[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Rules and Regulations]
[Pages 57180-57222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17669]



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Vol. 88

Tuesday,

No. 161

August 22, 2023

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of 
Critical Habitat; Final Rule

  Federal Register / Vol. 88 , No. 161 / Tuesday, August 22, 2023 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2021-0070; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF89


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), list the 
sand dune phacelia (Phacelia argentea), a plant species from coastal 
southern Oregon and northern California, as a threatened species with a 
rule issued under section 4(d) of the Endangered Species Act of 1973, 
as amended (Act). We also designate critical habitat for the species 
under the Act. In total, approximately 180.8 acres (73.2 hectares) 
within 13 units in Coos and Curry Counties in Oregon, and Del Norte 
County in California, fall within the boundaries of the critical 
habitat designation. This rule extends the protections of the Act to 
this species and its designated critical habitat.

DATES: This rule is effective September 21, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R1-ES-2021-0070.
    The coordinates or plot points (or both) from which the maps are 
generated are included in the decision file for this critical habitat 
designation and are available at https://www.regulations.gov at Docket 
No. FWS-R1-ES-2021-0070 and at the Oregon Fish and Wildlife Office (see 
FOR FURTHER INFORMATION CONTACT, below). The critical habitat shapefile 
is available on the Service's Environmental Conservation Online System 
(ECOS) portal at https://www.ecos.fws.gov.

FOR FURTHER INFORMATION CONTACT: Kessina Lee, State Supervisor, Oregon 
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 
97266; telephone (503) 231-6988. Individuals in the United States who 
are deaf, deafblind, hard of hearing, or have a speech disability may 
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). We have 
determined that the sand dune phacelia meets the definition of a 
threatened species; therefore, we are listing it as such and finalizing 
a designation of its critical habitat. Listing a species as an 
endangered or threatened species and designation of critical habitat 
can be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule lists the sand dune phacelia 
(Phacelia argentea) as a threatened species with a rule issued under 
section 4(d) of the Act (a ``4(d) rule'') and designates critical 
habitat comprised of 13 units totaling approximately 180.8 acres (ac) 
(73.2 hectares (ha)) in Coos and Curry Counties in Oregon, and Del 
Norte County in California.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any one or more 
of the following five factors or the cumulative effects thereof: (A) 
The present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. We have determined 
that the primary threats to sand dune phacelia are invasive species 
encroachment and competition, climate change, and small population size 
(Factors A and E).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Previous Federal Actions

    Please refer to our March 22, 2022, proposed rule (87 FR 16320) for 
a detailed description of previous Federal actions concerning the sand 
dune phacelia.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the sand dune phacelia. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the sand dune phacelia SSA 
report. As discussed in the proposed rule, we sent the SSA report to 
three independent peer reviewers and received three responses. The peer 
reviews can be found at https://www.regulations.gov. In preparing the 
proposed rule, we incorporated the results of these reviews, as 
appropriate, into the SSA report, which was the foundation for the 
proposed rule and this final rule. A summary of the peer review 
comments and our responses can be found in the Summary of Comments and 
Recommendations below.

Summary of Changes From the Proposed Rule

    We made several changes in this final rule in response to public 
comments we received on the March 22, 2022,

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proposed rule (87 FR 16320). Specifically, we:
     Completed minor editorial changes and reorganized various 
sections of the rule to improve readability, and made many small, 
nonsubstantive clarifications and corrections throughout the rule in 
order to ensure better consistency, clarify information, and update or 
add new references;
     Corrected a mapping error that resulted in proposed 
critical habitat Unit 10 (Pacific Shores) being too large, and we 
produced a new map and description for Unit 10 (see details under Our 
Response to (6) Comment below). The correction decreased Unit 10's 
acreage from 92.3 ac (37.4 ha) to 21 ac (8.5 ha); and
     Corrected the statement of land ownership for critical 
habitat Unit 13 (Pebble Beach) based on new information provided by Del 
Norte County.
    We conclude that the information we received during the comment 
period for the proposed rule did not change our previous analysis of 
the magnitude or severity of threats facing the species or our 
determination that the sand dune phacelia meets the definition of a 
threatened species under the Act (16 U.S.C. 1531 et seq.).

Summary of Comments and Recommendations

    In our March 22, 2022, proposed rule (87 FR 16320), we requested 
that all interested parties submit written comments on the proposal by 
May 23, 2022. We also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposed rule. Newspaper notices 
inviting general public comment were published in the Eureka Times 
Standard and The Oregonian on March 27, 2022. We also notified members 
of Congress, Tribes, and Federal and State agencies within the range of 
the species by email on March 18, 2022. On March 21, 2022, email 
notifications were sent to County Commissioners and relevant nonprofit 
organizations within the sand dune phacelia's range. All substantive 
information provided during the comment period has either been 
incorporated directly into this final rule or is addressed below. 
Examples of nonsubstantive comments include those that emphasized the 
importance of sand dune phacelia in the ecosystem and the importance of 
preserving biodiversity. Other commenters made suggestions for public 
engagement and outreach to protect sand dune phacelia and its habitat. 
While these comments were not incorporated into this final rule, we 
have noted them, and look forward to working with our partners on these 
topics during recovery planning for sand dune phacelia.

Peer Reviewer Comments

    As discussed above, we received comments from three peer reviewers 
on the draft SSA report. We reviewed all comments we received from the 
peer reviewers for substantive issues and new information regarding the 
content contained in the SSA report. The peer reviewers generally 
concurred with our methods and conclusions, and provided additional 
information, clarifications, and suggestions to improve the document, 
including an added emphasis on the importance of invasive species 
control to maintain the viability of sand dune phacelia populations. No 
substantive changes to our analysis and conclusions within the SSA 
report were deemed necessary, and peer reviewer comments are addressed 
in version 1.0 of the SSA report, which is available for public review 
at https://www.regulations.gov under Docket No. FWS-R1-ES-2021-0070.

Public Comments

    We received public comments from 24 entities in response to our 
March 22, 2022, proposed rule (87 FR 16320). We reviewed all the 
comments we received during the public comment period for substantive 
issues and new information regarding the proposed rule. Eleven 
commenters provided substantive comments or new information concerning 
the proposed listing and designation of critical habitat for the sand 
dune phacelia. Substantive comments that were similar in content are 
grouped together and are addressed collectively below. Comments outside 
the scope of the proposed rule or those without supporting information 
did not warrant an explicit response and, therefore, are not presented 
here. All comments are available at https://www.regulations.gov in 
Docket No. FWS-R1-ES-2021-0070.
    (1) Comment: Four commenters expressed their concern that the 
acreage of proposed critical habitat is too small to adequately protect 
and recover sand dune phacelia.
    Our Response: Each proposed critical habitat unit currently 
contains sand dune phacelia populations of at least 25 individuals. We 
determined that these units, if recovered, would be sufficient to 
conserve the species because they are distributed across the three 
representation units and across the historical range of the species, 
thereby encompassing the full array of ecological diversity that exists 
within the species' range. Therefore, if these populations were 
recovered to sufficient resiliency, they would provide adequate 
redundancy and representation for the species. Because we found areas 
currently occupied by sand dune phacelia populations of at least 25 
individuals sufficient to recover the species, we conclude that the 
critical habitat designation is adequate.
    Please note that, as we discuss below (see Background under III. 
Critical Habitat), 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 the sand dune phacelia; 
and (3) the prohibitions found in the 4(d) rule for this species.
    (2) Comment: Five commenters stated that the proposed listing and 
designation of critical habitat will negatively affect public access 
and recreation in California, including the Pacific Shores Subdivision, 
the Lake Earl Wildlife Area, Tolowa Dunes State Park, and Point Saint 
George.
    Our Response: The designation of critical habitat does not prevent 
access to any land, whether private, Tribal, State, or Federal. 
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.
    None of the lands supporting sand dune phacelia populations or 
designated as critical habitat in California are owned or managed by 
Federal agencies. Public access and use of critical habitat for 
recreational activities is managed under the jurisdiction of the 
current land

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management entity or owner (e.g., State, County, or private) and, in 
the absence of a Federal nexus, may continue under their guiding 
authorities or private property rights. In addition, existing roads 
that may provide public access are, by definition, not included within 
critical habitat, nor are other developed areas such as buildings, 
airports, parking lots, piers, and similar facilities.
    (3) Comment: One commenter stated that because Crissey Fields State 
Park in Oregon includes open dune habitat with greater than 25 
individual sand dune phacelia plants, it meets our criteria for 
critical habitat and should be designated as such.
    Our Response: We proposed designating critical habitat only where 
naturally occurring sand dune phacelia populations exist that consist 
of 25 or more individuals. We did not include augmented or introduced 
populations because of the high incidence of plant mortality generally 
observed following transplantation efforts, and significant uncertainty 
as to whether these populations are capable of contributing to the 
maintenance or enhancement of sand dune phacelia populations over time. 
The population at Crissey Fields is, for the most part, the result of a 
population augmentation effort in which 111 individuals were planted in 
2018. The declining natural population was last counted in 2017 and 
consisted at the time of 24 plants. Invasive grasses and granivory were 
cited as threats, larger plants were dying, and there was little 
evidence of natural recruitment. Because the most recent information 
available on the natural population at Crissey Fields indicates that it 
consists of fewer than 25 individuals, it does not meet the criteria we 
defined for identifying critical habitat. Monitoring of the 
transplanted individuals in 2019 documented 49 remaining plants of 
those transplanted, with a 44 percent decline in transplant viability 
in the first year. However, because this rule lists the sand dune 
phacelia as a threatened species under the Act, and thereby extends the 
protections of the Act to this species, this rule protects the sand 
dune phacelia at Crissey Fields and in other areas it occupies even 
absent a critical habitat designation.
    (4) Comment: Two commenters stated that public outreach regarding 
the listing of sand dune phacelia and designation of critical habitat 
was inadequate and that the comment period should be extended.
    Our Response: Our March 22, 2022, proposed rule (87 FR 16320) 
opened a 60-day public comment period, ending May 23, 2022, for the 
proposed listing, 4(d) rule, and critical habitat designation for this 
species. As required by section 4(b)(5) of the Act (16 U.S.C. 
1533(b)(5)), newspaper notices inviting general public comment were 
published in the Eureka Times Standard and The Oregonian on March 27, 
2022. We also sent notices of the proposed rule and opportunity to 
comment to members of Congress, Tribes, States, and other interested 
parties, and notified each County Commissioner within the range of the 
sand dune phacelia.
    The Act requires the Service to publish a final rule within 1 year 
from the date we propose to list a species (see 16 U.S.C. 
1533(b)(6)(A)), and consequently our standard comment period for 
listing actions is limited to 60 days. This 1-year timeframe can only 
be extended if there is substantial disagreement regarding the 
sufficiency or accuracy of the available data relevant to the 
determination, but only for 6 months and only for purposes of 
soliciting additional data (see 16 U.S.C. 1533(b)(6)(B)). Based on the 
comments received and data evaluated regarding our proposed 
determination for sand dune phacelia, there is not substantial 
disagreement concerning the sufficiency or accuracy of the data and 
therefore no grounds for delaying our final determination.
    (5) Comment: Three commenters stated that the need to breach Tolowa 
Lake and Lake Earl in California when necessary will continue, and that 
water management would be negatively affected by the listing of sand 
dune phacelia, the designation of its critical habitat, or both.
    Our Response: Del Norte County's ability to breach Lake Earl and 
Lake Tolowa for water management purposes requires permitting by the 
U.S. Army Corps of Engineers (Corps). Permitting through a Federal 
agency establishes a Federal nexus whereby the Corps must consult with 
the Service to ensure that the action, in this case dune breaching, 
will not jeopardize the continued existence of listed species within 
the action area and will not adversely modify designated critical 
habitat. As discussed in the SSA report, we acknowledge that sand dune 
phacelia may be negatively influenced by factors other than competition 
from invasive species, including flooding. However, the available data 
and historical information do not indicate that flooding is a threat 
that drives population decline for sand dune phacelia. Therefore, while 
consultation between the Corps and the Service may be required for 
breaching Lake Earl and Lake Tolowa, the Service does not anticipate 
that the listing of the sand dune phacelia and the designation of its 
critical habitat will substantially affect Del Norte County's ability 
to manage lake levels.
    (6) Comment: One commenter questioned why proposed Unit 10 (Pacific 
Shores) is so large. They wondered if unoccupied areas were included 
for future restoration activities (i.e., European beachgrass (Ammophila 
arenaria) removal).
    Our Response: The boundaries of proposed Unit 10 were incorrectly 
mapped in our March 22, 2022, proposed rule (87 FR 16320), and this 
final rule corrects that error. We delineated critical habitat unit 
boundaries by joining patches of sand dune phacelia within each 
population to form discrete areas (i.e., units). This was accomplished 
by joining patch vertices and creating minimum convex polygons. In 
California, we considered patches to be part of the same population if 
they were within 0.25 miles (0.40 kilometers (km)) of each other, as 
defined by the California Natural Diversity Database (CNDDB 2020, 
unpaginated). In Oregon, patches were considered part of the same 
population if they were within 0.30 miles (0.48 km) of each other, as 
defined by the Oregon Biodiversity Information Center (ORBIC 2020, 
unpaginated). The Pacific Shores sand dune phacelia population is made 
up of one main patch that contains the majority of the individuals in 
the population, and two much smaller patches with fewer individuals to 
the north of the main population. Even though the California Natural 
Diversity Database (CNDDB 2020, unpaginated) considers all three 
patches to be part of a single population, the two smaller patches to 
the north are just outside of the 0.25-mile (0.40-km) range within 
which individuals are usually considered to be of the same population, 
as well as beyond the measure by which we joined patches of sand dune 
phacelia for the critical habitat designation. For this reason, the 
area between the main population and the two patches to the north 
should not have been included in the proposed designation. In the 
corrected map in this final rule, the two patches to the north (which 
are within 0.25 miles of one another) are joined into a separate 
subunit from the main subunit to the south. The corrected acreage for 
the Unit 10 is 21 ac (8.5 ha). The Unit 10 map, as well as acreages 
associated with this unit, have all been corrected in this final rule.
    (7) Comment: Two commenters stated that removal of European 
beachgrass is harmful to coastal areas as it destabilizes dunes, causes 
erosion, and exposes infrastructure to storm damage,

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and questioned why we did not analyze those impacts.
    Our Response: The analysis of effects was based on impacts to sand 
dune phacelia, not coastal infrastructure. Prior to the introduction of 
European beachgrass, sand dunes moved in response to ocean tides, 
storms, and wind. Native plant communities evolved to adapt to this 
dynamic landscape. Dune restoration activities, including the removal 
of stabilizing monocultures of invasive beachgrass, have been 
demonstrated to be beneficial to and promote the recovery of sand dune 
phacelia populations. Whether or not the removal of European beachgrass 
negatively affects other aspects of coastal areas is outside the scope 
and intent of this rulemaking.
    (8) Comment: Two commenters requested that the Service not allow 
the California Department of Fish and Wildlife (CDFW) to fence off or 
buffer the portion of Unit 11 that is on the Lake Earl Wildlife Area.
    Our Response: 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. Unless there is a Federal nexus, such 
as a federally issued permit, for an activity affecting designated 
critical habitat, the Service does not have the authority to direct 
activities, or have any other jurisdiction, over lands managed by CDFW. 
For more information, see our response to (2) Comment, above.
    (9) Comment: One commenter notified us that the California 
Transportation Department (CALTRANS) does not have any ownership in 
proposed Unit 13, Pebble Beach. Rather, they stated that all land in 
proposed Unit 13 belongs to Del Norte County.
    Our Response: We obtained land ownership data from the Protected 
Areas Database v2.1, and we appreciate corrections to our land 
ownership data. In this final rule, we revise acreages to show all land 
ownership in Unit 13 as belonging to Del Norte County.
    (10) Comment: One commenter stated that there is no evidence that 
sand dune phacelia existed historically in significant quantities in 
northern California.
    Our Response: We found the California Natural Diversity Database 
(CNDDB 2020, unpaginated) to be the best information available 
regarding the historical abundance and location of sand dune phacelia 
populations in California. The earliest record of sand dune phacelia in 
California is from 1929. Another population, now extirpated, that 
straddled the Oregon and California border was observed in 1913. The 
issue of ``significant quantities'' is subjective, but there is 
consistent documentation of sand dune phacelia in northern California 
from 1913 to the present (Kalt 2008, table 1), with population 
estimates showing a steady decline from the 1980s onward.
    (11) Comment: Two commenters stated that road maintenance may be 
required within critical habitat units in California, and that 
continued road maintenance would be required to provide for public 
access.
    Our Response: In our March 22, 2022, proposed rule (87 FR 16320), 
and in this final rule, we state that critical habitat does not include 
manmade structures (such as buildings, aqueducts, runways, roads, and 
other paved areas) and the land on which they are located existing 
within the legal boundaries on the effective date of this rule (see 
DATES, above). Therefore, maintenance activities on roadways will not 
be affected by this critical habitat designation. Further, the 
designation of critical habitat along roadways does not prevent access 
to that land (e.g., for road maintenance activities), but may require 
that Federal agencies ensure that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of critical habitat under section 7 of the Act.
    (12) Comment: One commenter stated that the maps supplied in the 
March 22, 2022, proposed rule are poor representations of what specific 
lands are included in the critical habitat areas near Lake Tolowa 
(proposed Unit 11). They further stated that a more detailed map is 
needed to assess whether all occupied areas are included within Unit 
11, and that the maps do not accurately display public and private land 
boundaries within proposed Unit 10 (Pebble Beach).
    Our Response: The maps we present in the proposed rule and in this 
final rule comply with the parameters for publication in the Code of 
Federal Regulations. These maps and the subsequent textual unit 
descriptions are the official delineation of the critical habitat 
designation for the sand dune phacelia. Critical habitat shapefiles, 
which can provide more detail and metadata on each unit, are available 
to the public on the species' profile page at https://ecos.fws.gov/ecp/species/Q2FB, and then by clicking on Critical Habitat (https://ecos.fws.gov/ecp/species/Q2FB#crithab).
    (13) Comment: One commenter stated that the entire Tolowa Dunes 
State Park (TDSP)/Lake Earl Wildlife Area (LEWA) joint restoration area 
(376 acres) should be included in proposed Unit 11, Tolowa Dunes. They 
stated that the minimum LEWA acreage is approximately 6 acres, not 4 
acres as mapped, and that the additional 2 acres were not surveyed by 
the Service's contractor. They also stated that other areas in the LEWA 
(outside of the 6 acres) have isolated sand dune phacelia plants that 
were also not included in proposed Unit 11. Additionally, they stated 
that other historically occupied sites in the TDSP/LEWA joint 
restoration area may also have been omitted. They stated that the 
entire area, including areas not yet restored and potentially 
unoccupied, is necessary for the conservation of the species and that 
the entire restoration area (376 acres) should be included in Unit 11 
to support and encourage the restoration of former sand dune phacelia 
and western snowy plover (Charadrius alexandrinus nivosus) habitat.
    Our Response: We determined that the areas occupied by sand dune 
phacelia that we proposed for designation as critical habitat are 
adequate to ensure the conservation of the species, and, therefore, no 
other areas are included in this critical habitat designation (see our 
response to (1) Comment, above). As described in the SSA report 
(Service 2021, pp. 22-23), locations and data related to sand dune 
phacelia populations were available primarily from the Oregon 
Biodiversity Information Center (ORBIC 2020, unpaginated) and the 
California Natural Diversity Database (CNDDB 2020, unpaginated), but 
also via information provided by our partners (such as the Bureau of 
Land Management (BLM)) during our early outreach to partners with 
requests for information on the species. Most of the populations we 
identified from our review of available data were surveyed in 2017 by 
the Oregon Department of Agriculture's Plant Conservation Program 
(Brown 2020a, unpaginated). The 2017 survey enumerated current 
population size, examined historical data to discern population trends, 
delineated the area occupied, briefly described the habitat, and 
identified stressors at each site. However, nine of the populations we 
identified during our data review were not visited during the 2017 
survey, and for these populations we instead used the best data 
available prior to 2017 to determine current status. Similarly, if data 
for some populations more recent than 2017 were available, then we used 
that most recent data to determine current status. Further, if 
available

[[Page 57184]]

occurrence records of sand dune phacelia did not meet our criteria for 
inclusion as critical habitat (e.g., they consisted only of isolated 
individuals), we did not include those areas as critical habitat (see 
also our responses to (4) Comment and (7) Comment, above). Conversely, 
some populations, due to restoration efforts, have expanded since 2017, 
and therefore may be larger than last documented in the SSA report. 
Nonetheless, the data provided by the 2017 survey and other sources 
gathered during our data review and request for information from our 
partners constitute the most comprehensive dataset that we are aware 
exists and represents the best scientific data available upon which to 
base our critical habitat designation.
    According to section 7(a)(2) of the Act, the regulatory effect of 
critical habitat designation is to ensure that any action authorized, 
funded, or carried out by a Federal agency is not likely to result in 
the destruction or adverse modification of that habitat. As noted above 
in our response to (3) Comment, critical habitat designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal or Federal landowners, nor does it establish 
specific land management standards or prescriptions. However, the Act 
provides many tools to advance the conservation of listed species. 
Conservation of sand dune phacelia is dependent upon working 
partnerships with a wide variety of entities, including the voluntary 
cooperation of non-Federal landowners. Building partnerships and 
promoting cooperation of landowners are essential to understanding the 
status of species on non-Federal lands and may be necessary to 
implement recovery actions such as habitat restoration and habitat 
protection. Support provided by the Service for sand dune phacelia 
includes funding under section 6 of the Act and from our Coastal 
Program grants to the States to implement conservation actions. This 
support is not limited to designated critical habitat but may occur 
wherever the species is found throughout its range.
    (14) Comment: One commenter claimed that illegal vehicle trespass 
should be identified as a significant threat to sand dune phacelia.
    Our Response: In the SSA report, we acknowledge that legal and 
illegal off-highway vehicle (OHV) use can damage or kill sand dune 
phacelia (Service 2021, p. 17). While OHV use is listed as a threat to 
sand dune phacelia in various sources, documented impacts to the 
species from OHVs are limited to individuals at a small number of sites 
throughout its range, most notably in California. Further, the best 
available information on OHV use and its impacts does not indicate that 
the influence of this stressor is of the scope and magnitude sufficient 
to cause population-level impacts to sand dune phacelia. We agree with 
the commenter that recreational impacts, primarily from OHV use, can be 
destructive to individuals, may be especially deleterious to small 
populations, and may negatively affect sand dune phacelia habitat at 
some sites, but it does not appear to be a key driver in sand dune 
phacelia population decline; therefore, we did not carry it forward in 
our analysis of current and future condition. As noted in this final 
rule, any damage to the species on non-Federal land in violation of a 
State law (such as damage caused by illegal vehicle trespass) is 
prohibited by the 4(d) rule for sand dune phacelia.
    (15) Comment: One commenter requested information on where the 
agency responsible for managing the sand dune phacelia is located.
    Our Response: U. S. Fish and Wildlife Service (Service) offices 
responsible for promoting the recovery of endangered species within the 
range of the sand dune phacelia are located in Arcata, California; 
Newport, Oregon; and Portland, Oregon. These offices work with the 
public and our partner agencies to restore habitat and populations of 
listed species and provide consultation and technical assistance to 
landowners and land managers wherever there is a Federal nexus.
    (16) Comment: One commenter requested information on methods used 
to remove European beachgrass and wanted to know what, if any, plans 
the Service has to remove invasive species within sand dune phacelia 
critical habitat.
    Our Response: Commonly used techniques to remove European 
beachgrass include hand-pulling, herbicide application, and mechanical 
removal by machinery such as excavators or bulldozers. Removal 
techniques are chosen based on the scale and objectives of the project, 
and the accessibility and topography of the landscape. More information 
on beachgrass removal can be obtained by contacting Service offices in 
Arcata, California (https://www.fws.gov/office/arcata-fish-and-wildlife), and Newport, Oregon (https://www.fws.gov/office/oregon-fish-and-wildlife/visit-us/locations/newport-field-office). Invasive species 
removal has been ongoing in some of the areas we are designating as 
critical habitat, such as North Bandon, Lost Lake, Floras Lake, and 
Tolowa Dunes, and the Service will continue to work with our 
conservation partners on sand dune phacelia restoration activities as 
funding allows.
    (17) Comment: One commenter wanted to know if and how the Service 
will post on the landscape within the critical habitat units 
information related to the designation of critical habitat and the 
listing of the sand dune phacelia.
    Our Response: This rule makes final the designation of critical 
habitat for the sand dune phacelia. For more information on this 
critical habitat designation, please see ADDRESSES and FOR FURTHER 
INFORMATION CONTACT, above. The Service does not have management 
authority to require the physical posting of signs at critical habitat 
units. The placement of informational signs at sites where critical 
habitat is located is voluntary and under the purview of the landowner.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
sand dune phacelia is presented in the SSA report (Service 2021, pp. 7-
20). The full SSA report is available at https://www.regulations.gov 
under Docket No. FWS-R1-ES-2021-0070.
    Sand dune phacelia (Phacelia argentea), also known as silvery 
phacelia, is an evergreen, herbaceous, flowering perennial in the 
forget-me-not family (Boraginaceae), and its status as a taxonomically 
valid species is well-accepted (Nelson and MacBride 1916, p. 34). It is 
found only on coastal dune habitat in southern Oregon (Coos and Curry 
Counties) and far northern California (Del Norte County) coasts. A 
rangewide survey conducted in 2017 documented 26 occupied sites 
(including 1 entirely introduced population), with 16 sites in Oregon 
and the remaining 10 in California (Brown 2020a, unpaginated). Sand 
dune phacelia occurs on the open sand above the high tide line, farther 
inland on semi-stabilized and open dunes, and on coastal bluffs (Kalt 
2008, p. 2). It has been described as occurring at elevations ranging 
from 10 to 40 feet (3 to 12 meters) and on slopes less than 30 percent 
composed of sand or (rarely) gravel (Rodenkirk 2019, p. 7).
    Sand dune phacelia exhibits multiple adaptations for living in 
drought-like, nutrient-poor areas with high winds, blowing sand, and 
salt spray. It forms mats that reduce its exposure to wind and spray 
and has silvery hairs on its leaves, which allow it to resist 
desiccation in its harsh environment of blowing sand. Its tap root may 
be

[[Page 57185]]

extensive, facilitating life in an environment of shifting sands and 
maximizing the plant's ability to uptake water (Rodenkirk 2019, p. 12).
    Sand dune phacelia occurs in sandy habitats that are sufficiently 
free of competing vegetation to provide space and a high light 
environment to allow for seedling establishment and growth (Kalt 2008, 
p. 4; Meinke 2016, p. 2). Reproductively mature plants begin to bloom 
in late April and May, with flowers persisting through August (Meinke 
1982, p. 282). Sand dune phacelia appears to be largely incapable of 
significant self-pollination (Meinke 2016, p. 3), relying upon 
pollination by bees (Rittenhouse 1995, p. 8).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, 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 (84 FR 44753; August 27, 2019).
    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 influence a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all the 
threats on the species. 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 Act's definition of an ``endangered species'' or 
a ``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Our analysis of the foreseeable future 
uses the best scientific and commercial data available and considers 
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.

Analytical Framework

    The SSA report (Service 2021, entire) documents the results of our 
comprehensive biological review of the best scientific and commercial 
data regarding the status of the sand dune phacelia, including an 
assessment of the potential threats to the species. The SSA report does 
not represent a decision by the Service on whether the species should 
be proposed for listing as an endangered or threatened species under 
the Act. However, it does provide the scientific basis that informs our 
regulatory decisions, which involve the further application of 
standards within the Act and its implementing regulations and policies.
    To assess sand dune phacelia 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

[[Page 57186]]

described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    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-R1-
ES-2021-0070 on https://www.regulations.gov and at https://www.fws.gov/office/oregon-fish-and-wildlife.

Summary of Biological Status and Threats

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

Individual Needs

    Sand dune phacelia occurs in sandy habitats that are sufficiently 
free of competing vegetation to allow for seedling establishment and 
growth (Kalt 2008, p. 4; Meinke 2016, p. 2). Drought has been 
implicated in low seedling recruitment and adult mortality (Rodenkirk 
2019, p. 17), but precise moisture requirements are unknown. 
Nutritional needs are evidently low, as sand is nutrient poor. Whether 
sand dune phacelia is mycorrhizal (like many other dune species) is 
unknown. A high light environment is important for sand dune phacelia 
to complete its life cycle and reproduce. There is evidence that high 
light exposure is needed for seed germination (Meinke 2016, p. 5) as 
well as for seedling establishment and growth (Rodenkirk 2019, p. 19; 
Jacobs 2019, p. 92).

Population Needs

    To be adequately resilient, populations of sand dune phacelia need 
sufficient numbers of reproductive individuals to withstand stochastic 
events. Sufficient annual seed production and seedling establishment is 
necessary to offset mortality of mature sand dune phacelia plants 
within a population. Because large individuals produce the most seed 
(Meinke 2016, p. 3), their loss is likely to have the greatest impact 
on the overall population. However, no quantitative analyses have been 
completed to determine minimum viable population size for sand dune 
phacelia.
    Sandy habitat that is relatively free of vegetative competition is 
important for population persistence (Rodenkirk 2019, p. 16; 
Rittenhouse 1995, p. 8). Historically, sand dunes shifted as dictated 
by prevailing winds, tides, and storm surge, and these forces 
maintained and supported native dune plant communities adapted to 
highly dynamic environments. In the absence of sand-disturbing forces, 
dune habitats are susceptible to rapid colonization by nonnative 
species such as European beachgrass (Ammophila arenaria) and gorse 
(Ulex europaea), as well as encroachment by native successional species 
like shore pine (Pinus contorta ssp. contorta) (Meinke 2016, p. 2).
    Sand dune phacelia is largely dependent upon pollination by bees. 
In coastal dune habitats, bee abundance and species richness are 
positively correlated with the presence of sand dune phacelia (Julian 
2012, p. 3), and negatively correlated with cover of European 
beachgrass and other invasive vegetation (Julian 2012, p. 21).

Species Needs

    To maintain viability, sand dune phacelia should have a sufficient 
number of sustainable populations that are well-distributed throughout 
its geographic range and throughout the variety of ecological settings 
in which the species is known to exist. Suitable habitat must be 
available, and the number and distribution of adequately resilient 
populations must be sufficient for the species to withstand 
catastrophic events. No quantitative analysis exists upon which to 
determine the minimum number of populations or the quantity of suitable 
habitat necessary for sand dune phacelia to maintain viability as a 
species.
    The historical extent and distribution of sand dune phacelia across 
the southern Oregon and far northern California coasts is not precisely 
known. The species may have been more abundant, widespread, and 
contiguously distributed on the landscape prior to the loss and 
stabilization of sand dune habitats, off-highway vehicle use, and the 
introduction of invasive species (particularly European beachgrass) 
(Meinke 2016, p. 2). Due to its specialized adaptations to the sand 
dune environment, it is unlikely that sand dune phacelia ever occurred 
in a diverse range of ecological environments, and no information 
exists on the genetics of sand dune phacelia that would allow an 
assessment of whether populations demonstrate sufficient genetic 
variability to persist under changing environmental conditions.
    In summary, individual sand dune phacelia plants require sandy 
substrate with limited vegetative competition for light, moisture, and 
growing space. Populations must be sufficiently large and sustainable 
to withstand stochastic events, have sufficient annual seed production, 
and have an adequate pollinator community. For species viability, sand 
dune phacelia must have sufficiently resilient populations that are 
well distributed across its range and sufficient genetic diversity to 
adapt to changing conditions (see table 1, below).

                    Table 1--Individual, Population, and Species Needs of Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
            Individuals                                Populations                              Species
----------------------------------------------------------------------------------------------------------------
Bare sandy substrate...............  Sufficiently large number of reproductive        Sufficient number of
                                      individuals per population to withstand          adequately resilient
                                      stochastic events.                               populations well
                                                                                       distributed across the
                                                                                       range.
High light environment.............  Sufficient annual seed production to offset      Sufficient genetic
                                      mortality.                                       diversity to adapt to
                                                                                       change over time (no
                                                                                       information on genetics).
Water..............................  Dune/sandy habitat with low degree of invasive
                                      species.
Pollinators........................  Sufficient abundance and diversity of
                                      pollinators for outcrossing/optimal seed
                                      production.
----------------------------------------------------------------------------------------------------------------


[[Page 57187]]

Threats

    We considered a comprehensive set of sand dune phacelia stressors 
that have been cited in the literature, in the data provided from our 
partners, and in the petition (Center for Biological Diversity et al. 
2014, entire). For each stressor we assessed whether there was 
sufficient evidence that the influence of the stressor rose to the 
scope and magnitude necessary to impact sand dune phacelia populations, 
and thus be carried forward in our analysis of current and future 
condition. We also examined positive influence factors (conservation 
efforts) in a similar manner.
Invasive Plants
    Invasive, introduced plant species are considered one of the most 
influential stressors to sand dune phacelia and its habitat (Kalt 2008, 
p. 7; Rodenkirk 2019, p. 6). European beachgrass, gorse, and other 
invasive plant species outcompete sand dune phacelia throughout its 
range (Rodenkirk 2019, p. 6). Introduced to the Pacific Northwest 
region of the United States and California in the 1800s, European 
beachgrass is an aggressive, perennial, rhizomatous grass. It was 
extensively planted to stabilize sand and build dunes parallel to the 
ocean shore to protect infrastructure from the effects of ocean storms 
and tides (Hacker et al. 2011, p. 2; Oregon Department of Fish and 
Wildlife (ODFW) 2016, pp. 6-7). Colonizing European beachgrass captures 
sand with its deep roots and spreading shoots, forming dense 
monocultures of grass that outcompete many native dune species, 
including sand dune phacelia, for growing space, sunlight, and moisture 
(Rittenhouse 1996, p. 3). The steep, heavily vegetated foredunes seen 
today along much of the Oregon, and to a lesser extent California, 
coastlines are the result of European beachgrass colonization 
(Rittenhouse 1995, p. 9; Zarnetske et al. 2010, pp. 1-2). Dune 
stabilization by European beachgrass also facilitates the establishment 
and succession of native trees and shrubs that proliferate in the 
absence of natural disturbance regimes, thereby resulting in the 
conversion, and ultimate loss, of native dune habitat (Rittenhouse 
1996, p. 3; Brown 2020a, unpaginated).
    According to population surveys conducted in California, European 
beachgrass poses the most consequential threat to sand dune phacelia 
populations in that State (Jacobs 2019, p. 9; Imper 1987, p. 1; Kalt 
2008, p. 7). In Oregon, the expansion of European beachgrass was a 
likely factor in the extirpation of two sand dune phacelia populations 
near Bandon (Christy 2007, p. 15), and adverse effects to sand dune 
phacelia populations from European beachgrass have been documented at 
multiple locations throughout its range (Rittenhouse 1995, p. 9; Kagan 
and Titus 1998a, p. 10; Kagan and Titus 1998b, p. 3; Titus 1998, p. 12; 
Rodenkirk 2019, entire; Brown 2020a, unpaginated).
    We are also aware that under certain ocean shore alteration permits 
in Oregon, landowners are required to stabilize the dune against 
erosion in order to protect properties and shoreline. European 
beachgrass is often used because it is readily available and effective 
for that purpose (Bacheller 2021, pers. comm.). This permitting 
requirement may promote the spread of European beachgrass, although to 
our knowledge this is not currently occurring within the range of sand 
dune phacelia.
    Gorse is an introduced spiny shrub that forms impenetrable thickets 
that overtake dune habitats. It is widely recognized as a threat to 
native plant species and dune habitats (Christy 2007, entire; ODFW 
2016, p. 7). Widespread in the Bandon, Oregon, area, it poses a threat 
to sand dune phacelia populations in the northern region of its range 
(Kagan and Christy 1998, p. 14; Christy 2007, p. 17; Kalt 2008 p. 8; 
Rodenkirk 2019, p. 6; Brown 2020a, unpaginated). Gorse is also highly 
flammable and produces copious amounts of seed that can persist in the 
environment for 30 years or more (Goodwin 2018, p. 119).
    There is broad consensus in the scientific literature and available 
data that invasive species presently pose a population-level threat to 
sand dune phacelia rangewide and will continue to do so into the 
future.
Sea Level Rise
    The best available data do not indicate that sea level rise is 
currently influencing sand dune phacelia, and it is unknown how changes 
in sea levels may have affected the species in the past. However, 
because sea level rise is expected to increase in the future with 
climate change, and near-shore species could be affected by sea level 
rise and associated erosion and storm surge (Intergovernmental Panel on 
Climate Change (IPCC) 2014, p. 67), we consider the impact of projected 
sea level rise on sand dune phacelia in our analysis of future 
conditions.
Small Population Size
    We acknowledge that, prior to habitat fragmentation, many of the 
populations, especially those south of the town of Bandon, Oregon, and 
near Crescent City, California, were most likely functionally 
continuous (Brown 2020b, pers. comm.). Our assessment of population 
abundance and habitat quality from recent surveys indicates that the 
number of populations of sand dune phacelia is reduced compared to 
documented historical occurrences. Many of the remaining populations 
are very small in size, and most populations are isolated from one 
another by large tracts of unsuitable habitat, making genetic exchange 
and dispersal among most populations unlikely without human 
intervention. No information exists on the minimum number of 
individuals required to support a sand dune phacelia population. 
However, a population size of about 25 individuals appears to be 
biologically relevant given the best available data. Specifically, the 
current abundance of nearly every extant population falls either below 
25 (1 to 24 individuals) or well above 25 (100 or more individuals), 
with all populations with fewer than 25 individuals also undergoing 
population decline (Brown 2020a, unpaginated). Therefore, in the 
absence of any existing minimum viable population analysis to draw 
upon, we assume that at least 25 individuals are necessary for sand 
dune phacelia population viability. As such, low abundance was a factor 
in our analysis of current condition, and we considered small 
populations that currently support fewer than 25 individuals as 
unlikely to persist in our future condition analysis.
    We also considered several other potential threats to sand dune 
phacelia, but because we found no evidence that these factors were 
having an influence at the magnitude and scope to be impacting sand 
dune phacelia populations, we did not include them in our analysis of 
current and future condition. For example, damage to sand dune phacelia 
due to off-highway vehicle (OHV) use has been documented but appears to 
be limited to individual plants at a small number of sites, most 
notably in California. Pedestrian or equestrian trampling may 
negatively affect individual plants but may also benefit habitat 
through light disturbance, and there is no evidence that this type of 
activity is affecting sand dune phacelia populations. Coastal 
development may have had historical impacts for the species but no 
longer appears influential, and based on land ownership of extant 
population sites, it seems unlikely to become influential in the 
future. Because sand dune phacelia is largely reliant upon pollination 
to successfully reproduce, pollinator decline is cited as a potential 
threat to

[[Page 57188]]

sand dune phacelia, but we found no evidence that pollinator decline 
was affecting sand phacelia populations. Additionally, we considered 
livestock grazing and overutilization but found no evidence of negative 
impacts to sand dune phacelia from these factors. Details on these 
potential threats can be found in the SSA report (Service 2021, chapter 
IV).
Summary of Threats
    The primary threat currently acting upon sand dune phacelia 
populations is that of invasive species, which is expected to continue 
impacting the species into the future and was therefore included in our 
analysis of current and future condition. In addition, our current and 
future condition analysis included the consideration of sea level rise 
and small population size. Other stressors mentioned above may act on 
sand dune phacelia individuals, or have highly localized impacts, but 
do not rise to the level of impacting populations. However, we 
acknowledge that all stressors may exacerbate the effects of other 
ongoing threats.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Sand dune phacelia is listed as threatened by the Oregon Department 
of Agriculture (ODA) and has a State listing status of 1, indicating 
that it is threatened or endangered throughout its range (Oregon 
Biodiversity Information Center 2019, p. 33). Native plant species that 
are listed as threatened or endangered in Oregon are protected on all 
non-Federal public lands (Oregon Revised Statutes (ORS), volume 15, 
title 46, chapter 564 at section 564.105 (ORS 564.105)). Any land 
action on Oregon public lands that results, or might result, in the 
collection or disturbance of a threatened or endangered species 
requires either a permit or a consultation with ODA staff. The State 
consultation process for public land managers requires a written 
evaluation of projects that impact listed plant species, and the ODA 
may recommend alternatives to avoid or minimize impacts to those 
species; a formal consultation or permit may be required. Prohibitions 
for listed plant species in the State of Oregon are provided by Oregon 
Administrative Rules (OAR), chapter 603, division 73, at section 603-
073-0003, which states, ``Willful or negligent cutting, digging, 
trimming, picking, removing, mutilating, or in any manner injuring, or 
subsequently selling, transporting, or offering for sale any plant, 
flower, shrub, bush, fruit, or other vegetation growing on the right of 
way of any public highway within this state, within 500 feet of the 
center of any public highway, upon any public lands, or upon any 
privately owned lands is prohibited without the written permission of 
the owner or authorized agent of the owner.'' Additionally, ORS 
564.105(3) calls for the State to establish programs for the protection 
and conservation of plant species that are threatened species or 
endangered species, and the State participates in conservation 
management actions as staffing and funding allows. In practice, 
however, resource limitations often prevent implementation of the full 
suite of affirmative management actions required to achieve the 
recovery of State-listed plants. As an example, the eradication or 
control of widespread invasive species such as gorse, one of the 
primary threats to sand dune phacelia, would pose enormous resource 
requirements that far exceed the State's capacity.
    Oregon State Parks contain nearly 50 percent of all sand dune 
phacelia populations rangewide. Under the master-plan level designation 
for Oregon State parks, sites that contain listed species are 
automatically placed in a category of administrative conservation 
designation, which provides sand dune phacelia populations with 
protection from development. While no formal conservation plans to 
benefit sand dune phacelia are in place, invasive control actions at 
several parks improve sand dune habitat and may assist with restoring 
or maintaining suitable conditions for sand dune phacelia in the future 
(Bacheller 2020, pers. comm.). Oregon State Parks are not supported by 
tax dollars, as are other State agencies, but are supported by a 
combination of State Park user fees, recreational vehicle license fees, 
and a portion of State lottery revenues. As a result, Oregon State Park 
budgets can be subject to significant fluctuations in revenue, which 
can affect the agency's capacity to implement management actions for 
conservation, such as habitat restoration for rare plants on State Park 
lands.
    In California, sand dune phacelia is designated 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. Impacts to species of this rank or their habitat must be 
analyzed during preparation of environmental documents relating to the 
California Environmental Quality Act (CEQA). Under CEQA, State public 
agencies (including State Parks) must provide measures to reduce or 
avoid adverse environmental impacts of proposed projects, including 
impacts to designated rare plants such as sand dune phacelia. 
Designation as a California Rare Plant generally reduces negative 
impacts to sand dune phacelia caused by development or other land use 
programs and actions but does not ameliorate the primary threat to the 
species, which is that of invasive species encroachment. All the plants 
constituting California Rare Plant Rank 1B meet the definitions of the 
California Endangered Species Act of the California Fish and Game Code 
and are eligible for State listing, but sand dune phacelia is not 
listed under the California Endangered Species Act.
    The Federal Lands Policy and Management Act of 1976, as amended 
(FLPMA; 43 U.S.C. 1701 et seq.), governs the management of public lands 
administered by the Bureau of Land Management (BLM). Under FLPMA, the 
BLM administers a special status species policy that calls for the 
conservation of BLM special status species and the ecosystems upon 
which they depend on BLM-administered lands. BLM special status species 
are any species listed or proposed for listing under the Endangered 
Species Act, or species designated as ``Bureau sensitive'' by the State 
Director(s). Sand dune phacelia is designated as a Bureau sensitive 
special status plant species and is thus the recipient of proactive 
conservation efforts on BLM lands as staffing and resources allow. On 
Federal lands in Oregon, the BLM regularly restores sand dune phacelia 
habitat through the removal or control of invasive species at Lost 
Lake, Floras

[[Page 57189]]

Lake, and Storm Ranch (Rodenkirk 2019; entire). The BLM is updating its 
management plan for the New River Area of Critical Environmental 
Concern, where the majority of sand dune phacelia populations on BLM 
land occurs (Wright 2020, pers. comm.). The new plan will include an 
emphasis on restoring native dune plant communities, including those 
with sand dune phacelia.
Voluntary Conservation Efforts
    Rangewide, the largest sand dune phacelia population is located on 
private land at the Bandon Dunes Golf Resort, and while no formal 
conservation agreements or commitments exist, the private landowner has 
been actively maintaining sand dune phacelia habitat through ongoing 
removal of European beachgrass and gorse (Gunther 2012, unpaginated; 
Nice 2020, pers. comm.). In California, the South Lake Tolowa 
Restoration effort has removed European beachgrass from approximately 
25 ac (10 ha) at Tolowa Dunes State Park and the Lake Earl Wildlife 
Area (Jacobs 2019, pp. 24-25). Conducted by California State Parks and 
a volunteer group called the Tolowa Dunes Stewards (Jacobs 2019, p. 
10), restoration efforts initiated in 2010 increased the sand dune 
phacelia population from approximately 2,300 plants to 5,936 plants in 
2017 (Brown 2020a, unpaginated). The South Lake Tolowa population is 
now the largest in California, and the second largest rangewide. 
Volunteers from the Tolowa Dunes Stewards have also restored 30 ac (12 
ha) of habitat at the nearby East Dead Lake population via the removal 
of European beachgrass (Jerabek 2020, pers. comm.). However, in the 
absence of committed funding or agreements associated with these 
restoration efforts, they are almost entirely reliant on grant funding 
and volunteer efforts (Jerabek 2020, pers. comm.). The significant 
gains made for sand dune phacelia at these sites could quickly be lost 
without continuous maintenance efforts, given the aggressive nature of 
European beachgrass and other invasive species.
    Rangewide, actions to control invasive species have demonstrated 
success in maintaining or increasing populations of sand dune phacelia 
(Gunther 2012, unpaginated; Meinke 2016, p. 25; Jacobs 2019, p. 10; 
Rodenkirk 2019; entire). Sand dune phacelia is a management-dependent 
species, as restoration of dune habitat through ongoing control of 
invasive species is essential to the continuing viability of sand dune 
phacelia rangewide. Therefore, we considered the contribution of 
habitat management actions, and in particular control of invasive 
species, in our analysis of future conditions.
    In addition to habitat restoration activities, augmentation of sand 
dune phacelia populations using transplants has been carried out at 
several sites by the BLM in partnership with Oregon State University 
(Meinke 2016, entire) and the ODA (Brown 2017, entire). While 
transplant efforts appear to be beneficial initially, transplant 
mortality over time tends to be high as outplanted individuals succumb 
to environmental conditions (Meinke 2016, p. 18). Refinements to sand 
dune phacelia cultivation protocols are necessary to improve 
transplanting success (Meinke 2016, entire; Brown 2017, p. 5).
    Attempts are also underway by the BLM to enhance or establish 
populations by directly seeding sand dune phacelia into suitable 
habitat (Wright 2020, pers. comm.). The recently introduced population 
at Storm Ranch is the largest population that occurs on Federal lands 
(Rodenkirk 2019, p. 28). Attempts to establish the Storm Ranch 
population began in 2012 with a seeding of 2 ac (0.8 ha) (Rodenkirk 
2019, p. 28). Initial seedings were unsuccessful, but eventually a 
population was established, with 1,596 plants counted in 2018. The 
population drastically declined in 2019, with only 620 plants observed 
(Rodenkirk 2019, p. 29). Long-term monitoring will assess whether this 
seeded population can maintain viability.
    Because of the high levels of plant mortality observed following 
transplantation efforts, and the significant uncertainty as to whether 
augmented or introduced populations may be capable of contributing to 
the maintenance or enhancement of sand dune phacelia populations over 
time, we did not include the seeded population at Storm Ranch, or 
outplanted individuals at other sites, in our analysis of current and 
future conditions. More information on this population, which is made 
up entirely of individuals that resulted from a seeding effort, can be 
found in the SSA report (Service 2021, p. 20, Table 3).
    We determined that habitat restoration in the form of invasive 
species removal is the primary conservation effort influencing sand 
dune phacelia at the population level, and therefore carried it through 
our analysis of future condition. Augmentation and reintroduction are 
likely having a positive influence on sand dune phacelia, but we lack 
evidence that these conservation efforts are having population-level 
effects at this time.

Current Condition

Methodology
    We delineated three representation units (Oregon-North, Oregon-
South, and California) based on geographic breaks in the distribution 
of the species, because they could not otherwise be characterized by 
marked differences in genetic makeup, phenotypic variation, habitats, 
or ecological niches. No population viability assessment models exist 
to inform the categorization of population condition for the sand dune 
phacelia. Therefore, we used the best available science to score the 
overall current condition of each population qualitatively as high, 
moderate, or low, based upon our assessment of habitat condition, 
population abundance, and population trend over time. The average score 
was then used to rate the overall current condition of each population.
    In 2017, sand dune phacelia populations were surveyed rangewide in 
Oregon and California by the ODA's Plant Conservation Program (Brown 
2020a, unpaginated). The 2017 survey enumerated current population 
size, examined historical data to discern population trends, delineated 
the area occupied, briefly described the habitat, and identified 
stressors at each site. This effort provides the most current data 
available on nearly every extant population of sand dune phacelia.
    We did not include sites consisting of Phacelia species with 
intermediate morphology (those that appear hybridized). These plants 
were determined to most likely be crosses between sand dune phacelia 
and P. nemoralis ssp. oregonensis (Brown 2020a, unpaginated; Meinke 
1982, p. 260). In addition to different morphological attributes, the 
intermediate plants occur in rockier habitats as compared to areas 
occupied by sand dune phacelia, and rockier habitat is more indicative 
of P. nemoralis. While we suspect that these plants are most likely 
hybrids and not representatives of sand dune phacelia, no genetic 
information is available upon which to base this conclusion. Whether 
the presumed intergrades affect sand dune phacelia population viability 
is unknown. More information on intermediate populations, as well as on 
all populations, is included in the SSA report (Service 2021, entire).
    Abundance categories were defined as ``low'' (100 or fewer plants), 
``moderate'' (101-500 plants), and ``high'' (more than 500 plants). 
These rating categories were derived to reflect relative abundance

[[Page 57190]]

between populations only, or an index of population size, because there 
is no information available on the minimum number of individuals 
necessary to maintain a viable population.
    Habitat condition was scored based on the most recently available 
observations at sand dune phacelia population sites. Because sand dune 
phacelia habitat quality is highly influenced by invasive species, the 
scores reflect the relative encroachment of invasive species at a given 
site as reported by the 2017 rangewide survey (Brown 2020a, 
unpaginated) and by the BLM. Quantitative data on invasive species in 
sand dune phacelia populations, such as percent cover of invasive 
species, are not available.
    Population trend data were derived from the 2017 rangewide survey 
(Brown 2020a, unpaginated) and reflect documented abundance data across 
historical records. Trend data are necessarily coarse, as many 
populations were rarely or sporadically monitored prior to 2017. 
Increasing trends were rated as ``high,'' stable trends as 
``moderate,'' and decreasing trends as ``low.''
    The overall condition scores for all known extant populations of 
sand dune phacelia are presented in table 2.

Table 2--Current Condition of Extant Sand Dune Phacelia Populations
[GRAPHIC] [TIFF OMITTED] TR22AU23.000

Current Resiliency, Redundancy, and Representation
    Resiliency refers to the ability of populations to withstand 
stochastic events, and we assessed the resiliency of each population 
using the current habitat condition, population abundance, and 
population trend. Of the 25 naturally occurring (we did not include the 
1 entirely introduced population) extant sand dune phacelia populations 
we assessed, 4 are currently in high condition, 4 are in moderate 
condition, and 17 are in low condition (see table 2, above). Therefore, 
resiliency is low for most populations rangewide, with 68 percent of 
all populations rated with low overall condition (figure 1).

[[Page 57191]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.001

Figure 1. Current condition of extant sand dune phacelia populations 
across the three representation units (Oregon-North, Oregon-South, and 
California).

    Redundancy is a species' ability to withstand catastrophic events 
and is determined by the number of its populations and their 
distribution across the landscape.
    Currently, approximately 33,858 naturally occurring sand dune 
phacelia plants exist in 25 populations along roughly 100 miles (161 
km) of coastline. Our analysis of current redundancy concludes that, 
although most extant populations exhibit low resiliency, it is unlikely 
that a single catastrophic event could eliminate all extant 
populations, which are well-distributed throughout all representation 
units, with the most robust populations located at either end of the 
range (see figure 1, above).
    Representation refers to the ability of a species to adapt to 
change and is based upon considerations of phenotypic, genetic, and 
ecological diversity, as well as the species' ability to colonize new 
areas. There is little evidence of phenotypic variation among 
individuals of sand dune phacelia, and no data are available on 
potential genetic diversity. As a narrow endemic, sand dune phacelia is 
highly specialized and restricted in its ecological niche, with all 
occupied sites sharing similar features, and differences being largely 
related to the population's distance from the ocean and position in 
relation to the

[[Page 57192]]

dune (e.g., foredune, backdune). As such, sand dune phacelia 
demonstrates little ecological diversity. However, the ability of a 
species to adapt is gauged not only by diversity among individuals, but 
also by its ability to colonize new areas. Currently, populations of 
sand dune phacelia are patchy and dispersed, often isolated by large 
tracts of intervening habitat made unsuitable by human development or 
invasive species. The lack of available and unoccupied suitable habitat 
leaves less opportunity for a species to exploit new resources outside 
of the area it currently occupies and to adapt to changing conditions. 
Further, the lack of connectivity between populations may result in 
reduced gene flow and genetic diversity, rendering the species less 
able to adapt to novel conditions.
    The low level of phenotypic and ecological diversity demonstrated 
within this species, as well as restricted opportunity for colonization 
into new areas, indicates some limitations in representation for sand 
dune phacelia. However, sand dune phacelia continues to be represented 
by multiple populations distributed throughout the known historical 
range of the species, although the resiliency of most of these 
populations is low.

Future Condition

    The intent of this analysis is to assess the viability of sand dune 
phacelia into the future under various plausible future scenarios. 
Further explanation on our methodology and assumptions for our future 
condition analysis can be found in our SSA report (Service 2021, 
chapter 6). We assessed the future condition of sand dune phacelia by 
considering how invasive species competition, the effects of climate 
change, small population size, and habitat management efforts may 
affect populations over time. We considered the impacts of both habitat 
management (invasive species removal) and climate change on the extent 
of invasive species cover expected to occur in the future at each site. 
Climate change is also projected to affect sea levels; thus, we 
assessed each site for potential effects of inundation due to sea level 
rise. In addition to the overall current condition categories of 
``high,'' ``moderate,'' and ``low'' that were based on current habitat 
and demographic factors, we included for the future condition analysis 
the additional categories of ``very high,'' ``very low,'' and 
``extirpated'' for populations where the overall condition was already 
high but projected to improve, was already low but projected to 
deteriorate further, or where the population (with fewer than 25 
individuals) was expected to become extirpated, respectively.
Future Timeframe
    We considered a timeframe for this analysis based upon the extent 
into the future for which we could reasonably forecast the impact of 
the threats on the species and the species' response to those threats, 
given the data and models available to us. We determined that the 
period of time from the present to about mid-century to be the 
timeframe over which we could most reliably project the future 
condition of the sand dune phacelia.
    Climate model projections are fairly aligned until about mid-
century when they start to diverge more, as this is the timeframe 
during which our near-future carbon emissions begin to manifest in 
projections of future climate. Although all projections into the future 
show global temperature and sea level rise increasing, our uncertainty 
in the magnitude of changes expected and the impacts of these changes 
on sand dune phacelia becomes much greater at this point. While we can 
be fairly confident in projecting drought and sea level rise out past 
mid-century, we found that these threats were not likely to have 
population-level impacts or drive sand dune phacelia viability into the 
future. Instead, we found that the primary threat to sand dune phacelia 
is habitat loss due to invasive species, and while the proliferation of 
invasive species will likely be influenced by climate change into the 
future, the impact of climate change on this threat is much less 
predictable. Most of the literature indicates that climate change will 
exacerbate the problem of invasive species in general. However, the 
extent to which this will occur with European beach grass and gorse 
(the invasive species most prevalent in sand dune phacelia habitat), 
and to what extent habitat management efforts will mitigate the impacts 
of invasive species to sand dune phacelia, are less clear into the 
future especially the farther out we try to predict. As such, we 
determined that we could confidently project the population-level 
threats, including that of invasive species as influenced by climate 
change, and the species' response to those threats out to mid-century, 
or approximately 2060.
Climate Change
    Global climate models project changes in global temperature and 
other associated climatic changes based on potential future scenarios 
of greenhouse gas concentrations in the atmosphere (i.e., 
representative concentration pathways, or RCPs). RCP 4.5 assumes major 
near-future cuts to carbon dioxide emissions, and RCP 8.5 assumes that 
current emissions practices continue with no significant change 
(Terando et al. 2020, p. 10). Thus, these RCPs represent conditions in 
the upper and lower ends of the range of what can reasonably be 
expected for the future effects of climate change (Terando et al. 2020, 
p. 17).
    Warming temperatures have already been documented and are expected 
to continue in the Pacific Northwest, although changes will be somewhat 
muted in coastal areas (Mote et al. 2019, summary p. 1). There have 
been no clear discernible trends in annual precipitation, although 
there will likely be modest increases in the winter and decreases of 
similar scale in the summer (Mote et al. 2019, summary p. 1). Warming 
summer temperatures paired with decreased summer precipitation may lead 
to increased drought risk, which has the potential to cause stress, 
desiccation, and even mortality in plant communities. Although 
increased temperatures and decreased precipitation during the summer 
growing season are likely to have negative effects on sand dune 
phacelia, whether these changes will result in population-level impacts 
in the future timeframe under consideration is unclear given the 
available data. Therefore, we were unable to analyze the impacts of 
drought in our future scenarios.
    Sea level rise projections in 1-foot increments were available at 
three locations that span the entire range of sand dune phacelia (Coos 
Bay and Port Orford in Oregon, and Crescent City in California). One 
foot (0.3 meter) of sea level rise is projected to occur under RCP 8.5 
by 2060 in Oregon and by 2070 in northern California but is not 
projected to occur within this timeframe under RCP 4.5 (Climate Central 
2020, unpaginated). According to the sea level rise modeling tool we 
used (National Oceanographic and Atmospheric Administration 2020, 
unpaginated), this amount of sea level rise under RCP 8.5 is not 
projected to inundate the areas currently occupied by sand dune 
phacelia. We also note that projections of two feet (0.6 meters) of sea 
level rise are not expected until 2080 at the earliest and were very 
similar to one-foot (0.3 meter) projections in terms of area inundated 
at sand dune phacelia sites; only a few sand dune phacelia populations 
would, to a very minor degree, be impacted by inundation caused by two 
feet of sea level rise (Service 2021, appendix 2). Further details of 
the sea level rise analysis we conducted, including potential indirect

[[Page 57193]]

effects such as erosion and storm surge that we were unable to project, 
are available in the SSA report (Service 2021, chapter 6, appendix 2).
Invasive Species
    As noted earlier, invasive plant species, in particular European 
beachgrass and gorse, unequivocally represent the primary driver of the 
sand dune phacelia's status presently and into the future. Although 
some uncertainty remains as to how climate change will impact 
biological invasions into the future, it is widely agreed that changing 
climate, especially temperature and precipitation regimes, will 
exacerbate the invasions of many nonnative species under future 
conditions (Gervais et al. 2020, p. 1).
    Although relatively few, some studies have demonstrated the impacts 
of climate change on invasive species by modeling the abundance, 
distribution, spread, and impact of invasive species in the Pacific 
Northwest relative to climate model projections (Gervais et al. 2020, 
p. 1). Further, there is evidence that climate-induced expansions of 
invasive species are already underway in this region (Gervais et al. 
2020, p. 1). The best available information at this time does not allow 
us to quantify the magnitude of these expansions, nor does it allow us 
to predict how the population dynamics of sand dune phacelia at 
occupied sites may be affected. However, we expect that the pressure 
currently exerted upon sand dune phacelia populations due to 
encroachment by invasive plant species is likely to increase into the 
future in response to climate change. We expect the negative impacts to 
sand dune phacelia from climate-related invasive species expansion to 
be most evident under the higher emissions scenario (RCP 8.5).
Small Population Size
    We considered populations with fewer than 25 individuals likely to 
become extirpated in the future. While small population size does not 
appear to be a threat at the species level because there are multiple 
adequately sized populations found throughout the range of the species, 
very small populations are at elevated risk for local extirpation, and 
thus small population size is a threat at the population level. None of 
the sites with very small populations currently have habitat management 
practices to remove invasive species, and we did not assume new efforts 
would be initiated but acknowledge that extirpation of very small 
populations could be prevented with management intervention.
Habitat Management
    As previously described, the removal of invasive species has been 
shown to be the most effective strategy for maintaining and increasing 
populations of sand dune phacelia. Because there are no management 
plans in place at any of the population sites that would ensure the 
continuation of or initiate new habitat management practices, and 
funding for these practices is tenuous, we assumed that either habitat 
management currently in place would continue or cease, but that 
management efforts would not increase. We also assumed that populations 
with current management practices in place would improve in condition 
into the future with continued management, and those without management 
currently in place would decline in condition into the future.
Future Scenarios
    We considered two plausible future scenarios in our analysis of 
future viability of the sand dune phacelia. Scenario 1 assumes that 
current habitat management actions to control invasive species will 
continue to occur and will continue to benefit sand dune phacelia into 
the future. Thus, the condition of populations of sand dune phacelia at 
sites that are currently receiving habitat management will continue to 
improve into the future. Conversely, under this scenario we assume that 
if no actions to control invasive species are currently being 
implemented in or adjacent to sand dune phacelia populations, no new 
efforts are likely to be initiated, and habitat conditions will 
subsequently worsen over time. Scenario 1 also assumes that RCP 4.5 is 
in effect, with associated effects to sea level rise and a moderate 
increase in invasive species expansion. Scenario 2 assumes that any 
habitat management actions that are presently occurring will be 
discontinued over time, and therefore no habitat management actions to 
control invasive species are in effect in the future. Scenario 2 also 
assumes that RCP 8.5 is in effect, with the associated effects to sea 
level rise and a greater increase in invasive species expansion. 
Therefore, these two scenarios represent our best understanding of the 
most optimistic and the least optimistic of plausible futures we can 
expect for sand dune phacelia.
Future Resiliency, Redundancy, and Representation
    Rangewide, we conclude that under Scenario 1, nearly half (12 of 
25) of all sand dune phacelia populations would become extirpated by 
2060, and many of the remaining populations (7 of 13) would deteriorate 
to low or very low condition. However, the condition of those 
populations that currently benefit from the active control of invasive 
species would increase over time due to improved habitat conditions, 
such that five populations would be in high or very high condition 
under Scenario 1. Future population resiliency fares worse under 
Scenario 2, with well over half of all populations (17 of 25, or 68 
percent) becoming extirpated, and all remaining populations projected 
to be in low or very low condition (see table 3, below). Thus, under 
either future scenario we considered, many populations will become 
extirpated, and future resiliency will be low among most remaining 
populations.

Table 3--Future Condition of Extant Sand Dune Phacelia Populations

[[Page 57194]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.002

    Future redundancy of the sand dune phacelia declines under both 
future scenarios we considered. Under Scenario 1, only 13 of the 25 
extant populations would exist rangewide by 2060, with about half of 
those in low or very low condition. However, five populations would 
remain in high or very high condition, with at least one population 
considered in very high condition in each representation unit. In the 
event of a catastrophe in a part of its range, sand dune phacelia would 
likely continue to exist in other parts of its range, albeit in low 
numbers and condition. Under Scenario 2, only eight populations are 
estimated to remain extant in 2060 and would be evenly split between 
low and very low condition. Due to the greatly reduced number of 
remaining populations (mostly with low resiliency) under either future 
scenario, sand dune phacelia redundancy will be low, rendering the 
species vulnerable to catastrophic events within the future timeframe 
we considered.
    Representation is not expected to change significantly under either 
future scenario we considered. All representation units will retain 
populations, and each will have at least one population in very high 
condition under Scenario 1. However, only 13 populations are projected 
to exist rangewide, with over half (54 percent) being in very low or 
low condition. Under Scenario 2, all populations are in very low or low 
condition, with very few populations existing in any of the 
representation units. Fewer populations in the future would provide 
less opportunity for diversity among individuals, with fewer 
individuals available to contribute to the adaptive capacity of the 
species. Isolation is also expected to increase in the future with the 
expected reduction in size and number of populations on the landscape, 
further decreasing the likelihood of genetic exchange. These factors 
may result in a modest reduction in representation into the future, but 
overall, populations (though fewer) will still be distributed across 
the range of the species providing adequate representation.
    Overall, we expect the viability of the species to decline by 
varying degrees under the future scenarios considered. Persistence of 
the two populations that contain 89 percent of known individuals, even 
under the more favorable future scenario considered, appears to depend 
upon continued removal of introduced, invasive species. By mid-century 
(roughly 2060), we expect the sand dune phacelia will still occur on 
the landscape, but likely with

[[Page 57195]]

a significantly reduced number of sufficiently resilient populations 
that are even more sparsely distributed across the historical range of 
the species.

Determination of Sand Dune Phacelia's Status

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

Status Throughout All of Its Range

    We carefully assessed the best scientific and commercial 
information available regarding the past, present, and future stressors 
(and their cumulative effect) to the sand dune phacelia. The potential 
stressors we considered were invasive species encroachment and 
competition (Factors A and E), recreational impacts from OHV use and 
trampling (Factor A), coastal development (Factor A), livestock grazing 
(Factor A), climate change impacts including sea level rise and drought 
(Factor E), small population size (Factor E), and pollinator decline 
(Factor E). We also evaluated existing regulations and voluntary 
conservation efforts (Factor D). There is no evidence that 
overutilization (Factor B) or disease and predation (Factor C) are 
impacting the sand dune phacelia. We evaluated each potential stressor 
to determine which stressors were likely to be drivers of the species' 
current and future condition, and found that invasive species, climate 
change, and small population size are the population-level threats to 
the species.
    There are 25 naturally occurring, extant populations of the sand 
dune phacelia. Nearly 70 percent (17) of these populations are 
currently in low condition according to our assessment, and nearly half 
(12) of the populations have fewer than 25 individuals. However, extant 
populations are distributed across the historical range of the species, 
and there remains at least one highly resilient population and one 
moderately resilient population in each of the three representative 
areas (in the northern, middle, and southern regions of the range). 
Populations that are currently in low condition, many of which have 
fewer than 25 individuals, are at risk of extirpation without 
management intervention. Many of these populations, especially those 
with very low abundance, may never be likely to contribute meaningfully 
to the species' viability. However, even without the small (fewer than 
25 individuals) populations on the landscape, the species would still 
maintain 13 populations across the range, with 8 of those populations 
being in moderate or high condition and evenly distributed across all 3 
representation units. The distribution and maintenance of sufficiently 
resilient populations, albeit few of them, across the historical range 
of the species indicates an adequate degree of redundancy, making it 
unlikely that a single catastrophic event would lead to the extirpation 
of all extant populations.
    While we have little evidence of diversity among members of the 
species, the sand dune phacelia is a relatively localized endemic 
inhabiting a narrow ecological niche, so broad diversity is not 
necessarily expected. Populations of the sand dune phacelia remain 
distributed across the three representation units and throughout the 
species' known historical range, and therefore the species is currently 
represented across the breadth of any ecological diversity that exists 
within its range.
    We know that the most influential threat to the sand dune phacelia, 
encroachment by invasive species (Factors A and E), can be successfully 
mitigated with active habitat management. Effective habitat management 
is currently ongoing at several population sites, including at the 
largest population strongholds at the northern and southern extents of 
the species' range (Bandon Preserve and Golf Course in Oregon and 
Tolowa Dunes in California). It is also possible that if management 
efforts continue or increase, they could promote the increase and 
expansion of populations into the future.
    Because of the presence of multiple populations in moderate to high 
condition (or with adequate resiliency) distributed across all regions 
of the species' historical range (redundancy) and across the breadth of 
ecological conditions inhabited by the species (representation), as 
well as the success of current conservation efforts to mitigate the 
primary threat (invasive species) at population strongholds, we 
determined that the sand dune phacelia is not currently in danger of 
extinction throughout its range.
    Upon determining that the sand dune phacelia is not at risk of 
extinction now, we consider whether it is likely to become endangered 
in the foreseeable future. According to our assessment of plausible 
future scenarios, we conclude that the species is likely to become 
endangered within the foreseeable future throughout all of its range 
through decreased resiliency, redundancy, and representation. For the 
purposes of this determination, the foreseeable future is considered 
out to approximately 2060, based on the timeframe for which we could 
most reliably project the population-level threats to sand dune 
phacelia and the species' response to those threats. The primary threat 
to sand dune phacelia is that of invasive species, which will likely be 
influenced in the future by both climate change (which exacerbates the 
threat) and by habitat management efforts (which mitigate the threat), 
and the influence of these factors on the impact of the primary threat 
to sand dune phacelia populations becomes progressively more difficult 
to predict the farther out into the future we project. As such, we 
determined that we could confidently project the population-level 
threats, including that of invasive species as influenced by climate 
change, and the species' response to those threats out to approximately 
2060.
    As previously noted, the primary driver of the sand dune phacelia's 
status is habitat loss due to encroachment and competition by invasive 
species (Factors A and E). This species is considered management-
dependent, relying on active and continuous removal of invasive species 
such as European beachgrass and gorse to maintain habitat conditions to 
support the sand dune phacelia. Invasive species removal, especially 
that which is effective and consistent enough to maintain sand dune 
phacelia populations over time, is costly and labor-intensive, and 
requires a significant commitment of resources. Currently, while 
invasive species removal efforts are responsible for maintaining the 
few (8 of 25) sand dune phacelia populations that are in moderate to 
high condition, no formal

[[Page 57196]]

commitments or agreements are in place to continue these efforts, and 
many of these efforts are dependent upon the will and resources of 
volunteer groups or private landowners. The remaining strongholds of 
sand dune phacelia would likely decline quickly in the absence of 
effective habitat management efforts that are currently ongoing. 
Specifically, in the future scenario we considered that includes the 
cessation of all management efforts into the future, our analysis 
projects the extirpation of most (17) populations in the future, with 
those remaining (8) declining to low or very low condition.
    Climate change (Factor E) may elevate the risk of drought, lead to 
increased erosion caused by sea level rise and the increased frequency 
and magnitude of storm surge, or potentially result in other negative 
influences to the sand dune phacelia, but we were unable to reliably 
project how these influences would impact the species in our future 
analysis. Climate change is expected to exacerbate the threat of 
invasive species into the future, regardless of which emissions 
scenarios we consider. Given the severity of the threat of invasive 
species and the tenuous nature of habitat management into the future, 
the synergistic effects of climate change and invasive species on the 
sand dune phacelia could be significant regardless of the magnitude of 
climate change impacts on their own.
    Small population size (Factor E) is a threat that affects nearly 
half of the extant sand dune phacelia populations. These 12 populations 
have fewer than 25 individuals and have no programs in place or 
conservation efforts ongoing to ameliorate the threat of invasive 
species, which is the primary cause of low sand dune phacelia abundance 
at these sites. Without the implementation of habitat management 
practices at these sites, we expect these very small populations to 
become extirpated in the future.
    Regulatory mechanisms (Factor D) and voluntary conservation efforts 
by the States of Oregon and California, the BLM, volunteer groups, and 
private landowners provide benefit to the sand dune phacelia at the 
affected population sites, mostly through invasive species removal 
efforts and to some degree augmentation and reintroduction efforts. 
However, while these efforts have helped reduce the impacts of invasive 
species and small population size locally at certain populations, these 
influences remain prominent threats to the sand dune phacelia and 
continue to affect the species as a whole.
    Due to the continuation of threats at increasing levels into the 
future, we anticipate a significant reduction in the distribution of 
the sand dune phacelia as the result of the extirpation of multiple 
populations. Even in the optimistic future scenario we considered, 
nearly half of the extant populations of sand dune phacelia would 
likely become extirpated, with only six populations remaining with 
moderate to high/very high resiliency. The less optimistic future 
projection would result in most populations becoming extirpated, and 
any remaining populations would be in low or very low condition. These 
types of declines illustrate a loss of resiliency among most 
populations, as well as a significant reduction in redundancy and 
representation, with fewer populations on the landscape to withstand 
catastrophic events and maintain adaptive capacity. Remaining 
populations in either future scenario will have lower resiliency, 
leading to lower overall redundancy and representation. Even in the 
optimistic future scenario, the species will have low viability and is, 
therefore, at risk of becoming endangered within the foreseeable 
future.
    Thus, after assessing the best available information, we conclude 
that the sand dune phacelia is likely to become in danger of extinction 
within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F.Supp.3d 69 (D.D.C. 2020) (Everson), vacated the aspect of the Final 
Policy on Interpretation of the Phrase ``Significant Portion of Its 
Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578, July 
1, 2014) that provided that the Service does not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for sand dune phacelia, we choose to address 
the status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify any portions of the range where the species 
is endangered.
    We evaluated the range of the sand dune phacelia to determine if 
the species is in danger of extinction now in any portion of its range. 
The range of a species can theoretically be divided into portions in an 
infinite number of ways. We focused our analysis on portions of the 
species' range that may meet the definition of an endangered species. 
For sand dune phacelia, we considered whether the threats or their 
effects on the species are greater in any biologically meaningful 
portion of the species' range than in other portions such that the 
species is in danger of extinction now in that portion. We examined the 
threats of invasive species and of climate change, including cumulative 
effects.
    The threat of invasive species is equally pervasive throughout the 
range of sand dune phacelia, and sand dune phacelia's response to 
invasive species encroachment is consistent across its range. The type 
of invasive species may vary regionally (gorse, for example, is more 
prevalent in the northern extent of the range), but the threat of 
invasive species encroachment in general, and its effect on sand dune 
phacelia, are equal in severity throughout the range. Similarly, both 
the efficacy of mitigating the threat of invasive species through 
habitat restoration and the uncertainty related to funding availability 
to do so appear consistent throughout the species' range.
    The effects of climate change appear to be similar across the range 
of sand dune phacelia. Increases in temperature and changes in seasonal 
precipitation that could increase the risk of drought in the future are 
expected to occur to a similar magnitude and with similar effect across 
the range of the species. Storm surge, which can lead to flooding and 
erosion at coastal sites, is also expected to increase with climate 
change, and we have no data to indicate that these impacts, and the 
species'

[[Page 57197]]

response to these impacts, would not be approximately equivalent across 
the range of sand dune phacelia. Sea level rise projections are also 
nearly identical across the coastal habitat occupied by sand dune 
phacelia. Specifically, RCP 8.5 indicates that the impacts of sea level 
rise are essentially equal across all sites: Within the foreseeable 
future all sites will experience a 1-foot (0.3-m) or less increase in 
sea level rise, which will not inundate any of the population sites. 
The synergistic effects of climate change and invasive species, with 
biological invasions being facilitated by climate change, are also 
expected to occur in approximately equal magnitude and effect 
throughout the range of the sand dune phacelia and likely represent the 
more influential effect of climate change on the species given that sea 
level rise is not projected to inundate any extant population sites.
    The threat of small population size also appears to be distributed 
throughout the range, with low-abundance populations throughout the 
range and distributed across all three representation units. Further, 
there is no indication that sand dune phacelia's response to small 
population size differs across the range of the species.
    Our viability analysis incorporated the impact to sand dune 
phacelia of these population-level threats individually, as well as the 
degree to which they collectively influenced risk to the species, and 
as such assesses cumulative effects of these threats to the species.
    While there may be some variation in the source and intensity of 
each individual threat at each population location, we found no portion 
of the sand dune phacelia's range where the threats are impacting 
individuals differently from how they are affecting the species 
elsewhere in its range, such that the status of the species in that 
portion differs from any other portion of the species' range. 
Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not apply the aspects of the Final 
Policy, including the definition of ``significant'' that those court 
decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the sand dune phacelia meets the Act's 
definition of a threatened species. Therefore, we are listing the sand 
dune phacelia as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(https://www.fws.gov/program/endangered-species), or from our Oregon 
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. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the States of Oregon and 
California will be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the sand dune 
phacelia. Information on our grant programs that are available to aid 
species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the sand dune phacelia. 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 listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency

[[Page 57198]]

cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) 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 any endangered or threatened 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the BLM.
    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 final listing 
on proposed and ongoing activities within the range of a listed 
species. The discussion below regarding protective regulations under 
section 4(d) of the Act complies with our policy.

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

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to [her] with regard to the permitted activities for those species. 
[She] may, for example, permit taking, but not importation of such 
species, or [she] may choose to forbid both taking and importation but 
allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
rule that is designed to address the sand dune phacelia's conservation 
needs. Although the statute does not require us to make a ``necessary 
and advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this rule as a whole 
satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the sand dune phacelia. As discussed above under 
Summary of Biological Status and Threats, we have concluded that the 
sand dune phacelia is likely to become in danger of extinction within 
the foreseeable future primarily due to encroachment by invasive 
species, small population size, and the effects of climate change. The 
provisions of this 4(d) rule will promote conservation of the sand dune 
phacelia by encouraging management of the landscape in ways that meet 
the conservation needs of the sand dune phacelia. The provisions of 
this rule are one of many tools that we will use to promote the 
conservation of the sand dune phacelia.
    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.
    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.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the Final 4(d) Rule

    This 4(d) rule will provide for the conservation of the sand dune 
phacelia by prohibiting the following activities applicable to an 
endangered plant, except as otherwise authorized or permitted: import 
or export; certain acts related to removing, damaging, and destroying 
on areas under Federal jurisdiction or on any other area in knowing 
violation of any State law or regulation; delivery, receipt, carriage, 
transport, or shipment in interstate or foreign commerce in the course 
of commercial activity; and sale or offering for sale in interstate or 
foreign commerce.
    As discussed above under Summary of Biological Status and Threats, 
encroachment by native and nonnative, invasive species (Factors A and 
E), small population size (Factor E), and climate change (Factor E) 
affect the status of the sand dune phacelia. Additionally, a range of 
activities have the potential to negatively affect

[[Page 57199]]

individual sand dune phacelia, including recreational impacts such as 
off-road vehicle use and inadvertent trampling through pedestrian or 
equestrian activities. To protect the species from these impacts, in 
addition to the protections that apply to Federal lands, the 4(d) rule 
prohibits a person from removing, cutting, digging up, or damaging or 
destroying the species on non-Federal lands in knowing violation of any 
law or regulation of any State or in the course of any violation of a 
State criminal trespass law. As most populations of the sand dune 
phacelia occur off Federal land, these protections in the 4(d) rule are 
key to its effectiveness. For example, any damage to the species on 
non-Federal land in violation of a State off-highway vehicle law is 
prohibited by the 4(d) rule, as is any damage to the species due to 
criminal trespass on non-Federal lands. Regulating these activities 
will help preserve the species' remaining populations, slow the rate of 
decline, and decrease synergistic, negative effects from other 
stressors. The 4(d) rule will help in the efforts to recover sand dune 
phacelia by limiting specific actions that damage individual 
populations.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. The regulations that govern permits for 
threatened plants state that the Director may issue a permit 
authorizing any activity otherwise prohibited with regard to threatened 
species (50 CFR 17.72). Those regulations also state that the permit 
shall be governed by the provisions of that section unless a species-
specific rule applicable to the plant is provided in sections 17.73 to 
17.78. Therefore, permits for threatened plant species are governed by 
the provisions of Sec.  17.72 unless a species-specific 4(d) rule 
provides otherwise. However, under our recent revisions to Sec.  17.71, 
the prohibitions in Sec.  17.71(a) do not apply to any plant listed as 
a threatened species after September 26, 2019. As a result, for 
threatened plant species listed after that date, any protections must 
be contained in a species-specific 4(d) rule. We did not intend for 
those revisions to limit or alter the applicability of the permitting 
provisions in Sec.  17.72, or to require that every species-specific 
4(d) rule spell out any permitting provisions that apply to that 
species and species-specific 4(d) rule. To the contrary, we anticipate 
that permitting provisions would generally be similar or identical for 
most species, so applying the provisions of section 17.72 unless a 
species-specific 4(d) rule provides otherwise would likely avoid 
substantial duplication. Under 50 CFR 17.72 with regard to threatened 
plants, a permit may be issued for the following purposes: for 
scientific purposes, to enhance propagation or survival, for economic 
hardship, for botanical or horticultural exhibition, for educational 
purposes, or for other purposes consistent with the purposes and policy 
of the Act. Additional statutory exemptions from the prohibitions are 
found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve sand dune 
phacelia that may result in otherwise prohibited activities without 
additional authorization.
    The Service recognizes the beneficial and educational aspects of 
activities with seeds of cultivated plants, which generally enhance the 
propagation of the species and, therefore, would satisfy permit 
requirements under the Act. The Service intends to monitor the 
interstate and foreign commerce and import and export of these 
specimens in a manner that will not inhibit such activities, providing 
the activities do not represent a threat to the survival of the species 
in the wild. In this regard, seeds of cultivated specimens will not be 
subject to the prohibitions above, provided that a statement that the 
seeds are of ``cultivated origin'' accompanies the seeds or their 
container (e.g., the seeds could be moved across State lines or between 
territories for purposes of seed banking or use for outplanting without 
additional regulations).
    Nothing in this 4(d) rule changes in any way the recovery planning 
provisions of section 4(f) of the Act, the consultation requirements 
under section 7 of the Act, or the ability of the Service to enter into 
partnerships for the management and protection of the sand dune 
phacelia. However, interagency cooperation may be further streamlined 
through planned programmatic consultations for the species between 
Federal agencies and the Service, where appropriate.

III. Critical Habitat

Background

    Section 4(a)(3) of the Act requires that, to the maximum extent 
prudent and determinable, we designate a species' critical habitat 
concurrently with listing the species. 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).
    This critical habitat designation was proposed when the regulations 
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the 
4(b)(2) exclusion process for the Service (85 FR 82376; December 18, 
2020) were in place and in effect. However, those two regulations have 
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21, 
2022) and no longer apply to any designations of critical habitat. 
Therefore, for this final rule designating critical habitat for the 
sand dune phacelia, we apply the regulations at 424.19 and the 2016 
Joint Policy on 4(b)(2) exclusions (81 FR 7226; February 11, 2016).
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are

[[Page 57200]]

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. For this final rule, we did not identify any unoccupied areas 
that may qualify as units of critical habitat.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to 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.

Physical or Biological Features Essential to the Conservation of the 
Species

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

[[Page 57201]]

symbiotic fungi, or a particular level of nonnative species consistent 
with conservation needs of the listed species. The features may also be 
combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    The following features are essential to the conservation of sand 
dune phacelia:

Sandy Coastal Dune Habitat With Adequate Light Exposure, Water, and 
Growing Space

    Sandy coastal dune habitat above the high tide line that provides a 
high light environment, room for growth, and adequate moisture is 
required to support sand dune phacelia populations. Sandy areas must 
have open (unvegetated) space within them to accommodate population 
expansion. The physical features of sunlight, space, and water are 
essential for seedling establishment and growth, and facilitate the 
development of large, mature plants that produce copious amounts of 
seed. While we lack information on specific quantities associated with 
this need (such as maximum percent canopy cover that the species can 
tolerate), it is clear that sandy habitats that provide the essential 
features of sunlight, space, and water for the sand dune phacelia tend 
to have lower cover of competitive invasive species, particularly 
European beachgrass and gorse.

Adequate Pollinator Community

    A sufficient abundance of pollinators, particularly leafcutter bees 
(Family: Megachilidae), are required for genetic exchange among sand 
dune phacelia individuals. The sand dune phacelia appears to be largely 
incapable of significant self-pollination (Meinke 2016, p. 3), relying 
primarily on leafcutter bees (Anthidium palliventre) and bumblebees 
(Bombus spp.) for pollination. Ants (Formica spp.) and beetles 
(unidentified spp.) have also been observed in association with sand 
dune phacelia flowers, but it is unclear how effective they are at 
pollination (Rittenhouse 1995, p. 8).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the sand dune phacelia from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2021, entire, 
available on https://www.regulations.gov under Docket No. FWS-R1-ES-
2021-0070). We have determined that the following physical or 
biological features are essential to the conservation of sand dune 
phacelia:
     Sandy coastal dune habitat above the high tide line that 
provides a high light environment, room for growth, and adequate 
moisture; and
     A sufficiently abundant pollinator community (which may 
include leafcutter bees and bumble bees) for pollination and 
reproduction.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. In the case of the sand dune phacelia, these essential 
features include sandy dune habitat with high light exposure and 
adequate moisture and unvegetated space, as well as a sufficiently 
large and diverse pollinator community, and a minimum of 25 
reproductively mature sand dune phacelia plants within dispersal 
distance of one another to sustain a population.
    These features essential to sand dune phacelia conservation may 
require special management considerations or protection to reduce the 
threat of invasive species encroachment, and to withstand climate 
change effects such as drought and sea level rise. In addition, 
localized stressors related to recreational activity, such as off-road 
vehicle use and pedestrian or equestrian trampling, may also need to be 
mitigated by special management practices to maintain the sandy open 
dune habitat that sand dune phacelia populations require.
    Management activities that could ameliorate these threats include, 
but are not limited to: (1) Habitat restoration activities in sand dune 
habitat that include the removal of invasive species such as nonnative 
European beachgrass and gorse, or native successional species such as 
shore pine; (2) efforts to restore a diverse and abundant pollinator 
community, such as through restricting land management practices that 
harm pollinator species, or through support of a diverse native nectar 
plant community; (3) access restrictions and enforcement for off-road 
vehicle use in areas occupied by the sand dune phacelia; and (4) 
recreational restrictions to prevent damage to sandy coastal dune 
habitat and the pollinator communities that support the species by 
pedestrians or equestrians.
    These management activities will protect the physical or biological 
features essential for the conservation of the sand dune phacelia by 
providing native sandy dune habitat that allows for sand dune phacelia 
population growth and expansion, supporting the pollinator community 
that enables sand dune phacelia reproduction, protecting sand dune 
phacelia populations from trampling and crushing, and maintaining an 
adequate number of sand dune phacelia individuals necessary to sustain 
viable populations.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In 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 designating any areas 
outside the geographical area occupied by the species because we have 
not identified any unoccupied areas that meet the definition of 
critical habitat. We determined that the areas currently occupied by 
populations of sand dune phacelia made up of at least 25 individuals, 
if recovered, will be sufficient to conserve the species. The extant 
populations with at least 25 individuals are distributed across the 
three representation units and across the historical range of the 
species and, therefore, also span any ecological diversity that may 
exist within the species' range. Therefore, if these populations were 
recovered to sufficient resiliency, they will provide adequate 
redundancy and representation for the species. Because currently 
occupied areas are sufficient to recover the

[[Page 57202]]

species, we conclude that currently unoccupied areas do not meet the 
definition of critical habitat because they are not essential to the 
conservation of the species. In summary, for areas within the 
geographic area occupied by the species at the time of listing, we 
delineated critical habitat unit boundaries using the following 
criteria:
    Across the representation units, there are 25 naturally occurring 
sand dune phacelia populations consisting of a total of 94 polygons 
(patches of sand dune phacelia). We developed critical habitat units 
within each representation unit by joining patches of sand dune 
phacelia within each population to form discrete units; this was 
accomplished by joining patch vertices and creating minimum convex 
polygons. We considered patches to be part of the same population if 
they are within 0.30 miles (0.48 km) of each other in Oregon (as 
defined by the Oregon Natural Heritage Information Center) or 0.25 
miles (0.4 km) of each other in California (or as otherwise defined by 
the California Natural Diversity Database) (CNDDB 2020, unpaginated).
    A minimum of 25 reproductively mature plants are required for 
breeding purposes to maintain viability in a population. Extant sand 
dune phacelia populations are isolated from one another on the 
landscape, with no possibility of natural dispersal between 
populations. As such, each individual population relies on having an 
adequate number of its own members to sustain itself and avoid 
extirpation. Although there are no data related to the minimum number 
of individuals necessary to sustain the viability of a sand dune 
phacelia population, we estimate that at least 25 reproductively mature 
plants are needed for sufficient reproduction to allow the population 
to withstand stochastic events.
    Because we consider populations comprising fewer than 25 plants as 
being in low condition and unlikely to contribute meaningfully to 
recovery, we designated critical habitat only around populations with 
equal to or greater than 25 individuals. This consideration resulted in 
the creation of 13 critical habitat units.
    Some patches within the same population were separated by habitat 
that was unsuitable (i.e., does not contain the essential physical or 
biological features). We avoided including unsuitable habitat within 
the critical habitat units by joining patches only if the intervening 
habitat contained at least one essential physical or biological 
feature. We further limited the inclusion of unsuitable habitat by 
removing areas from the unit that were clearly unsuitable (e.g., 
forest, water bodies) to the maximum extent possible given the scale of 
mapping.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for sand dune phacelia. 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 rule have been excluded by text in 
the rule and are not included in the designation as critical habitat. 
Therefore, a Federal action involving these lands will 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 are designating as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied). Thirteen critical habitat units are designated based on the 
physical or biological features being present to support sand dune 
phacelia's life-history processes. All critical habitat units contain 
all of the identified physical or biological features and support 
multiple life-history processes necessary to support the sand dune 
phacelia's use of that habitat.
    The 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 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-R1-ES-2021-0070, and on 
our internet site at https://www.fws.gov/office/oregon-fish-and-wildlife.

Final Critical Habitat Designation

    We are designating 13 units as critical habitat for sand dune 
phacelia. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for sand dune phacelia. The 13 critical habitat units are: (1) 
North Bandon 1, (2) North Bandon 2, (3) Lost Lake, (4) Floras Lake, (5) 
Cape Blanco, (6) Paradise Point, (7) Pistol River North, (8) Pistol 
River South, (9) Lone Ranch, (10) Pacific Shores, (11) Tolowa Dunes, 
(12) Point St. George, and (13) Pebble Beach. All 13 critical habitat 
units are occupied by the species. Table 4 shows the critical habitat 
units and the approximate area, broken down by land ownership, for each 
unit.

                             Table 4--Critical Habitat Units for Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
                                   Private  (ac     Federal (ac      State (ac      County (ac       Total (ac
                                       (ha))           (ha))           (ha))           (ha))           (ha))
----------------------------------------------------------------------------------------------------------------
Oregon:
    North Bandon 1..............       0.6 (0.2)               0               0               0       0.6 (0.2)
    North Bandon 2..............       54.4 (22)               0       6.9 (2.8)               0     61.3 (24.8)
    Lost Lake...................       2.8 (1.1)       0.8 (0.3)      0.1 (0.04)               0       3.7 (1.5)
    Floras Lake.................               0       5.8 (2.3)               0               0       5.8 (2.3)
    Cape Blanco.................               0               0         2 (0.8)               0         2 (0.8)
    Paradise Point..............       3.7 (1.5)               0               0               0       3.7 (1.5)
    Pistol River North..........               0               0       3.2 (1.3)               0       3.2 (1.3)
    Pistol River South..........               0               0       0.7 (0.3)               0       0.7 (0.3)
    Lone Ranch..................               0               0       6.5 (2.6)               0       6.5 (2.6)
California:
    Pacific Shores..............       7.8 (3.2)               0      13.2 (5.3)               0        21 (8.5)
    Tolowa Dunes................               0               0     69.6 (28.2)               0     69.6 (28.2)
    Pt. St. George..............      0.1 (0.04)               0               0       1.0 (0.4)       1.1 (0.4)

[[Page 57203]]

 
    Pebble Beach................               0               0               0       1.6 (0.6)       1.6 (0.6)
                                 -------------------------------------------------------------------------------
        Totals..................     69.4 (28.1)       6.6 (2.7)    102.2 (41.4)       2.6 (1.1)    180.8 (73.2)
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect suitable habitat within critical habitat unit boundaries, with non-habitat (as
  identified by textual description) excluded. Area sizes may not sum due to rounding.

    We present brief descriptions of all critical habitat units below. 
Note that all units of critical habitat described below meet the 
definition of critical habitat for the sand dune phacelia because all 
of the units are occupied by the sand dune phacelia, and all units 
contain all of the physical or biological features essential to the 
species.

Unit 1: North Bandon 1

    Unit 1 consists of 0.6 ac (0.2 ha) in Coos County, Oregon. It is at 
the northernmost limit of the sand dune phacelia's range in Coos County 
and is located on the privately owned Bandon Dunes Golf Resort. 
Invasive species are an ongoing threat at this site, and therefore 
invasive species management may be required. A stated goal of the 
conservation-minded owner is to protect and enhance the sand dune 
phacelia at the site, and the population here has flourished due to the 
removal of heavy infestations of gorse (Gunther 2012, no pagination).

Unit 2: North Bandon 2

    Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon, and 
currently supports the largest population of the sand dune phacelia 
rangewide. The majority (54.4 ac (22 ha)) of the habitat at this site 
is on the privately owned Bandon Dunes Golf Resort. The population here 
is now the largest rangewide, with over 24,000 individuals (Brown 
2020a, unpaginated). Invasive species are the primary threat, and 
therefore invasive species management may be required. Conservation and 
restoration implemented by the golf resort are largely responsible for 
the high condition of this population and its habitat. While there are 
no formal agreements in place to protect the sand dune phacelia at the 
resort, we have no evidence at this time that management efforts at 
this site will be discontinued. Part of the population (6.9 ac (2.8 
ha)) is in State park ownership (Bullard's Beach) and implementation of 
invasive species control, particularly gorse, could result in an 
expanded sand dune phacelia population in the park.

Unit 3: Lost Lake

    Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon. The Lost 
Lake unit contains land within the Coos Bay New River Area of Critical 
Environmental Concern (ACEC) (0.8 ac (0.3 ha)) that is federally 
managed by the BLM, State-managed land (0.1 ac (0.04 ha)) within the 
Bandon State Natural Area (BSNA), and undeveloped private land (2.8 ac 
(1.1 ha)). Threats in Unit 3 include the persistent threat of invasive 
species. As such, invasive species management may be required to 
maintain it. The sand dune phacelia has greatly benefited from the 
BLM's efforts to remove invasive species in the Lost Lake area, and it 
is likely that there is room for expansion of this population provided 
that annual, or nearly annual, vegetation management continues. 
Augmentation efforts, including transplanting and seeding, have also 
occurred at Lost Lake on the ACEC.

Unit 4: Floras Lake

    Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon. Like 
Unit 3, Floras Lake is a part of the BLM's New River ACEC. The BLM 
monitors and regularly manages the habitat to maintain the open sand 
conditions that the sand dune phacelia requires, contributing to the 
fact that the population of sand dune phacelia at Floras Lake is the 
largest naturally occurring (i.e., not introduced) population on 
Federal land. The BLM has augmented populations in this unit with 
transplants. In addition to the threat of invasive species, other 
stressors include trampling by hikers and wintertime flooding from 
Floras Lake. Dependent upon the intensity, these activities could also 
be beneficial as they mobilize sand and clear habitat of invasive 
species. As such, mitigating the impacts of pedestrian use, flooding, 
and invasive species may be required. Sea level rise may pose an 
additional threat. As determined by our future condition analysis, a 1-
foot rise in sea level by 2060 would barely reach the seaward boundary 
of the unit; however, other accompanying effects of climate change, 
like increased storm surge, may also affect sand dune phacelia habitat 
in this unit.

Unit 5: Cape Blanco

    Unit 5 consists of 2 ac (0.8 ha) in Curry County, Oregon. The unit 
is State-managed by the Oregon Parks and Recreation Department (OPRD) 
and consists of sandy bluffs above the high tide line. A naturally 
occurring population was augmented with transplants in 2018. Invasive 
species are a threat at this site, and therefore invasive species 
management may be required.

Unit 6: Paradise Point

    Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon. It is 
separated from Unit 5 by the Elk River and bounded to the east by 
private ranchlands. Unit 6 is made up of undeveloped private land, 
limited to sandy bluffs between the high tide line and adjacent 
pastureland. Although it is privately owned, the State (OPRD) has 
jurisdiction over the land in Unit 6 as well as some adjacent State-
owned land. In addition to the threat of invasive species, other 
factors influencing the population at this site include erosion and 
storm surge associated with sea level rise. OHV use is permitted here, 
but most of it occurs outside of the area occupied by sand dune 
phacelia. As such, invasive species management may be required, and 
other management associated with mitigating the impacts of OHV use, 
erosion, and flooding may also be beneficial.

Unit 7: Pistol River North

    Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon. The 
land on Unit 7 lies southwest of the Pistol River and is State-managed 
by OPRD (Pistol River State Park) and the Oregon Department of 
Transportation. As with all other units, invasive species are a threat, 
and therefore invasive species management may be required. Another 
stressor affecting Unit 7 is erosion, as the mouth of the Pistol River 
changes location annually, scouring the dunes and carrying sand out to 
sea.

[[Page 57204]]

Unit 8: Pistol River South

    Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon. The 
land is south of Unit 7 and also located on Pistol River State Park. 
Invasive species are a threat here, and the site is surrounded by 
European beachgrass and encroaching shore pine. As such, invasive 
species management may be required.

Unit 9: Lone Ranch

    Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and 
currently supports the third largest population of sand dune phacelia 
throughout its range. It is composed entirely of land managed by the 
State (OPRD; Boardman State Park). There is a threat to the population 
at this site posed by a number of invasive species. As such, invasive 
species management may be required. Existing control of weedy species 
for recreational trail access may be maintaining existing suitable 
habitat.

Unit 10: Pacific Shores

    Unit 10 consists of 21 ac (8.5 ha) in Del Norte County, California. 
State lands make up 13.2 ac (5.3 ha) of this unit, with the remaining 
7.8 ac (3.2 ha) currently in private ownership. This area represents an 
abandoned real estate venture, where lands were subdivided into 0.5-ac 
(0.20-ha) lots in the 1960s for residential development. More than 
1,500 lots were sold, and approximately 27 miles of road and electric 
transmission line were constructed. However, the area remains 
undeveloped due to permitting issues, and the empty lots are now being 
acquired for conservation by a coalition of entities for inclusion into 
the State's Lake Earl Wildlife Area. Approximately 430 lots remain in 
private ownership. Invasive species are a threat here, and therefore 
invasive species management may be required. In addition, because much 
of the sand dune phacelia population in the unit occurs adjacent to 
roadways or other readily accessible areas, the unit is considered 
heavily impacted by human activities that include OHV use. Special 
management considerations to mitigate the impact to sand dune phacelia 
habitat from these activities may be required.

Unit 11: Tolowa Dunes

    Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County, 
California, and currently supports the second largest population of the 
sand dune phacelia rangewide. The unit is State-managed in part by 
California State Parks (on Tolowa Dunes State Park) and the California 
Department of Fish and Wildlife (on Lake Earl Wildlife Area). Invasive 
species including European beachgrass and annual invasive grasses such 
as ripgut brome (Bromus diandrus) are a threat here, and OHV use also 
impacts this site. As such, managing OHV use and invasive species may 
be required. The relatively high abundance of sand dune phacelia in 
Unit 11 is attributed to a concerted restoration program that has 
removed invasive species, particularly European beachgrass. These 
efforts have made this population the stronghold for the species in 
California and an important contributor to sand dune phacelia 
resiliency and redundancy rangewide. However, much of the restoration 
at this site has been conducted by volunteers, and funding to continue 
maintaining restored habitat is uncertain.

Unit 12: Point Saint George

    Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County, 
California. The vast majority of the land (1 ac (0.4 ha)) is county-
managed by Del Norte County Parks, and the other 0.1 ac (0.04 ha) is 
privately owned. Invasive species, particularly annual grasses, are 
prolific in this unit, and therefore invasive species management may be 
required. However, a large proportion of the sand dune phacelia 
population at this site occurs near a hiking trail where disturbance 
has kept the area relatively free of invasive species.

Unit 13: Pebble Beach

    Unit 13 consists of 1.6 ac (0.6 ha) in Del Norte County, 
California. It is managed by Del Norte County. Invasive species pose a 
substantial threat at this site, primarily Hottentot fig or iceplant 
(Carpobrotus edulis), and therefore invasive species management may be 
required. Additionally, much of this unit is located within a road 
right-of-way, and therefore road development or maintenance activities 
could impact sand dune phacelia individuals, some of which are quite 
large and productive. As such, special management to mitigate the 
impact to sand dune phacelia habitat from these activities may be 
required.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of

[[Page 57205]]

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 consultation on previously reviewed actions. 
These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (a) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (b) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (c) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (d) if a new species is listed or critical habitat 
designated that may be affected by the identified action. The 
reinitiation requirement applies only to actions that remain subject to 
some discretionary Federal involvement or control. As provided in 50 
CFR 402.16, the requirement to reinitiate consultations for new species 
listings or critical habitat designation does not apply to certain 
agency actions (e.g., land management plans issued by the Bureau of 
Land Management in certain circumstances).

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service 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 destroy, alter, or convert sand dune 
habitat. Such activities could include, but are not limited to, the 
construction of new roads or utility lines, dune breaching or breaching 
of water bodies for flood control, bridge work, and the use of heavy 
equipment for regular maintenance activities (such as roadway 
maintenance). These activities could eliminate or reduce the sandy dune 
habitat necessary for sand dune phacelia growth and reproduction.
    (2) Actions that would inhibit or reduce native plant communities 
and the pollinator communities they support. Such activities could 
include, but are not limited to, herbicide or insecticide application. 
These activities could limit the ability of sand dune phacelia to 
reproduce by inhibiting pollinator communities.
    (3) Actions that would introduce or promote the proliferation of 
invasive or successional species plant species into sand dune habitat. 
Such activities could include, but are not limited to, vegetation 
management that encourages growth of competing native and nonnative 
species. These activities could increase competition for space for 
growth, sunlight, and nutrients between sand dune phacelia and 
nonnative or successional competitors such as European beachgrass and 
shore pine, respectively.

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (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 final critical habitat 
designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

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

Exclusions Based on Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. In order to consider economic impacts, we prepared 
an incremental effects memorandum (IEM) and screening analysis which, 
together with our narrative and interpretation of effects, we consider 
our economic analysis of the critical habitat designation and related 
factors (Industrial Economics, Inc. 2021). The analysis, dated May 21, 
2021, was made available for public review from March 22, 2022, through 
May 23, 2022 (Industrial Economics, 2021). The economic analysis 
addressed probable economic impacts of critical habitat designation for 
sand dune phacelia. Following the close of the comment period, we 
reviewed and evaluated all

[[Page 57206]]

information submitted during the comment period that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Additional information relevant to the 
probable incremental economic impacts of critical habitat designation 
for the sand dune phacelia is summarized below and available in the 
screening analysis for the sand dune phacelia (Industrial Economics, 
Inc. 2021), available at https://www.regulations.gov.
    In our evaluation of the probable incremental economic impacts that 
may result from the designation of critical habitat for the sand dune 
phacelia, first we identified, in the IEM dated April 14, 2021, 
probable incremental economic impacts associated with the following 
categories of activities: (1) Federal (Bureau of Land Management) lands 
management for recreational use, western snowy plover management, dune 
breaching, salt spray meadow restoration, and management plan updates; 
(2) bridge work; (3) breaching associated with water bodies for flood 
control purposes; and (4) road development and maintenance. 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 sand dune 
phacelia is present, Federal agencies will 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. 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 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 sand 
dune phacelia's critical habitat. Because the designation of critical 
habitat for the sand dune phacelia was proposed concurrently with the 
listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical 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 likely adversely affect the essential physical or 
biological features of critical habitat are also likely to adversely 
affect the species itself. 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 
designation of critical habitat.
    We are designating approximately 180.8 ac (73.2 ha) of critical 
habitat for the sand dune phacelia in Coos and Curry Counties, Oregon, 
and in Del Norte County, California. The designation is divided into 13 
units, and all units are occupied by the sand dune phacelia. We are not 
designating any units of unoccupied habitat. Approximately 57 percent 
of the critical habitat designation is located on State lands, 38 
percent is on privately owned lands, 4 percent is on Federal lands, and 
1 percent is on County lands. Any actions that may affect critical 
habitat would likely also affect the species or its habitat, and 
therefore 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 sand dune phacelia. Therefore, only 
administrative costs are expected with the critical habitat 
designation. While this additional analysis will require time and 
resources by both the Federal action agency and the Service, it is 
believed that, in most circumstances, these costs would predominantly 
be administrative in nature and would not be significant.
    The probable incremental economic impacts of the sand dune phacelia 
critical habitat designation are expected to be limited to additional 
administrative effort resulting from an estimated 3 programmatic 
consultations, 10 formal consultations, 3 informal consultations, and 7 
technical assistance efforts related to section 7 consultation over the 
next 10 years. Because all the critical habitat units are occupied by 
the species, incremental economic impacts of critical habitat 
designation, other than administrative costs, are unlikely. The 
incremental costs for each programmatic, formal, informal, and 
technical assistance effort are estimated to be $9,800, $5,300, $2,600, 
and $420, respectively. These estimates assume that consultation 
actions will occur even in the absence of critical habitat due to the 
presence of the sand dune phacelia, and the amount of administrative 
effort needed to address the critical habitat during this process is 
relatively minor. Applying these unit cost estimates, this analysis 
estimates that considering adverse modification of sand dune phacelia 
critical habitat during section 7 consultation will result in 
incremental costs of no more than $9,300 (2021 dollars) per year, which 
is well below the annual administrative burden threshold of $200 
million of incremental administrative impacts in a single year.
    As discussed above, we considered the economic impacts of the 
critical habitat designation, and the Secretary is not exercising her 
discretion to exclude any areas from this designation of critical 
habitat for the sand dune phacelia based on economic impacts.

Exclusions Based on Impacts on National Security and Homeland Security

    In preparing this rule, we determined that there are no lands 
within the designated critical habitat for the sand dune phacelia that 
are owned or managed by the DoD or Department of Homeland Security, 
and, therefore, we anticipate no impact on national security or 
homeland security. We did not receive any additional information during 
the public comment period for the proposed designation regarding 
impacts of the designation on national security or homeland security 
that would support excluding any specific areas from the final critical 
habitat designation under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.

Exclusion Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. Other relevant impacts may include, but are 
not limited to, impacts to Tribes, States, local governments, public 
health and safety, community interests, the environment (such as 
increased risk of wildfire or pest and invasive species management), 
Federal lands, and conservation plans, agreements, or partnerships. To 
identify other relevant impacts that may affect the exclusion analysis, 
we consider a number of factors, including whether there are permitted 
conservation plans covering the species in the area--such as HCPs, safe 
harbor agreements, or candidate conservation agreements with

[[Page 57207]]

assurances--or whether there are non-permitted conservation agreements 
and partnerships that may be impaired by designation of, or exclusion 
from, critical habitat. In addition, we look at whether Tribal 
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may 
be affected by the designation. We also consider any State, local, 
public-health, community-interest, environmental, or social impacts 
that might occur because of the designation.
    We are not excluding any areas from critical habitat. In preparing 
this final rule, we have determined that there are currently no HCPs or 
other management plans for sand dune phacelia, and the designation does 
not include any Tribal lands or trust resources. We anticipate no 
impact on Tribal lands, partnerships, or HCPs from this final critical 
habitat designation. We did not receive any additional information 
during the public comment period for the proposed rule regarding other 
relevant impacts to support excluding any specific areas from the final 
critical habitat designation under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy. 
Accordingly, the Secretary is not exercising her discretion to exclude 
any areas from this designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. 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 final rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is not significant.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in the 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 will be directly 
regulated by this 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 will be directly regulated by this 
rulemaking, the Service certifies that this critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period on the 
March 22, 2022 proposed rule (87 FR 16320) that may pertain to our 
consideration of the probable incremental economic impacts of this 
critical habitat designation. Based on this information, we affirm our 
certification that this critical habitat designation will not have a 
significant economic impact on a substantial number of small entities, 
and a regulatory flexibility analysis is not required.

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

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

[[Page 57208]]

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This rule will 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 final rule will significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $200 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments. Therefore, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

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

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 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 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 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 will be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

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

[[Page 57209]]

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

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

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), 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 
Secretary's 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 critical habitat designation 
for the sand dune phacelia, so no Tribal lands will be affected by the 
designation.

References Cited

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

Authors

    The primary authors of this rule are the staff members of the Fish 
and Wildlife Service's Species Assessment Team and the Oregon Fish and 
Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. In Sec.  17.12, in paragraph (h), amend the List of Endangered and 
Threatened Plants by adding an entry for ``Phacelia argentea'' in 
alphabetical order under Flowering Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name               Common name          Where listed       Status       applicable rules
----------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                  * * * * * * *
Phacelia argentea................  Sand dune phacelia.  Wherever found.....         T   88 FR [Insert Federal
                                                                                         Register page where the
                                                                                         document begins], 8/22/
                                                                                         2023;
                                                                                        50 CFR 17.73(j); \4d\
                                                                                        50 CFR 17.96(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.73 by adding paragraph (j) to read as follows:


Sec.  17.73  Special rules--flowering plants.

* * * * *
    (j) Phacelia argentea (sand dune phacelia)--(1) Prohibitions. The 
following prohibitions that apply to endangered plants also apply to 
the sand dune phacelia. Except as provided under paragraph (j)(2) of 
this section, it is unlawful for any person subject to the jurisdiction 
of the United States to commit, to attempt to commit, to solicit 
another to commit, or cause to be committed, any of the following acts 
in regard to this species:
    (i) Import or export, as set forth at Sec.  17.61(b) for endangered 
plants.
    (ii) Remove and reduce to possession the species from areas under 
Federal jurisdiction, as set forth at Sec.  17.61(c)(1) for endangered 
plants.
    (iii) Maliciously damage or destroy the species on any areas under 
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the 
species 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, as set forth at section 9(a)(2)(B) of the Act.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.61(d) for endangered plants.
    (v) Sale or offer for sale, as set forth at Sec.  17.61(e) for 
endangered plants.
    (2) Exceptions from prohibitions. In regard to Phacelia argentea, 
you may:
    (i) Conduct activities, including activities prohibited under 
paragraph (j)(1) of this section, if they are authorized by a permit 
issued in accordance with the provisions set forth at Sec.  17.72.

[[Page 57210]]

    (ii) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.71(b).
    (iii) Remove, cut, dig up, damage or destroy on areas not under 
Federal jurisdiction by any qualified employee or agent of the Service 
or State conservation agency which is a party to a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
who is designated by that agency for such purposes, when acting in the 
course of official duties.

0
4. In Sec.  17.96, amend paragraph (a) by adding an entry for ``Family 
Boraginaceae: Phacelia argentea (sand dune phacelia)'' after the entry 
for ``Family Boraginaceae: Amsinckia grandiflora (large-flowered 
fiddleneck),'' to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Boraginaceae: Phacelia argentea (sand dune phacelia)

    (1) Critical habitat units are depicted for Coos and Curry 
Counties, Oregon, and Del Norte County, California, on the maps in this 
entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the sand dune phacelia consist of the 
following components:
    (i) Sandy coastal dune habitat above the high tide line that 
provides a high light environment, room for growth, and adequate 
moisture.
    (ii) A sufficiently abundant pollinator community (which may 
include leafcutter bees and bumble bees) for pollination and 
reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
September 21, 2023.
    (4) Data layers defining map units were created using Geographic 
Information Systems (GIS) feature classes from known extant 
populations. Critical habitat units were defined by applying the 
minimum convex polygon approach in GIS, thereby creating a single 
polygon from occupied habitat patches within each population consisting 
of 25 or more individuals. Several units have two polygons each to 
include individuals that are separated from the main populations by 
unsuitable or unoccupied habitat. In a few cases, the unit boundaries 
were modified to align with the coastal boundary based on current 
National Agriculture Imagery Program natural color imagery. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site at https://www.fws.gov/office/oregon-fish-and-wildlife, at https://www.regulations.gov at Docket No. 
FWS-R1-ES-2021-0070, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Index map for Phacelia argentea follows:

BILLING CODE 4333-15-P
Figure 1 to Phacelia argentea (sand dune phacelia) paragraph (5)

[[Page 57211]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.003

     (6) Unit 1: North Bandon 1, Coos County, Oregon.
    (i) Unit 1 consists of 0.6 acres (ac) (0.2 hectares (ha)) in Coos 
County, Oregon, and is composed of land in private ownership.
    (ii) Map of Units 1 and 2 follows:

Figure 2 to Phacelia argentea (sand dune phacelia) paragraph (6)(ii)

[[Page 57212]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.004

    (7) Unit 2: North Bandon 2, Coos County, Oregon.
    (i) Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon, 
and is composed of land in State (6.9 ac (2.8 ha)) and private (54.4 ac 
(22 ha)) ownership.
    (ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
    (8) Unit 3: Lost Lake, Coos County, Oregon.
    (i) Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon, and 
is composed of land in State (0.1 ac (0.04 ha)), Federal (0.8 ac (0.3 
ha)), and private (2.8 ac (1.1 ha)) ownership.
    (ii) Map of Unit 3 follows:

Figure 3 to Phacelia argentea (sand dune phacelia) paragraph (8)(ii)

[[Page 57213]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.005

    (9) Unit 4: Floras Lake, Curry County, Oregon.
    (i) Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon, and 
is composed of land in Federal ownership.
    (ii) Map of Unit 4 follows:

Figure 4 to Phacelia argentea (sand dune phacelia) paragraph (9)(ii)

[[Page 57214]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.006

    (10) Unit 5: Cape Blanco, Curry County, Oregon.
    (i) Unit 5 consists of 2 ac (0.8 ha) in Curry County, Oregon, and 
is composed of land in State ownership.
    (ii) Map of Unit 5 follows:

Figure 5 to Phacelia argentea (sand dune phacelia) paragraph (10)(ii)

[[Page 57215]]

[GRAPHIC] [TIFF OMITTED] TR22AU23.007

    (11) Unit 6: Paradise Point, Curry County, Oregon.
    (i) Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon, and 
is composed of land in private ownership.
    (ii) Map of Unit 6 follows:

Figure 6 to Phacelia argentea (sand dune phacelia) paragraph (11)(ii)

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    (12) Unit 7: Pistol River North, Curry County, Oregon.
    (i) Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon, and 
is composed of land in State ownership.
    (ii) Map of Unit 7 follows:

Figure 7 to Phacelia argentea (sand dune phacelia) paragraph (12)(ii)

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    (13) Unit 8: Pistol River South, Curry County, Oregon.
    (i) Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon, and 
is composed of land in State ownership.
    (ii) Map of Unit 8 follows:

Figure 8 to Phacelia argentea (sand dune phacelia) paragraph (13)(ii)

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    (14) Unit 9: Lone Ranch, Curry County, Oregon.
    (i) Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and 
is composed of land in State ownership.
    (ii) Map of Unit 9 follows:

Figure 9 to Phacelia argentea (sand dune phacelia) paragraph (14)(ii)

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    (15) Unit 10: Pacific Shores, Del Norte County, California.
    (i) Unit 10 consists of 21 ac (8.5 ha) in Del Norte County, 
California, and is composed of land in State (13.2 ac (5.3 ha)) and 
private (7.8 ac (3.2 ha)) ownership.
    (ii) Map of Units 10 and 11 follows:

Figure 10 to Phacelia argentea (sand dune phacelia) paragraph (15)(ii)

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    (16) Unit 11: Tolowa Dunes, Del Norte County, California.
    (i) Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County, 
California, and is composed of land in State ownership.
    (ii) Map of Unit 11 is provided at paragraph (15)(ii) of this 
entry.
    (17) Unit 12: Point Saint George, Del Norte County, California.
    (i) Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County, 
California, and is composed of land in county (1 ac (0.4 ha)) and 
private (0.1 ac (0.04 ha)) ownership.
    (ii) Map of Unit 12 follows:

Figure 11 to Phacelia argentea (sand dune phacelia) paragraph (17)(ii)

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    (18) Unit 13: Pebble Beach, Del Norte County, California.
    (i) Unit 13 consists of 1.6 ac (0.6 ha) in Del Norte County, 
California, and is under county ownership.
    (ii) Map of Unit 13 follows:

Figure 12 to Phacelia argentea (sand dune phacelia) paragraph (18)(ii)

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* * * * *

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17669 Filed 8-21-23; 8:45 am]
BILLING CODE 4333-15-C