Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Tiehm's Buckwheat, 6101-6118 [2022-02298]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Proposed Rules]
[Pages 6101-6118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02298]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2020-0017; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF94


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Tiehm's Buckwheat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Tiehm's buckwheat (Eriogonum 
tiehmii), which the Service has proposed to list as endangered under 
the Endangered Species Act of 1973, as amended (Act). In total, we 
propose to designate approximately 910 acres (368 hectares) in one unit 
in Nevada as critical habitat for Tiehm's buckwheat. We also announce 
the availability of a draft economic analysis of the proposed critical 
habitat designation.

DATES: We will accept comments received or postmarked on or before 
April 4, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by March 21, 2022.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2020-0017, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above.

[[Page 6102]]

We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: The coordinates or plot 
points or both from which the critical habitat maps are generated are 
included in the decision file and are available at https://www.regulations.gov under Docket No. FWS-R8-ES-2020-0017. Any 
additional supporting information that we developed for this critical 
habitat designation will be available at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Marc Jackson, Field Supervisor, U.S. 
Fish and Wildlife Service, Reno Ecological Services Field Office, 1340 
Financial Boulevard, Suite 234, Reno, NV 89502; telephone 775-861-6337. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

 Executive Summary

    Why we need to publish a rule. Under the Act, when we determine 
that any species is an endangered or threatened species, we are 
required to designate critical habitat, to the maximum extent prudent 
and determinable. Designations of critical habitat can be completed 
only by issuing a rule.
    What this document does. This document proposes to designate 
critical habitat for Tiehm's buckwheat, which the Service has proposed 
to list as an endangered species under the Act, in a portion of 
Esmeralda County, Nevada.
    The basis for our action. Under section 4(a)(3) of the Act, if we 
determine that a species is an endangered or threatened species we 
must, to the maximum extent prudent and determinable, designate 
critical habitat. 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 in accordance with the provisions of 
section 4 of the Act, 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 in accordance with the provisions of 
section 4 of the Act, 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. The Secretary may exclude an area from the 
critical habitat designation if we determine that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless we determine, based on the best scientific 
data available, that the failure to designate such area will result in 
the extinction of the species.

Abbreviations and Acronyms Used in This Proposed Rule

    For the convenience of the reader, a list of the abbreviations and 
acronyms used in this proposed rule follows:

Act = Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), as 
amended
BIA = Bureau of Indian Affairs
BLM = Bureau of Land Management
CBD = Center for Biological Diversity
CFR = Code of Federal Regulations
DEA = draft economic analysis
DoD = Department of Defense
FLPMA = Federal Land Policy and Management Act (43 U.S.C. 1701 et 
seq.)
FR = Federal Register
HCP = habitat conservation plan
IEc = Industrial Economics, Incorporated
IEM = incremental effects memorandum
INRMP = integrated natural resources management plan
Ioneer = Ioneer USA Corporation
NDF = Nevada Division of Forestry
NDNH = Nevada Division of Natural Heritage
NDOW = Nevada Department of Wildlife
NEPA = National Environmental Policy Act (42 U.S.C. 4321 et seq.)
RMP = resource management plan
Service = U.S. Fish and Wildlife Service
SSA = species status assessment
UNR = University of Nevada, Reno

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American Tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) 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;
    (c) 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; or
    (d) No areas meet the definition of critical habitat.
    (2) Specific information on:
    (a) The amount and distribution of habitat for Tiehm's buckwheat;
    (b) What areas, that were occupied at the time of proposed listing 
(86 FR 55775; October 7, 2021) and that contain the physical and 
biological feature essential to the conservation of the species and 
which may require special management considerations or protection, 
should be included in the designation and why;
    (c) Any additional areas occurring within the range of the species 
(Esmeralda County, Nevada), that should be included in the designation 
because they (1) are occupied at the time of listing and contain the 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations, 
or (2) are unoccupied at the time of listing and are essential for the 
conservation of the species;
    (d) Special management considerations or protections that may be 
needed in critical habitat areas we are proposing; and
    (e) What areas not occupied at the time of proposed listing are 
essential for the conservation of the species. We particularly seek 
comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of the species;
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of the species and contain the physical and biological 
feature essential to the conservation of the species; and
    (iii) Explaining whether or not unoccupied areas fall within the 
definition of ``habitat'' at 50 CFR 424.02 and why.

[[Page 6103]]

    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on Tiehm's buckwheat proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the benefits of including or excluding specific areas.
    (6) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis (DEA) is a reasonable 
estimate of the likely economic impacts and any applicable additional 
information.
    (7) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act; whether the benefits of potentially excluding any 
specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act; and, in particular, whether any areas 
should be considered for exclusion under section 4(b)(2) of the Act 
based on a conservation program or plan, and why. These may include 
Federal, lands with permitted conservation plans covering the species 
in the area such as conservation easements, or non-permitted 
conservation agreements and partnerships that are under development. 
Detailed information regarding these plans, agreements, easements, and 
partnerships is also requested, including:
    (a) The location and size of lands covered by the plan, agreement, 
easement, or partnership;
    (b) The duration of the plan, agreement, easement, or partnership;
    (c) Who holds or manages the land;
    (d) What management activities are conducted;
    (e) What land uses are allowable; and
    (f) If management activities are beneficial to Tiehm's buckwheat 
and its habitat.
    (8) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. If you 
request the exclusion of any areas from the final designation, please 
provide credible information regarding the existence of a meaningful 
economic or other relevant impact supporting the benefit of exclusion 
of that particular area. Also, please note that submissions merely 
stating support for, or opposition to, the action under consideration 
without providing supporting information, although noted, will not be 
considered in making a determination, as section 4(b)(2) of the Act 
directs that the Secretary shall designate critical habitat on the 
basis of the best scientific information available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determination may differ from this 
proposal. Based on the new information we receive (and any comments on 
that new information), our final critical habitat designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, and may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for Tiehm's buckwheat in this 
document. For more information on the species, general information 
about Tiehm's buckwheat habitat, and previous Federal actions 
associated with listing Tiehm's buckwheat, refer to the 12-month 
finding published in the Federal Register on June 4, 2021 (86 FR 
29975), the proposed listing rule published in the Federal Register on 
October 7, 2021 (86 FR 55775), and associated supporting documents 
available online at https://www.regulations.gov under Docket No. FWS-
R8-ES-2020-0017.

Supporting Documents

    The Service prepared a species status assessment (SSA) report 
(Service 2021a, entire), 12-month finding (86 FR 29975; June 4, 2021), 
and proposed listing rule (86 FR 55775; October 7, 2021) for Tiehm's 
buckwheat. The science provided in the SSA report, 12-month finding, 
and the proposed listing rule is the basis for this proposed critical 
habitat rule. The SSA report, 12-month finding, and proposed listing 
rule represent a compilation of the best scientific and commercial data 
available regarding a full status assessment of the species, including 
past, present, and future impacts (both negative and beneficial) 
affecting the species. The SSA report underwent independent peer review 
by scientists with expertise in botany, rare plant conservation, and 
plant ecology. The Service also sent the SSA report to three partner 
agencies, the Nevada Division of Forestry (NDF), the Nevada Division of 
Natural Heritage (NDNH), and the Bureau of Land Management (BLM), for 
review. We received comments from NDNH and BLM. Comments we received 
during peer and partner review were considered and incorporated into 
our SSA report.
    Additionally, a team of Service biologists, in consultation with 
other species experts, collected and analyzed the best available 
information (including the information presented in the SSA report and 
proposed listing rule) to support this proposed critical habitat 
designation. As such, the science used and presented in this proposed 
rule represents a compilation of the best scientific information 
available.
    In accordance with our joint policy on peer review published in the 
Federal

[[Page 6104]]

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 are seeking the expert opinions of at least 
three appropriate specialists regarding the science that informs this 
proposed rule. The purpose of peer review is to ensure that the science 
behind our critical habitat designation is based on scientifically 
sound data, assumptions, and analyses. We will consider any comments we 
receive, as appropriate, before making a final agency determination.

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 provisions of 
section 4 of 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 in accordance with the provisions of 
section 4 of the Act, 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). Additionally, our regulations 
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species.
    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.
    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 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). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, 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.
    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. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) When designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) 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; and (3) 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.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from an SSA report, listing rule, and other information 
developed during the listing process for the species. Additional 
information sources may include any generalized conservation strategy, 
criteria, or outline that may have been developed for the species; the 
recovery plan for the species, if one has been developed; articles in 
peer-reviewed journals; conservation plans 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

[[Page 6105]]

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, may continue to be subject 
to: (1) Conservation actions implemented under section 7(a)(1) of the 
Act; (2) regulatory protections afforded by the requirement in section 
7(a)(2) of the Act for Federal agencies to ensure their actions are not 
likely to jeopardize the continued existence of any endangered or 
threatened species; and (3) the prohibitions found in section 9 of the 
Act. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. These protections and conservation 
tools will continue to contribute to recovery of the species. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans (HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome (i.e., if new information sufficiently justifies the 
proposed conservation effort).

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that 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.
    There is currently no imminent threat of overutilization for 
commercial, recreational, scientific, or educational purposes (see 16 
U.S.C. 1533(a)(1)(B)) identified for Tiehm's buckwheat, and 
identification and mapping of critical habitat is not expected to 
initiate any such threat. Threats of illegal collection or other human 
activity are not expected to increase due to the identification of 
critical habitat. Habitat impacts are a threat to the species, as noted 
in the proposed listing determination for Tiehm's buckwheat (86 FR 
55775; October 7, 2021), and these impacts are from causes that can be 
addressed through management actions resulting from consultations under 
section 7(a)(2) of the Act. The species occurs solely within the United 
States, and available habitat, particularly those areas that meet the 
definition of critical habitat, provides significant conservation 
value.
    Overall, our analysis of the best available scientific and 
commercial information indicates there are areas within the range of 
Tiehm's buckwheat that meet the definition of critical habitat. 
Therefore, because none of the circumstances listed in our regulations 
at 50 CFR 424.12(a)(1) have been met and because the Secretary has not 
identified other circumstances for which this designation of critical 
habitat would be not prudent, we have determined that the designation 
of critical habitat for Tiehm's buckwheat is prudent.

Critical Habitat Determinability

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

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 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, alkali soil 
for seed germination, protective cover for migration, or susceptibility 
to flooding or fire that maintains necessary early-successional habitat 
characteristics. Biological features might include prey species, forage 
grasses, specific kinds or ages of trees for roosting or nesting, 
symbiotic fungi, or 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

[[Page 6106]]

species, the Service 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: (1) 
Space for individual and population growth and for normal behavior; (2) 
food, water, air, light, minerals, or other nutritional or 
physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, or rearing (or development) of offspring; and 
(5) habitats that are protected from disturbance or are representative 
of the historic geographical and ecological distributions of a species.
    Using the species' habitat, ecology, and life history, which are 
summarized below and are described more fully in the proposed listing 
rule (86 FR 55775; October 7, 2021) and the SSA report (Service 2021a, 
entire) that was developed to supplement the proposed listing rule, 
which are available at https://www.regulations.gov under Docket No. 
FWS-R8-ES-2020-0017, we considered the following habitat 
characteristics to derive the specific physical or biological features 
essential for the conservation of Tiehm's buckwheat.

Habitat Characteristics

    Tiehm's buckwheat occurs between 5,906 and 6,234 feet (ft) (1,800 
and 1,900 meters (m)) in elevation and on all aspects with slopes 
ranging from 0 to 50 degrees (Ioneer 2020a, p. 5; Morefield 1995, p. 
11). The species occurs on dry, upland sites, subject only to 
occasional saturation by rain and snow, and is not found in association 
with free surface or subsurface waters (Morefield 1995, p. 11). Tiehm's 
buckwheat dominates the sparsely vegetated community in which it 
occurs, resulting in an open plant community with low plant cover and 
stature (Morefield 1995, p. 12). The vegetation varies from pure stands 
of Tiehm's buckwheat to sparse associations with a few other low-
growing herbs and grass species, suggesting the species is not shade-
tolerant and requires direct sunlight. The most common associates of 
Tiehm's buckwheat are species found in salt desert shrubland 
communities such as shadscale saltbush (Atriplex confertifolia), James' 
galleta (Hilaria jamesii), and alkali sacaton (Sporobolus airoides) 
(Morefield 1995, p. 12).
    Like most terrestrial plants, Tiehm's buckwheat requires soil for 
physical support and as a source of nutrients and water. Tiehm's 
buckwheat is restricted to dry, open, relatively barren, light-colored, 
rocky clay soils derived from an uncommon formation of interbedded 
claystones, shales, tuffaceous sandstones, and limestones (Ioneer 
2020a, p. 5; Morefield 1995, p. 10). The soils are poor, with little 
development, lack an A horizon (top layer of mineral soil horizons), 
and are full of broken pieces of the parent bedrock (Ioneer 2020a, p. 
5; Morefield 1995, p. 11). Soils are characterized by a variety of 
textures, and include clay soils, sandy clay loams, sandy loams, and 
loams (McClinton et al. 2020, p. 29). This specialized substrate is 
called channery soil, which consists of 15 to 35 percent thin, flat 
fragments of sandstone, shale, slate, limestone, or schist (United 
States Department of Agriculture (USDA) 2015, p. 7).
    Tiehm's buckwheat is distributed on these soils along an outcrop of 
lithium clay in exposed former lake beds (Ioneer 2020a, p. 5). Soil pH 
ranges from 7.64 to 8.76 (Ioneer 2020a, p. 6). Initial soil sample 
analyses demonstrate that boron and carbonates were commonly present at 
excessive levels and that sulfur, calcium, and potassium were commonly 
present at high levels (Ioneer 2020a, p. 6). Further analyses indicate 
that soils occupied by Tiehm's buckwheat have on average extremely low 
phosphorus, low nitrogen, high boron, and high pH (McClinton et al. 
2020, p. 35). There were significant differences in soil 
characteristics between soils occupied and unoccupied by Tiehm's 
buckwheat, including potassium, zinc, sulfur, and magnesium, which were 
on average lower in occupied soils, and boron, silt, bicarbonate, and 
pH, which were, on average, higher, although there was variation among 
subpopulations and adjacent, unoccupied sites (McClinton et al. 2020, 
pp. 35, 53). For example, boron was higher in Tiehm's buckwheat 
subpopulations 1, 2, and 3 than in subpopulations 4, 5, 6, 7, and 8 
(Shams et al. 2021, pp. 4-5; McClinton et al. 2020, p. 30). Taking all 
soil components into consideration as well as results of greenhouse 
propagation experiments (McClinton et al. 2020, p. 36), there is a 
unique envelope of soil conditions in which Tiehm's buckwheat thrives 
that is different from adjacent unoccupied soils (Service 2021a, pp. 
16-18).
    Tiehm's buckwheat is a perennial plant species that is not 
rhizomatous or otherwise clonal. Therefore, like other buckwheat 
species, reproduction in Tiehm's buckwheat is presumed to occur via 
sexual means (i.e., seed production and recruitment). As with most 
plant species, Tiehm's buckwheat does not require separate sites for 
reproduction other than the locations in which parent plants occur and 
any area necessary for pollinators and seed dispersal. The primary seed 
dispersal agents of Tiehm's buckwheat are probably gravity, wind, and 
water (Morefield 1995, p. 14). Upon maturation of the fruit, seeds are 
likely to fall to the ground in the immediate vicinity of the parent 
plant, becoming lodged in the soil surface (Ioneer 2020a, p. 4). The 
number of seeds produced by individual Tiehm's buckwheat plants is 
variable with research demonstrating it can range anywhere from 50 to 
450 seeds per plant (Service 2021a, pp. 15-16; McClinton et al. 2020, 
p. 22). We have no information on the longevity and viability of 
Tiehm's buckwheat seed in the soil seed bank (i.e., natural storage of 
seeds within the soil of ecosystems) or what environmental cues are 
needed to trigger germination. However, many arid plants possess seed 
dormancy, enabling them to delay germination until receiving necessary 
environmental cues (Jurado and Flores 2005, entire; Pake and Venable 
1996, pp. 1432-1434).
    Buckwheat, in general, are sexual reproducers and insects are the 
most common pollinators (Gucker and Shaw 2019, pp. 5-6). Some studies 
have shown that buckwheat flowers can be pollinated by everything from 
beeflies and closely related spider predators (the Acroceridea 
(Cyrtidae)) to specialist pollinators, while other buckwheat species 
are also capable of self-pollination (Neel and Ellstrand 2003, p. 339; 
Archibald et al. 2001, p. 612; Moldenke 1976, pp. 20-25). Primary 
pollinators and insect visitors (insects that visit a plant to feed on 
pollen, nectar, or other flower parts, but may not necessarily play a 
role in pollination) to Tiehm's buckwheat include bees, wasps, beetles, 
and flies, and have an abundance and diversity exceptionally high for a 
plant community dominated by a single plant species (Service 2021a, p. 
16; McClinton et al. 2020, pp. 11-22).
    Successful transfer of pollen among Tiehm's buckwheat 
subpopulations may be inhibited if subpopulations are separated by 
distances greater than pollinators can travel and/or a pollinator's 
nesting or foraging habitat and behavior is negatively affected 
(Dorchin et al. 2013, entire; BLM 2012, p. 2; Cranmer et al. 2012, p. 
562). Flight distances are generally correlated with body size in bees; 
larger bees are able to fly farther than smaller bees (Greenleaf et al. 
2007, pp. 592-594; Gathmann and Tscharntke 2002, entire). There is 
evidence to suggest that larger bees, which are able to fly longer 
distances, do not need their habitat to remain contiguous, but it is 
more important that

[[Page 6107]]

the protected habitat is large enough to maintain floral diversity (BLM 
2012, p. 18). While researchers have reported long foraging distance 
for solitary bees, the majority of individuals remain close to their 
nest, thus foraging distance tends to be 1,640 ft (500 m) or less 
(Antoine and Forrest 2021, p. 152; Danforth et al. 2019, p. 207; BLM 
2012, p. 19). Nest building is common in some solitary wasps (Sphecidae 
and Pompilidae). However, the distances between hunting sites and nests 
are unknown for wasps, but many wasps probably hunt close to their nest 
(within 3 to 66 ft (1 to 20 m)) (O'Neil 2019, pp. 108-111, 152). Most 
butterflies, flies, and beetles find egg laying and feeding sites as 
they move across the landscape. The most common bee and wasp 
pollinators have a fixed location for their nest, and thus their 
nesting success is dependent on the availability of resources within 
their flight range (Xerces 2009, p. 14).
    Many insect communities are known to be influenced not only by 
local habitat conditions, but also the surrounding landscape condition 
(Klein et al. 2004, p. 523; Inouye et al. 2015, pp. 119-121; Dorchin et 
al. 2013, entire; Tepedino et al. 2011, entire; Xerces 2009, pp. 11-
26). In order for genetic exchange of Tiehm's buckwheat to occur, 
insect visitors and pollinators must be able to move freely between 
subpopulations. Alternative pollen and nectar sources (other plant 
species within the surrounding vegetation) are needed to support 
pollinators during times when Tiehm's buckwheat is not flowering. 
Conservation strategies that maintain plant-pollinator interactions, 
such as maintenance of diverse, herbicide-free nectar resources, would 
serve to attract a wide array of insects, including pollinators of 
Tiehm's buckwheat (BLM 2012, pp. 5-6, 19; Cranmer et al. 2012, p. 567).

Summary

    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the following physical and 
biological features are essential to the conservation of Tiehm's 
buckwheat:
    1. Plant community. A plant community that supports all life stages 
of Tiehm's buckwheat includes:
    a. Open to sparsely vegetated areas with low native plant cover and 
stature.
    b. An intact, native vegetation assemblage that can include, but is 
not limited to, shadscale saltbush, James' galleta, and alkali sacaton 
to protect Tiehm's buckwheat from nonnative, invasive plant species and 
provide the habitats needed by Tiehm's buckwheat's insect visitors and 
pollinators.
    c. A diversity of native plants whose blooming times overlap to 
provide insect visitors and pollinator species with flowers for 
foraging throughout the seasons and to provide nesting and egg-laying 
sites; appropriate nest materials; and sheltered, undisturbed habitat 
for hibernation and overwintering of pollinator species and insect 
visitors.
    2. Pollinators and insect visitors. Sufficient pollinators and 
insect visitors, particularly bees, wasps, beetles, and flies, are 
present for the species' successful reproduction and seed production.
    3. Hydrology. Hydrology that is suitable for Tiehm's buckwheat 
consists of dry, open, relatively barren, upland sites subject to 
occasional precipitation from rain and/or snow for seed germination.
    4. Suitable soils. Soils that are suitable for Tiehm's buckwheat 
consist of:
    a. Light-colored, rocky soils derived from an uncommon formation of 
interbedded claystones, shales, tuffaceous sandstones, and limestones.
    b. Soils that are poor, with little development; lack an A horizon; 
and are full of broken pieces of the parent bedrock.
    c. Soils characterized by a variety of textures, and include clay 
soils, sandy clay loams, sandy loams, and loams.
    d. Soils with pH ranges from 7.64 to 8.76.
    e. Soils that commonly have on average boron and bicarbonates 
present at higher levels, and potassium, zinc, sulfur, and magnesium 
present at lower levels.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The area proposed for designation as critical habitat may 
require some level of management to address the current and future 
threats to the physical and biological features essential to the 
conservation of Tiehm's buckwheat
    A detailed discussion of threats to Tiehm's buckwheat and its 
habitat can be found in the SSA report (Service 2021a, pp. 23-48). The 
features essential to the conservation of Tiehm's buckwheat (plant 
community, pollinators and insect visitors, and suitable hydrology and 
soils, required for the persistence of adults as well as successful 
reproduction of such individuals and the formation of a seedbank) may 
require special management considerations or protection to reduce 
threats; these threats are more fully described in the proposed listing 
rule (86 FR 55775; October 7, 2021). The current range of Tiehm's 
buckwheat is subject to anthropogenic threats such as mineral 
development, road development and off-highway vehicle (OHV) activity, 
livestock grazing, nonnative and invasive plant species, and climate 
change, as well as natural threats such as herbivory and potential 
effects associated with small population size (Service 2021a, pp. 23-
54).
    Management activities that could ameliorate these threats include 
(but are not limited to): Treatment of nonnative, invasive plant 
species; minimization of OHV access and placement of new roads away 
from the species and its habitat; regulations or agreements to minimize 
the effects of mineral exploration and development where the species 
resides; minimization of livestock use or other disturbances that 
disturb the soil or seeds; minimization of habitat fragmentation; and 
monitoring for herbivory. These activities would protect the physical 
or biological features for the species by preventing the loss of 
habitat; protecting the plant's habitat, pollinator and insect 
visitors, and soils from undesirable patterns or levels of disturbance; 
and facilitating management for desirable conditions that are necessary 
for Tiehm's buckwheat to fulfill its life-history needs.
    Tiehm's buckwheat occurs entirely on Federal lands managed by the 
BLM. As described in the Tonopah Resource Management Plan (RMP), 
habitat for all federally listed endangered and threatened species and 
for all Nevada BLM sensitive species will be managed to maintain or 
increase current species populations. The introduction, reintroduction, 
or augmentation of Nevada BLM sensitive species may be allowed in 
coordination with Nevada Department of Wildlife (NDOW) or the Service, 
if it is deemed appropriate. Such actions will be considered on a case-
by-case basis and will be subject to applicable procedures (BLM 1997, 
p. 9).
    BLM has issued policy guidance to implement its obligations under 
the Federal Land Policy and Management Act (FLPMA; 43 U.S.C. 1701 et 
seq.). These include BLM's Integrated Vegetation Management Handbook H-
1740-2, which guides BLM's various programs to use an interdisciplinary 
and

[[Page 6108]]

collaborative process to plan and implement a set of actions that 
improve biological diversity and ecosystem function that promote and 
maintain native plant communities that are resilient to disturbance and 
invasive species (BLM 2008, p. 2).
    Additionally, the BLM Manual section MS-6840, release 6-125 (BLM 
2008, pp. 1-48), provides guidance with respect to sensitive species. 
Tiehm's buckwheat is managed as a BLM sensitive species; BLM sensitive 
species are defined as ``species that require special management 
consideration to avoid potential future listing under the [Act]'' (BLM 
2008, Glossary, p. 5). Under this policy, BLM can initiate proactive 
conservation measures, including programs, plans, and management 
practices, to reduce or eliminate threats affecting the status of BLM 
sensitive species, or to improve the condition of the species' habitat 
on BLM-administered lands (BLM 2008, MS-6840.02, MS-6840.06.2.C., and 
definition of ``conservation,'' pp. 3, 37, and Glossary 2).
    In response to the September 2020 herbivory event on Tiehm's 
buckwheat subpopulations, BLM has been monitoring the species. Photo 
plots were established near undamaged plants in subpopulations 1, 3, 
and 6 to help determine whether herbivory is continuing (Crosby 2020a, 
pers. comm.; Crosby, 2020b, pers. comm.). Ocular estimates from the 
photo plots indicate that herbivory is not ongoing (Crosby, 2020b, 
pers. comm.). Game cameras that were installed by BLM when damage to 
the species was first reported were removed in mid-November 2020, but 
may be reinstalled if deemed necessary (Crosby, 2020a, pers. comm).

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 currently proposing to 
designate 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. The occupied areas are sufficient 
for the conservation of the species because the physical and biological 
features that support the plant occur there. The areas outside of the 
occupied area do not support these physical and biological features and 
we are not confident that they would support populations of Tiehm's 
buckwheat.
    We are proposing to designate one occupied critical habitat unit 
for Tiehm's buckwheat. The one unit is comprised of approximately 910 
acres (ac) (368 hectares (ha)) in Nevada and is completely on lands 
under Federal (BLM) land ownership. The unit was determined using 
location information for Tiehm's buckwheat from E.M. Strategies and the 
NDNH (Kuyper 2019, entire; Morefield 2010, entire; Morefield 2008, 
entire). These locations were classified into one discrete population, 
with eight subpopulations, based on mapping standards devised by 
NatureServe and its network of Natural Heritage Programs (NatureServe 
2004, entire). This unit includes the physical footprint of where the 
plants currently occur, as well as their immediate surroundings out to 
1,640 ft (500 m) in every direction from the periphery of each 
subpopulation. This area of surrounding habitat contains components of 
the physical and biological features (i.e., the pollinator community 
and its requisite native vegetative assembly) necessary to support the 
life-history needs of Tiehm's buckwheat (Antoine and Forrest 2021, p. 
152; O'Neil 2019, pp. 108-111, 152; Danforth et al. 2019, p. 207; BLM 
2012, p. 19; Xerces 2009, p. 14; Greenleaf et al. 2007, pp. 592-594; 
Gathmann and Tscharntke 2002, entire). This essential habitat 
configuration was based on the best available nesting, egg-laying, and 
foraging information for the bee, wasp, beetle, and fly pollinators and 
insect visitors of Tiehm's buckwheat (McClinton et al. 2020, p. 18), as 
most insect communities are known to be influenced not only by local 
habitat conditions, but also the surrounding landscape conditions 
(Klein et al. 2004, p. 523; Inouye et al. 2015, pp. 119-121; Dorchin et 
al. 2013, entire; Tepedino et al. 2011, entire; Xerces 2009, pp. 11-
26).
    The critical habitat designation is defined by the map, as modified 
by any accompanying regulatory text, presented at the end of this 
document under Proposed Regulation Promulgation. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which the map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R8-ES-
2020-0017, and at the field office responsible for the designation (see 
FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation

    We are proposing one unit as critical habitat for Tiehm's 
buckwheat. The unit is considered occupied at the time of listing. The 
critical habitat area, the Rhyolite Ridge area of the Silver Peak Range 
in Esmeralda County, Nevada, that we describe below constitutes our 
current best assessment of areas that meet the definition of critical 
habitat for Tiehm's buckwheat. Table 1(below) shows the proposed 
critical habitat unit and its approximate area.

                 Table 1--Proposed Critical Habitat Unit for Tiehm's Buckwheat (Engonum tichmii)
                    [Area estimates reflect all lands within the critical habitat boundary.]
----------------------------------------------------------------------------------------------------------------
                                                      Federally owned land *                Total area
                    Unit name                    ---------------------------------------------------------------
                                                       acres         hectares          acres         hectares
----------------------------------------------------------------------------------------------------------------
Rhyolite Ridge Unit.............................             910             368
                                                             910             368
----------------------------------------------------------------------------------------------------------------
* These lands are Federal lands managed by the Bureau of Land Management (BLM).

    We present brief a description of the critical habitat unit, and 
reasons why it meets the definition of critical habitat for Tiehm's 
buckwheat, below.

Rhyolite Ridge Unit

    The Rhyolite Ridge Unit consists of approximately 910 ac (368 ha) 
of Federal land. This unit is located approximately 13 miles (21 
kilometers) west of Silver Peak in Esmeralda County, Nevada. Cave 
Springs Road, a

[[Page 6109]]

rural, county unpaved road, bisects the unit. One hundred percent of 
this unit is on Federal lands managed by the BLM. This unit is 
currently occupied and contains the single population comprised of 
eight subpopulations of Tiehm's buckwheat. This unit is essential to 
the conservation and recovery of Tiehm's buckwheat because it supports 
all of the habitat that is occupied by Tiehm's buckwheat across the 
species' range. This unit currently has all of the physical and 
biological features described above essential to the conservation of 
the species, including a plant community that supports all life stages 
of Tiehm's buckwheat; sufficient pollinators and insect visitors, 
particularly bees, wasps, beetles, and flies; hydrology suitable for 
Tiehm's buckwheat that consists of dry, open, relatively barren, upland 
sites subject to occasional precipitation from rain and/or snow; and 
soils that are suitable for Tiehm's buckwheat. Special management 
considerations or protection may be required to address mineral 
development, road development and OHV activity, livestock grazing, 
nonnative invasive plant species, and herbivory (see Special Management 
Considerations or Protection).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole 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 Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation, when: (1) The amount or extent 
of taking specified in the incidental take statement is exceeded; (2) 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) a new species 
is listed or critical habitat designated that may be affected by the 
identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

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

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify the critical habitat of Tiehm's buckwheat include, but are not 
limited to, actions that are likely to cause large-scale habitat 
impacts, adversely affecting the physical and biological features at a 
scale and magnitude such that the designated critical habitat would no 
longer be able to provide for the conservation of the

[[Page 6110]]

species. Examples include removing corridors for pollinator movement 
and seed dispersal; significantly disrupting the native vegetative 
assemblage, seed bank, or soil composition and structure; or 
significantly fragmenting the landscape and decreasing the resiliency 
and representation of the species throughout its range (Service 2021b, 
p. 14). For such activities, the Service would likely require 
reasonable and prudent alternatives to ensure the implementation of 
project-specific conservation measures designed to reduce the scale and 
magnitude of these habitat impacts.

Exemptions

Application of Section 4(a)(3)(B)(i) 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 proposed 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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary section 
4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM; Service 2021b, entire) considering the 
probable incremental economic impacts that may result from this 
proposed designation of critical habitat. The information contained in 
our IEM was then used to develop a screening analysis of the probable 
effects of the designation of critical habitat for Tiehm's buckwheat 
(Industrial Economics Inc. (IEc) 2021, entire). We began by conducting 
a screening analysis of the proposed designation of critical habitat in 
order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out particular geographic areas of critical 
habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. If the proposed critical habitat 
designation contains any unoccupied units, the screening analysis 
assesses whether those units require additional management or 
conservation efforts that may incur incremental economic impacts. This 
screening analysis combined with the information contained in our IEM 
constitute what we consider to be our draft economic analysis (DEA) of 
the proposed critical habitat designation for Tiehm's buckwheat; our 
DEA is summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive orders' regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly affected entities, where practicable and 
reasonable. If sufficient data are available, we assess to the extent 
practicable the probable impacts to both directly and indirectly 
affected entities. As part of our screening analysis, we considered the 
types of economic activities that are likely to occur within the areas 
likely

[[Page 6111]]

affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for Tiehm's buckwheat, first we 
identified, in the IEM dated July 21, 2021 (Service 2021b, entire), 
probable incremental economic impacts associated with the following 
categories of activities: Mining and minerals exploration, livestock 
grazing, and recreation. 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. 
Because the species is already proposed for listing, in areas where 
Tiehm's buckwheat is present, Federal agencies need to conference with 
the Service under section 7(a)(4) of the Act if it is determined that 
any activities they authorize, fund, or carry out are likely to 
jeopardize the continued existence of the species. Upon publication of 
this proposed critical habitat designation in the Federal Register, 
Federal agencies also need to conference with the Service under section 
7(a)(4) if it is determined that any activities they authorize, fund, 
or carry out are likely to destroy or adversely modify the 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 Tiehm's 
buckwheat critical habitat. The following specific circumstances help 
to inform our evaluation: (1) The essential physical and biological 
features identified for critical habitat are the most important 
features essential for the life-history needs of the species, and (2) 
any actions that would result in sufficient adverse effect to the 
essential physical and biological features of critical habitat would 
also constitute jeopardy to Tiehm's buckwheat. The IEM outlines our 
rationale concerning this limited distinction between baseline 
conservation efforts and incremental impacts of the designation of 
critical habitat for Tiehm's buckwheat. This evaluation of the 
incremental effects has been used as the basis to evaluate the probable 
incremental economic impacts of this proposed designation of critical 
habitat.
    The proposed critical habitat designation for Tiehm's buckwheat 
includes one critical habitat unit (Rhyolite Ridge Unit) totaling 
approximately 910 ac (368 ha), which was occupied by Tiehm's buckwheat 
at the time of proposed listing and is currently occupied. Any actions 
that may affect the species or its habitat would also affect critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address the adverse modification standard over 
and above those recommended as necessary to avoid jeopardizing the 
continued existence of Tiehm's buckwheat. Therefore, the proposed 
critical habitat designation is expected to result in only 
administrative costs. While 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 be relatively 
minor and administrative in nature.
    This proposed critical habitat designation is expected to result in 
six consultations in 10 years (IEc 2021, p. 3). This additional 
administrative effort includes a projected estimate of five formal 
consultations and one programmatic consultation, which is aggregated 
into a given year to give a total annual incremental cost for the 
purpose of determining whether the rule is economically significant 
under Executive Order 12866 (IEc 2021, Exhibit 3, p. 12). The analysis 
forecasts no incremental costs associated with project modifications 
that would involve additional conservation efforts for Tiehm's 
buckwheat. The projected incremental costs for each programmatic, 
formal, informal, and technical assistance effort are estimated to be 
approximately $5,300 (formal consultation), $2,600 (informal 
consultation), $9,800 (programmatic consultation), and $420 (technical 
assistance). Analyzing the potential for adverse modification of the 
species' critical habitat during section 7 consultation will likely 
result in a total annual incremental cost of less than approximately 
$37,000 (2021 dollars) in a given year for Tiehm's buckwheat (IEc 2021, 
Exhibits 4 and 5, p. 13); therefore, the annual administrative burden 
is extremely unlikely to generate costs exceeding $100 million in a 
single year (i.e., the threshold for an economically significant rule 
under Executive Order 12866).
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as on all aspects of this proposed rule and 
our required determinations. During the development of a final 
designation, we will consider the information presented in the DEA and 
any additional information on economic impacts we receive during the 
public comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under the 
authority of section 4(b)(2) and our implementing regulations at 50 CFR 
17.90. If we receive credible information regarding the existence of a 
meaningful economic or other relevant impact supporting a benefit of 
exclusion, we will conduct an exclusion analysis for the relevant area 
or areas. We may also exercise the discretion to evaluate any other 
particular areas for possible exclusion. Furthermore, when we conduct 
an exclusion analysis based on impacts identified by experts in, or 
sources with firsthand knowledge about, impacts that are outside the 
scope of the Service's expertise, we will give weight to those impacts 
consistent with the expert or firsthand information unless we have 
rebutting information. We may exclude an area from critical habitat if 
we determine that the benefits of excluding the area outweigh the 
benefits of including the area, provided the exclusion will not result 
in the extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed or proposed listed species or a species previously not covered). 
If a particular area is not covered under section 4(a)(3)(B)(i), then 
national-security or homeland-security concerns are not a factor in the 
process of determining what areas meet the definition of ``critical 
habitat.'' However, the Service must still consider impacts on national 
security, including homeland security, on those lands or areas not 
covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the 
Service to consider those impacts whenever it designates critical 
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or 
another Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD,

[[Page 6112]]

DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
credible information, including a reasonably specific justification of 
an incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    Under section 4(b)(2) of the Act, we also consider whether a 
national-security or homeland-security impact might exist on lands not 
owned or managed by DoD or DHS. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for Tiehm's buckwheat are not owned or managed by DoD or DHS. 
Therefore, we anticipate no impact on national security or homeland 
security. However, if through the public comment period we receive 
credible information regarding impacts on national security or homeland 
security from designating particular areas as critical habitat, then as 
part of developing the final designation of critical habitat, we will 
conduct a discretionary exclusion analysis to determine whether to 
exclude those areas under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 17.90.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. 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 
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.
    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
    In the case of Tiehm's buckwheat, the benefits of critical habitat 
include public awareness of the presence of Tiehm's buckwheat and the 
importance of habitat protection, and, where a Federal nexus exists, 
increased habitat protection for Tiehm's buckwheat due to protection 
from destruction or adverse modification of critical habitat.

Conservation Plans

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

Private or Other Non-Federal Conservation Plans or Agreements and 
Partnerships

    We sometimes exclude specific areas from critical habitat 
designations based in part on the existence of private or other non-
Federal conservation plans or agreements and their attendant 
partnerships. A conservation plan or agreement describes actions that 
are designed to provide for the conservation needs of a species and its 
habitat, and may include actions to reduce or mitigate negative effects 
on the species caused by activities on or adjacent to the area covered 
by the plan. Conservation plans or agreements can be developed by 
private entities with no Service involvement, or in partnership with 
the Service, sometimes through the permitting process under section 10 
of the Act.
    When we undertake a discretionary section 4(b)(2) analysis, we 
evaluate a variety of factors to determine how the benefits of any 
exclusion and the benefits of inclusion are affected by the existence 
of private or other non-Federal conservation plans or agreements and 
their attendant partnerships. The factors we consider may differ, 
depending on whether we are evaluating a conservation plan that 
involves permits under section 10 or a non-permitted plan (see 50 CFR 
17.90(d)(3) and (4)).

[[Page 6113]]

There are no habitat conservation plans for the area in the proposed 
critical habitat designation for Tiehm's buckwheat.

Ioneer USA Corporation (Ioneer)

    As part of the proposed Rhyolite Ridge Lithium-Boron project, 
Ioneer USA Corporation (Ioneer) is developing a conservation strategy 
for Tiehm's buckwheat to protect and preserve the continued viability 
of the species on a long-term basis. Currently, the conservation 
strategy is in the early stages (Ioneer 2020b, entire).
    Ioneer has also implemented or proposed various protection measures 
for Tiehm's buckwheat. Ioneer funded the development of a habitat 
suitability model to identify additional potential habitat for Tiehm's 
buckwheat through field surveys (Ioneer 2020a, p. 12). In addition, a 
demographic monitoring program was initiated in 2019, to detect and 
document trends in population size, acres inhabited, size class 
distribution, and cover with permanent monitoring transects established 
in subpopulations 1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16). Ioneer also 
funded collection of Tiehm's buckwheat seed in 2019 (Ioneer 2020a, pp. 
13-14). Some of this seed was used by the University of Nevada, Reno 
(UNR), for a propagation trial and transplant study (Ioneer 2020a, p. 
14). The remainder of this seed is in long-term storage at Rae Selling 
Berry Seed Bank at Portland State University (Ioneer 2020a, p. 13). As 
part of its proposed mining plan of operations, Tiehm's buckwheat 
protection plan, Ioneer also plans to avoid subpopulations 1, 2, 3, and 
8 (Ioneer 2020a, p. 11), fence and place signage around subpopulations 
1 and 2 (Ioneer 2020a, p. 11), and remove and salvage all remaining 
plants in subpopulations 4, 5, 6, and 7 and translocate them to another 
location (Ioneer 2020a, p. 15). However, the proposed Rhyolite Ridge 
Lithium-Boron project may or may not be permitted by the BLM, and these 
protection measures may or may not be fully implemented.

Tribal Lands

    Several Executive orders, Secretarial Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis. In 
addition, we look at the existence of Tribal conservation plans and 
partnerships. In preparing this proposal, we have determined that the 
proposed designation of critical habitat does not include any Tribal 
lands or trust resources. We anticipate no impact on Tribal lands or 
partnerships from this proposed designation of critical habitat.
    We may also consider areas not identified for inclusion or 
exclusion from the final critical habitat designation based on 
information we may receive during the public comment period. As noted 
above, we have requested that the entities seeking inclusion or 
exclusion of areas provide credible information regarding the existence 
of a meaningful economic or other relevant impact supporting a benefit 
of exclusion for that particular area (see 50 CFR 17.90). A final 
determination on whether the Secretary will exercise her discretion to 
include or exclude this area from critical habitat for Tiehm's 
buckwheat will be made at the time of our final determination regarding 
critical habitat. During the development of a final designation, we 
will consider any additional information we receive through the public 
comment period regarding other relevant impacts of the proposed 
designation and will determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2) and our implementing regulations at 50 CFR 424.19.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
proposed rule in a manner consistent with these requirements.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining

[[Page 6114]]

concerns with fewer than 500 employees, wholesale trade entities with 
fewer than 100 employees, retail and service businesses with less than 
$5 million in annual sales, general and heavy construction businesses 
with less than $27.5 million in annual business, special trade 
contractors doing less than $11.5 million in annual business, and 
agricultural businesses with annual sales less than $750,000. To 
determine whether potential economic impacts to these small entities 
are significant, we considered the types of activities that might 
trigger regulatory impacts under this designation as well as types of 
project modifications that may result. In general, the term 
``significant economic impact'' is meant to apply to a typical small 
business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt this proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the critical habitat designation for Tiehm's buckwheat 
will not have a significant economic impact on a substantial number of 
small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final as proposed, the 
critical habitat designation for Tiehm's buckwheat will not have a 
significant economic impact on a substantial number of small business 
entities. Therefore, an initial regulatory flexibility analysis is not 
required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. There are no operation, management, and maintenance 
activities of utility facilities (e.g., hydropower facilities, 
powerlines, pipelines) that we are aware of or that have been known to 
occur within the range of Tiehm's buckwheat and its proposed critical 
habitat unit. If proposed in the future, these are activities that the 
Service consults on with Federal agencies (and their respective 
permittees, including utility companies) under section 7 of the Act. As 
discussed in the DEA, the costs associated with consultations related 
to occupied critical habitat would be largely administrative in nature 
and are not anticipated to reach $100 million in any given year based 
on the anticipated annual number of consultations and associated 
consultation costs, which are not expected to exceed $37,000 per year 
(2021 dollars) (IEc 2021, p. 13). In our economic analysis, we did not 
find that this proposed critical habitat designation would 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action, and no Statement of 
Energy Effects is required.

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

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

[[Page 6115]]

their actions will not adversely affect the critical habitat. By 
definition, Federal agencies are not considered small entities, 
although the activities they fund or permit may be proposed or carried 
out by small entities. Consequently, we do not believe that the 
proposed critical habitat designation would significantly or uniquely 
affect small government entities. Therefore, a Small Government Agency 
Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we have analyzed the potential takings implications of designating 
critical habitat for Tiehm's buckwheat in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures or restrictions on use 
of or access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for Tiehm's buckwheat, and it 
concludes that, if adopted, this designation of critical habitat does 
not pose significant takings implications for lands within or affected 
by the designation.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant federalism effects. A 
federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of this 
proposed critical habitat designation with, appropriate State resource 
agencies. From a federalism perspective, the designation of critical 
habitat directly affects only the responsibilities of Federal agencies. 
The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the proposed rule does not have substantial direct effects 
either on the States, or on the relationship between the Federal 
Government and the States, or on the distribution of powers and 
responsibilities among the various levels of government. The proposed 
designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the physical or biological 
features of the habitat necessary for the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
State and local governments in long-range planning because they no 
longer have to wait for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

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

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

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

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

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

Government-to-Government Relationship With Tribes

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

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 Reno Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species

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Assessment Team and the Reno Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.96, in paragraph (a), by adding an entry for ``Family 
Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)'' in alphabetical 
order to read as follows:


Sec.  17.96   Critical habitat--plants.

    (a) * * *
    Family Polygonaceae: Eriogonum tiehmii (Tiehm's buckwheat)
    (1) The critical habitat unit is depicted for Esmeralda County, 
Nevada, on the map in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Tiehm's buckwheat consist of the 
following:
    (i) Plant community. A plant community that supports all life 
stages of Tiehm's buckwheat includes:
    (A) Open to sparsely vegetated areas with low native plant cover 
and stature.
    (B) An intact, native vegetation assemblage that can include, but 
is not limited to, Atriplex confertifolia (shadscale saltbush), Hilaria 
jamesii (James' galleta), and Sporobolus airoides (alkali sacaton) to 
protect Tiehm's buckwheat from nonnative, invasive plant species and 
provide the habitats needed by Tiehm's buckwheat's insect visitors and 
pollinators.
    (C) A diversity of native plants whose blooming times overlap to 
provide insect visitors and pollinator species with flowers for 
foraging throughout the seasons and to provide nesting and egg-laying 
sites; appropriate nest materials; and sheltered, undisturbed habitat 
for hibernation and overwintering of pollinator species and insect 
visitors.
    (ii) Pollinators and insect visitors. Sufficient pollinators and 
insect visitors, particularly bees, wasps, beetles, and flies, are 
present for the species' successful reproduction and seed production.
    (iii) Hydrology. Hydrology that is suitable for Tiehm's buckwheat 
consists of dry, open, relatively barren, upland sites subject to 
occasional precipitation from rain and/or snow for seed germination.
    (iv) Suitable soils. Soils that are suitable for Tiehm's buckwheat 
consist of:
    (A) Light-colored, rocky soils derived from an uncommon formation 
of interbedded claystones, shales, tuffaceous sandstones, and 
limestones.
    (B) Soils that are poor, with little development; lack an A 
horizon; and are full of broken pieces of the parent bedrock.
    (C) Soils characterized by a variety of textures, and include clay 
soils, sandy clay loams, sandy loams, and loams.
    (D) Soils with pH ranges from 7.64 to 8.76.
    (E) Soils that commonly have on average boron and bicarbonates 
present at higher levels, and potassium. zinc, sulfur, and magnesium 
present at lower levels.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF THE FINAL RULE].
    (4) Data layers defining the map unit were created by the Service, 
and the critical habitat unit was then mapped using Universal 
Transverse Mercator Zone 11N coordinates. The map in this entry, as 
modified by any accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The coordinates or plot 
points or both on which the map is based are available to the public at 
https://www.regulations.gov at Docket No. FWS-R8-ES-2020-0017 and at 
the field office responsible for this designation. You may obtain field 
office location information by contacting the Service regional office, 
the address of which is listed at 50 CFR 2.2.
    (5) Rhyolite Ridge Unit, Esmeralda County, Nevada.
    (i) The Rhyolite Ridge Unit consists of approximately 910 acres 
(368 hectares) of occupied habitat in the Rhyolite Ridge area of the 
Silver Peak Range in Esmeralda County, Nevada. All lands within this 
unit are under Federal ownership (Bureau of Land Management).
    (ii) Map of the Rhyolite Ridge Unit follows:
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[GRAPHIC] [TIFF OMITTED] TP03FE22.043


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* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02298 Filed 2-2-22; 8:45 am]
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