Endangered and Threatened Wildlife and Plants; Determination That Designation of Critical Habitat is Not Prudent for the Rusty Patched Bumble Bee, 54281-54285 [2020-17093]

Download as PDF Federal Register / Vol. 85, No. 170 / Tuesday, September 1, 2020 / Rules and Regulations S9.2 Hybrid and Electric Vehicles manufactured on or after March 1, 2021. All hybrid and electric vehicles to which this standard applies manufactured on or after March 1, 2021, shall comply with this safety standard. § 585.134 Records. PART 585—PHASE–IN REPORTING REQUIREMENTS James C. Owens, Deputy Administrator. Each manufacturer shall maintain records of the Vehicle Identification Number for each vehicle for which information is reported under § 585.133 until December 31, 2025. [FR Doc. 2020–19334 Filed 8–28–20; 11:15 am] 3. The authority citation for part 585 continues to read as follows: ■ BILLING CODE 4910–59–P Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95. DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Subpart N—Minimum Sound Requirements for Hybrid and Electric Vehicles Reporting Requirements ■ 4. Revise § 585.130 to read as follows: § 585.130 Applicability. This subpart applies to manufacturers of hybrid and electric passenger cars, trucks, buses, multipurpose passenger vehicles, and low-speed vehicles subject to the phase-in requirements of S9.1 Hybrid and Electric Vehicles manufactured on or after March 1, 2020, and before March 1, 2021 (49 CFR 571.141). ■ 5. Revise § 585.132 to read as follows: § 585.132 Response to inquiries. At any time, each manufacturer shall, upon request from the Office of Vehicle Safety Compliance, provide information identifying the vehicles (by make, model and vehicle identification number) that have been certified as complying with the requirements of Standard No. 141, Minimum Sound Requirements for Hybrid and Electric Vehicles (49 CFR 571.141). The manufacturer’s designation of a vehicle as a certified vehicle is irrevocable. 6. Section 585.133 is amended by revising paragraph (a) to read as follows: ■ jbell on DSKJLSW7X2PROD with RULES § 585.133 Reporting requirements. (a) Phase-in reporting requirements. Within 60 days after February 28, 2021, each manufacturer shall submit a report to the National Highway Traffic Safety Administration concerning its compliance with the requirements of Standard No. 141, Minimum Sound Requirements for Hybrid and Electric Vehicles (49 CFR 571.141), for its vehicles produced from March 1, 2020 to February 28, 2021. Each report shall provide the information specified in paragraph (b) of this section and in § 585.2. * * * * * ■ 7. Revise § 585.134 to read as follows: VerDate Sep<11>2014 15:57 Aug 31, 2020 Jkt 250001 50 CFR Part 17 [Docket No. FWS–R3–ES–2020–0053; FF09E21000 FXES11110900000 201] Endangered and Threatened Wildlife and Plants; Determination That Designation of Critical Habitat is Not Prudent for the Rusty Patched Bumble Bee Fish and Wildlife Service, Interior. ACTION: Notice of final determination. AGENCY: SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have reconsidered whether designating critical habitat for the rusty patched bumble bee (Bombus affinis) would be prudent. On January 11, 2017, we published a final rule listing the rusty patched bumble bee as an endangered species under the Endangered Species Act of 1973, as amended (Act). In that final rule, we stated that designation of critical habitat may be prudent, but not determinable. We have now determined that such a designation would not be prudent. The present or threatened destruction, modification, or curtailment of habitat is not the primary threat to the species, and the availability of habitat does not limit the conservation of the rusty patched bumble bee now, nor will it in the future. The determination announced in this document was made on September 1, 2020. ADDRESSES: This document and the supporting documentation we used in preparing this determination are available on the internet at https:// www.regulations.gov under Docket No. FWS–R3–ES–2020–0053. FOR FURTHER INFORMATION CONTACT: Sarah Quamme, Field Supervisor, Minnesota-Wisconsin Ecological Services Field Office, U.S. Fish and Wildlife Service, 4101 American Blvd. E, Bloomington, MN 55425; telephone DATES: PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 54281 952–252–0092. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Background Historically, the rusty patched bumble bee was broadly distributed across the eastern United States and Upper Midwest, from Maine in the United States and southern Quebec and Ontario in Canada, south to the northeast corner of Georgia, reaching west to the eastern edges of North and South Dakota (Service 2016, p. 49). For a thorough review of the life history and ecology of the rusty patched bumble bee, please refer to the species status assessment report (Service 2016). Previous Federal Actions Please refer to the proposed listing rule for the rusty patched bumble bee (81 FR 65324; September 22, 2016) for a detailed description of previous Federal actions concerning this species. On January 11, 2017, we published in the Federal Register (82 FR 3186) a final rule listing the rusty patched bumble bee as an endangered species. The rule became effective on March 21, 2017 (82 FR 10285; February 10, 2017). On January 15, 2019, the Natural Resources Defense Council filed a lawsuit against the Service for not publishing a final rule designating critical habitat for the species. Per a September 25, 2019, settlement agreement with the Natural Resources Defense Council, we agreed to submit to the Federal Register either a proposed rule designating critical habitat or a final determination that critical habitat designation is not prudent no later than July 31, 2020. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied E:\FR\FM\01SER1.SGM 01SER1 jbell on DSKJLSW7X2PROD with RULES 54282 Federal Register / Vol. 85, No. 170 / Tuesday, September 1, 2020 / Rules and Regulations by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. 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 may be 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 VerDate Sep<11>2014 15:57 Aug 31, 2020 Jkt 250001 areas are essential for the conservation of the species. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat 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. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our 2017 rule found that critical habitat was not determinable because of the lack of complete data regarding the complex life-history needs of the rusty patched bumble bee. We also ventured that designation of critical habitat may be prudent. Specifically, we found that identification and mapping of critical habitat is not likely to initiate any threat of collection or vandalism for the bee and that potential benefits of critical habitat designation may include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the protected species (82 FR 3186; January 11, 2017). While our 2017 rule stated that designation of critical habitat may be prudent, the Service did not make a finding in the 2017 final listing rule that designation was prudent. We have now analyzed more complete data and have a better understanding of the life-history needs of the rusty patched bumble bee. In light of this enhanced understanding, as well as new information that has become available since the time of listing, we have re-evaluated whether critical habitat designation is prudent for the rusty patched bumble bee. Designating Habitat Would Not Be Prudent The rusty patched bumble bee is a habitat generalist, considered to be flexible with regard to its habitat requirements. The species occupies a variety of habitats, including prairies, woodlands, marshes, agricultural landscapes, and residential parks and gardens (Colla and Packer 2008, p. 1381; Colla and Dumesh 2010, p. 46; Service rusty patched bumble bee unpublished geodatabase 2019). The species requires areas that support sufficient food (nectar and pollen), undisturbed nesting habitat in proximity to floral resources, and overwintering habitat for hibernating queens (Goulson et al. 2015, p. 2; Potts et al. 2010, p. 349). Bumble bees are generalist foragers, meaning they gather pollen and nectar from a wide variety of flowering plants (Xerces 2013, pp. 27–28). The rusty patched bumble bee is one of the first bumble bees to emerge early in the spring and the last to go into hibernation, so the species requires a constant and diverse supply of blooming flowers to meet its nutritional needs. Rusty patched bumble bee nests are typically in abandoned rodent nests or other similar cavities (Plath 1922, pp. 190–191; Frison 1923, p. 267; Macfarlane et al. 1994, p. 4). Bumble bee queens seek nesting sites that require little preparation, are in welldrained soil, and are sheltered from the elements (Frison 1923, pp. 265–266). In a recent study of other bumble bee species, spring foundress queens (i.e., queens establishing a new nest) searching for nesting locations favored transitional zones between wooded and open habitats over open habitats, with most queens investigating areas with E:\FR\FM\01SER1.SGM 01SER1 jbell on DSKJLSW7X2PROD with RULES Federal Register / Vol. 85, No. 170 / Tuesday, September 1, 2020 / Rules and Regulations dense leaf litter, fallen logs, and other features of woody habitats (Lanterman et al. 2019, pp. 136–137). Other bumble bees in the subgenus to which rusty patched bumble bee belongs have been found nesting in a variety of landscapes, including forest and forest edges as well as agricultural, urban, grassland, and other landscapes (Liczner and Colla 2019, p. 794). Little is known about the overwintering habitats of rusty patched bumble bee foundress queens, but other species of Bombus typically form a chamber in soft soil, a few centimeters deep, and sometimes use compost or mole hills to overwinter (Goulson 2010, p. 11). Overwintering bumble bee queens have been found mostly in shaded areas, usually near trees and in banks without dense vegetation (Liczner and Colla 2019, p. 792). An overwintering rusty patched bumble bee queen, discovered in a maple oakwoodland in Wisconsin in 2016, was found under a few centimeters of leaf litter and loose soil (Herrick 2016, pers. comm.). Based on what we know about other Bombus species and the rusty patched bumble bee, we assume rusty patched bumble bees are overwintering primarily in woodlands. Historically, the rusty patched bumble bee was widely distributed across its range. Prior to listing in 2017, the species experienced a widespread and precipitous decline. The cause of the decline is unknown, but evidence suggests a synergistic interaction between an introduced pathogen and exposure to pesticides (specifically, insecticides and fungicides; Service 2016, p. 53). The final listing rule for rusty patched bumble bee (82 FR 3186; January 11, 2017) identified additional threats to the species as habitat loss and degradation, small population dynamics, and effects of climate change. Historical loss of habitat is commonly cited as a contributor to bee declines (Goulson et al. 2015, p. 2; Goulson et al. 2008; Potts et al. 2010, p. 348; Brown and Paxton 2009, pp. 411–412). For example, loss of native grassland since European settlement of North America is estimated to be as high as 99.9 percent (Samson and Knopf 1994, p. 418). The current decline of rusty patched bumble bee, however, is more recent than these historical losses of habitat. Since 1999, the rusty patched bumble bee has experienced an 88 percent decline in the number of populations documented prior to 2000. Along with the loss of populations, a marked decrease in the range and distribution has occurred in recent times, with an 87 percent loss of spatial extent within the historical range since VerDate Sep<11>2014 15:57 Aug 31, 2020 Jkt 250001 2000. Although habitat loss has established negative effects on bumble bees (Goulson et al. 2008; Williams and Osborne 2009, pp. 371–373), many bumble bee experts conclude it is unlikely to be a main driver of the recent, widespread North American bee declines (Szabo et al. 2012; p. 236; Colla and Packer 2008, p. 1388; Cameron et al. 2011, p. 665). Further, the rusty patched bumble bee may not be as severely affected by habitat loss because it is not dependent on specific plant species for floral resources and can use a variety of habitats for nesting and overwintering. The rusty patched bumble bee is no longer present in 20 of the 31 States and Provinces where it occurred historically; however, suitable habitat is still widespread in these areas. In addition, many of the locations where the species was observed historically retain suitable habitat, indicating many of the historical locations were not extirpated due to habitat loss. Because the rusty patched bumble bee is a generalist forager that does not depend on certain species of plants for nectar and pollen and likely uses woodlands and woodland edges as well as other areas for overwintering and nesting, the best available information indicates that its habitat needs are relatively plentiful and widely distributed across its historical range, providing further evidence that habitat loss is not the primary threat to the species. Across the historical range of the species, there appears to be abundant suitable habitat for rusty patched bumble bees to occupy in the future should their numbers rebound. Due to the rusty patched bumble bee’s general habitat requirements, we expect sufficient habitat to remain available to the species into the future. Since the time of listing, we have developed a rusty patched bumble bee map, posted on our website, that shows where the rusty patched bumble bee may be present (Service 2020). The map identifies three areas: (1) ‘‘High potential zones’’ (HPZs) where rusty patched bumble bee is likely present, (2) ‘‘low potential zones’’ where rusty patched bumble bee is not likely to be present, and (3) the species’ historical range where rusty patched bumble bee is not present. The HPZs are irregular polygons generated from a model of known recent (2007–present) observation points, estimated foraging distances, and the ability of the bee to move through a variety of land classes. The modeled HPZ polygons do not equate to suitable habitat for rusty patched bumble bees, although the HPZs likely contain suitable habitat because the rusty patched bumble bee PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 54283 was recently observed at least once within each of the HPZs. The model used to create the HPZs, however, did not attempt to map specific foraging, nesting, or overwintering areas. Section 7(a)(2) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species. Since the time of listing, we have developed section 7 consultation guidance, which focuses on avoiding direct impacts to rusty patched bumble bees and their occupied habitat (Service 2019b, entire). The consultation guidance directs Federal agencies to assess potential effects to rusty patched bumble bee from activities occurring in suitable habitat within the HPZs. We have determined that consultation outside of these zones, in unoccupied habitat, is not necessary because it is unlikely that the species is using those areas. Although we identified section 7 consultation in unoccupied areas as a potential benefit of designating critical habitat, we have found since then that consultation in those areas is not necessary for the conservation of the species. Similarly, we developed voluntary guidance for implementation of section 10(a)(1)(B) of the Act for non-Federal project proponents (Service 2017, entire). For non-Federal projects that would occur within a HPZ, this voluntary guidance helps project proponents and landowners understand the status and distribution of the rusty patched bumble bee, determine whether their projects could incidentally take the rusty patched bumble bee, and, if so, how they may plan and carry out their projects while in compliance with the Act. In 2018, the Service developed ‘‘Conservation Management Guidelines for the Rusty Patched Bumble Bee (Bombus affinis)’’ (Service 2018, entire) and, in 2019, released the ‘‘Draft Recovery Plan for Rusty Patched Bumble Bee (Bombus affinis)’’ (Service 2019a, entire). Both documents provide guidance for improving or maintaining nesting habitat, floral resources, and overwintering habitat for rusty patched bumble bee. The recovery strategy in the draft recovery plan focuses on a sequence of first halting declines, then reversing declines, and ultimately securing the long-term viability of the species (Service 2019a, p. 3). The initial specific objective includes preventing further loss of populations by increasing the health of individuals and the number of colonies within a population, improving the quality and quantity of habitat, and ensuring connectivity between populations. The draft recovery E:\FR\FM\01SER1.SGM 01SER1 jbell on DSKJLSW7X2PROD with RULES 54284 Federal Register / Vol. 85, No. 170 / Tuesday, September 1, 2020 / Rules and Regulations plan recommends habitat restoration and enhancement because even slight improvements in resource availability could increase development and productivity at existing colonies and improve the bees’ resilience to other stressors, such as pesticides and pathogens, which are estimated to be the primary drivers of the species’ recent decline. This also helps to address the deleterious effects of small population size, which the rusty patched bumble bee is currently experiencing. At a landscape level, although habitat improvement may benefit the species, we cannot predict which specific areas rusty patched bumble bees may occupy, given the primary stressors of pesticides and pathogens, the species’ dispersal abilities, and the variety of habitats it can use for foraging, overwintering, and nesting. The Service’s website provides a map of priority areas that are of most interest for rusty patched bumble bee surveys, habitat assessments, and habitat improvements, with areas with the most recent detections of the species and areas that intersect with HPZs as the two highest priorities (Service 2019c). The priority areas are not appropriate for designation as critical habitat because they do not map directly to suitable habitat and contain areas not suitable for rusty patched bumble bees. Rather, the priority areas reflect our emphasis on the need to protect bees and prevent the further loss of colonies. The maps provide guidance for Federal and non-Federal projects as well as education to local landowners. Our current regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or VerDate Sep<11>2014 15:57 Aug 31, 2020 Jkt 250001 (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. The best scientific data available indicate that the present or threatened destruction, modification, or curtailment of the rusty patched bumble bee’s habitat or range is not the primary threat to the species. Because habitat for the rusty patched bumble bee is not limiting, and because the bee is considered to be flexible with regard to its habitat use for foraging, nesting, and overwintering, the availability of habitat does not limit the conservation of the rusty patched bumble bee now, nor will it in the future. Given the primary stressors of pesticides and pathogens, the species’ dispersal abilities, and the variety of habitats it can use for foraging, overwintering, and nesting, we cannot predict which specific areas rusty patched bumble bees may occupy at a landscape level across its historic range. Therefore, pursuant to 50 CFR 424.12(a)(1)(v), the best scientific data available indicate that designation of critical habitat is not prudent. In making this determination we applied the implementing regulations at 50 CFR 424.12(a)(1) that are currently in effect. The current implementing regulations incorporate revisions that were made final on August 27, 2019, and that final rule expressly stated that the revisions applied ‘‘only to relevant rulemakings for which the proposed rule is published after [September 26, 2019]’’ (84 FR 45020). The reason for that applicability language was so as not ‘‘to require that any previously completed classification decision or critical habitat designation must be reevaluated on the basis of these final regulations’’ (Id.). The proposed and final listing rules for the rusty patched bumble bee published on September 22, 2016, and January 11, 2017, respectively—both were before September 26, 2019, and both indicated that critical habitat was not determinable but may be prudent. There is some ambiguity as to whether this indication in the proposed and final listing rules that designation may be prudent does constitute a ‘‘rulemaking’’ for which a proposed rule was published before the effective date of that rule.’’ It is not clear, for example, whether a prudency determination qualifies as a ‘‘rulemaking’’ under the applicability language or whether the proposed rule—a proposal to list the species along with an accompanying finding that critical habitat was not then determinable—qualified as a ‘‘proposed rule published after that date.’’ PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 To address this ambiguity, we also evaluated whether designation of critical habitat is prudent under the regulations that were in effect when we made the not-determinable finding at the time of the final listing rule. The regulations that were in effect at the time the species was listed (in early 2017) stated that a designation of critical habitat is not prudent when any of the following situations exist: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; or (ii) Such designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Services may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or whether any areas meet the definition of ‘‘critical habitat.’’ The best scientific data available indicate that the present or threatened destruction, modification, or curtailment of the rusty patched bumble bee’s habitat or range is not the primary threat to the species. Because habitat for the rusty patched bumble bee is not limiting, and because the bee is considered to be flexible with regard to its habitat use for foraging, nesting, and overwintering, the availability of habitat does not limit the conservation of the rusty patched bumble bee now, nor will it in the future. Although we have since found that triggering section 7 consultation in unoccupied areas is not necessary, we have achieved, through development of the priority maps, the other benefits of critical habitat that we had identified in the final listing rule, i.e., focusing conservation activities on the most essential areas to prevent further loss of colonies, providing educational benefits by creating greater public awareness of rusty patched bumble bee and its conservation, and preventing inadvertent harm to the species. Because these maps are updated regularly as we receive new information, they provide better, more focused attention to the needs of rusty patched bumble bee than a static critical habitat designation would. For these reasons, we find that designating critical habitat would not be beneficial for the species. Therefore, we also find that, even if we were to apply the regulations in place at the time of listing at 50 CFR 424.12(a)(1), we would still conclude that designating critical habitat is not E:\FR\FM\01SER1.SGM 01SER1 Federal Register / Vol. 85, No. 170 / Tuesday, September 1, 2020 / Rules and Regulations prudent for the rusty patched bumble bee. References Cited A complete list of references cited in this document is available on the internet at https://www.regulations.gov and upon request from the MinnesotaWisconsin Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this document are staff members of the Service’s Great Lakes Regional Office and MinnesotaWisconsin Ecological Services Field Office. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–17093 Filed 8–31–20; 8:45 am] BILLING CODE 4333–15–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 200227–0066; RTID 0648– XA430] Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod in the Bering Sea and Aleutian Islands Management Area National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; modification of a closure; request for comments. jbell on DSKJLSW7X2PROD with RULES AGENCY: SUMMARY: NMFS is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2020 total allowable catch of Pacific cod allocated to catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. DATES: Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2020, VerDate Sep<11>2014 15:57 Aug 31, 2020 Jkt 250001 through 2400 hours, A.l.t., December 31, 2020. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 16, 2020. ADDRESSES: Submit your comments, identified by NOAA–NMFS–2019–0074, by either of the following methods: • Federal e-Rulemaking Portal: Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20190074, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Records Office. Mail comments to P.O. Box 21668, Juneau, AK 99802–1668. Instructions: NMFS may not consider comments if they are sent by any other method, to any other address or individual, or received after the comment period ends. All comments received are a part of the public record, and NMFS will post the comments for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Obren Davis, 907–586–7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679. NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI under § 679.20(d)(1)(iii) on January 19, 2020 (85 FR 3856, January 23, 2020). NMFS has determined that as of August 26, 2020, approximately 1,046 metric tons of Pacific cod remain in the 2020 Pacific cod apportionment for catcher vessels less than 60 feet LOA PO 00000 Frm 00053 Fmt 4700 Sfmt 9990 54285 using hook-and-line or pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2020 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels less than 60 feet LOA using hook-andline or pot gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery. Classification NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866. Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-andline or pot gear in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 26, 2020. Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 16, 2020. Authority: 16 U.S.C. 1801 et seq. Dated: August 27, 2020. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2020–19259 Filed 8–31–20; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\01SER1.SGM 01SER1

Agencies

[Federal Register Volume 85, Number 170 (Tuesday, September 1, 2020)]
[Rules and Regulations]
[Pages 54281-54285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17093]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2020-0053; FF09E21000 FXES11110900000 201]


Endangered and Threatened Wildlife and Plants; Determination That 
Designation of Critical Habitat is Not Prudent for the Rusty Patched 
Bumble Bee

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of final determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
reconsidered whether designating critical habitat for the rusty patched 
bumble bee (Bombus affinis) would be prudent. On January 11, 2017, we 
published a final rule listing the rusty patched bumble bee as an 
endangered species under the Endangered Species Act of 1973, as amended 
(Act). In that final rule, we stated that designation of critical 
habitat may be prudent, but not determinable. We have now determined 
that such a designation would not be prudent. The present or threatened 
destruction, modification, or curtailment of habitat is not the primary 
threat to the species, and the availability of habitat does not limit 
the conservation of the rusty patched bumble bee now, nor will it in 
the future.

DATES: The determination announced in this document was made on 
September 1, 2020.

ADDRESSES: This document and the supporting documentation we used in 
preparing this determination are available on the internet at https://www.regulations.gov under Docket No. FWS-R3-ES-2020-0053.

FOR FURTHER INFORMATION CONTACT: Sarah Quamme, Field Supervisor, 
Minnesota-Wisconsin Ecological Services Field Office, U.S. Fish and 
Wildlife Service, 4101 American Blvd. E, Bloomington, MN 55425; 
telephone 952-252-0092. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Historically, the rusty patched bumble bee was broadly distributed 
across the eastern United States and Upper Midwest, from Maine in the 
United States and southern Quebec and Ontario in Canada, south to the 
northeast corner of Georgia, reaching west to the eastern edges of 
North and South Dakota (Service 2016, p. 49). For a thorough review of 
the life history and ecology of the rusty patched bumble bee, please 
refer to the species status assessment report (Service 2016).

Previous Federal Actions

    Please refer to the proposed listing rule for the rusty patched 
bumble bee (81 FR 65324; September 22, 2016) for a detailed description 
of previous Federal actions concerning this species. On January 11, 
2017, we published in the Federal Register (82 FR 3186) a final rule 
listing the rusty patched bumble bee as an endangered species. The rule 
became effective on March 21, 2017 (82 FR 10285; February 10, 2017). On 
January 15, 2019, the Natural Resources Defense Council filed a lawsuit 
against the Service for not publishing a final rule designating 
critical habitat for the species. Per a September 25, 2019, settlement 
agreement with the Natural Resources Defense Council, we agreed to 
submit to the Federal Register either a proposed rule designating 
critical habitat or a final determination that critical habitat 
designation is not prudent no later than July 31, 2020.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied

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by the species as an area that may generally be delineated around 
species' occurrences, as determined by the Secretary (i.e., range). 
Such areas may include those areas used throughout all or part of the 
species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners.
    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 may be 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.
    When designating critical habitat, the Secretary will first 
evaluate areas occupied by the species. The Secretary will only 
consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species. In addition, 
for an unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species.
    Our 2017 rule found that critical habitat was not determinable 
because of the lack of complete data regarding the complex life-history 
needs of the rusty patched bumble bee. We also ventured that 
designation of critical habitat may be prudent. Specifically, we found 
that identification and mapping of critical habitat is not likely to 
initiate any threat of collection or vandalism for the bee and that 
potential benefits of critical habitat designation may include: (1) 
Triggering consultation under section 7 of the Act, in new areas for 
actions in which there may be a Federal nexus where it would not 
otherwise occur because, for example, it is unoccupied; (2) focusing 
conservation activities on the most essential features and areas; (3) 
providing educational benefits to State or county governments or 
private entities; and (4) preventing people from causing inadvertent 
harm to the protected species (82 FR 3186; January 11, 2017). While our 
2017 rule stated that designation of critical habitat may be prudent, 
the Service did not make a finding in the 2017 final listing rule that 
designation was prudent.
    We have now analyzed more complete data and have a better 
understanding of the life-history needs of the rusty patched bumble 
bee. In light of this enhanced understanding, as well as new 
information that has become available since the time of listing, we 
have re-evaluated whether critical habitat designation is prudent for 
the rusty patched bumble bee.
Designating Habitat Would Not Be Prudent
    The rusty patched bumble bee is a habitat generalist, considered to 
be flexible with regard to its habitat requirements. The species 
occupies a variety of habitats, including prairies, woodlands, marshes, 
agricultural landscapes, and residential parks and gardens (Colla and 
Packer 2008, p. 1381; Colla and Dumesh 2010, p. 46; Service rusty 
patched bumble bee unpublished geodatabase 2019). The species requires 
areas that support sufficient food (nectar and pollen), undisturbed 
nesting habitat in proximity to floral resources, and overwintering 
habitat for hibernating queens (Goulson et al. 2015, p. 2; Potts et al. 
2010, p. 349).
    Bumble bees are generalist foragers, meaning they gather pollen and 
nectar from a wide variety of flowering plants (Xerces 2013, pp. 27-
28). The rusty patched bumble bee is one of the first bumble bees to 
emerge early in the spring and the last to go into hibernation, so the 
species requires a constant and diverse supply of blooming flowers to 
meet its nutritional needs.
    Rusty patched bumble bee nests are typically in abandoned rodent 
nests or other similar cavities (Plath 1922, pp. 190-191; Frison 1923, 
p. 267; Macfarlane et al. 1994, p. 4). Bumble bee queens seek nesting 
sites that require little preparation, are in well-drained soil, and 
are sheltered from the elements (Frison 1923, pp. 265-266). In a recent 
study of other bumble bee species, spring foundress queens (i.e., 
queens establishing a new nest) searching for nesting locations favored 
transitional zones between wooded and open habitats over open habitats, 
with most queens investigating areas with

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dense leaf litter, fallen logs, and other features of woody habitats 
(Lanterman et al. 2019, pp. 136-137). Other bumble bees in the subgenus 
to which rusty patched bumble bee belongs have been found nesting in a 
variety of landscapes, including forest and forest edges as well as 
agricultural, urban, grassland, and other landscapes (Liczner and Colla 
2019, p. 794).
    Little is known about the overwintering habitats of rusty patched 
bumble bee foundress queens, but other species of Bombus typically form 
a chamber in soft soil, a few centimeters deep, and sometimes use 
compost or mole hills to overwinter (Goulson 2010, p. 11). 
Overwintering bumble bee queens have been found mostly in shaded areas, 
usually near trees and in banks without dense vegetation (Liczner and 
Colla 2019, p. 792). An overwintering rusty patched bumble bee queen, 
discovered in a maple oak-woodland in Wisconsin in 2016, was found 
under a few centimeters of leaf litter and loose soil (Herrick 2016, 
pers. comm.). Based on what we know about other Bombus species and the 
rusty patched bumble bee, we assume rusty patched bumble bees are 
overwintering primarily in woodlands.
    Historically, the rusty patched bumble bee was widely distributed 
across its range. Prior to listing in 2017, the species experienced a 
widespread and precipitous decline. The cause of the decline is 
unknown, but evidence suggests a synergistic interaction between an 
introduced pathogen and exposure to pesticides (specifically, 
insecticides and fungicides; Service 2016, p. 53). The final listing 
rule for rusty patched bumble bee (82 FR 3186; January 11, 2017) 
identified additional threats to the species as habitat loss and 
degradation, small population dynamics, and effects of climate change.
    Historical loss of habitat is commonly cited as a contributor to 
bee declines (Goulson et al. 2015, p. 2; Goulson et al. 2008; Potts et 
al. 2010, p. 348; Brown and Paxton 2009, pp. 411-412). For example, 
loss of native grassland since European settlement of North America is 
estimated to be as high as 99.9 percent (Samson and Knopf 1994, p. 
418). The current decline of rusty patched bumble bee, however, is more 
recent than these historical losses of habitat. Since 1999, the rusty 
patched bumble bee has experienced an 88 percent decline in the number 
of populations documented prior to 2000. Along with the loss of 
populations, a marked decrease in the range and distribution has 
occurred in recent times, with an 87 percent loss of spatial extent 
within the historical range since 2000. Although habitat loss has 
established negative effects on bumble bees (Goulson et al. 2008; 
Williams and Osborne 2009, pp. 371-373), many bumble bee experts 
conclude it is unlikely to be a main driver of the recent, widespread 
North American bee declines (Szabo et al. 2012; p. 236; Colla and 
Packer 2008, p. 1388; Cameron et al. 2011, p. 665). Further, the rusty 
patched bumble bee may not be as severely affected by habitat loss 
because it is not dependent on specific plant species for floral 
resources and can use a variety of habitats for nesting and 
overwintering.
    The rusty patched bumble bee is no longer present in 20 of the 31 
States and Provinces where it occurred historically; however, suitable 
habitat is still widespread in these areas. In addition, many of the 
locations where the species was observed historically retain suitable 
habitat, indicating many of the historical locations were not 
extirpated due to habitat loss. Because the rusty patched bumble bee is 
a generalist forager that does not depend on certain species of plants 
for nectar and pollen and likely uses woodlands and woodland edges as 
well as other areas for overwintering and nesting, the best available 
information indicates that its habitat needs are relatively plentiful 
and widely distributed across its historical range, providing further 
evidence that habitat loss is not the primary threat to the species. 
Across the historical range of the species, there appears to be 
abundant suitable habitat for rusty patched bumble bees to occupy in 
the future should their numbers rebound. Due to the rusty patched 
bumble bee's general habitat requirements, we expect sufficient habitat 
to remain available to the species into the future.
    Since the time of listing, we have developed a rusty patched bumble 
bee map, posted on our website, that shows where the rusty patched 
bumble bee may be present (Service 2020). The map identifies three 
areas: (1) ``High potential zones'' (HPZs) where rusty patched bumble 
bee is likely present, (2) ``low potential zones'' where rusty patched 
bumble bee is not likely to be present, and (3) the species' historical 
range where rusty patched bumble bee is not present. The HPZs are 
irregular polygons generated from a model of known recent (2007-
present) observation points, estimated foraging distances, and the 
ability of the bee to move through a variety of land classes. The 
modeled HPZ polygons do not equate to suitable habitat for rusty 
patched bumble bees, although the HPZs likely contain suitable habitat 
because the rusty patched bumble bee was recently observed at least 
once within each of the HPZs. The model used to create the HPZs, 
however, did not attempt to map specific foraging, nesting, or 
overwintering areas.
    Section 7(a)(2) of the Act requires Federal agencies to evaluate 
their actions with respect to any species that is listed as an 
endangered or threatened species. Since the time of listing, we have 
developed section 7 consultation guidance, which focuses on avoiding 
direct impacts to rusty patched bumble bees and their occupied habitat 
(Service 2019b, entire). The consultation guidance directs Federal 
agencies to assess potential effects to rusty patched bumble bee from 
activities occurring in suitable habitat within the HPZs. We have 
determined that consultation outside of these zones, in unoccupied 
habitat, is not necessary because it is unlikely that the species is 
using those areas. Although we identified section 7 consultation in 
unoccupied areas as a potential benefit of designating critical 
habitat, we have found since then that consultation in those areas is 
not necessary for the conservation of the species.
    Similarly, we developed voluntary guidance for implementation of 
section 10(a)(1)(B) of the Act for non-Federal project proponents 
(Service 2017, entire). For non-Federal projects that would occur 
within a HPZ, this voluntary guidance helps project proponents and 
landowners understand the status and distribution of the rusty patched 
bumble bee, determine whether their projects could incidentally take 
the rusty patched bumble bee, and, if so, how they may plan and carry 
out their projects while in compliance with the Act.
    In 2018, the Service developed ``Conservation Management Guidelines 
for the Rusty Patched Bumble Bee (Bombus affinis)'' (Service 2018, 
entire) and, in 2019, released the ``Draft Recovery Plan for Rusty 
Patched Bumble Bee (Bombus affinis)'' (Service 2019a, entire). Both 
documents provide guidance for improving or maintaining nesting 
habitat, floral resources, and overwintering habitat for rusty patched 
bumble bee. The recovery strategy in the draft recovery plan focuses on 
a sequence of first halting declines, then reversing declines, and 
ultimately securing the long-term viability of the species (Service 
2019a, p. 3). The initial specific objective includes preventing 
further loss of populations by increasing the health of individuals and 
the number of colonies within a population, improving the quality and 
quantity of habitat, and ensuring connectivity between populations. The 
draft recovery

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plan recommends habitat restoration and enhancement because even slight 
improvements in resource availability could increase development and 
productivity at existing colonies and improve the bees' resilience to 
other stressors, such as pesticides and pathogens, which are estimated 
to be the primary drivers of the species' recent decline. This also 
helps to address the deleterious effects of small population size, 
which the rusty patched bumble bee is currently experiencing. At a 
landscape level, although habitat improvement may benefit the species, 
we cannot predict which specific areas rusty patched bumble bees may 
occupy, given the primary stressors of pesticides and pathogens, the 
species' dispersal abilities, and the variety of habitats it can use 
for foraging, overwintering, and nesting.
    The Service's website provides a map of priority areas that are of 
most interest for rusty patched bumble bee surveys, habitat 
assessments, and habitat improvements, with areas with the most recent 
detections of the species and areas that intersect with HPZs as the two 
highest priorities (Service 2019c). The priority areas are not 
appropriate for designation as critical habitat because they do not map 
directly to suitable habitat and contain areas not suitable for rusty 
patched bumble bees. Rather, the priority areas reflect our emphasis on 
the need to protect bees and prevent the further loss of colonies. The 
maps provide guidance for Federal and non-Federal projects as well as 
education to local landowners.
    Our current regulations (50 CFR 424.12(a)(1)) state that the 
Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    The best scientific data available indicate that the present or 
threatened destruction, modification, or curtailment of the rusty 
patched bumble bee's habitat or range is not the primary threat to the 
species. Because habitat for the rusty patched bumble bee is not 
limiting, and because the bee is considered to be flexible with regard 
to its habitat use for foraging, nesting, and overwintering, the 
availability of habitat does not limit the conservation of the rusty 
patched bumble bee now, nor will it in the future. Given the primary 
stressors of pesticides and pathogens, the species' dispersal 
abilities, and the variety of habitats it can use for foraging, 
overwintering, and nesting, we cannot predict which specific areas 
rusty patched bumble bees may occupy at a landscape level across its 
historic range. Therefore, pursuant to 50 CFR 424.12(a)(1)(v), the best 
scientific data available indicate that designation of critical habitat 
is not prudent.
    In making this determination we applied the implementing 
regulations at 50 CFR 424.12(a)(1) that are currently in effect. The 
current implementing regulations incorporate revisions that were made 
final on August 27, 2019, and that final rule expressly stated that the 
revisions applied ``only to relevant rulemakings for which the proposed 
rule is published after [September 26, 2019]'' (84 FR 45020). The 
reason for that applicability language was so as not ``to require that 
any previously completed classification decision or critical habitat 
designation must be reevaluated on the basis of these final 
regulations'' (Id.). The proposed and final listing rules for the rusty 
patched bumble bee published on September 22, 2016, and January 11, 
2017, respectively--both were before September 26, 2019, and both 
indicated that critical habitat was not determinable but may be 
prudent.
    There is some ambiguity as to whether this indication in the 
proposed and final listing rules that designation may be prudent does 
constitute a ``rulemaking'' for which a proposed rule was published 
before the effective date of that rule.'' It is not clear, for example, 
whether a prudency determination qualifies as a ``rulemaking'' under 
the applicability language or whether the proposed rule--a proposal to 
list the species along with an accompanying finding that critical 
habitat was not then determinable--qualified as a ``proposed rule 
published after that date.''
    To address this ambiguity, we also evaluated whether designation of 
critical habitat is prudent under the regulations that were in effect 
when we made the not-determinable finding at the time of the final 
listing rule.
    The regulations that were in effect at the time the species was 
listed (in early 2017) stated that a designation of critical habitat is 
not prudent when any of the following situations exist:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species; or
    (ii) Such designation of critical habitat would not be beneficial 
to the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    The best scientific data available indicate that the present or 
threatened destruction, modification, or curtailment of the rusty 
patched bumble bee's habitat or range is not the primary threat to the 
species. Because habitat for the rusty patched bumble bee is not 
limiting, and because the bee is considered to be flexible with regard 
to its habitat use for foraging, nesting, and overwintering, the 
availability of habitat does not limit the conservation of the rusty 
patched bumble bee now, nor will it in the future. Although we have 
since found that triggering section 7 consultation in unoccupied areas 
is not necessary, we have achieved, through development of the priority 
maps, the other benefits of critical habitat that we had identified in 
the final listing rule, i.e., focusing conservation activities on the 
most essential areas to prevent further loss of colonies, providing 
educational benefits by creating greater public awareness of rusty 
patched bumble bee and its conservation, and preventing inadvertent 
harm to the species. Because these maps are updated regularly as we 
receive new information, they provide better, more focused attention to 
the needs of rusty patched bumble bee than a static critical habitat 
designation would. For these reasons, we find that designating critical 
habitat would not be beneficial for the species.
    Therefore, we also find that, even if we were to apply the 
regulations in place at the time of listing at 50 CFR 424.12(a)(1), we 
would still conclude that designating critical habitat is not

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prudent for the rusty patched bumble bee.

References Cited

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

Authors

    The primary authors of this document are staff members of the 
Service's Great Lakes Regional Office and Minnesota-Wisconsin 
Ecological Services Field Office.

Authority

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

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-17093 Filed 8-31-20; 8:45 am]
BILLING CODE 4333-15-P
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