Endangered and Threatened Wildlife and Plants; Endangered Species Status for Tricolored Bat, 56381-56393 [2022-18852]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Proposed Rules]
[Pages 56381-56393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18852]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2021-0163; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BG15


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Tricolored Bat

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 
list the tricolored bat (Perimyotis subflavus), a bat species from 
Guatemala, Honduras, Belize, Nicaragua, Mexico, a small part of 
southeastern Canada, and all or portions of the following 39 States and 
the District of Columbia: Alabama, Arkansas, Colorado, Connecticut, 
Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, 
Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, 
Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, 
New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, 
South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, 
Wisconsin, West Virginia, and Wyoming, as an endangered species under 
the Endangered Species Act of 1973, as amended (Act). This 
determination also serves as our 12-month finding on a petition to list 
the tricolored bat. After a review of the best available scientific and 
commercial information, we find that listing the species is warranted. 
Accordingly, we propose to list the tricolored bat as an endangered 
species under the Act. If we finalize this rule as proposed, it will 
add this species to the List of Endangered and Threatened Wildlife and 
extend the Act's protections to the species. We find that designating 
critical habitat for this species is not prudent. We also are notifying 
the public that we have scheduled an informational meeting followed by 
a public hearing on the proposed rule.

DATES: We will accept comments received or postmarked on or before 
November 14, 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.
    Public informational meeting and public hearing: We will hold a 
public informational meeting from 6:00 p.m. to 7:30 p.m., eastern time, 
followed by a public hearing from 7:30 p.m. to 8:30 p.m., eastern time, 
on October 12, 2022.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2021-0163, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R5-ES-2021-0163, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Public informational meeting and public hearing: The public 
informational meeting and the public hearing will be held virtually 
using the Zoom platform. See Public Hearing, below, for more 
information.

FOR FURTHER INFORMATION CONTACT: Sonja Jahrsdoerfer, Field Supervisor, 
U.S. Fish and Wildlife Service, Pennsylvania Field Office, 110 Radnor 
Rd, Suite 101, State College, PA 16801; telephone 814-234-4090. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

[[Page 56382]]


SUPPLEMENTARY INFORMATION:

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity 
(including vandalism and disturbance of winter habitat) and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species; or
    (b) Such designation of critical habitat would not be beneficial to 
the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species, or whether any areas meet the definition of 
``critical habitat.''
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
threatened instead of endangered, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species.

Public Hearing

    We have scheduled a public informational meeting with a public 
hearing on this proposed rule for the tricolored bat. We will hold the 
public informational meeting and public hearing on the date and time 
listed above under Public informational meeting and public hearing in 
DATES. We are holding the public informational meeting and public 
hearing via the Zoom online video platform and via teleconference so 
that participants can attend remotely. For security purposes, 
registration is required. To listen and view the meeting and hearing 
via Zoom, listen to the meeting and hearing by telephone, or provide 
oral public comments at the public hearing by Zoom or telephone, you 
must register. For information on how to register, or if you encounter 
problems joining Zoom the day of the meeting, visit https://www.fws.gov/species/tricolored-bat-perimyotis-subflavus. Registrants 
will receive the Zoom link and the telephone number for the public 
informational meeting and public hearing. If applicable, interested 
members of the public not familiar with the Zoom platform should view 
the Zoom video tutorials (https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational 
meeting and public hearing.

Previous Federal Actions

    On June 14, 2016, we received a petition from the Center for 
Biological Diversity and Defenders of Wildlife requesting that the 
tricolored bat be listed as endangered or threatened and that critical 
habitat be designated for this species under the Act. On December 20, 
2017, we published a finding that the petition presented substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted (82 FR 60362).

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the tricolored bat. The SSA core team included Service biologists, who 
consulted with other species and analytical experts (Service 2021, 
entire). The SSA report represents a compilation of the best scientific 
and commercial data available concerning the status of the species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting the species. In accordance with our 
joint policy on peer review published in the Federal Register on July 
1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and 
clarifying the role of peer review of listing actions under the Act, we 
sought review from six species experts regarding the SSA report. We 
received responses from two of the six experts. We also sent the SSA 
report to State, Federal, Tribal, and other (e.g., nongovernmental 
organizations) entities with expertise in bat biology or threats to the 
species for review.

[[Page 56383]]

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, *life history, and ecology of 
the tricolored bat is presented in the SSA report (Service 2021, 
entire).
    The tricolored bat is a wide-ranging bat species found in 39 
States, the District of Columbia, 4 Canadian provinces, Belize, 
Guatemala, Honduras, Nicaragua, and Mexico. Tricolored bat is one of 
the smallest bats in eastern North America and is distinguished by its 
unique tricolored fur that appears dark at the base, lighter in the 
middle, and dark at the tip (Barbour and Davis 1969, p. 115). 
Tricolored bats often appear yellowish (varying from pale yellow to 
nearly orange), but may also appear silvery-gray, chocolate brown, or 
black (Barbour and Davis 1969, p. 115). Males and females are colored 
alike, and females consistently weigh more than males (LaVal and LaVal 
1980, p. 44). Newly volant (able to fly) young are much darker and 
grayer than adults (Allen 1921, p. 55). Other distinguishing 
characteristics include 34 teeth (compared with 38 teeth in eastern 
North American Myotis spp. for which this species is sometimes 
confused), a calcar (i.e., spur of cartilage arising from the inner 
side of the ankle) with no keel (ridge along the breastbone to which 
the flight muscles are attached), and only the anterior third of the 
uropatagium (i.e., the membrane that stretches between the legs) is 
furred (Barbour and Davis 1969, p. 115; Hamilton and Whitaker 1979, p. 
85).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species. On 
July 5, 2022, the U.S. District Court for the Northern District of 
California vacated regulations that the Service (jointly with the 
National Marine Fisheries Service) promulgated in 2019 modifying how 
the Services add, remove, and reclassify threatened and endangered 
species and the criteria for designating listed species' critical 
habitat (Center for Biological Diversity v. Haaland, No. 4:19-cv-05206-
JST, Doc. 168 (CBD v. Haaland)). As a result of that vacatur, 
regulations that were in effect before those 2019 regulations now 
govern species classification and critical habitat decisions. Our 
analysis for this proposal applied those pre-2019 regulations. However, 
given that litigation remains regarding the court's vacatur of those 
2019 regulations, we also undertook an analysis of whether the proposal 
would be different if we were to apply the 2019 regulations. We 
concluded that the proposal would have been the same if we had applied 
the 2019 regulations. The analyses under both the pre-2019 regulations 
and the 2019 regulations are included in the decision file for this 
proposal.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Because 
the decision in CBD v. Haaland vacated our 2019 regulations regarding 
the foreseeable future, we refer to a 2009 Department of the Interior 
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in 
Section 3(20) of the Endangered Species Act'' (M-37021). That 
Solicitor's opinion that foreseeable future ``must be rooted in the 
best available data that allow predictions into the future'' and 
extends as far as those predictions are ``sufficiently reliable to 
provide a reasonable degree of confidence in the prediction, in light 
of the conservation purposes of the Act.'' Id. at 13.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act

[[Page 56384]]

and its implementing regulations and policies. The following is a 
summary of the key results and conclusions from the SSA report; the 
full SSA report can be found at Docket No. FWS-R5-ES-2021-0163 on 
https://www.regulations.gov.
    To assess tricolored bat viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm or cold years), redundancy 
supports the ability of the species to withstand catastrophic events 
(for example, droughts, large pollution events), and representation 
supports the ability of the species to adapt over time to long-term 
changes in the environment (for example, climate changes). In general, 
the more resilient and redundant a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    The individual, population-level, and species-level needs of the 
tricolored bat are summarized below in Tables 1-3. For additional 
information, please see the SSA report (Service 2021, chapter 2).

Table 1--The Ecological Requisites for Survival and Reproductive Success
                      of Tricolored Bat Individuals
------------------------------------------------------------------------
            Life stage                             Season
------------------------------------------------------------------------
Pups..............................  Summer--roosting habitat with
                                     suitable conditions for lactating
                                     females and for pups to stay warm
                                     and protected from predators while
                                     adults are foraging.
Juveniles.........................  Summer--other maternity colony
                                     members (colony dynamics,
                                     thermoregulation); suitable
                                     roosting and foraging habitat near
                                     abundant food and water resources.
                                    Fall--suitable roosting and foraging
                                     habitat near abundant food and
                                     water resources.
                                    Winter--habitat with suitable
                                     microclimate conditions.
Reproductive Females..............  Summer--other maternity colony
                                     members (colony dynamics); network
                                     of suitable roosts (i.e., multiple
                                     summer roosts in close proximity)
                                     near conspecifics and foraging
                                     habitat near abundant food and
                                     water resources.
All Adults........................  Spring--suitable roosting and
                                     foraging habitat near abundant food
                                     and water resources; habitat
                                     connectivity and open-air space for
                                     safe migration between winter and
                                     summer habitats.
                                    Summer--roosts and foraging habitat
                                     near abundant food and water
                                     resources.
                                    Fall--suitable roosting and foraging
                                     habitat near abundant food and
                                     water resources; cave and/or mine
                                     entrances (or other similar
                                     locations, e.g., culvert, tunnel)
                                     for conspecifics to swarm and mate;
                                     habitat connectivity and open-air
                                     space for safe migration between
                                     winter and summer habitats.
                                    Winter--habitat with suitable
                                     microclimate conditions.
------------------------------------------------------------------------


   Table 2--Population-Level Requirements for a Healthy Population of
                             Tricolored Bats
------------------------------------------------------------------------
             Parameter                          Requirements
------------------------------------------------------------------------
Population growth rate, [lambda]..  At a minimum, [lambda] must be >=1
                                     for a population to remain stable
                                     over time.
Population size, N................  Sufficiently large N to allow for
                                     essential colony dynamics and to be
                                     resilient to environmental
                                     fluctuations.
Winter roosting habitat...........  Safe and stable winter roosting
                                     sites with suitable microclimates.
Migration habitat.................  Safe space to migrate between spring/
                                     fall habitat and winter roost
                                     sites.
Spring and fall roosting,           A matrix of habitat of sufficient
 foraging, and commuting habitat.    quality and quantity to support
                                     bats as they exit hibernation
                                     (lowest body condition) or as they
                                     enter into hibernation (need to put
                                     on body fat).
Summer roosting, foraging, and      A matrix of habitat of sufficient
 commuting habitat.                  quality and quantity to support
                                     maternity colonies.
------------------------------------------------------------------------


 Table 3--Species-Level Ecology of Tricolored Bats: Requisites for Long-
 Term Viability (Ability To Maintain Self-Sustaining Populations Over a
                   Biologically Meaningful Timeframe)
------------------------------------------------------------------------
                                  Requisites for
             3 Rs                   long-term           Description
                                    viability
------------------------------------------------------------------------
Resiliency (populations able    Demographic,       Self-sustaining
 to withstand stochastic         physically, and    populations are
 events).                        genetically        demographically,
                                 healthy            genetically, and
                                 populations        physiologically
                                 across a           robust; have
                                 diversity of       sufficient quantity
                                 environmental      of suitable habitat.
                                 conditions.
Redundancy (number and          Multiple and       Sufficient number and
 distribution of populations     sufficient         distribution to
 to withstand catastrophic       distribution of    guard against
 events).                        populations        population losses
                                 within areas of    and losses in
                                 unique             species adaptive
                                 variation, i.e.,   diversity, i.e.,
                                 representation     reduce covariance
                                 units.             among populations;
                                                    spread out
                                                    geographically but
                                                    also ecologically.

[[Page 56385]]

 
Representation (genetic and     Maintain adaptive  Populations
 ecological diversity to         diversity of the   maintained across
 maintain adaptive potential).   species.           breadth of
                                                    behavioral,
                                                    physiological,
                                                    ecological, and
                                                    environmental
                                                    diversity.
                                Maintain           Maintain evolutionary
                                 evolutionary       drivers--gene flow,
                                 processes.         natural selection--
                                                    to mimic historical
                                                    patterns.
------------------------------------------------------------------------

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. For a full description, see 
the SSA report (Service 2021, entire).
    Although there are other stressors affecting tricolored bat, the 
primary factor influencing its viability is white-nose syndrome (WNS), 
a disease of bats caused by a fungal pathogen. Some of the other 
factors that influence tricolored bat's viability include wind-energy-
related mortality, habitat loss, and effects from climate change. These 
stressors and their effects to tricolored bat are summarized below:
White Nose Syndrome
    For over a decade, WNS has been the foremost stressor on tricolored 
bat. WNS is a disease of bats that is caused by the fungal pathogen 
Pseudogymnoascus destructans (Pd). Pd invades the skin of bats, 
initiating a cascade of physiological and behavioral processes that 
often lead to mortality. Infection leads to increases in the frequency 
and duration of arousals during hibernation and raises energetic costs 
during torpor bouts, both of which cause premature depletion of 
critical fat reserves needed to survive winter (Turner et al. 2011, p. 
15; Reeder et al. 2012, p. 5; Carr et al. 2014, p. 21; McGuire et al. 
2017, p. 682; Cheng et al. 2019, p. 2). Bats that do not succumb to 
starvation in hibernacula often seek riskier roosting locations near 
entrances to roosts or emerge from roosts altogether, where they face 
exposure to winter conditions and scarce prey resources on the 
landscape (Langwig et al. 2012, p. 2).
    Pd continues to spread driven by natural interactions among bats 
and their environment, despite effective conservation measures to 
reduce human contributions to its spread. The fungus arrives on a few 
bats and spreads through the colony as a result of swarming and 
roosting interactions until most individuals are exposed to the 
pathogen. Such interactions may occur in hibernacula or at nearby 
roosts where conspecifics (members of the same species) engage in 
mating activity (Neubaum and Siemers, 2021, p. 2). Once Pd arrives, WNS 
soon develops in these infected populations. Since the arrival of Pd in 
2006 and the writing of this proposed rule, it has spread to 40 States 
in the United States and 8 provinces in Canada.
Wind-Energy-Related Mortality
    Wind-energy-related mortality of tricolored bat is a consequential 
stressor at local and regional levels. Tricolored bats are killed at 
wind energy projects primarily through collisions with moving turbine 
blades. Wind power is a rapidly growing portion of North America's 
energy portfolio in part due to changes in State energy goals (NCSL 
2021, entire) and recent technological advancements (Berkeley Lab 2020, 
entire) and declining costs (Wiser et al. 2021, entire), allowing 
turbines to be placed in less windy areas.
    Bat fatality varies across facilities, between seasons, and among 
species. Analyses suggest that the impact of wind related mortality is 
discernible from the effects of WNS in the ongoing decline of 
tricolored bat (Wiens et al. 2022, pp. 215-251; Whitby et al. 2022, pp. 
145-163). Abundance of tricolored bat is projected to decrease by 19-21 
percent by 2030 under current wind development scenarios (Wiens et al. 
2022, pp. 215-251). As the wind energy risk index (the overall result 
of a risk assessment) increased, there is a decline in the predicted 
relative abundance of tricolored bats (Whitby et al. 2022, pp. 145-
163). In other words, as wind energy installations increase in size, 
number, or distribution, tricolored bat survey counts declined.
Habitat Loss and Disturbance
    Habitat loss and disturbance may result in the loss of suitable 
roosting or foraging habitat or loss of hibernacula. There are a 
variety of causes of habitat loss and disturbance that affect the 
tricolored bat such as (but not limited to) forest removal or 
conversion and anthropogenic hibernacula disturbance or destruction 
from human entry into hibernation sites. Loss of roosting, foraging, 
and commuting habitat may vary in the impacts to tricolored bats 
depending on the timing, location, and extent of the removal (Service 
2021, pp. 49, 50). Although there have been losses of tricolored bat 
habitat and impacts could be high in the future, we find the current 
impact of habitat loss to be ``Low'' because the severity of 
population-level declines is slight. (Service 2021, p. 43). Forest 
removal may result in the following impacts to tricolored bats: loss of 
suitable roosting or foraging habitat, longer flights between suitable 
roosting and foraging due to habitat fragmentation of remaining forest 
patches, fragmentation of maternity colonies due to removal of travel 
corridors, and direct injury or mortality (during active season tree 
removal). Loss or modification of winter habitats may also result in 
negative impacts to tricolored bat, especially given the species' high 
site fidelity and narrow microclimate requirements for hibernation.
    Additionally, disturbance (e.g., human entry) during hibernation 
results in increased arousals in tricolored bat, which leads to 
increased energy expenditure at a time when food and water resources 
are scarce or unavailable. Disturbance is more impactful in hibernacula 
where a species is affected by WNS because more frequent arousals from 
torpor increases the probability of mortality in bats with limited fat 
stores (Boyles and Willis 2010, p. 96) and human entry is likely to 
contribute to the spread of Pd in both long and short distances 
(Bernard et al. 2020, p. 5-6).
    While temporary or permanent habitat loss may occur throughout the 
species' range, impacts to tricolored bat and its habitat typically 
occur at a more local scale (i.e., individuals and potentially 
colonies). However, mortality resulting from the loss of summer 
roosting and foraging habitat, winter hibernacula, or both may compound 
the impacts from WNS.
Climate Change
    Climate change factors that may impact bats include changes in 
extreme drought, cold, or excessive rainfall, which may lead to changes 
in

[[Page 56386]]

hibernation patterns or direct mortality from extreme events (Jones et 
al. 2009, p. 94). Potential impacts of climate change that include 
effects to bat foraging, roosting, reproduction, and biogeography have 
also been reviewed and discussed (Sherwin et al. 2013). Additionally, 
climate change is likely to influence disease dynamics (for example, Pd 
survival) as temperature, humidity, phenology and other factors affect 
the interactions between Pd and hibernating bats (Hayman et al. 2016, 
p. 5; McClure et al. 2020, p. 2; Hoyt et al. 2021, p. 8).
    Changing climatic conditions, including changes in temperature and 
precipitation, influence tricolored bat's resource needs, such as 
suitable summer and winter roosting habitat, foraging habitat, and prey 
availability. Although pervasive across tricolored bat's range, the 
magnitude, direction, and seasonality of climate change will vary 
geographically (e.g., some regions will experience more frequent 
droughts, which may lead to reduced tricolored bat survival or 
reproductive success; alternatively, some regions will experience 
heavier and more frequent precipitation events that may lead to 
decreased foraging bouts and insect availability). In addition, the 
resiliency of populations and inherent differences (e.g., genetics) 
among populations may result in differing ability for tricolored bat to 
respond to the same types of changes across the range. Therefore, the 
overall impact of climate change for such a wide-ranging species is 
challenging to describe. Although there may be some benefit to 
tricolored bat from a changing climate, overall negative impacts are 
anticipated.
    In evaluating current conditions of the tricolored bat, we used the 
best available data (further described in the SSA report; Service 2021, 
pp. 51-57). Winter hibernacula counts provide the most consistent, 
long-term, reliable trend data and provide the most direct measure of 
WNS impacts. We also used summer data (mist-net capture data and mobile 
and stationary acoustic data) in evaluating population trends, although 
the availability and quality of summer data varies temporally and 
spatially.
    Available evidence, including both winter and summer data, 
indicates tricolored bat abundance has and will continue to decline 
substantially under current demographic and stressor conditions, 
primarily driven by the effects of WNS. To assess changes in diversity 
(genetic and ecological), we identified and delineated the variation 
across tricolored bat's range into three geographical representation 
units using the following proxies: variation in biological traits, 
genetic diversity, peripheral populations, habitat niche diversity, and 
steep environmental gradients (marked change in bioclimate such as 
temperature or precipitation) (Service 2021, p. 27).
    WNS has caused estimated tricolored bat population declines of 90-
100 percent across 59 percent of the species' range (Cheng et al. 2021, 
p. 7). Current demographic conditions based on past declines indicate 
the rangewide number of tricolored bat's known extant winter colonies 
has declined by 29 percent; in other words, almost one third of the 
species known hibernacula are extirpated but steep declines have been 
observed across a larger portion of its range. For the purposes of our 
analysis an extant winter colony is one in which at least two 
tricolored bats have been found; therefore, although the number of 
extant winter colonies has declined by 29 percent, the number of bats 
within winter colonies across the range has declined substantially. 
Tricolored bat winter abundance has declined across all representation 
units but varies spatially (24-89 percent). Declining trends in 
tricolored bat occurrence and abundance is also evident from summer 
data: (1) tricolored bat rangewide occupancy declined 28 percent in the 
period 2010-2019; (2) mobile acoustic detections decreased 53 percent 
in the period 2009-2019; and (3) summer mist-net captures declined 12 
to 19 percent compared to pre-WNS capture rates. Based on current 
demographic and stressor conditions, future projections of tricolored 
bat abundance, number of hibernacula, and spatial extent will continue 
to decline. Under these current conditions (no expansion or increase in 
threats), by 2030, rangewide abundance declines by 89 percent, the 
number of known winter colonies declines by 91 percent, and tricolored 
bat's spatial extent declines by 65 percent (Service 2021, entire). 
Projected declines in tricolored bat's abundance, number of winter 
colonies, and spatial extent are widespread across all representation 
units under current conditions.
    As discussed above, multiple data types and analyses indicate 
downward trends in tricolored bat population abundance and distribution 
over the last 14 years, and the best available information indicate 
that this downward trend will continue. Tricolored bat abundance 
(winter and summer), number of known occupied hibernacula, spatial 
extent, and summer habitat occupancy across the range and within all 
representation units are decreasing.
    Since the first detection of WNS in 2006, tricolored bat abundance 
has declined, leaving many individual colonies with small numbers of 
individuals. At these low population sizes, colonies are vulnerable to 
individual extirpations from stochastic events and are vulnerable to 
the effects of cumulative impacts from multiple stressors. Furthermore, 
small populations generally cannot rescue one another from such a 
depressed state owing to the tricolored bat's low reproductive output 
(two pups per year) and high philopatry (tending to return to or remain 
near a particular site or area). These inherent life-history traits 
limit the ability of populations to recover from these low abundances. 
Consequently, effects of small population sizes exacerbate the effects 
of current and future declines due to continued exposure to WNS, 
mortality from wind turbines, and impacts associated with habitat loss 
and climate change.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. Using the SSA framework, 
we considered the cumulative impacts of white nose syndrome, wind 
energy-related mortality, habitat loss, and impacts of climate change 
on the tricolored bat. We incorporate the cumulative effects into our 
SSA analysis when we characterize the current and future condition of 
the species. To assess the current and future condition of the species, 
we undertake an iterative analysis that encompasses and incorporates 
the threats individually and then accumulates and evaluates the effects 
of all the factors that may be influencing the species, including 
threats and conservation efforts. Because the SSA framework considers 
not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Below is a brief description of conservation measures and 
regulatory mechanisms that are currently in place. Please see the SSA 
report for a more detailed description (Service 2021, Appendix 4).
    Multiple national and international efforts are underway in an 
attempt to reduce the impacts of WNS. To date, there are no proven 
measures to reduce the severity of impacts. More than 100

[[Page 56387]]

State and Federal agencies, Tribes, organizations, and institutions are 
engaged in this collaborative work to combat WNS and conserve affected 
bats. Partners from all 39 States in the tricolored bat range, Canada, 
and Mexico are engaged in collaborations to conduct disease 
surveillance, population monitoring, and management actions in 
preparation for or response to WNS; however, there are currently no 
conservation measures known to reduce the severity of WNS impacts.
    To reduce bat fatalities, some wind facilities ``feather'' turbine 
blades (i.e., pitch turbine blades parallel with the prevailing wind 
direction to slow rotation speeds) at low wind speeds when bats are 
more at risk. The wind speed at which the turbine blades begin to 
generate electricity is known as the ``cut-in speed,'' and this can be 
set at the manufacturer's speed or at a higher threshold, typically 
referred to as curtailment. The effectiveness of feathering below 
various cut-in speeds differs among sites and years (Arnett et al. 
2013, entire; Berthinussen et al. 2021, pp. 94-106); nonetheless, most 
studies involving all bat species have shown fatality reductions of 
greater than 50 percent associated with raising cut-in speeds by 1.0-
3.0 meters per second (m/s) above the manufacturer's cut-in speed 
(Arnett et al. 2013, entire; USFWS unpublished data).
    All States have active forestry programs with a variety of goals 
and objectives. Several States have established habitat protection 
buffers around known Indiana bat (Myotis sodalis) hibernacula that will 
also serve to benefit other bat species by maintaining sufficient 
quality and quantity of swarming habitat. Some States conduct some of 
their forest management activities in the winter within known listed 
bat home ranges as a measure to protect maternity colonies and non-
volant pups during summer months. Depending on the type and timing of 
activities, forest management can be beneficial to bat species (e.g., 
maintaining or increasing suitable roosting and foraging habitat). 
Forest management that results in heterogeneous (including forest type, 
age, and structural characteristics) habitat may benefit tree-roosting 
bat species (Silvis et al. 2016, p. 37). Silvicultural practices can 
meet both male and female tricolored bat roosting requirements by 
maintaining large-diameter snags in early stages of decay, while 
allowing for regeneration of forests (Lacki and Schwierjohann 2001, p. 
487).
    Many State and Federal agencies, conservation organizations, and 
land trusts have installed bat-friendly gates to protect important 
hibernation sites. All known hibernacula within national grasslands and 
forestlands of the Rocky Mountain Region of the U.S. Forest Service 
(USFS) are closed during the winter hibernation period, primarily due 
to the threat of WNS; these closures also reduce disturbance to bats 
inhabiting these hibernacula (USFS 2013, unpaginated). Because of 
concern over the importance of bat roosts, including hibernacula, the 
American Society of Mammalogists developed guidelines for protection of 
roosts, many of which have been adopted by government agencies and 
special interest groups (Sheffield et al. 1992, p. 707). Also, 
regulations, such as those implementing the Federal Cave Resources 
Protection Act (16 U.S.C. 4301 et seq.), protect caves on Federal lands 
by limiting access to some caves, thereby reducing disturbance. 
Finally, many Indiana bat hibernacula have been gated and permanently 
protected, which consequently benefits tricolored bats also occupying 
these hibernacula.
    Tricolored bat is listed as endangered under Canada's Species at 
Risk Act (COSEWIC 2013, entire). In addition, tricolored bat receives 
varying degrees of protection through State laws as it is designated as 
endangered in Connecticut, Indiana, Massachusetts, New Hampshire, Ohio, 
Pennsylvania, Vermont, and Virginia; State-threatened in Tennessee and 
Wisconsin; and special concern in Alabama, Georgia, Iowa, Maine, 
Michigan, Minnesota, Missouri, South Carolina, and West Virginia.
Future Condition
    As part of the SSA, we also developed future condition scenarios to 
capture the range of uncertainties regarding future threats and the 
projected responses by the tricolored bat. To project future installed 
wind capacity, we relied upon National Renewable Energy Laboratory's 
(NREL; Cole et al. 2020) and Canadian Energy Regulator's (CER 2020) 
projections for the U.S. and Canada. To project future impacts of WNS, 
we relied on (1) predicted current and future occurrence of Pd on the 
landscape using two different models and (2) the WNS impacts schedule, 
both created from empirical Pd spread rates and WNS impact data. 
Because we determined that the current condition of the tricolored bat 
was consistent with an endangered species (see Determination of 
Tricolored Bat Status, below), we are not presenting the results of the 
future scenarios in this proposed rule. Please refer to the SSA report 
(Service 2021) for the full analysis of future scenarios.

Determination of Tricolored Bat Status

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

Status Throughout All of Its Range

    WNS has been the foremost stressor on tricolored bat for more than 
a decade and continues to be currently. The fungus that causes the 
disease, Pd, invades the skin of bats and leads to infection that 
increases the frequency and duration of arousals during hibernation 
that eventually deplete the fat reserves needed to survive winter, 
often resulting in mortality. WNS has caused estimated tricolored bat 
population declines of 90 to 100 percent across 59 percent of the 
species' range (Factor C). Winter abundance (from known hibernacula) 
has declined rangewide (52 percent) and across all representation units 
(24 to 89 percent), and the number of extant winter colonies also 
declined rangewide (29 percent). Rangewide summer occupancy (from 
mobile and stationary acoustic and mist-net capture data) declined by 
28 percent from 2010 to 2019. Summer data collected from mobile 
acoustic transects found a 53-percent decline in rangewide relative 
abundance from 2009 to 2019, and summer mist-net captures declined by 
12 to 19 percent (across representation units) compared to pre-WNS 
capture rates.
    Tricolored bat abundance and spatial extent has also substantially 
declined. Consequently, the species is more vulnerable to catastrophic 
events because the risk is no longer spread across as large an area as 
it once was.

[[Page 56388]]

For example, the number of known extant winter colonies has declined 29 
percent since the year 2000 and there has been a shift to smaller 
colony sizes in those that remain. Lastly, as populations have been 
extirpated and areas occupied by the species have declined, so has 
redundancy.
    Tricolored bat representation has also been reduced with declines 
in abundance in all representation units and habitat types (loss of 
extent of occurrence). The steep declines in abundance and reductions 
in extent of occurrence have likely led to corresponding steep 
reductions in genetic diversity, and thereby has reduced tricolored bat 
adaptive capacity as the species loses inherent genetic material and 
variation in ecological settings.
    As discussed above, multiple data types and analyses indicate 
downward trends in tricolored bat population abundance and distribution 
over the last 14 years, and to the best available scientific 
information indicates that this downward trend will change near term to 
the extent that we predict a decrease in rangewide abundance of 89 
percent over the next decade. Additionally, the number of winter 
colonies will likely decline by 91 percent, and the species' spatial 
extent will likely decline by 65 percent by 2030. The projected 
widespread reduction in the distribution of occupied hibernacula under 
current conditions will lead to losses in the diversity of environments 
and climatic conditions occupied, which will impede the tricolored 
bat's ability to adapt to changing environmental conditions, more so as 
populations continue to decline in health and distribution. Moreover, 
at its current low abundance, loss of genetic diversity via genetic 
drift (random fluctuations in the numbers of gene variants in a 
population) will likely accelerate. Consequently, decreasing genetic 
diversity will further lessen tricolored bat's ability to adapt to 
novel changes (currently ongoing as well as future changes) and 
exacerbate declines due to continued exposure to WNS and other 
stressors.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that the tricolored bat's current population status indicates that 
this species is currently in danger of extinction. The species 
continues to experience the catastrophic effects of WNS and the 
compounding effects of other stressors. These threats and their effects 
on the species are highly likely to continue.
    Since the first detection of white nose syndrome in 2006, 
tricolored bat abundance declined, on average, by 93 percent in known 
hibernacula with WNS, with most (93%) winter colonies having fewer than 
100 individuals (Cheng et al. 2021, p. 7). At these low population 
sizes, colonies are vulnerable to extirpation from stochastic events 
(resiliency). Furthermore, tricolored bat's ability to recover from low 
population size is limited given their low reproductive output (two 
pups per year). Therefore, tricolored bat's resiliency is greatly 
compromised in its current condition.
    Additionally, under current conditions, tricolored bat's spatial 
extent has declined and is projected to continue decline, with a 65 
percent reduction by 2030. As the tricolored bat's abundance and 
spatial extent declined, the species has become more vulnerable to 
catastrophic events (declined redundancy).
    In addition to reduced redundancy and resiliency, the bat's 
representation has also been reduced. Tricolored bat's capacity to 
adapt is constrained by its life history and the current level of its 
intraspecific diversity (e.g., genetic, phenotypic, behavioral, 
ecological variability). The declines in abundance have likely led to 
reductions in genetic diversity, and thereby reduced tricolored bat 
adaptive capacity and therefore its representation.
    The species meets the definition of endangered rather than 
threatened. Thus, after assessing the best available information, we 
determine that tricolored bat is in danger of extinction throughout all 
of its range.

Status Throughout a Significant Portion of Its Range

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

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the tricolored bat meets the definition of 
an endangered species. Therefore, we propose to list the tricolored bat 
as an endangered species in accordance with sections 3(6) and 4(a)(1) 
of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from

[[Page 56389]]

protected status (``delisting''), and methods for monitoring recovery 
progress. Recovery plans also establish a framework for agencies to 
coordinate their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Revisions of the plan may be done to 
address continuing or new threats to the species, as new substantive 
information becomes available. The recovery outline, draft recovery 
plan, final recovery plan, and any revisions will be available on our 
website as they are completed (https://www.fws.gov/program/endangered-species or https://www.fws.gov/species/tricolored-bat-perimyotis-subflavus) or from our Pennsylvania Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Alabama, Arkansas, 
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, 
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, 
Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, 
New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, 
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, 
Texas, Vermont, Virginia, Wisconsin, West Virginia, and Wyoming would 
be eligible for Federal funds to implement management actions that 
promote the protection or recovery of the tricolored bat. Information 
on our grant programs that are available to aid species recovery can be 
found at: https://www.fws.gov/grants.
    Although the tricolored bat is only proposed for listing under the 
Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the U.S. Fish and Wildlife 
Service, U.S. Forest Service, Bureau of Land Management, National Park 
Service, and other Federal agencies; issuance of section 404 Clean 
Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; forest management activities funded by Federal agencies on 
private lands (e.g., Natural Resources Conservation Service); and 
construction and maintenance of roads or highways by the Federal 
Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies, as described below.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
for scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing.
    At this time, we are unable to identify specific activities that 
would not be considered to result in a violation of section 9 of the 
Act because the tricolored bat occurs in a variety of habitat 
conditions across its range and it is likely that site-specific 
conservation measures may be needed for activities that may directly or 
indirectly affect the species.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of these taxa at least 100 years 
old, as defined by section 10(h)(1) of the Act.
    (2) Disturbance or destruction (or otherwise making unsuitable) of 
known hibernacula due to commercial or

[[Page 56390]]

recreational activities during known periods of hibernation.
    (3) Unauthorized destruction or modification of suitable forested 
habitat (including unauthorized grading, leveling, burning, herbicide 
spraying, or other destruction or modification of habitat) in ways that 
kill or injure individuals by significantly impairing the species' 
essential breeding, foraging, sheltering, commuting, or other essential 
life functions.
    (4) Unauthorized removal or destruction of trees and other natural 
and manmade structures being used as roosts by the tricolored bat that 
results in take of the species.
    (5) Unauthorized release of biological control agents that attack 
any life stage of this taxon.
    (6) Unauthorized removal or exclusion from buildings or artificial 
structures being used as roost sites by the species, resulting in take 
of the species.
    (7) Within areas used by the species, unauthorized building and 
operation of wind energy facilities that result in take of the species.
    (8) Unauthorized discharge into sinkholes of chemicals, fill, or 
other materials that may lead to contamination of known tricolored bat 
hibernacula.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the appropriate 
field office (see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can 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. We note that the court in CBD v. Haaland vacated the 
provisions from the 2019 regulations that had modified the criteria for 
designating critical habitat, including designating critical habitat in 
areas outside the geographical area occupied by the species at the time 
of listing. Therefore, the regulations that now govern designations of 
critical habitat are the implementing regulations that were in effect 
before the 2019 regulations.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished

[[Page 56391]]

materials; or experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) currently in effect 
state that designation of critical habitat is not prudent when any of 
the following situations exist:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species; or
    (ii) Such designation of critical habitat would not be beneficial 
to the species. In determining whether a designation would not be 
beneficial, the factors the Services may consider include but are not 
limited to: Whether the present or threatened destruction, 
modification, or curtailment of a species' habitat or range is not a 
threat to the species or, whether any areas meet the definition of 
``critical habitat.''
    We examined the types of habitat that the tricolored bat uses for 
roosting and hibernating, such as live and dead leaf clusters of live 
or recently dead deciduous hardwood trees, Spanish moss (Tillandsia 
usneoides), Usnea trichodea lichen, pine needles, eastern red cedar, 
and artificial roosts (e.g., barns, beneath porch roofs, bridges, 
concrete bunkers). During the winter, tricolored bats hibernate 
predominately in caves and mines, although in the southern United 
States, where caves are sparse, tricolored bat often hibernate in road-
associated culverts. Although individual bats are killed due to habitat 
loss, summer (roosting sites) and winter (hibernation sites) habitat is 
not limiting throughout the range of the species.
    The individual needs of the tricolored bat (outlined above in Table 
1) may be met in a variety of forested habitats, as evidenced by the 
species' large historical range over 39 States, southeastern Canada, 
and central America, in which it occupied, prior to WNS, a wide variety 
of elevations, forest community types, latitudes, and climates. While 
temporary or permanent suitable forested habitat loss may occur 
throughout the species' range, impacts to tricolored bat typically 
occur at a more local scale (i.e., individuals and potentially 
colonies), and summer forested habitat continues to be widely available 
across the species' range. Based on this information, forested habitat 
loss is not a major driver of the species' status, and suitable forest 
habitat is not limiting for tricolored bat now nor is it likely to be 
limiting in the future. Therefore, we conclude that designating the 
forest habitat of the tricolored bat as critical habitat is not 
prudent.
    In addition, the primary forms of human disturbance to hibernating 
bats result from human entry such as recreational caving, vandalism, 
cave commercialization (cave tours and other commercial uses of caves), 
and research-related activities (Service 2007, p. 80). Human 
disturbance at hibernacula can cause bats to arouse more frequently, 
causing premature energy store depletion and starvation (Thomas 1995, 
p. 944; Speakman et al. 1991, p. 1103), leading to marked reductions in 
bat populations (Tuttle 1979, p. 3) and increased susceptibility to 
disease. WNS infection leads to increases in the frequency and duration 
of arousals during hibernation and raises energetic costs during torpor 
bouts, both of which cause premature depletion of critical fat reserves 
needed to survive winter. In our April 27, 2016, determination that 
designating critical habitat for the northern long-eared bat is not 
prudent, we outlined a wide array of disturbances to hibernating bats 
resulting from the above activities (81 FR 24707). Given tricolored 
bat's similar susceptibility to the above-mentioned threats and 
overlapping range, we find that our not-prudent determination for the 
tricolored bat is consistent with our not-prudent finding for northern 
long-eared bat critical habitat. Identifying wintering habitat 
(hibernacula) as critical habitat on published maps for the tricolored 
bat would likely increase the threat from human entry and could 
increase the spread of WNS by identifying specific sensitive areas.
    This not-prudent determination is based on the regulations that 
preceded the Service's 2019 revisions of 50 CFR part 424 (84 FR 45020; 
August 27, 2019) because on July 5, 2022, the U.S. District Court for 
the Northern District of California vacated those 2019 regulations. 
However, we considered whether the analysis of the prudency of 
designating critical habitat and the conclusion drawn from that 
analysis contained in this listing rule would be any different under 
the regulations at 50 CFR part 424 as they existed while the 2019 
revisions were in place. We have concluded that our analysis and 
conclusion would not be different. To verify whether there would be a 
different outcome, we considered whether the tri-colored bat involves 
any of the circumstances in which designation of critical habitat may 
be not prudent under the 2019 revisions. We found that several of the 
circumstances for which designation of critical habitat would be not 
prudent under the 2019 revisions apply to the tri-colored bat. As a 
result of this analysis, we found that the outcome of the prudency 
determination would have remained the same under either situation.
    Therefore, in accordance with 50 CFR 424.12(a)(1), we determine 
that designation of critical habitat is not prudent for the tricolored 
bat.

Public Hearings

    We have scheduled a public informational meeting with a public 
hearing on this proposed rule for the tricolored bat. We will hold the 
public informational meeting and public hearing on the date and time 
listed above under Public informational meeting and public hearing in 
DATES. We are holding the public informational meeting and public 
hearing via the

[[Page 56392]]

Zoom online video platform and via teleconference so that participants 
can attend remotely. For security purposes, registration is required. 
To listen and view the meeting and hearing via Zoom, listen to the 
meeting and hearing by telephone, or provide oral public comments at 
the public hearing by Zoom or telephone, you must register. For 
information on how to register, or if you encounter problems joining 
Zoom the day of the meeting, visit https://www.fws.gov/species/tricolored-bat-perimyotis-subflavus. Registrants will receive the Zoom 
link and the telephone number for the public informational meeting and 
public hearing. If applicable, interested members of the public not 
familiar with the Zoom platform should view the Zoom video tutorials 
(https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials) prior to the public informational meeting and public 
hearing.
    The public hearing will provide interested parties an opportunity 
to present verbal testimony (formal, oral comments) regarding this 
proposed rule. While the public informational meeting will be an 
opportunity for dialogue with the Service, the public hearing is not: 
It is a forum for accepting formal verbal testimony. In the event there 
is a large attendance, the time allotted for oral statements may be 
limited. Therefore, anyone wishing to make an oral statement at the 
public hearing for the record is encouraged to provide a prepared 
written copy of their statement to us through the Federal eRulemaking 
Portal, or U.S. mail (see ADDRESSES, above). There are no limits on the 
length of written comments submitted to us. Anyone wishing to make an 
oral statement at the public hearing must register before the hearing 
https://www.fws.gov/species/tricolored-bat-perimyotis-subflavus. The 
use of a virtual public hearing is consistent with our regulations at 
50 CFR 424.16(c)(3).

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.

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species 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. We solicited information, provided 
updates and invited participation in the SSA process in emails sent to 
Tribes, nationally, in April 2020 and November 2020. We will continue 
to work with Tribal entities during the development of a final rule for 
the tricolored bat.

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 Pennsylvania Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

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. In Sec.  17.11, amend paragraph (h) by adding an entry for ``Bat, 
tricolored (Perimyotis subflavus)'' in alphabetic order under Mammals 
to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 56393]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Bat, tricolored.................  Perimyotis          Wherever found....  E              [Federal Register
                                   subflavus.                                             citation when
                                                                                          published as a final
                                                                                          rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-18852 Filed 9-13-22; 8:45 am]
BILLING CODE 4333-15-P