10, 2017) to establish the baseline efficiency levels for each equipment class. 79 FR 7749. The current standards for each equipment class are based on ballast efficiency. The current standards for MHLFs are found at 10 CFR 431.326.

DOE requests feedback on whether the current energy conservation standards for MHLFs are the appropriate baseline efficiency levels for DOE to apply to each equipment class in evaluating whether to amend the current energy conservation standards for these equipment classes.

DOE requests feedback on the appropriate baseline efficiency levels for any newly analyzed equipment classes that are not currently in place or for the contemplated combined equipment classes, as discussed in section II.B.1 of this document.

As part of DOE's analysis, the maximum available efficiency level is the highest efficiency unit currently available on the market. DOE selects certain equipment classes as “representative” to focus its analysis. DOE chooses equipment classes as representative primarily because of their high market volumes and/or unique characteristics. In the 2021 Final Determination analysis, DOE did not directly analyze the equipment classes containing fixtures with ballasts tested at 480 V due to low shipment volumes. DOE selected all other equipment classes as representative, resulting in a total of 12 representative classes covering the full range of lamp wattages, as well as indoor and outdoor designations. DOE then scaled the efficiency levels (“ELs”) from representative equipment classes to those equipment classes it did not analyze directly (see section II.D.4 for further details on scaling). 86 FR 58763, 58771-58772, 58776.

In the 2021 Final Determination, based on the more-efficient ballasts selected for the analysis, DOE developed ELs for the representative equipment classes. DOE found the more-efficient magnetic EL represented a magnetic ballast with a higher grade of steel compared to the baseline. DOE identified a second EL (an electronic EL) for the ≥150 W and ≤250 W and >250 W and ≤500 W equipment classes. The standard electronic level represented a ballast with standard electronic circuitry. DOE identified a third EL (a more efficient electronic EL) in the ≥50 W and ≤100 W and >100 W and <150 W equipment classes. The more-efficient electronic EL represented an electronic ballast with an improved circuit design and/or more efficient components compared to the standard electronic level. The maximum available ELs identified for the 12 analyzed equipment classes in the 2021 Final Determination are specified in Table II-3. 86 FR 58763, 58774, 58776.

DOE defines a max-tech efficiency level to represent the theoretical maximum possible efficiency if all available design options are incorporated in a model. In applying these design options, DOE would only include those that are compatible with each other that when combined, would represent the theoretical maximum possible efficiency. In many cases, the max-tech efficiency level is not commercially available because it is not economically feasible to implement. In the 2021 Final Determination, DOE determined max-tech efficiency levels based on commercially available ballasts.

DOE seeks input on whether the max-tech efficiency levels presented in Table II-3 are appropriate and technologically feasible for potential consideration as possible energy conservation standards for the equipment at issue—and if not, why not.

DOE also requests feedback on whether the max-tech efficiency levels presented in Table II-3 are representative of those for the equipment classes not directly analyzed in the 2021 Final Determination ( i.e., ballasts tested at 480 V). If the range of possible efficiencies is different for the other equipment classes not directly analyzed, what alternative approaches should DOE consider using for those equipment classes and why?

DOE seeks feedback on what design options would be incorporated at a max-tech efficiency level, and the efficiencies associated with those levels. As part of this request, DOE also seeks information as to whether there are limitations on the use of certain combinations of design options.

After developing ELs, DOE then scales the ELs from representative equipment classes to those equipment classes it does not analyze directly. As discussed in section II.D.3 of this document, DOE did not directly analyze the equipment classes containing fixtures with ballasts tested at 480 V and instead scaled them from the ELs of equipment classes analyzed in the 2021 Final Determination. Specifically, DOE developed a scaling factor by comparing quad-voltage ballasts  12 over all representative wattages to their 480 V ballast counterparts. DOE found that the difference in efficiency between ballasts tested at 480 V and ballasts tested at other input voltages varied based on the wattage of the ballast. Based on this analysis and comments from manufacturers DOE concluded a scaling factor of 12.0 percent (in the form of a subtraction of 12 percent from the representative equipment class ELs) to be appropriate from 50 W-150 W, a scaling factor of 4.0 percent to be appropriate from 150 W to 1,000 W, and a scaling factor of 0.0 percent ( i.e., no reduction) to be appropriate from 1,001 W to 2,000 W. 86 FR 58763, 58776-58777.

DOE requests comment on whether it is necessary to individually analyze all 24 equipment classes used in the 2021 Final Determination. Additionally, DOE welcomes comment on whether the approach used to apply the analyzed equipment class results to the other equipment classes is appropriate—and if not, why not? For example, if it is necessary to individually analyze more than 12 equipment classes used in the 2021 Final Determination, please provide information on why aggregating certain equipment is not appropriate. If this approach is not appropriate, what alternative approaches should DOE consider using and why?

DOE requests feedback on how the performance of ballasts that are tested at 480 V compares to ballasts of the same wattage and indoor/outdoor classification that are in other equipment classes. DOE also requests comment on the scaling factors used to develop ELs for the equipment classes containing fixtures with ballasts tested at 480 V.

The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including availability and reliability of public information, characteristics of the regulated equipment, and the availability and timeliness of purchasing the equipment on the market. The cost approaches are summarized as follows:

☐ Physical teardowns: Under this approach, DOE physically dismantles a commercially available equipment, component-by-component, to develop a detailed bill of materials for the equipment.

☐ Catalog teardowns: In lieu of physically deconstructing an equipment, DOE identifies each component using parts diagrams (available from manufacturer websites or appliance repair websites, for example) to develop the bill of materials for the equipment.

☐ Price surveys: If neither a physical nor catalog teardown is feasible (for example, for tightly integrated equipment such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable) or cost-prohibitive and otherwise impractical ( e.g., large commercial boilers), DOE conducts price surveys using publicly available pricing data published on major online retailer websites and/or by soliciting prices from distributors and other commercial channels.

The bill of materials provides the basis for the manufacturer production cost (“MPC”) estimates. DOE then applies a manufacturer markup to convert the MPC to manufacturer selling price (“MSP”). The manufacturer markup accounts for costs such as overhead and profit. The resulting bill of materials provides the basis for the MPC estimates.

For the 2021 Final Determination, DOE conducted teardown analyses on commercially available MHLFs, and the ballasts included in these fixtures. Using the information from these teardowns, DOE summed the direct material, labor, and overhead costs used to manufacture a MHLF or metal halide (“MH”) ballast, to calculate the MPC. DOE then determined the MSPs of fixture components and more-efficient MH ballasts identified for each EL. To determine the fixture components MSPs, DOE conducted fixture teardowns to derive MPCs of empty fixtures ( i.e., lamp enclosure and optics). The empty fixture does not include the ballast or lamp. DOE then added the other components required by the system (including ballast and any cost adders associated with electronically ballasted systems) and applied appropriate markups to obtain a final MSP for the entire fixture. 86 FR 58763, 58777.

DOE requests feedback on how manufacturers would incorporate the technology options listed in Table II-2 to increase energy efficiency in MHLFs beyond the baseline. This includes information on the sequencing manufacturers would follow when incorporating the different technologies to incrementally improve MHLF efficiency. DOE also requests feedback on whether increased energy efficiency would lead to other design changes that would not occur otherwise. DOE is interested in information regarding any potential impact of design options on a manufacturer's ability to incorporate additional functions or attributes in response to consumer demand. DOE is also interested in the extent to which (if at all) any design changes may adversely impact the ability of a given MHLF to operate with currently compatible applications.

DOE seeks input on the increase in MPC associated with incorporating each particular design option ( e.g., improved core steel). Specifically, DOE is interested in whether and how the costs estimated for design options in the 2021 Final Determination have changed since the time of that analysis. DOE also requests information on the investments necessary to incorporate specific design options, including, but not limited to, costs related to new or modified tooling (if any), materials, engineering and development efforts to implement each design option, and manufacturing/production impacts.

DOE requests comment on whether certain design options may not be applicable to (or incompatible with) certain equipment classes.

DOE seeks input on any relevant cost adders necessary based on ballast and fixture type ( e.g., electronic or magnetic ballast, indoor or outdoor fixture). Specifically, DOE is interested in whether and how the incremental costs for electronically ballasted fixtures in the 2021 Final Determination have changed since the time of that analysis.

To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the MPC. The resulting MSP is the price at which the manufacturer distributes a unit into commerce. For the 2021 Final Determination DOE used separate markups for ballast manufacturers (1.47) and fixture manufacturers (1.58). 86 FR 58763, 58778.

DOE requests feedback on whether its assumptions regarding manufacturer markups and the values of the markups (1.47 and 1.58) are appropriate for ballast manufacturers and fixture manufacturers, respectively—with the 1.58 markup applying to fixtures with and without ballasts). If they are appropriate, why—and if not, why not? If they are not appropriate, what should they be and why?

DOE derives consumer prices based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for equipment sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline equipment (“baseline markups”) and higher-efficiency equipment (“incremental markups”). The identified distribution channels ( i.e., how the equipment is distributed from the manufacturer to the consumer), and estimated relative sales volumes through each channel are used in generating consumer price inputs for the LCC analysis and NIA.

DOE tentatively plans to use the same distribution channels and wholesaler and contractor markups as in the 2021 Final Determination. In an electrical wholesaler distribution channel, DOE assumed the fixture manufacturer sells the fixture to an electrical wholesaler ( i.e., distributor), who in turn sells it to a contractor, who sells it to the consumer. In a contractor distribution channel, DOE assumed the fixture manufacturer sells the fixture directly to a contractor, who sells it to the consumer. In a utility distribution channel, DOE assumed the fixture manufacturer sells the fixture directly to the consumer ( i.e., electrical utility). Indoor fixtures are all assumed to go through the electrical wholesaler distribution channel. Outdoor fixtures are assumed to go through all three distribution channels as follows: 60 percent electrical wholesaler, 20 percent contractor, and 20 percent utility. 86 FR 58763, 58778-58779.

In the 2021 Final Determination, DOE used the same wholesaler and contractor markups as the 2014 Final Rule and assumed a wholesaler baseline markup of 1.23 and a contractor markup of 1.13, yielding a total wholesaler distribution channel baseline markup of 1.49. The lower wholesaler incremental markup of 1.05 yields a lower total incremental markup through this distribution channel of 1.27. DOE also assumed a utility markup of 1.00 for the utility distribution channel in which the manufacturer sells a fixture directly to the consumer. DOE again assumed a contractor markup of 1.13 for the utility distribution channel in which a manufacturer sells a fixture to a contractor who in turn sells it to the consumer yielding an overall markup of 1.21 for this channel. 86 FR 58763, 58779.

DOE requests information and data on any changes to the distribution channels or wholesaler or contractor markups.

As part of the rulemaking process, DOE conducts an energy use analysis to identify how the equipment is used by consumers, and thereby determine the energy savings potential of energy efficiency improvements. DOE bases the energy consumption of metal halide lamp fixtures on the rated annual energy consumption as determined by the DOE test procedure. Along similar lines, the energy use analysis is meant to represent typical energy consumption in the field.

DOE tentatively plans to use the same energy use methodology as in the 2021 Final Determination. To develop annual energy use estimates, DOE multiplied the lamp-and-ballast system input power (in watts) by annual usage (in hours per year). DOE characterized representative lamp-and-ballast systems in the engineering analysis, which provided measured input power ratings. To characterize the country's average usage of fixtures for a typical year, DOE developed annual operating hour distributions by sector, using data published in the 2015 U.S. Lighting Market Characterization (“LMC”). 13 For the ≥50 W and ≤100 W to >500 W and ≤1000 W equipment classes, DOE obtained weighted-average annual operating hours for the commercial, industrial, and outdoor stationary sectors of approximately 2,300 hours, 5,100 hours, and 5,000 hours, respectively. For the 1,500 W equipment class, DOE assigned annual operating hours of approximately 770 hours for all lamps according to the 2015 LMC estimate of 2.1 hours per day for sports field lighting. 86 FR 58763, 58779.

DOE requests information and data on any changes to the operating hours for metal halide lamp fixtures.

DOE conducts the LCC and PBP analysis to evaluate the economic effects of potential energy conservation standards for metal halide lamp fixtures on individual consumers. For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimated baseline level. The LCC is the total consumer expense over the life of the equipment, consisting of purchase, installation, and operating costs (expenses for energy use, maintenance, and repair). Inputs to the calculation of total installed cost include the cost of the equipment—which includes MSPs, distribution channel markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, discount rates, and the year that compliance with new and amended standards is required. DOE tentatively plans to develop inputs for the LCC analysis similarly to the 2021 Final Determination, as discussed in the following subsections.

In the 2021 Final Determination, to calculate consumer equipment costs, DOE multiplied the MSPs developed in the engineering analysis by the markups described previously (along with sales taxes). DOE used different markups for baseline equipment and higher-efficiency equipment because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency equipment. 86 FR 58763, 58779, 58780-58781.

Installation cost is the cost to install the fixture such as the labor, overhead, and any miscellaneous materials and parts needed. In the 2021 Final Determination, DOE used the installation costs from the 2014 Final Rule but inflated to 2020$ using the GDP price deflator. 86 FR 58763, 58780-58781.

DOE requests information and data on any changes to the installation cost for metal halide lamp fixtures.

In the 2021 Final Determination, for each sampled consumer, DOE determined the energy consumption for an MHLF at different efficiency levels using the approach described previously in section II.F of this document. DOE used operating hour (and, by extension, energy use) distributions to better characterize the potential range of operating conditions faced by MHLF consumers. 86 FR 58763, 58779-58781.

DOE applied average electricity prices for the energy use of the equipment purchased in the no-new-standards case, and marginal electricity prices for the incremental change in energy use associated with the other efficiency levels considered in the 2021 Final Determination. DOE derived annual electricity prices for each census division using data from the Edison Electric Institute (“EEI”) Typical Bills and Average Rates reports. 14 To estimate energy prices in future years, DOE multiplied the average regional energy prices by a projection of annual change in national-average commercial and industrial energy prices in the Reference case of Annual Energy Outlook 2021 (“AEO 2021”). 15 AEO 2021 has an end year of 2050. DOE assumed regional electricity prices after 2050 are constant at their 2050 price. 86 FR 58763, 58780-58781.

Replacement costs include the labor and materials costs associated with replacing a ballast or lamp at the end of their lifetimes and are annualized across the years preceding and including the actual year in which equipment is replaced. In the 2021 Final Determination, the costs were taken from the 2014 Final Rule but inflated to 2020$ using the GDP price deflator. For the LCC and PBP analysis, the analysis period corresponds with the fixture lifetime that is assumed to be longer than that of either the lamp or the ballast. For this reason, ballast and lamp prices and labor costs associated with lamp or ballast replacements are included in the calculation of operating costs. Id.

DOE requests information and data on any changes to the replacement costs for metal halide lamp fixtures.

DOE defines equipment lifetime as the age when a fixture, ballast, or lamp is retired from service. In the 2021 Final Determination, for fixtures in all equipment classes, DOE assumed average lifetimes for indoor and outdoor fixtures of 20 and 25 years, respectively. DOE also assumed that magnetic ballasts had a rated lifetime of 50,000 hours and electronic ballasts had a rated lifetime of 40,000 hours. DOE used manufacturer catalog data to obtain rated lifetime estimates (in hours) for lamps in each equipment class. DOE accounted for uncertainty in the fixture, ballast, and lamp lifetimes by applying Weibull survival distributions to the components' rated lifetimes. Furthermore, DOE included a residual value calculation for lamps and ballasts to account for the residual monetary value associated with the remaining life in the lamp and ballast at the end of the fixture lifetime. Id.

DOE requests information and data on any changes to the equipment lifetime for metal halide lamp fixtures.

The discount rate is the rate at which future expenditures are discounted to estimate their present value. In the 2021 Final Determination, DOE estimated separate discount rates for commercial, industrial, and outdoor stationary applications. DOE used discount rate data from a 2019 Lawrence Berkeley National Laboratory report. 16 The average discount rates, weighted by the shares of each rate value in the sectoral distributions, are 8.3 percent for commercial consumers, 8.8 percent for industrial consumers, and 3.2 percent for outdoor stationary consumers. 86 FR 58763, 58781-58782.

For the 2021 Final Determination, DOE developed a no-new-standards case efficiency distribution using model count data from DOE's compliance certification database collected on May 5, 2021. The compliance certification database does not contain models in the >1000 W and ≤2000 W equipment class; therefore, DOE assumed 56 percent of the market is at the baseline and 44 percent of the market is at EL 1, based on MHLF catalog data. The complete efficiency distribution for 2025 that DOE used in the 2021 Final Determination is shown in Table II-4. 86 FR 58763, 58782.

DOE requests information and data on any changes to the no-new-standards efficiency distribution for metal halide lamp fixtures.

The payback period is the amount of time it takes the consumer to recover the additional installed cost of more-efficient equipment, compared to baseline equipment, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the equipment mean that the increased total installed cost is not recovered in reduced operating expenses.

The inputs to the PBP calculation for each efficiency level are the change in total installed cost of the equipment and the change in the first-year annual operating expenditures relative to the baseline. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.

As noted previously, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing equipment complying with an energy conservation standard level will be less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)). For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the energy savings in accordance with the applicable DOE test procedure, and multiplying those savings by the average energy price projection for the year in which compliance with the amended standards would be required.

DOE develops shipments forecasts of MHLFs to calculate the national impacts of potential amended energy conservation standards on energy consumption, NPV, and future manufacturer cash flows. Using a three-step process, in the 2021 Final Determination, DOE developed projections of future fixture shipments using historical data as the basis. First, DOE used U.S. Census Bureau fixture shipment data, National Electrical Manufacturers Association (“NEMA”) lamp shipment data, and NEMA ballast sales trends to estimate historical shipments of each fixture type analyzed. Second, DOE estimated the installed stock for each fixture in 2021 based on the average service lifetime of each fixture type. Third, DOE developed annual shipment projections for 2021-2052 by modeling fixture purchasing events, such as replacement and new construction, and applying estimates of the building stock growth rate, MHLF replacement rate, and penetration rate of light emitting diode (“LED”) alternatives. 86 FR 58763, 58782-58783. DOE used model counts from data downloaded from DOE's compliance certification database for MHLFs to estimate market shares by equipment class as shown in Table II-5. Id.

DOE seeks any information or data on updates to the market share by equipment class relative to the market shares estimated in the 2021 Final Determination.

Current sales estimates allow for a more accurate model that captures recent trends in the market. In the 2021 Final Determination, DOE projected a faster decline in MHLF shipments compared to what it had projected in the notice of proposed determination for the rule ( see 85 FR 47472 (August 5, 2020)), based on updated NEMA sales indices, that resulted in a decline of 2030 shipments of metal halide lamps by more than 99 percent relative to shipments in 2021, due to the incursion of out-of-scope LED equipment. 17 86 FR 58763, 58782-58783.

DOE seeks data on MHLF and metal halide lamp ballast shipments, as well as the projected shipment values from the 2021 Final Determination as compared to actual recent shipments of MHLFs.

The purpose of the NIA is to estimate the aggregate economic impacts of potential efficiency standards at the national level. The NIA assesses the national energy savings and the national NPV of total consumer costs and savings that would be expected to result over 30 years of shipments from new or amended standards at specific efficiency levels.

DOE evaluates the impacts of new and amended standards by comparing no-new-standards-case projections with standards-case projections. The no-new-standards-case projections characterize energy use and consumer costs for each equipment class in the absence of new or amended energy conservation standards. DOE compares the no-new-standards-case with projections characterizing the market for each equipment class if DOE adopts new or amended standards at specific energy efficiency levels ( i.e., the trial standard levels (“TSLs”) or standards cases) for that class. In characterizing the no-new-standards and standards cases, DOE considers historical shipments, the mix of efficiencies sold in the absence of amended standards, penetration into the market from out-of-scope LED alternatives, and how the market may evolve over time.

The purpose of the manufacturer impact analysis (“MIA”) is to estimate the financial impact of amended energy conservation standards on manufacturers of MHLFs, and to evaluate the potential impact of such standards on direct employment and manufacturing capacity. The MIA includes both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model adapted for every equipment in this analysis, with the key output of INPV. The qualitative part of the MIA addresses the potential impacts of energy conservation standards on manufacturing capacity and industry competition, as well as factors such as equipment characteristics, impacts on particular subgroups of firms, and important market and equipment trends.

As part of the MIA, DOE intends to analyze impacts of amended energy conservation standards on subgroups of manufacturers of covered equipment, including small business manufacturers. DOE uses the Small Business Administration's (“SBA”) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the applicable North American Industry Classification System (“NAICS”) code. 18 Manufacturing of consumer MHLF is classified under NAICS 335122, “Commercial, Industrial, and Institutional Electric Lighting Fixture Manufacturing,” and the SBA sets a threshold of 500 employees or less for a domestic entity to be considered as a small business. Manufacturing of metal halide ballasts is classified under NAICS 335311, “Power, Distribution and Specialty Transformer Manufacturing,” and the SBA sets a threshold of 750 employees or less for a domestic entity to be considered as a small business. The employee threshold includes all employees in a business' parent company and any other subsidiaries.

One aspect of assessing manufacturer burden involves examining the cumulative impact of multiple DOE standards and the product/equipment-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product or equipment lines or markets with lower expected future returns than competing products or equipment. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.

To the extent feasible, DOE seeks the names and contact information of any domestic or foreign-based manufacturers that distribute MHLFs in the United States.

DOE identified small businesses as a subgroup of manufacturers that could be disproportionally impacted by amended energy conservation standards. DOE requests the names and contact information of small business manufacturers, as defined by the SBA's size threshold, of MHLFs that manufacture equipment in the United States. In addition, DOE requests comment on any other manufacturer subgroups that could be disproportionally impacted by amended energy conservation standards. DOE requests feedback on any potential approaches that could be considered to address impacts on manufacturers, including small businesses.

DOE requests information regarding the cumulative regulatory burden impacts on manufacturers of MHLFs associated with: (1) other DOE standards applying to different products or equipment that these manufacturers may also make and (2) product/equipment-specific regulatory actions of other Federal agencies. DOE also requests comment on its methodology for computing cumulative regulatory burden and whether there are any flexibilities it can consider that would reduce this burden while remaining consistent with the requirements of EPCA.

DOE invites all interested parties to submit in writing by the date specified in the DATES section of this document, comments and information on matters addressed in this document and on other matters relevant to DOE's consideration of amended energy conservations standards for MHLF. After the close of the comment period, DOE will review the public comments received and may begin collecting data and conducting the analyses discussed in this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page requires you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies Office staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

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

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

Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No faxes will be accepted.

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

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

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email to MHLF2022STD0023@ee.doe.gov@ee.doe.gov, two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

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

DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process or would like to request a public meeting should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on September 28, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

More than half of the proposed critical habitat for the Louisiana pinesnake (129,902 ac (52,569 ha), or 62 percent) falls on USFS lands managed as habitat management units (HMU) to benefit the Louisiana pinesnake. The USFS land and resource management plans and the 2013 Programmatic Candidate Conservation Agreement with Assurances with the Louisiana Department of Wildlife and Fisheries (LDWF CCAA) provide guidelines on habitat management to benefit Louisiana pinesnake (and red-cockaded woodpecker, Picoides borealis ) through management of upland pine habitat, including the use of tree thinning, chemical and mechanical hardwood and shrub removal, prescribed fire, and other actions to maintain and restore upland pine habitat (USFS 1996, pp. 107-134; USFS 1999, pp. 2-61 to 2-73; CCA 2003, entire).

We present brief descriptions of all proposed units, and reasons why they meet the definition of critical habitat for the Louisiana pinesnake, below.

Unit 1 consists of 61,083 ac (24,720 ha) in central Bienville Parish, Louisiana, west of Highway 155 and east of Highway 507, approximately 40 mi (64 km) southeast of Shreveport, Louisiana. In Unit 1, approximately 60,750 ac (24,585 ha) are located on private lands. Lands in State ownership in this unit include the 333-ac (135-ha) Big Cypress State Park (Louisiana Department of Culture, Recreation, and Tourism). Approximately 5,388 ac (2,180 ha) in this proposed unit are currently enrolled in the Service-approved and permitted LDWF CCAA, which includes conservation measures that provide a net benefit to the Louisiana pinesnake. This unit was occupied at the time of listing and is currently occupied by the Louisiana pinesnake. Unit 1 contains all of the physical or biological features essential to the conservation of the Louisiana pinesnake.

The physical or biological features essential to the conservation of the species in Unit 1 may require special management considerations or protection due to the following: Loss of upland pine forest with an open canopy, reduced midstory, and abundant herbaceous ground cover; fragmentation of large areas of upland pine forest habitat; and subsurface disturbance that affects the Baird's pocket gopher, as described above in Special Management Considerations or Protection. Management activities in upland pine forest habitat that could minimize or ameliorate these threats in Unit 1 include, but are not limited to: (1) Application of prescribed fire and other forest management activities ( e.g., thinning, midstory control, harvest) to promote a diverse, abundant herbaceous groundcover and open-canopy pine habitat; (2) implementation of silviculture best management practices that minimize subsurface disturbance; and (3) minimization of new road construction and closure of unused roads, particularly following timber harvest.

As noted above, approximately 5,388 ac (2,180 ha) in Unit 1 are lands in private ownership enrolled in the Service-approved and permitted LDWF CCAA (2013). All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule). Following publication of this proposed critical habitat rule, some lands in private ownership in Unit 1 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement, currently under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

Unit 2 consists of 26,403 ac (10,685 ha) located in Grant Parish, Louisiana. In Unit 2, 1,967 ac (796 ha) are located on private lands. Approximately 24,436 ac (9,889 ha) are located within the Kisatchie National Forest—Catahoula Ranger District. The USFS lands in Unit 2 encompass an HMU dedicated to the Louisiana pinesnake. Within the HMU, management and conservation actions implemented to benefit the Louisiana pinesnake include tree thinning, chemical and mechanical hardwood and shrub removal, and prescribed fire. This unit was occupied at the time of listing and is currently occupied by the Louisiana pinesnake. Unit 2 contains at least three of the physical or biological features essential to the conservation of the Louisiana pinesnake. The presence of Baird's pocket gopher mounds has not been assessed, but the habitat is suitable for this species, and pocket gophers are expected to occur in Unit 2.

The physical or biological features essential to the conservation of the species in Unit 2 may require special management considerations or protection due to the following: Loss of upland pine forest with an open canopy, reduced midstory, and abundant herbaceous ground cover; fragmentation of large areas of upland pine forest habitat; and subsurface disturbance that affects the Baird's pocket gopher, as described above in Special Management Considerations or Protection. Special management considerations or protection may be required within Unit 2 to alleviate impacts from suboptimal habitat management resulting in increased woody understory and midstory vegetation, including actions to restore or maintain suitable forest conditions for the species. Management activities in upland pine habitat that could benefit the species and habitat in this subunit include, but are not limited to: (1) Application of prescribed fire and other forest management activities to promote a diverse, abundant herbaceous groundcover and open-canopy pine habitat; (2) implementation of silviculture best management practices that minimize subsurface disturbance; and (3) consideration of upland pine habitat in planning development and new road construction. These management activities would protect the physical or biological features for the species by maintaining or restoring open-canopy pine habitat; reducing effects of silviculture practices on the Baird's pocket gopher; and maintaining large, contiguous areas of open pine habitat by decreasing fragmentation.

Following publication of this proposed critical habitat rule, some lands in private ownership in Unit 2 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

Unit 3 consists of 57,223 ac (23,157 ha) located in Rapides Parish, Louisiana. In Unit 3, approximately 2,716 ac (1,099 ha) are located on private lands. Approximately 54,507 ac (22,058 ha) occur within the Kisatchie National Forest—Calcasieu Ranger District—Evangeline Unit. The USFS lands in Unit 3 encompass an HMU dedicated to the Louisiana pinesnake. Within the HMU, management and conservation actions implemented to benefit the Louisiana pinesnake include tree thinning, chemical and mechanical hardwood and shrub removal, and prescribed fire. This unit was historically occupied by the Louisiana pinesnake and contains at least three physical or biological features essential to the conservation of the Louisiana pinesnake. The presence of Baird's pocket gopher mounds has not been assessed, but the habitat is suitable for this species, and pocket gophers are expected to occur in Unit 3.

This unit is currently unoccupied by the Louisiana pinesnake but is essential for the conservation of the species because it serves to protect habitat needed to recover the species by reestablishing wild populations within the historical range of the species. In addition, this unit contains at least three of the physical or biological features, is protected and actively managed as an HMU to benefit the Louisiana pinesnake, and has an appropriate spatial distribution falling within the range of the species. We have also determined that the unoccupied area constitutes habitat for the Louisiana pinesnake because it contains the appropriate soil type, habitat condition, and management actions within the unit. Further, the following physical or biological features occur within the unoccupied unit: (1) Upland natural pine habitats that contain open-canopy stands of longleaf, shortleaf, slash, or loblolly pine trees that have low midstory tree density, low midstory pine tree basal area, low scrub/shrub cover; and an abundant, diverse, and native herbaceous vegetative groundcover, including a mix of grasses and forbs; (2) suitable habitat in large (7,166 ac (2,900 ha)), contiguous blocks; (3) soils with high sand content and a low water table. Although we do not have specific information regarding Baird's pocket gopher populations on this unit, the habitat conditions are expected to support adequate prey populations.

Following publication of this proposed critical habitat rule, some lands in private ownership in Unit 3 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

Unit 4 consists of 43,789 ac (17,721 ha) located in Vernon Parish, Louisiana. In Unit 4, approximately 892 ac (361 ha) occur on lands in private ownership. The remaining 42,897 ac (17,360 ha) of Unit 4 is owned by the USFS and is within the Joint Readiness Training Center and Fork Polk, Louisiana (Fort Polk). This unit was occupied at the time of listing and is currently occupied by the Louisiana pinesnake. Unit 4 contains all of the physical or biological features essential to the conservation of the Louisiana pinesnake.

The physical or biological features essential to the conservation of the species in Unit 4 may require special management considerations or protection due to the following: Loss of upland pine forest with an open canopy, reduced midstory, and abundant herbaceous ground cover; fragmentation of large areas of upland pine forest habitat; and subsurface disturbance that affects the Baird's pocket gopher, as described above in Special Management Considerations or Protection. Special management considerations or protection may be required within Unit 4 to alleviate impacts from suboptimal habitat management resulting in increased woody understory and midstory vegetation, including actions to restore or maintain suitable forest conditions for the species. Management activities in upland pine habitat that could benefit the species and habitat in this subunit include, but are not limited to: (1) Application of prescribed fire and other forest management activities to promote a diverse, abundant herbaceous groundcover and open-canopy pine habitat; (2) implementation of silviculture best management practices that minimize subsurface disturbance; and (3) consideration of upland pine habitat in planning development and new road construction. These management activities would protect the physical or biological features for the species by maintaining or restoring open-canopy pine habitat; reducing effects of silviculture practices on the Baird's pocket gopher; and maintaining large, contiguous areas of open pine habitat by decreasing fragmentation.

The 42,897 ac (17,360 ha) of USFS-owned lands permitted for use by Fort Polk will be considered for exclusion from final critical habitat designation. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of National Security Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule). Additionally, following publication of this proposed critical habitat rule, some lands in private ownership in Unit 4 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

Unit 5 is located in northern Newton County, Texas. The entire 5,058 ac (2,047 ha) in this unit are located on private lands. The Nature Conservancy (TNC) holds 1,675 ac (678 ha) in Unit 5 in a long-term conservation easement and implements conservation actions on the easement. This unit was occupied at the time of listing and is currently occupied by the Louisiana pinesnake. Unit 5 contains at least three of the physical or biological features essential to the conservation of the Louisiana pinesnake. The presence of Baird's pocket gopher mounds has not been assessed, but the habitat is suitable for this species, and pocket gophers are expected to occur in Unit 5.

The physical or biological features essential to the conservation of the species in Unit 5 may require special management considerations or protection due to the following: Loss of upland pine forest with an open canopy, reduced midstory, and abundant herbaceous ground cover; fragmentation of large areas of upland pine forest habitat; and subsurface disturbance that affects the Baird's pocket gopher, as described above in Special Management Considerations or Protection. Management activities in upland pine forest habitat that could minimize or ameliorate these threats in Unit 5 include, but are not limited to: (1) Application of prescribed fire and other forest management activities ( e.g., thinning, midstory control, harvest) to promote a diverse, abundant herbaceous groundcover and open-canopy pine habitat; (2) implementation of silviculture best management practices that minimize subsurface disturbance; and (3) minimization of new road construction and closure of unused roads, particularly following timber harvest.

Of the lands in private ownership, TNC holds 1,675 ac (678 ha) in Unit 5 in a long-term conservation easement with conservation measures in place expected to benefit the Louisiana pinesnake, including prescribed fire. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule). Additionally, following publication of this proposed critical habitat rule, some lands in private ownership in Unit 5 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

Unit 6 is comprised of 15,966 ac (6,461 ha) located in northwestern Jasper and southeastern Angelina Counties, Texas. Within Unit 6, approximately 1,542 ac (624 ha) are lands in private ownership. Approximately 14,424 ac (5,837 ha) are USFS lands and fall within the Angelina National Forest; the western portion of Unit 6 falls within the Upland Island Wilderness Area in the Angelina National Forest. The USFS lands in Unit 6 encompass an HMU dedicated to conservation efforts to benefit the Louisiana pinesnake. Within the HMU, management and conservation actions implemented to benefit the Louisiana pinesnake include tree thinning, chemical and mechanical hardwood and shrub removal, and prescribed fire. This unit was occupied at the time of listing and is currently occupied by the Louisiana pinesnake. Unit 6 contains at least three of the physical or biological features essential to the conservation of the Louisiana pinesnake. The presence of Baird's pocket gopher mounds has not been assessed, but the habitat is suitable for this species, and pocket gophers are expected to occur in Unit 6.

The physical or biological features essential to the conservation of the species in Unit 6 may require special management considerations or protection due to the following: Loss of upland pine forest with an open canopy, reduced midstory, and abundant herbaceous ground cover; fragmentation of large areas of upland pine forest habitat; and subsurface disturbance that affects the Baird's pocket gopher, as described above in Special Management Considerations or Protection. Management activities in upland pine forest habitat that could minimize or ameliorate these threats in Unit 6 include, but are not limited to: (1) Application of prescribed fire and other forest management activities ( e.g., thinning, midstory control, harvest) to promote a diverse, abundant herbaceous groundcover and open-canopy pine habitat; (2) implementation of silviculture best management practices that minimize subsurface disturbance; and (3) minimization of new road construction and closure of unused roads, particularly following timber harvest.

Following publication of this proposed critical habitat rule, some lands in private ownership in Unit 6 may be enrolled in the Louisiana Pinesnake Programmatic Safe Harbor Agreement under development. All or some of these lands may be excluded from the final critical habitat designation under section 4(b)(2) of the Act (see Consideration of Other Relevant Impacts under Consideration of Impacts under Section 4(b)(2) of the Act later in this proposed rule).

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

We published a final rule revising the definition of destruction or adverse modification on February 11, 2016 (81 FR 7214) (although we also published a revised definition after that on August 27, 2019). 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.

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

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

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

(1) Actions that would significantly alter the suitability of open-canopy upland pine habitat in a manner incompatible with Louisiana pinesnake's life-history requirements. Such activities could include, but are not limited to: forest and silvicultural activities, such as disking, bedding, and other management actions, that involve substantial ground disturbance; conversion to densely stocked pine plantations; and chemical applications (pesticides or herbicides) that are either not applied in accordance with label directions or that are not directly aimed at hazardous fuels reduction, midstory hardwood control, or noxious weed control. These activities could destroy or alter the pine forest habitats and refugia necessary for the growth and development of Louisiana pinesnakes, and may reduce populations of the snake's primary prey (Baird's pocket gopher), either through direct extermination or through loss of the forage necessary to sustain the prey base.

(2) Actions that would significantly fragment Louisiana pinesnake habitat. Such activities could include, but are not limited to: Conversion of upland pine forested habitat to other uses (agricultural, urban/residential development) and construction of new structures or roads. These activities could lead to degradation or elimination of forest habitat, limit or prevent breeding opportunities for Louisiana pinesnakes, limit access to familiar refugia or nesting sites within individual home ranges, and increase the frequency of road mortality from road crossings.

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an INRMP by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes:

(1) An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species;

(2) A statement of goals and priorities;

(3) A detailed description of management actions to be implemented to provide for these ecological needs; and

(4) A monitoring and adaptive management plan.

Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the DoD, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

We consult with the military on the development and implementation of INRMPs for installations with listed species. We analyzed INRMPs developed by military installations located within the range of the proposed critical habitat designation for the Louisiana pinesnake to determine if they meet the criteria for exemption from critical habitat under section 4(a)(3) of the Act. The following areas are DoD lands with completed, Service-approved INRMPs within the proposed critical habitat designation.

The Joint Readiness Training Center at Peason Ridge and Fort Polk is located in Natchitoches, Sabine, and Vernon parishes, Louisiana. The installation is divided into two separate areas: Peason Ridge Training Area (Peason Ridge) to the north and Fort Polk Military Reservation (Fort Polk) to the south. Peason Ridge is located on DoD-owned lands and is managed by the DoD in coordination with the LDWF. Fort Polk is located on DoD-owned land and uses adjacent USFS property for training under permit. These lands are managed by the DoD and the USFS in coordination with the LDWF. The USFS-permitted lands are governed by a special use permit and plan of operation effective from 2004 to 2024. Fort Polk has a Service-approved INRMP, which serves as the principal management plan governing all natural resource activities on DoD lands on the Fort Polk and Peason Ridge installations. The INRMP for the Joint Readiness Training Center at Peason Ridge and Fort Polk (Fort Polk INRMP) covers fiscal years 2020 to 2024, and serves as the principal management plan governing all natural resource activities on DoD lands on the installations.

For several decades, the Fort Polk INRMP benefited the Louisiana pinesnake through ongoing ecosystem management and active management of red-cockaded woodpecker habitat, which provided habitat for Louisiana pinesnake. More recently, the INRMP has included management actions intended to specifically benefit the Louisiana pinesnake (U.S. Army 2020, p. 85). Among the goals and objectives listed in the Endangered Species Management Component of the INRMP is habitat management for rare, threatened, and endangered species, and the Louisiana pinesnake is included in this plan. Management actions and elements that benefit the Louisiana pinesnake and its habitat include: Management of upland pine habitats within Louisiana pinesnake habitat management units in a way compatible with the species' needs; Louisiana pinesnake monitoring studies, surveys, and research on breeding habitat, diseases, and behavior; implementation of awareness and education programs for the public and soldiers to reduce snake mortality or collection; and surveys for Baird's pocket gopher in advance of projects (U.S. Army 2020, pp. 81-82). Additional elements of the INRMP that will benefit Louisiana pinesnake and its habitat are awareness training for U.S. Army personnel to continue to avoid and reduce impacts to Louisiana pinesnakes during training, as well as public outreach and education. These conservation efforts reflect actions, reporting, and coordination described in an earlier candidate conservation agreement for the Louisiana pinesnake to which Fort Polk was a party (USFWS 2013).

Approximately 3,147 ac (1,273 ha) on the Peason Ridge installation and 27,611 ac (11,174 ha) are located within the area covered by this INRMP. Based on the above considerations, and in accordance with section 4(a)(3)(B)(i) of the Act, we have determined that the identified lands are subject to the Fort Polk INRMP and that conservation efforts identified in the INRMP provide a benefit to the Louisiana pinesnake. Therefore, DoD lands within these installations that are covered under the Fort Polk INRMP are exempt from critical habitat designation under section 4(a)(3) of the Act. We are not including approximately 3,147 ac (1,273 ha) of habitat on Peason Ridge and 27,611 ac (11,174 ha) of habitat on Fort Polk in this proposed critical habitat designation because of this exemption.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (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, 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.

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 section 4(b)(2) exclusion analysis.

For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable economic effects of the designation of critical habitat for the Louisiana pinesnake (Industrial Economics, Incorporated (IEc) 2021). 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 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 those units are unoccupied because they require additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designation for the Louisiana pinesnake; our DEA is summarized in the narrative below.

Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the Louisiana pinesnake, first we identified, in the IEM dated March 2, 2021, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (USFS, DoD), (2) agriculture, (3) commercial and residential development, (4) forest management, (5) conservation and restoration, (6) timber/lumber operations, and (7) transportation and utility projects. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Louisiana pinesnake 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 finalize this proposed critical habitat designation, our consultation would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat.

In our IEM, we attempted to clarify the distinction between the effects that result from the species being listed and those that would be attributable to the critical habitat designation ( i.e., difference between the jeopardy and adverse modification standards) for the Louisiana pinesnake. Because the designation of critical habitat for the Louisiana pinesnake is being proposed several years following the listing of the species, data, such as from consultation history, are available to help us discern which conservation efforts are attributable to the species being listed and those that would result solely from the designation of critical habitat. The following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Louisiana pinesnake 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 Louisiana pinesnake totals approximately 209,520 ac (84,790 ha) in six units in Louisiana and Texas. Five of the six units are currently occupied by the Louisiana pinesnake; the remaining unit is within the snake's historical range but was not occupied at the time the species was listed in 2018, and is not known to be currently occupied. Included lands are under Federal, State, and private ownership, and Federal land is predominant in Units 2, 3, 4 and 6. The proposed critical habitat is composed of lands under private (35 percent), State (0.1 percent), and Federal (65 percent) ownership. Occupied units represent 73 percent of the proposed critical habitat area. Table 1, above, sets forth specific information concerning each unit, including occupancy and land ownership. The proposed critical habitat does not overlap with designated or proposed critical habitat for any other endangered or threatened species.

Within the occupied units, any actions that may affect the species or its habitat would also affect designated critical habitat, and it is unlikely that any additional conservation efforts would be recommended to address the adverse modification standard over and above those recommended as necessary to avoid jeopardizing the continued existence of the Louisiana pinesnake. Therefore, only administrative costs are expected for actions affecting approximately 73 percent of the proposed critical habitat designation. While the analysis for adverse modification of critical habitat will require time and resources by both the Federal action agency and the Service, it is believed that, in most circumstances, these costs would predominantly be administrative in nature and would not be significant.

The remaining 57,223 ac (23,157 ha) (27 percent of the total proposed critical habitat designation) are currently unoccupied by the species but are essential for the conservation of the species. In these unoccupied areas, any conservation efforts or associated probable impacts would be considered incremental effects attributed to the critical habitat designation. Within the 57,223-ac (23,157-ha) unoccupied proposed critical habitat, few actions are expected to occur that would result in additional section 7 consultation or associated project modifications outside of the current Service-approved USFS land and resource management plan. Proposed Unit 3 (Evangeline) is located on lands in USFS and private ownership. The USFS is currently implementing management and conservation actions to benefit the Louisiana pinesnake on HMUs in the Kisatchie National Forest, including lands in Unit 3, under the 2003 candidate conservation agreement for the Louisiana pinesnake and a USFS land and resource management plan. Communications with affected entities indicated that critical habitat designation would likely result in just a few consultations in this unit, with minor additional conservation efforts that would be expected to result in relatively low probable economic impacts. Based on the geographic distribution of historical section 7 consultations and technical assistance, as well as the assumption that administrative costs would be higher in unoccupied areas, the highest costs are anticipated in Unit 3.

The entities most likely to incur incremental costs are parties to section 7 consultations, including Federal action agencies and, in some cases, third parties, most frequently State agencies or municipalities. Activities we expect would be subject to consultations that may involve private entities as third parties are residential and commercial development that may occur on private lands; however, costs to private entities within these sectors are expected to be minor, as much of the proposed critical habitat is in Federal ownership (65 percent). The proposed designation for the Louisiana pinesnake includes some private lands (35 percent), although some of the private lands are conserved in perpetuity. As such, incremental costs from public perception of the designation have some potential to arise, but are speculative. However, a robust consultation history exists for this species, as well as for the red-cockaded woodpecker, a listed species with an overlapping range and similar habitat structure needs. Landowners in these areas are, therefore, less likely to experience regulatory uncertainty associated with critical habitat. While perceptional effects on land values are possible, the likelihood and magnitude of such effects are uncertain.

The probable incremental economic impacts of this proposed critical habitat designation for the Louisiana pinesnake are expected to be limited to additional administrative effort as well as minor costs of conservation efforts resulting from a small number of future section 7 consultations. This is due to two factors: (1) A large portion of proposed critical habitat is considered to be occupied by the species (73 percent), where incremental economic impacts of critical habitat designation, other than administrative costs, are unlikely; and (2) in proposed areas that are not occupied by the Louisiana pinesnake (27 percent), few actions are anticipated that would result in section 7 consultation or associated project modifications. Because of the volume of lands that are State-, county-, or privately owned, and the substantial amount of lands that are already being managed for conservation, the numbers of section 7 consultations expected annually are modest (approximately 2 formal, 58 informal, and 15 technical assistance efforts annually across the designation).

Critical habitat designation for the Louisiana pinesnake is unlikely to generate costs or benefits exceeding $100 million in a single year. Therefore, this proposed rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866. In fact, the total annual incremental costs of critical habitat designation for the Louisiana pinesnake are anticipated to be less than $240,000 per year, and economic benefits are also anticipated to be small.

We are soliciting data and comments from the public on the DEA discussed above, as well as all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts 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.

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns ( e.g., a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of “critical habitat.” 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.

We have evaluated whether any of the lands within the proposed designation of critical habitat are owned by DoD or DHS or could lead to national-security or homeland-security impacts if designated. In this discussion, we describe the areas within the proposed designation that are owned by DoD or DHS or for which designation could lead to national-security or homeland-security impacts. For each area, we describe the available information indicating whether we have reason to consider excluding the area from the designation. If, during the comment period, we identify or receive information about additional areas for which designation may result in incremental national-security or homeland-security impacts, then we will consider whether to exclude those additional areas under the authority of section 4(b)(2) of the Act.

In preparing this proposal, we have determined that some lands within Unit 4 of the proposed designation of critical habitat for the Louisiana pinesnake are used under permit by the U.S. Army, which is part of DoD. We have previously described two areas (Peason Ridge and Fort Polk) with an approved INRMP under application of section 4(a)(3)(B)(i) of the Act, above. As discussed in the Unit 4 description, above, the USFS-permitted lands used by Fort Polk are located to the south of the DoD lands and are separated into two areas: the Intensive Use Area (IUA) and the Limited Use Area (LUA). None of the acreage within the IUA or LUA is covered under the Fort Polk INRMP; thus, none of this acreage was considered for exemption under section 4(a)(3)(B)(i) of the Act (see Approved INRMPs under Exemptions, above).

The IUA and LUA are operated by the DoD for training and maneuver exercises in an area of the Vernon Unit, Calcasieu Ranger District, of the Kisatchie National Forest in Vernon Parish, Louisiana. The DoD uses this area under a special use permit from the USFS, who is the primary landowner and manager within the installation boundary.

The DoD has expressed concern that the designation of critical habitat on the IUA and LUA would have implications for national security, as summarized below. The potential impacts of designating the IUA or LUA on national security include restrictions on military training exercises. Lands within the IUA and LUA are used for artillery training that provides soldiers with essential battlefield combat skills. Excluding these USFS lands from critical habitat designation would remove the potential impact that a designation of critical habitat could have on the ability to maintain national security. Additionally, the IUA and LUA are cooperatively managed by the DoD, USFS, and LDWF to benefit the Louisiana pinesnake and red-cockaded woodpecker, including prescribed burning of upland pine stands as part of the candidate conservation agreement on USFS habitat management units (U.S. Army appendix D.3 2020, p. 31). Therefore, we are considering for exclusion from the final critical habitat designation 42,897-ac (17,360-ha) of USFS-owned lands in proposed Unit 4 as a result of impacts to national security under section 4(b)(2) of the Act.

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.

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

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

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

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

We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service, sometimes through the permitting process under section 10 of the Act.

When we undertake a discretionary section 4(b)(2) analysis, we evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. The factors we consider may differ, depending on whether we are evaluating a conservation plan that involves permits under section 10 or a non-permitted plan (see sections c and b, respectively, of the 2016 Policy).

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

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

When we undertake a discretionary section 4(b)(2) exclusion analysis based on permitted conservation plans such as CCAAs, SHAs, and HCPs, we anticipate consistently excluding such areas if incidental take caused by the activities in those areas is covered by the permit under section 10 of the Act and the CCAA/SHA/HCP meets all of the following three factors (see the 2016 Policy for additional details):

a. The permittee is properly implementing the CCAA/SHA/HCP and is expected to continue to do so for the term of the agreement. A CCAA/SHA/HCP is properly implemented if the permittee is and has been fully implementing the commitments and provisions in the CCAA/SHA/HCP, implementing agreement, and permit.

b. The species for which critical habitat is being designated is a covered species in the CCAA/SHA/HCP, or very similar in its habitat requirements to a covered species. The recognition that the Services extend to such an agreement depends on the degree to which the conservation measures undertaken in the CCAA/SHA/HCP would also protect the habitat features of the similar species.

c. The CCAA/SHA/HCP specifically addresses that species' habitat and meets the conservation needs of the species in the planning area.

The proposed critical habitat designation includes areas that are covered by the following permitted plan providing for the conservation of Louisiana pinesnake: Programmatic Candidate Conservation Agreement with Assurances with the Louisiana Department of Wildlife and Fisheries (LDWF CCAA).

The LDWF CCAA is intended to further the conservation of the Louisiana pinesnake on private lands by protecting known populations and additional potential habitat through reducing threats to the species' habitat and survival, restoring degraded potential habitat on suitable soils, and potentially reintroducing captive-bred snakes to select areas of the restored habitat.

Signed in 2017, the LDWF CCAA for Louisiana pinesnake is an umbrella document under which individual landowners in Bienville, Beauregard, Jackson, Natchitoches, Rapides, Sabine, Vernon, Winn, Grant, and Allen parishes, Louisiana, may participate. Three private landowners within the range of the Louisiana pinesnake hold certificates of inclusion under the enhancement of survival permit that expires in 2116. All enrolled parcels are in Bienville Parish, Louisiana, and total 5,388 ac (2,180 ha). The three properties consist of Bienville Kep, a 1,067-ac (432-ha) ranch; Bienville Plan, a 2,698-ac (1,092-ha) property; and Bienville San, a 1,624-ac (657-ha) property. They are of sufficient size to benefit the Louisiana pinesnake when conservation measures are implemented. Each landowner implements conservation measures designed to protect and enhance habitat for the benefit of the Louisiana pinesnake on private lands enrolled under the agreement. The three landowners must maintain upland pine habitats compatible with Louisiana pinesnake's life-history requirements in accordance with each certificate of inclusion. Conservation land use practices vary according to the needs of a particular enrolled landowner, but the three landowners currently enrolled use land management practices of prescribed fire, forest thinning, and replanting of native species on enrolled lands. The use of these measures maintains or improves the physical and biological features required by the Louisiana pinesnake, namely natural upland pine forests that contain open canopy stands of longleaf, shortleaf, slash, or loblolly pine trees that have low midstory tree density and pine tree basal area, limited scrub/shrub cover, and abundant, diverse, and native herbaceous vegetative groundcover (including a mix of grasses and forbs) to support the Louisiana pinesnake's primary prey item (Baird's pocket gopher). The LDWF CCAA also allows for implementation of other conservation measures beneficial to the Louisiana pinesnake that may be developed in the future.

After considering the factors described above, we have identified the following areas that we have reason to consider excluding because of permitted plans: 5,388 ac (2,180 ha) of private lands in Bienville Parish, Louisiana, currently enrolled in the LDWF CCAA for the Louisiana pinesnake. We describe below our reasons for considering these areas for potential exclusion.

Critical habitat within Unit 1 that is currently associated with the LDWF CCAA is wholly comprised of the three enrolled properties described above. Based on our review of the LDWF CCAA and proposed critical habitat for the Louisiana pinesnake, we do not anticipate requesting any additional conservation measures for the species beyond those that are currently in place. The LDWF CCAA covers the Louisiana pinesnake, addresses the specific habitat of the species and meets the conservation needs of the species, and is currently being implemented properly. Therefore, at this time, we are considering excluding those specific lands associated with the LDWF CCAA from the final designation of critical habitat for the Louisiana pinesnake. However, we will more thoroughly review the CCAA, the implementation of its conservation measures for the Louisiana pinesnake and its habitat, and public comment on this issue prior to finalizing critical habitat, and, if appropriate, we will exclude from critical habitat for the Louisiana pinesnake those lands enrolled in the LDWF CCAA.

The draft SHA was developed in 2021, and is expected to be finalized in 2022, with an enhancement of survival permit issued at the time of finalization. The parties to the draft SHA include the LDWF, Texas A&M Forest Service, Texas Parks and Wildlife Department, and the Service. Non-federal landowners (“enrolled cooperators”) within the range of the species in western and central Louisiana and eastern Texas will be eligible to enroll suitable property under the SHA, when finalized, and receive a certificate of inclusion. The geographic area covered by the draft SHA includes Angelina, Hardin, Jasper, Nacogdoches, Newton, Polk, Sabine, San Augustine, Trinity, Tyler, and Wood counties in Texas, and Bienville, Beauregard, Jackson, Natchitoches, Rapides, Sabine, and Vernon parishes, and as well as additional lands in Winn, Grant, and Allen parishes, in Louisiana. Conservation measures implemented on enrolled properties are site-specific but will address loss and degradation of suitable habitat, isolated populations, and vehicle mortality, and will provide a net conservation benefit to the Louisiana pinesnake. Management actions specified in the draft SHA include prescribed fire, chemical vegetation control, thinning and conversion of loblolly and slash pine stands to longleaf pine forest, silviculture best management practices, and species and habitat monitoring. The use of these measures maintains or improves the physical and biological features required by the Louisiana pinesnake, namely upland natural pine forests that contain open-canopy stands of longleaf, shortleaf, slash, or loblolly pine trees that have low midstory tree density and pine tree basal area, limited scrub/shrub cover, and abundant, diverse, and native herbaceous vegetative groundcover (including a mix of grasses and forbs) to support the Louisiana pinesnake's primary prey item (Baird's pocket gopher). The draft SHA also allows for implementation of other conservation measures beneficial to the Louisiana pinesnake that may be developed in the future. Critical habitat within the range of the species that may be associated with the SHA is yet to be determined. When the draft SHA is finalized and the associated enhancement of survival permit issued, an unknown number of private properties in all proposed critical habitat units may be enrolled in the SHA. Based on our review of the draft SHA and proposed critical habitat for the Louisiana pinesnake, we find that the conservation measures within the draft SHA are sufficient to provide for the conservation of the Louisiana pinesnake on the enrolled lands. The draft SHA covers the Louisiana pinesnake, addresses the specific habitat of the species and meets the conservation needs of the species, and is expected to be implemented. Therefore, at this time, we are considering excluding from the final critical habitat designation those specific lands in private ownership that will be enrolled in the SHA prior to development of the final critical habitat designation for the Louisiana pinesnake. However, we will more thoroughly review the SHA, its conservation measures for the Louisiana pinesnake and its habitat, and public comment on this issue prior to finalizing critical habitat, and, if appropriate, we will exclude from critical habitat for the Louisiana pinesnake those lands enrolled in the finalized and permitted SHA.

Shown below is a non-exhaustive list of factors that we consider in evaluating how non-permitted plans or agreements affect the benefits of inclusion or exclusion. These are not required elements of plans or agreements. Rather, they are some of the factors we may consider, and not all of these factors apply to every plan or agreement.

(i) The degree to which the record of the plan, or information provided by proponents of an exclusion, supports a conclusion that a critical habitat designation would impair the realization of the benefits expected from the plan, agreement, or partnership.

(ii) The extent of public participation in the development of the conservation plan.

(iii) The degree to which agency review and required determinations ( e.g., State regulatory requirements) have been completed, as necessary and appropriate.

(iv) Whether National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) compliance was required.

(v) The demonstrated implementation and success of the chosen mechanism.

(vi) The degree to which the plan or agreement provides for the conservation of the essential physical or biological features for the species.

(vii) Whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan or agreement will be implemented.

(viii) Whether the plan or agreement contains a monitoring program and adaptive management to ensure that the conservation measures are effective and can be modified in the future in response to new information.

The proposed critical habitat designation includes areas that are covered by the following non-permitted plan providing for the conservation of Louisiana pinesnake: The Nature Conservancy's Scrappin' Valley Easement (1,675 ac (678 ha)).

The Nature Conservancy of Texas holds a conservation easement in perpetuity on 1,675 ac (678 ha) of longleaf-dominated upland pine habitat in private ownership in Newton County, Texas. The land is managed with conservation actions, including prescribed fire, hardwood removal, thinning of loblolly and slash pine, and restoration planting, that maintain and improve the longleaf pine habitat for red-cockaded woodpeckers and also benefit the Louisiana pinesnake. The use of these measures maintains or improves the physical and biological features required by Louisiana pinesnake, namely upland natural pine forests that contain open-canopy stands of longleaf, shortleaf, slash, or loblolly pine trees that have low midstory tree density and pine tree basal area, limited scrub/shrub cover, and abundant, diverse, and native herbaceous vegetative groundcover (including a mix of grasses and forbs) that are required to support the Louisiana pinesnake's primary prey item (Baird's pocket gopher).

After considering the factors described above, we have identified the following areas that we have reason to consider excluding because of non-permitted plans: 1,675 ac (678 ha) of private lands in Scrappin' Valley under conservation easement held by The Nature Conservancy. Below, we describe our reasons for considering this area for potential exclusion.

Critical habitat within proposed Unit 5 that is currently part of a perpetual conservation easement held by The Nature Conservancy of Texas is limited to the private lands described above. Based on our review of the easement and proposed critical habitat for the Louisiana pinesnake, we do not anticipate requesting any additional conservation measures for the species beyond those that are currently in place. The landowners have implemented conservation actions including habitat management that improves the vegetation structure of the habitat and benefits the Louisiana pinesnake. As described above, these efforts provide for the conservation of the physical or biological features essential to the conservation of the Louisiana pinesnake by maintaining or improving the upland natural pine forests so that they are characterized by open-canopy stands with low midstory tree density and pine tree basal area, limited scrub/shrub cover, and abundant, diverse, and native herbaceous groundcover. The conservation easement is perpetual and we have a reasonable expectation that the strategies and actions will be implemented in the future to a similar degree they have in the past based on the habitat condition. The conservation easement includes a monitoring component and adaptive management to ensure conservation measures are effective and can be modified based on management results and conservation needs. We recognize that the private lands under the conservation easement make an important contribution to the conservation and recovery of the Louisiana pinesnake and expect these lands will continue to do so if excluded from the critical habitat designation for the species. Therefore, at this time, we are considering excluding those specific lands associated with the easement from the final designation of critical habitat for the Louisiana pinesnake. However, we will more thoroughly review the easement, the implementation of its conservation measures for the Louisiana pinesnake and its habitat, and public comment on this issue prior to finalizing critical habitat, and, if appropriate, we will exclude from critical habitat for the Louisiana pinesnake those lands covered by the easement.

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

A joint Secretarial Order that applies to both the Service and the National Marine Fisheries Service (NMFS)—Secretarial Order 3206, American Indian Tribal Rights, Federal—Tribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997) (S.O. 3206)—is the most comprehensive of the various guidance documents related to Tribal relationships and Act implementation, and it provides the most detail directly relevant to the designation of critical habitat. In addition to the general direction discussed above, the appendix to S.O. 3206 explicitly recognizes the right of Tribes to participate fully in any listing process that may affect Tribal rights or Tribal trust resources; this includes the designation of critical habitat. Section 3(b)(4) of the appendix requires the Service to consult with affected Tribes when considering the designation of critical habitat in an area that may impact Tribal trust resources, Tribally owned fee lands, or the exercise of Tribal rights. That provision also instructs the Service to avoid including Tribal lands within a critical habitat designation unless the area is essential to conserve a listed species, and it requires the Service to evaluate and document the extent to which the conservation needs of the listed species can be achieved by limiting the designation to other lands.

Our implementing regulations at 50 CFR 424.19 and the 2016 Policy are consistent with S.O. 3206. When we undertake a discretionary exclusion analysis under section 4(b)(2) of the Act, in accordance with S.O. 3206, we consult with any Tribe whose Tribal trust resources, Tribally owned fee lands, or Tribal rights may be affected by including any particular areas in the designation, and we evaluate the extent to which the conservation needs of the species can be achieved by limiting the designation to other areas and give great weight to Tribal concerns in analyzing the benefits of exclusion.

However, S.O. 3206 does not override the Act's statutory requirement of designation of critical habitat. As stated above, we must consult with any Tribe when a designation of critical habitat may affect Tribal lands or resources. The Act requires us to identify areas that meet the definition of “critical habitat” ( i.e., areas occupied at the time of listing that contain the essential physical or biological features which may require special management considerations or protection, and unoccupied areas that are essential to the conservation of a species), without regard to land ownership. While S.O. 3206 provides important direction, it expressly states that it does not modify the Secretary's statutory authority under the Act or other statutes. There are no Tribal lands within the proposed critical habitat for the Louisiana pinesnake.

Federal land managers have unique obligations under the Act. First, Congress declared its policy that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act (section 2(c)(1)). Second, all Federal agencies have responsibilities under section 7 of the Act to carry out programs for the conservation of listed species and to ensure their actions are not likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Therefore, in general we focus our exclusions on non-Federal lands. Our regulations at 50 CFR 424.19 and the 2016 Policy provide for the consideration of the exclusion of Federal lands in particular instances.

In preparing this proposal, we have determined that portions of the Catahoula and Calcasieu ranger districts in the Kisatchie National Forest (Units 2, 3, 4) and the Angelina National Forest (Unit 6) are Federal lands that meet the definition of critical habitat for the Louisiana pinesnake. However, at this time, we are not aware of information of economic or other relevant impact that is meaningful to support a benefit of exclusion on those Federal lands. Therefore, we are not considering to exclude any Federal lands, other than those discussed above that we are considering for exclusion for national security reasons, from this proposed designation of critical habitat. However, if, through the public comment period, we receive information regarding impacts to Federal lands within the proposed designation of critical habitat for the Louisiana pinesnake, then as part of developing the final designation of critical habitat, we will evaluate that information to determine whether to conduct a discretionary exclusion analysis to determine whether to exclude those areas under the authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. If after this evaluation we do not exclude, we will fully explain our decision.

Based on the information provided by entities seeking exclusion, as well as any additional public comments we receive, we will evaluate whether certain lands in the proposed critical habitat Units 1-6 are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation.

We have reason to consider excluding the following areas under section 4(b)(2) of the Act from the final critical habitat designation for Louisiana pinesnake. Table 2, below, provides approximate areas (ac, ha) of lands that meet the definition of critical habitat but for which we are considering possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.

In conclusion, for this proposed rule, we have reason to consider excluding the areas identified above based on national security impacts and other relevant impacts. We specifically solicit comments on the inclusion or exclusion of such areas. During the development of a final designation, we will consider any information currently available or received during the public comment period regarding other relevant impacts of the proposed designation and will determine whether these or any other specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and the joint 2016 Policy.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

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

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

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

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine 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 entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. There is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, this critical habitat designation will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

(2) We do not believe that this proposed rule would significantly or uniquely affect small governments because the government-owned lands being proposed for critical habitat designation are owned by the State of Louisiana, the Department of Defense, and the U.S. Forest Service. None of these government entities fits the definition of “small governmental jurisdiction.” Small governments will be affected only to the extent that any programs having Federal funds, permits, or other authorized activities must ensure that their actions will not adversely affect the critical habitat. Therefore, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Louisiana pinesnake 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 Louisiana pinesnake, and it concludes that, if adopted, this designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

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

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

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

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

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We coordinated with the Chitimacha, Coushatta, Tunica-Biloxi, Alabama-Coushatta, and Jena Band of Choctaw Tribes as we began to develop the species status assessment for the Louisiana pinesnake in 2019, and we provided the IEM to the same Tribes as we began work on proposing critical habitat. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Louisiana pinesnake, so no Tribal lands would be affected by the proposed designation.

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

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

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

Section 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- specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent 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.

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.

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).

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 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).

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.

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.

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 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 ( 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.

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 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.

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 (°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.

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.

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

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 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)

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 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.

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.

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.

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.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the 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.

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.

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 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 ).

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 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.

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.

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.”

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.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define “physical or biological features” as the features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary early-successional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species.

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

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.

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 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.

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.

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.

As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. In accordance with the Act and our implementing regulations at 50 CFR 424.12(b), we review available information pertaining to the habitat requirements of the species and identify specific areas within the geographical area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We are not currently proposing to designate any areas outside the geographical area occupied by the species because we have not identified any unoccupied areas that 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.

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.

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.

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.

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

We published a final rule revising the definition of destruction or adverse modification on February 11, 2016 (81 FR 7214) (although we also published a revised definition after that (on August 27, 2019) (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.

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.

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.

Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. Exclusion decisions are governed by the regulations at 50 CFR 424.19 and the Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (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.

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 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.

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 authority of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. 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.

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).

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.

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

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

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

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine 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 entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designation. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

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

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. In our economic analysis, we did not find that 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.

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.

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.

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

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

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.

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

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), 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.

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 ).

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.

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