Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Rusty Patched Bumble Bee, 93245-93272 [2024-27316]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 228 (Tuesday, November 26, 2024)]
[Proposed Rules]
[Pages 93245-93272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27316]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2024-0132; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BH72


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Rusty Patched Bumble Bee

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 rusty patched bumble bee (Bombus 
affinis), a bumble bee historically known to occur broadly across the 
eastern United States and portions of Canada, under the Endangered 
Species Act of 1973, as amended (Act). In total, we are proposing the 
designation of approximately 1,635,746 acres (661,963 hectares) of 
occupied critical habitat in 14 units across 33 counties in 6 States. 
We also announce the availability of an economic analysis of the 
proposed designation of critical habitat for the rusty patched bumble 
bee.

DATES: We will accept comments received or postmarked on or before 
January 27, 2025. We must receive requests for a public hearing, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
January 10, 2025.

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 FWS-R3-ES-
2024-0132, 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.'' Comments submitted electronically using the Federal 
eRulemaking Portal must be received by 11:59 p.m. eastern time on the 
closing date.
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R3-ES-2024-0132, 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).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available on the Service's 
website at https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis or at https://www.regulations.gov at Docket No. FWS-R3-ES-2024-
0132. If we finalize the critical habitat designation, we will make the 
coordinates or plot points or both from which the maps are generated 
available athttps://www.regulations.govat Docket No. FWS-R3-ES-2024-
0132 and on the Service's website athttps://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis.

[[Page 93246]]


FOR FURTHER INFORMATION CONTACT: Betsy Galbraith, Acting Field 
Supervisor, U.S. Fish and Wildlife Service, Minnesota-Wisconsin 
Ecological Services Field Office, 3815 American Blvd. East, 
Bloomington, MN 55425-1665; telephone 952-858-0793. 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. 
Please see Docket No. FWS-R3-ES-2024-0132 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act (16 U.S.C. 1531 et 
seq.), when we determine that any species warrants listing as 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 through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to designate critical habitat 
for the endangered rusty patched bumble bee.
    The basis for our action. Section 4(a)(3) of the Act requires the 
Secretary of the Interior (Secretary), to the maximum extent prudent 
and determinable, to designate critical habitat concurrent with 
listing. Section 3(5)(A) of the Act defines critical habitat as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination by the Secretary 
that such areas are essential for the conservation of the species. 
Section 4(b)(2) of the Act states that the Secretary must make the 
designation on the basis of the best scientific data available and 
after taking into consideration the economic impact, the impact on 
national security, and any other relevant impacts of specifying any 
particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific 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) Specific information on:
    (a) The amount and distribution of rusty patched bumble bee 
habitat;
    (b) Any additional areas occurring within the range of the species 
that should be included in the designation because they (i) 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 protection, or (ii) 
are unoccupied at the time of listing and are essential for the 
conservation of the species; and
    (c) Special management considerations or protection that may be 
needed in the critical habitat areas we are proposing, including 
managing for the potential effects of climate change.
    (2) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (3) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (4) Information on the extent to which the description of probable 
economic impacts in the economic analysis is a reasonable estimate of 
the likely economic impacts and any additional information regarding 
probable economic impacts that we should consider.
    (5) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any areas, 
please provide information supporting a benefit of exclusion.
    (6) Information on areas owned by the Department of Defense that 
overlap with the proposed designation.
    (7) 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 information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a designation. Section 4(b)(2) of the 
Act directs that the Secretary shall designate critical habitat on the 
basis of the best scientific 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.
    Our final designation may differ from this proposal because we will 
consider all comments we receive during the comment period as well as 
any information that may become available after this proposal. Our 
final designation may not include all areas proposed, may include some 
additional areas that meet the definition of critical habitat, or may 
exclude some areas if we find the benefits of exclusion outweigh the 
benefits of inclusion and exclusion will not result in the extinction 
of the species. In our final rule, we will clearly explain our 
rationale and the basis for our final decision, including why we made 
changes, if any, that differ from this proposal.

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

[[Page 93247]]

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. We 
may hold the public hearing in person or virtually via webinar. We will 
announce any public hearing on our website, in addition to the Federal 
Register. The use of virtual public hearings is consistent with our 
regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    Please refer to the proposed listing rule for the rusty patched 
bumble bee (81 FR 65324, September 22, 2016) for a detailed description 
of previous Federal actions concerning this species. On January 11, 
2017, we published in the Federal Register (82 FR 3186) a final rule 
listing the rusty patched bumble bee as an endangered species. The rule 
became effective on March 21, 2017 (see 82 FR 10285, February 10, 
2017). On September 1, 2020, we published a determination in the 
Federal Register (85 FR 54281) that designating critical habitat for 
the rusty patched bumble bee was not prudent.
    On March 24, 2021, the Natural Resources Defense Council, Center 
for Biological Diversity, and Friends of Minnesota Scientific and 
Natural Areas filed a complaint challenging the Service's critical 
habitat prudency determination for the rusty patched bumble bee. On 
August 11, 2023, a court order vacated and remanded the Service's 
prudency determination. On February 8, 2024, the Service and plaintiffs 
reached a stipulated settlement agreement whereby the Service agreed to 
submit to the Federal Register either a proposed critical habitat rule 
or a determination that designation of critical habitat for the species 
is not prudent no later than November 20, 2024. This document addresses 
the court's opinion in compliance with the February 8, 2024, stipulated 
settlement agreement.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the rusty patched bumble bee. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we solicited 
independent scientific review of the information contained in the rusty 
patched bumble bee SSA report. The SSA report underwent review by 15 
scientists with expertise in bumble bee biology, habitat management, 
and stressors (factors negatively affecting the species). Results of 
this structured peer review process can be found in the docket for this 
proposed rule on https://www.regulations.gov. We incorporated the 
results of these reviews, as appropriate, into the SSA report (Service 
2016, entire). Additionally, we will solicit peer review for this 
proposed critical habitat designation during this public comment 
period. These comments will be available along with other public 
comments in the docket for this proposed rule on https://www.regulations.gov.

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 each Federal action agency 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 designated 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. Rather, designation requires that, where a landowner 
requests Federal agency funding or authorization for an action that may 
affect an area designated as critical habitat, the Federal agency 
consult with the Service under section 7(a)(2) of the Act. If the 
action may affect the listed species itself (such as for occupied 
critical habitat), the Federal agency would have already been required 
to consult with the Service even absent the designation because of the 
requirement to ensure that the action is not likely to jeopardize the 
continued existence of the listed species. Even if the Service were to 
conclude after consultation that the proposed activity is likely to 
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 data available, those physical or biological features that 
are essential to the conservation of the species (such as

[[Page 93248]]

space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4(b)(2) 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 compiled in the SSA report and information developed during 
the listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in 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 scientific data 
available at the time of designation will not control the direction and 
substance of future revised recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence of a particular level 
of nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.

Species Needs

Overwintering
    Little is known about the overwintering habitats of rusty patched 
bumble bee queens, but based primarily on observations of other 
species, we assume that rusty patched bumble bee queens overwinter in 
upland closed-canopy forest interior. Forest interiors are large blocks 
of unfragmented forest with continuous canopy that shows no detectable 
edge influences (Harper et al. 2005, p. 771). Most overwintering Bombus 
queens reported in the literature in North America were underground, 
and most were in shaded areas near trees and in banks without dense 
vegetation (Liczner and Colla 2019, p. 787). The only documented 
overwintering rusty patched bumble bee queen, discovered in a hemlock 
grove within a larger maple oak-forest (about 0.3 mile (mi) (0.5 
kilometer (km)) into the forest) in Wisconsin in 2016, was found on a 
level area near the bottom of a north-facing slope under a few 
centimeters of leaf litter and loose soil (B. Herrick, University of 
Wisconsin-Madison Landscape Arboretum, 2016 and 2024, pers. comm.). 
Other species of the Bombus genus typically form a chamber in loose, 
soft soil, a few centimeters deep in bare earth, in moss, under tree 
litter, or in bare patches within short grass, and they may avoid areas 
with dense vegetation (Alford 1969, p. 156; Liczner and Colla 2019, p. 
792). Overwintering habitat preferences may be species-specific and 
dependent on factors such as slope orientation and

[[Page 93249]]

timing of emergence. Most queens in England were found in well-drained 
soil that was shaded from direct sunlight in banks or under trees and 
was free from living ground vegetation (Alford 1969, pp. 150-152). For 
underground sites, soil type is often described as sandy and well-
drained (Alford 1969, p. 169), which suggests that maintaining a 
consistently low moisture level is important (Sladen 1912, pp. 94-101). 
Because soil temperature influences diapause duration and emergence 
(Alford 1969, pp. 161-168; Beekman et al. 1998, p. 207), it has been 
hypothesized that the apparent preference for north-facing slopes and 
shaded areas is to prevent the overwintering queens from emerging too 
early on relatively warm days in the winter or early spring (Alford 
1969, pp. 149-169), and more generally, it could suggest selection of 
sites that buffer hibernating bees from both temperature and moisture 
fluctuations (Williams et al. 2019, pp. 1-3).
Nesting
    Rusty patched bumble bee nests are typically 1 to 4 feet 
underground in abandoned rodent nests, other mammal burrows, or other 
underground cavities with ample cover, and occasionally at the soil 
surface or in aboveground structures (Plath 1922 pp. 190-191, 
Macfarlane 1974, p. 5; Macfarlane 1994, pp. 5-6). Among the 43 rusty 
patched bumble bee nests studied in Ontario, 95 percent were 
underground (Macfarlane 1974, p. 5). Most recent rusty patched bumble 
bee nest observations were associated with rodent burrows (Boone et al. 
2022, p. 381; Smith et al. in review), as were recently discovered 
nests of a closely related species, the western bumble bee (B. 
occidentalis) (Everett et al. in process, entire), which is in the same 
subgenus as rusty patched bumble bee. Three western bumble bee nests 
excavated in 2022 and 2023 in central Oregon were located in abandoned 
rodent burrows with soils classified as loamy sand, with an average of 
84 percent sand particles (Everett et al. in process, entire). The 
transition zone between forest and grassland, as well as field 
boundaries, meadow margins, and forest edges, can be particularly 
valuable bumble bee nesting habitat due to the presence of abandoned 
rodent nests and undisturbed habitat with diverse floral resources 
(Hines and Hendrix 2005, p. 1483). Forest edge is the interface between 
forested and non-forested habitats that extends approximately 30 meters 
into the forest (Harper et al. 2005, pp. 771, 774).
Foraging
    Bumble bees are generalist foragers that collect nectar and pollen 
from a wide diversity of plants (Xerces 2013, pp. 27-28). The rusty 
patched bumble bee is one of the first bumble bee species to emerge 
early in the spring and last to go into hibernation in the fall. To 
meet its nutritional needs, the species requires a constant and diverse 
supply of flowers that bloom throughout the colony's flight period from 
spring through the fall (MacFarlane et al. 1994, p. 5). The nectar from 
flowers provides carbohydrates and the pollen provides protein, fatty 
acids, and micronutrients for the species (Di Pasquale et al. 2013, p. 
4; Lau et al. 2022, pp. 6-8). The number of new queens that a colony 
can produce is directly related to the amount of pollen that is 
available (Burns 2004, p. 150).
    Based on other Bombus species, which typically exhibit foraging 
distances of less than 0.6 mi (1 km) from their nesting sites (Knight 
et al. 2005, p. 1816; Wolf and Moritz 2008, p. 422; Dramstad 1996, pp. 
163-182; Osborne et al. 1999, pp. 524-526; Rao and Strange 2012, pp. 
909-911), the rusty patched bumble bee may need floral resources in 
close proximity to its nest, although studies have not confirmed this 
to date. The rusty patched bumble bee may also be dependent on forest 
spring ephemeral flowers because of the species' early emergence in the 
spring and its association with forests and near forested habitats 
(Colla and Dumesh 2010, pp. 45-46, 48).
    Readily available access to high-quality foraging habitats near 
nests allows other bumble bee species' workers to maintain short 
foraging distances (Crowther et al. 2019, p. 994). Detection 
probabilities of all bumble bee species, including rusty patched bumble 
bees, studied in Wisconsin by Nunes et al. (2024, p. 221), increased 
with floral abundance. Furthermore, colonies with low floral abundance 
around their nests may produce few workers, and males may fail to 
produce any new queens (Pelletier and McNeil 2003, pp. 691-692; Burns 
2004, pp. 149, 155-156; Samuelson et al. 2018, pp. 57; Timberlake et 
al. 2021, p. 1013). Workers of other bumble bee species can forage 0.6 
mi (1 km) or more from nests but may predominantly forage within a few 
hundred meters (Dramstad 1996, pp. 170-175; Osborne et al. 1999, pp. 
524-526, 529; Wolf and Moritz 2008, p. 422; Rao and Strange 2012, p. 
911). A paucity of spring floral resources contributed to high pathogen 
loads in one bumble bee species studied in Pennsylvania and may 
exacerbate the threat posed by disease transmission from honeybee 
apiaries (McNeil et al. 2020, p. 3).
    The availability of floral resources is dependent on the proper 
soil and precipitation conditions to sustain them. Extended periods of 
drought, for instance, may lessen the availability and diversity of 
flowering plants in a given area because plant phenology is primarily 
driven by temperature, precipitation, and the timing of snowmelt in the 
spring (Inouye and Wielgolaski 2003, p. 207; Wielgolaski and Inouye 
2003, pp. 179-181; Pyke et al. 2016, p. 12).
Dispersal Habitat
    Based on studies of a closely related species, the buff-tailed 
bumblebee (Bombus terrestris) (Kraus et al. 2009, p. 249; Lepais et al. 
2010, pp. 826-827; Jha and Kremen 2013, p. 2492), the maximum dispersal 
distance of rusty patched bumble bee males and new queens is estimated 
to be up to 10 km to find mates in the autumn.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the rusty patched bumble bee from studies of the 
species' habitat, ecology, and life history as described above. 
Additional information can be found in the SSA report (Service 2016, 
entire; available on https://www.regulations.gov under Docket No. FWS-
R3-ES-2015-0112-0245). We have determined that the following physical 
or biological features are essential to the conservation of the rusty 
patched bumble bee:
    (1) For overwintering, upland forest interior habitat containing 
leaf litter and without dense understory vegetation.
    (2) For nesting, upland forest edge interface between forested and 
non-forested natural habitats that extends approximately 30 meters into 
the forest.
    (3) For nesting, abandoned rodent burrows, other mammal burrows, 
existing cavities with ample cover, or similar existing cavities at the 
soil surface or below to 4 feet underground.
    (4) For nesting and overwintering, well-drained, loose soils 
sheltered from the elements.
    (5) For foraging, diverse, abundant, native floral resources for 
the entire active flight season.

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

[[Page 93250]]

features which are essential to the conservation of the species and 
which may require special management considerations or protection. The 
features essential to the conservation of this species may require 
special management considerations or protection to reduce stressors 
that are anticipated to degrade the physical or biological features, 
including, but not limited to, ground disturbance or compaction 
activities (e.g., road and rail construction), habitat management 
(e.g., prescribed burns, herbicide use), forestry activities (e.g., 
timber harvest), actions that cause an increase in the extent or 
duration of surface flooding or soil saturation (e.g., water 
impoundments, alteration or interruption of existing drainage patterns, 
surface runoff alterations), actions that increase competition for 
floral resources (e.g., use of managed bees), and pesticide 
applications (e.g., rodenticides that may reduce rodents and therefore 
potential nesting areas). Sources of these stressors include, but are 
not limited to, agricultural, municipal, and residential land uses. The 
physical or biological features for the rusty patched bumble bee may 
require special management considerations or protection to address 
these threats.
    Management activities that could ameliorate these threats include, 
but are not limited to: management techniques to enhance floral 
resources or reduce invasive plants or both, such as planting or 
seeding to increase the abundance and diversity of native wildflowers, 
removing and controlling invasive plants, using prescribed fire, and 
mowing; reduced or ceased use of rodenticides; use of best management 
practices for managed bees to reduce or eliminate competition for 
resources; and use of forestry best management practices to enhance 
early spring foraging resources (e.g., spring ephemerals, native 
flowering trees) and to reduce ground disturbance in forested areas 
during the overwintering season.
    These management activities would protect the physical or 
biological features for the species by maintaining and increasing 
nectar and pollen resources, maintaining or increasing the availability 
of suitable nesting habitat and potential nesting sites (e.g., rodent 
burrows), and maintaining or increasing the availability of suitable 
overwintering habitat for the species.

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. In general, habitat is not 
limiting for the rusty patched bumble bees. However, there are no areas 
outside the areas identified as proposed critical habitat that would 
facilitate the recovery of the species. 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 Act's definition of critical habitat. There are no unoccupied areas 
that are essential for the conservation of the rusty patched bumble 
bee. We identified no unoccupied areas that are free from potential 
interactions with managed bees or large-scale agricultural lands. There 
are many unoccupied areas that may contain suitable habitat for the 
rusty patched bumble bee; however, we did not identify any specific 
unoccupied areas that are essential for the conservation of the 
species. Areas that contain unoccupied suitable habitat can be 
considered in our recovery efforts with or without a critical habitat 
designation.
    Sources of data for the rusty patched bumble bee and its habitat 
needs include research published in peer-reviewed articles on the 
species and related species, agency reports, communication with species 
experts, the 2021 rusty patched bumble bee recovery plan (Service 2021, 
entire), data submitted from 10(a)(1)(A) scientific recovery permit 
holders and public participation websites (e.g., https://www.inaturalist.org/), and the Service's published ``High Potential 
Zones'' and potential dispersal area data for rusty patched bumble bee 
(available from ArcGIS online at https://www.arcgis.com/home/item.html?id=15b68d967aab4737981d172e8e25f78f, accessed June 9, 2024).
    After identifying areas that contain the physical or biological 
features essential to the conservation of the species, we then 
identified overlapping areas that likely have multiple colonies 
interacting with each other. A minimum of 50 verified rusty patched 
bumble bee observations since 2007 within estimated foraging and 
dispersal distances of one another likely represents multiple, 
interacting colonies existing over time, rather than single 
observations of a single individual (most observations are of female 
workers; however, some are males or queens). Clustered, interacting 
colonies foster gene flow among them, thereby helping to facilitate 
genetic health. Maintaining gene flow among colonies is especially 
important in species like the rusty patched bumble bee because of 
genetic characteristics that can produce inviable or sterile males 
(that is, single locus complementary sex determination), which may lead 
to rapid extirpation, especially as colonies become small and isolated 
(Zayed and Packer 2005, p. 10744; Zayed 2009, entire).
    We used the High Potential Zone (HPZ) model developed at the time 
of listing to determine areas with the highest potential for the 
species to be present and for which observation points were within 
likely foraging or dispersal distances from each other. This model uses 
ArcGIS software that considers the likelihood of rusty patched bumble 
bee movement based on the National Land Cover Database (NLCD, https://www.usgs.gov/centers/eros/science/national-land-cover-database). This 
model assesses the likelihood of rusty patched bumble bee distribution 
from the locations of known records based on the manner in which 
various land cover types may affect bumble bee movement and behavior. 
Land cover types are grouped as having strong, moderate, weak, or no 
limits on the species' movement based on the best available information 
for this species or similar bumble bee species. This methodology was 
based on a similar model created to examine movement of the yellow-
faced bumble bee (Bombus vosnesenskii) (Jha and Kremen 2013, entire). 
The polygons generated from the HPZ model suggest areas with the 
highest potential for the species to be present, based on typical 
bumble bee foraging distances, estimated dispersal distances, and the 
ability of bumble bees to move through various land cover types, but 
the model does not attempt to identify or quantify suitable habitat for 
the species (for more details, see https://www.fws.gov/media/high-potential-zone-model-rusty-patched-bumble-bee).
    After identifying areas that likely have multiple interacting 
colonies and are within a contiguous HPZ, we then identified areas that 
are genetically distinct. Analyses of rangewide genetic data collected 
from extant records show that rusty patched bumble bees in the 
Appalachian region of West Virginia and Virginia represent a 
genetically distinct population cluster with substantial 
differentiation from the rest of the extant range (Mola et al. 2024, p. 
8).

[[Page 93251]]

    Finally, we included areas free from the impacts of pesticides and 
managed bees. Prior to its listing as endangered in 2017, the species 
experienced a widespread and steep decline. The exact cause of the 
decline is unknown, but evidence suggests a synergistic interaction 
between an introduced pathogen and exposure to pesticides 
(specifically, insecticides and fungicides; Service 2016, p. 53). 
Pathogens can be introduced to rusty patched bumble bees through 
managed bees. Generally, the term ``managed bees'' is defined as hives 
or colonies of bees that are used commercially to provide pollination 
services for a wide variety of crops over the growing season, with some 
hives or colonies moved within and among States multiple times 
throughout any one growing season. We, therefore, include only areas 
that are at least 0.6 mi (1 km) away from large-scale and intensive 
agricultural areas that rely on pesticides, or use a variety of managed 
bees for pollination, or both. This distance is used to buffer areas 
from the potential impacts of managed bees and pesticides that may be 
used in large-scale agriculture.
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria:
    (1) Areas within a contiguous high potential zone (HPZ) with 50 or 
more positive observations since 2007.
    (2) Areas that include any known genetically distinct populations.
    (3) Areas that are at least 0.6 mi (1 km) away from large-scale 
agriculture that use pesticides, managed bees, or both.
    This proposed critical habitat overlaps a great deal of developed 
areas, such as lands covered by buildings, pavement, and other 
structures. These structures are not designated as critical habitat 
themselves because such structures lack the physical or biological 
features necessary for the rusty patched bumble bee. However, the 
physical or biological features for rusty patched bumble are 
interspersed throughout the developed lands at such a scale that they 
cannot be mapped. The scale of the maps we prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such structures. Any such structures left 
inside critical habitat boundaries shown on the maps of this proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
such structures would not trigger section 7 consultation with respect 
to critical habitat and the requirement of no adverse modification 
unless the specific action would affect the physical or biological 
features in the surrounding critical habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation.

Proposed Critical Habitat Designation

    We are proposing 14 units as critical habitat for the rusty patched 
bumble bee. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the rusty patched bumble bee. The 14 areas we propose as 
critical habitat are: (1) Minneapolis-St. Paul Metropolitan; (2) 
Northfield; (3) Rochester; (4) Winona; (5) Denzer; (6) Bunker Hill; (7) 
Madison; (8) Milwaukee; (9) Rockford; (10) McHenry; (11) Elgin; (12) 
Lost Nation; (13) Iowa City; and (14) Black Creek Mountain. Table 1 
shows the proposed critical habitat units and the approximate area of 
each unit; all units are considered occupied.

                    Table 1--Proposed Critical Habitat Units for the Rusty Patched Bumble Bee
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                     Size of unit in
         Critical habitat unit           Land ownership by type     acres (hectares)            State(s)
----------------------------------------------------------------------------------------------------------------
1. Minneapolis-St. Paul Metropolitan..  Private.................     499,204 (202,021)  Minnesota.
                                        Federal.................         5,741 (2,323)
                                        State/local/school......       59,769 (24,188)
                                        Tribal..................         3,091 (1,251)
                                                                 ----------------------
                                         Total..................     567,805 (229,782)
----------------------------------------------------------------------------------------------------------------
2. Northfield.........................  Private.................        12,056 (4,879)  Minnesota.
                                        Federal.................                     0
                                        State/local/school......             501 (203)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................        12,557 (5,082)
----------------------------------------------------------------------------------------------------------------
3. Rochester..........................  Private.................       41,819 (16,924)  Minnesota.
                                        Federal.................                     0
                                        State/local/school......           1,271 (515)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       43,091 (17,438)
----------------------------------------------------------------------------------------------------------------
4. Winona.............................  Private.................       29,340 (11,873)  Minnesota.
                                        Federal.................                     0
                                        State/local/school......             483 (195)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       29,823 (12,069)
----------------------------------------------------------------------------------------------------------------

[[Page 93252]]

 
5. Denzer.............................  Private.................       26,471 (10,712)  Wisconsin.
                                        Federal.................                     0
                                        State/local/school......             538 (218)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       27,009 (10,930)
----------------------------------------------------------------------------------------------------------------
6. Bunker Hill........................  Private.................        13,559 (5,487)  Wisconsin.
                                        Federal.................                     0
                                        State/local/school......         5,126 (2,075)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................        18,686 (7,562)
----------------------------------------------------------------------------------------------------------------
7. Madison............................  Private.................      195,952 (79,299)  Wisconsin.
                                        Federal.................             515 (208)
                                        State/local/school......        14,283 (5,780)
                                        Tribal..................                 4 (2)
                                                                 ----------------------
                                         Total..................      210,753 (85,289)
----------------------------------------------------------------------------------------------------------------
8. Milwaukee..........................  Private.................      232,722 (94,179)  Wisconsin.
                                        Federal.................              131 (53)
                                        State/local/school......        20,130 (8,146)
                                        Tribal..................                10 (4)
                                                                 ----------------------
                                         Total..................     252,992 (102,382)
----------------------------------------------------------------------------------------------------------------
9. Rockford...........................  Private.................      136,826 (55,371)  Illinois.
                                        Federal.................                     0
                                        State/local/school......        13,283 (5,375)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................      150,108 (60,747)
----------------------------------------------------------------------------------------------------------------
10. McHenry...........................  Private.................       59,158 (23,940)  Illinois and Wisconsin.
                                        Federal.................                 2 (1)
                                        State/local/school......         9,135 (3,697)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       68,295 (27,638)
----------------------------------------------------------------------------------------------------------------
11. Elgin.............................  Private.................       56,318 (22,791)  Illinois.
                                        Federal.................                     0
                                        State/local/school......        18,762 (7,593)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       75,080 (30,384)
----------------------------------------------------------------------------------------------------------------
12. Lost Nation.......................  Private.................        14,416 (5,834)  Illinois.
                                        Federal.................                     0
                                        State/local/school......             627 (254)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................        15,043 (6,088)
----------------------------------------------------------------------------------------------------------------
13. Iowa City.........................  Private.................       30,397 (12,301)  Iowa.
                                        Federal.................        11,362 (4,598)
                                        State/local/school......         4,144 (1,677)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................       45,902 (18,576)
----------------------------------------------------------------------------------------------------------------
14. Black Creek Mountain..............  Private.................        11,200 (4,532)  Virginia and West
                                        Federal.................      105,558 (42,718)   Virginia.
                                        State/local/school......           1,845 (747)
                                        Tribal..................                     0
                                                                 ----------------------
                                         Total..................      118,603 (47,997)
----------------------------------------------------------------------------------------------------------------

[[Page 93253]]

 
    Totals............................  Private.................   1,359,437 (550,145)
                                        Federal.................      123,307 (49,901)
                                        State/local/school......      149,897 (60,661)
                                        Tribal..................         3,105 (1,257)
                                       -------------------------------------------------------------------------
                                         Total..................   1,635,746 (661,963)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the rusty patched bumble 
bee, below.

Unit 1: Minneapolis-St. Paul Metropolitan

    Unit 1 consists of 567,805 ac (229,782 ha) in the Minneapolis-St. 
Paul metropolitan area of Minnesota in Ramsey, Scott, Dakota, Pierce, 
Washington, Carver, Hennepin, and St. Croix Counties. The unit is 
occupied and contains all of the essential physical or biological 
features. This unit consists of private lands (499,204 ac (202,021 
ha)), local government-owned lands (40,596 ac (16,429 ha)), Minnesota 
State lands (11,983 ac (4,849 ha)), university or school lands (7,190 
ac (2,910 ha)), Tribal lands (3,091 ac (1,251 ha)), and Federal lands 
(5,741 ac (2,323 ha)). The Federal lands include the National Park 
Service's Mississippi National River and Recreational Area and Lower 
St. Croix National Scenic Riverway, and the Service's Minnesota Valley 
National Wildlife Refuge. Approximately 212 ac (86 ha) of privately 
owned lands are managed by the U.S. Department of Agriculture's Natural 
Resources Conservation Service (USDA-NRCS) Wetlands Reserve Program. 
Tribal lands include Shakopee Mdewakanton Sioux Community and Shakopee 
Mdewakanton Sioux Community Off-Reservation Land Trust.
    Special management considerations or protection may be required 
within Unit 1 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 2: Northfield

    Unit 2 consists of 12,557 ac (5,082 ha) in the Northfield, 
Minnesota, metropolitan area in Dakota and Rice Counties. The unit is 
occupied and contains all of the essential physical or biological 
features. This unit consists of private lands (12,056 ac (4,879 ha)), 
local government-owned lands (489 ac (198 ha)), and Minnesota State 
lands (12 ac (5 ha)). There are no Federal or Tribal lands identified 
in this unit.
    Special management considerations or protection may be required 
within Unit 2 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 3: Rochester

    Unit 3 consists of 43,091 ac (17,438 ha) in the Rochester, 
Minnesota, metropolitan area in Olmsted County. The unit is occupied 
and contains all of the essential physical or biological features. This 
unit consists of private lands (41,819 ac (16,924 ha)), local 
government-owned lands (939 ac (380 ha)), and Minnesota State lands 
(332 ac (134 ha)). There are no Federal or Tribal lands identified in 
this unit.
    Special management considerations or protection may be required 
within Unit 3 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 4: Winona

    Unit 4 consists of 29,823 ac (12,069 ha) in the Winona, Minnesota, 
area in Winona County. The unit is occupied and contains all of the 
essential physical or biological features. This unit consists of 
private lands (29,340 ac (11,873 ha)), local government-owned lands 
(423 ac (171 ha)), and Minnesota State lands (60 ac (24 ha)). There are 
no Federal or Tribal lands identified in this unit.
    Special management considerations or protection may be required 
within Unit 4 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides

[[Page 93254]]

that may reduce rodents and therefore potential nesting areas for the 
rusty patched bumble bee). Sources of these stressors include, but are 
not limited to, agricultural, municipal, and residential land uses.

Unit 5: Denzer

    Unit 5 consists of 27,009 ac (10,930 ha) in Sauk County near 
Denzer, Wisconsin. The unit is occupied and contains all of the 
essential physical or biological features. This unit consists of 
private lands (26,471 ac (10,712 ha)), including 2,345 ac (949 ha) 
owned by nongovernmental organizations (NGOs), and Wisconsin State 
lands (538 ac (218 ha)). There are no Federal or Tribal lands 
identified in this unit.
    Special management considerations or protection may be required 
within Unit 5 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 6: Bunker Hill

    Unit 6 consists of 18,686 ac (7,562 ha) in Iowa County near Bunker 
Hill, Wisconsin. The unit is occupied and contains all of the essential 
physical or biological features. This unit consists of private lands 
(13,559 ac (5,487 ha)) and Wisconsin State lands (5,126 ac (2,075 ha)). 
There are no Federal or Tribal lands identified in this unit.
    Special management considerations or protection may be required 
within Unit 6 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 7: Madison

    Unit 7 consists of 210,753 ac (85,289 ha) in Dane and Iowa Counties 
near Madison, Wisconsin. The unit is occupied and contains all of the 
essential physical or biological features. This unit consists of 
private lands (195,952 ac (79,299 ha)), local government-owned lands 
(8,679 ac (3,512 ha)), university or school lands (1,086 ac (440 ha)), 
Wisconsin State lands (4,518 ac (1,828 ha)), Tribal lands (4 ac (2 
ha)), and Federal lands (515 ac (208 ha)). The Federal lands include 
the U.S. Forest Service's Forest Products Experimental Laboratory, 
National Park Service's Ice Age National Scenic Trail, and the 
Service's Dane County Waterfowl Production Area. Approximately 304 ac 
(123 ha) of private lands in this unit are managed by the USDA-NRCS 
Wetlands Reserve Program, and approximately 53 ac (21 ha) are managed 
by the USDA-NRCS Emergency Waters Protection Program. The Tribal lands 
are managed by the Ho-Chunk Nation.
    Special management considerations or protection may be required 
within Unit 7 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 8: Milwaukee

    Unit 8 consists of 252,992 acres (102,382 hectares) in the 
Milwaukee, Wisconsin, metropolitan area in Milwaukee, Ozaukee, Racine, 
Washington, and Waukesha Counties. The unit is occupied and contains 
all of the essential physical or biological features. This unit 
consists of private lands (232,722 ac (94,179 ha)), local government-
owned lands (17,995 ac (7,282 ha)), Wisconsin State lands (2,121 ac 
(858 ha)), university or school lands (14 ac (6 ha)), Tribal lands (10 
ac (4 ha)), and Federal lands (131 ac (53 ha)). The Federal lands in 
this unit are owned by the Bureau of Land Management (5 ac (2 ha)) and 
the Department of Defense (126 ac (51 ha)). Approximately 66 ac (27 ha) 
of private lands in this unit are managed by the USDA-NRCS Wetlands 
Reserve Program. Tribal lands are in the Forest County Potawatomi Off-
Reservation Land Trust.
    Special management considerations or protection may be required 
within Unit 8 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 9: Rockford

    Unit 9 consists of 150,108 ac (60,747 ha) in Boone, Ogle, and 
Winnebago Counties near Rockford, Illinois. The unit is occupied and 
contains all of the essential physical or biological features. This 
unit consists of private lands (136,826 ac (55,371 ha)), local 
government-owned lands (7,898 ac (3,196 ha)), university or school 
lands (2,395 ac (969 ha)), and Illinois State lands (2,990 ac (1,210 
ha)). There are no Federal or Tribal lands identified in this unit. 
Approximately 669 ac (271 ha) of private lands in this unit are managed 
by the USDA-NRCS Wetlands Reserve Program.
    Special management considerations or protection may be required 
within Unit 9 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g.,

[[Page 93255]]

water impoundments, alteration or interruption of existing drainage 
patterns, surface runoff alterations), and pesticide applications 
(e.g., rodenticides that may reduce rodents and therefore potential 
nesting areas for the rusty patched bumble bee). Sources of these 
stressors include, but are not limited to, agricultural, municipal, and 
residential land uses.

Unit 10: McHenry

    Unit 10 consists of 68,295 ac (27,638 ha) near McHenry, Illinois, 
in McHenry and Lake Counties, Illinois, and Kenosha County, Wisconsin. 
The unit is occupied and contains all of the essential physical or 
biological features. This unit consists of private lands (59,158 ac 
(23,940 ha)), local government-owned lands (1,406 ac (569 ha)), 
Illinois State lands (5,445 ac (2,204 ha)), university or school lands 
(2,284 ac (924 ha)), and Federal lands (2 ac (1 ha)). The Federal lands 
are owned by the Bureau of Land Management. Thirty-nine ac (16 ha) of a 
conservation easement within the Hackmatack National Wildlife Refuge, 
managed by the Service, falls within this unit. Approximately 412 ac 
(167 ha) of private lands within this unit are managed by the USDA-NRCS 
Wetlands Reserve Program. There are no Tribal lands identified in this 
unit.
    Special management considerations or protection may be required 
within Unit 10 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 11: Elgin

    Unit 11 consists of 75,080 ac (30,384 ha) in Cook, Kane, Lake, and 
McHenry Counties near Elgin, Illinois. The unit is occupied and 
contains all of the essential physical or biological features. This 
unit consists of private lands (56,318 ac (22,791 ha)), local 
government-owned lands (13,710 ac (5,548 ha)), university or school 
lands (4,884 ac (1,977 ha)), and Illinois State lands (168 ac (68 ha)). 
There are no Federal or Tribal lands identified in this unit.
    Special management considerations or protection may be required 
within Unit 11 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 12: Lost Nation

    Unit 12 consists of 15,043 ac (6,088 ha) in Lee and Ogle Counties 
near Lost Nation, Illinois. The unit is occupied and contains all of 
the essential physical or biological features. This unit consists of 
private lands (14,416 ac (5,834 ha)), including 2,189 ac (886 ha) owned 
by NGOs, and Illinois State lands (627 ac (254 ha)). There are no 
Federal or Tribal lands identified in this unit.
    Special management considerations or protection may be required 
within Unit 12 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 13: Iowa City

    Unit 13 consists of 45,902 ac (18,576 ha) in Johnson County near 
Iowa City, Iowa. The unit is occupied and contains all of the essential 
physical or biological features. This unit consists of private lands 
(30,397 ac (12,301 ha)), Iowa State lands (2,287 ac (926 ha)), local 
government-owned lands (1,857 ac (751 ha)), and Federal lands (11,362 
ac (4,598 ha)). The Federal lands include the U.S. Army Corps of 
Engineers' Coralville Lake and Coralville Reservoir. A portion of the 
U.S. Army Corps of Engineers' land is managed by the State of Illinois 
(1,333 ac (539 ha)) and the University of Iowa (421 ac (170 ha)).
    Special management considerations or protection may be required 
within Unit 13 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty patched bumble bee). 
Sources of these stressors include, but are not limited to, 
agricultural, municipal, and residential land uses.

Unit 14: Black Creek Mountain

    Unit 14 consists of 118,603 ac (47,997 ha) near Black Creek 
Mountain in Highland and Bath Counties, Virginia, and Greenbrier and 
Pocahontas Counties, West Virginia. The unit is occupied and contains 
all of the essential physical or biological features. This unit 
consists of private lands (11,200 ac (4,532 ha)), Virginia State lands 
(1,845 ac (747 ha)), and Federal lands (105,558 ac (42,718 ha)). The 
Federal lands include the Monongahela and George Washington-Jefferson 
National Forests.
    Special management considerations or protection may be required 
within Unit 14 to alleviate impacts from stressors that are anticipated 
to degrade the physical or biological features, including, but not 
limited to, ground disturbance or compaction activities (e.g., road and 
rail construction), habitat management (e.g., prescribed burns, 
herbicide use), forestry activities (e.g., timber harvest), actions 
that cause an increase in the extent or duration of surface flooding or 
soil saturation (e.g., water impoundments, alteration or interruption 
of existing drainage patterns, surface runoff alterations), and 
pesticide applications (e.g., rodenticides that may reduce rodents and 
therefore potential nesting areas for the rusty

[[Page 93256]]

patched bumble bee). Sources of these stressors include, but are not 
limited to, forestry, recreational, municipal, and residential land 
uses.

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 authorize, fund, 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.
    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 (50 CFR 402.02).
    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 formal 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 or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion or written 
concurrence; or (4) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical habitat designation does not apply to 
certain agency actions (e.g., land management plans issued by the 
Bureau of Land Management in certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    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 for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support the 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 that our Federal Register 
documents ``shall, to the maximum extent practicable also include a 
brief description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the rusty patched bumble bee include those that 
may affect the essential physical or biological features of the rusty 
patched bumble bee's critical habitat (see Physical or Biological 
Features Essential to the Conservation of the Species, above).

Exemptions

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

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation.
    An INRMP that does not include the rusty patched bumble was 
completed by the 88th Readiness Division (RD) of the Army Reserve in 
2017. As currently written, the 2017 INRMP does not provide a benefit 
to the rusty batched bumble bee. The 88th RD is in the process of 
updating its INRMP to incorporate the rusty patched bumble bee and its 
habitat. After we receive the updated INRMP, we will assess its 
conservation benefit to the rusty patched bumble bee under 50 CFR 
424.12(h) before the final critical habitat designation. Based on the 
considerations outlined in 50 CFR 424.12(h), and in accordance with 
section 4(a)(3)(B)(i) of the Act, if we determine that conservation 
efforts identified in the INRMP will provide a benefit to the rusty 
patched bumble bee, we will exempt lands within this installation from 
critical habitat designation under section 4(a)(3) of the Act; 
approximately 47 ac (19 ha) of Unit 1 (Minneapolis-St. Paul 
Metropolitan), 127 ac (51 ha) of Unit 8 (Milwaukee), and 15 ac (6 ha) 
of Unit 9 (Rockford) of 88th RD land would be exempted from the final 
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 any area from critical habitat if the benefits of 
exclusion outweigh those of inclusion, so long as exclusion will not 
result in extinction of the species concerned.

[[Page 93257]]

Exclusion decisions are governed by the regulations at 50 CFR 424.19 
and the Policy Regarding Implementation of Section 4(b)(2) of the 
Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    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. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
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.
    Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866 
and E.O. 13563 and directs Federal agencies to assess the costs and 
benefits of available regulatory alternatives in quantitative (to the 
extent feasible) and qualitative terms. Consistent with the E.O. 
regulatory analysis requirements, our effects analysis under the Act 
may take into consideration impacts to both directly and indirectly 
affected entities, where practicable and reasonable. If sufficient data 
are available, we assess to the extent practicable the probable impacts 
to both directly and indirectly affected entities. To determine whether 
the designation of critical habitat may have an economic effect of $200 
million or more in any given year (which would trigger section 3(f) of 
E.O. 12866, as amended by E.O. 14094), we used a screening analysis to 
assess whether a designation of critical habitat for the rusty patched 
bumble bee is likely to exceed this threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the rusty patched bumble bee (Industrial 
Economics, Inc. (IEc) 2024, 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 geographical areas of critical habitat that 
are already subject to such protections and are, therefore, unlikely to 
incur incremental economic impacts. In particular, the screening 
analysis considers baseline costs (i.e., absent critical habitat 
designation) and includes any probable incremental economic impacts 
where land and water use may already be subject to conservation plans, 
land management plans, best management practices, or regulations that 
protect the habitat area as a result of the Federal listing status of 
the species. Ultimately, the screening analysis allows us to focus our 
analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
The presence of the listed species in occupied areas of critical 
habitat means that any destruction or adverse modification of those 
areas is also likely to jeopardize the continued existence of the 
species. Therefore, designating occupied areas as critical habitat 
typically causes little if any incremental impacts above and beyond the 
impacts of listing the species. As a result, we generally focus the 
screening analysis on areas of unoccupied critical habitat (unoccupied 
units or unoccupied areas within occupied units). Overall, the 
screening analysis assesses whether designation of critical habitat is 
likely to result in any 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 economic analysis of the proposed critical habitat 
designation for the rusty patched bumble bee and is summarized in the 
narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the rusty patched bumble bee, first 
we identified, in the IEM dated June 2024, probable incremental 
economic impacts associated with the following categories of 
activities: (1) bridge replacements; (2) spotted lanternfly

[[Page 93258]]

control; (3) spill response; (4) Federal grants; (5) navigation channel 
improvements; (6) recreation construction; (7) forest management; (8) 
insect pest monitoring; (9) prescribed burns; (10) tree removal and 
harvest; (11) water supply facility maintenance; (12) road maintenance 
and construction; (13) scientific monitoring and research; and (14) 
habitat management. 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 affects activities conducted, 
funded, permitted, or authorized by Federal agencies only. In areas 
where the rusty patched bumble bee is present, Federal agencies are 
required to consult with the Service under section 7 of the Act on 
activities they authorize, fund, or carry out that may affect the 
species. If we finalize this proposed critical habitat designation, 
Federal agencies would be required to consider the effects of their 
actions on the designated habitat, and if the Federal action may affect 
critical habitat, our consultations would include an evaluation of 
measures to avoid the destruction or adverse modification of critical 
habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the rusty 
patched bumble bee's critical habitat. The following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical or biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would likely adversely affect the 
essential physical or biological features of occupied critical habitat 
are also likely to adversely affect the species itself. The IEM 
outlines our rationale concerning this limited distinction between 
baseline conservation efforts and incremental impacts of the 
designation of critical habitat for this species. This evaluation of 
the incremental effects has been used as the basis to evaluate the 
probable incremental economic impacts of this proposed designation of 
critical habitat.
    The proposed critical habitat designation for the rusty patched 
bumble bee consists of approximately 1,635,746 acres (661,963 hectares) 
of occupied habitat in 14 units. Ownership of lands within the proposed 
critical habitat units is approximately 83 percent private; 9 percent 
State, local government, university, or school; 8 percent Federal; and 
less than 1 percent in Tribal ownership. All proposed units are 
occupied by the species. Consultation to determine if projects would 
jeopardize the species would be required regardless of the critical 
habitat designation. Additionally, the activities that may require 
section 7 consultation are not different with or without critical 
habitat. As a result, designating critical habitat is not expected to 
result in additional consultations beyond those required due to the 
presence of the species.
    For future consultations in the proposed critical habitat area, we 
anticipate that the same kinds of conservation recommendations made to 
avoid jeopardy would also avoid adverse modification of critical 
habitat. Conservation measures to protect rusty patched bumble bee 
habitat would be the same with and without a critical habitat 
designation. We do not expect a critical habitat designation to result 
in recommendations for new, changed, or lengthened seasonal 
restrictions for rusty patched bumble bees. Thus, the outcome of these 
consultations is unlikely to be different with or without the 
designation of critical habitat.
    At the time of this proposal, 29 co-occurring species listed under 
the Act occur within the rusty patched bumble bee's proposed critical 
habitat. Conservation efforts for other listed species or existing 
critical habitat designations are likely to provide conservation 
benefits to the rusty patched bumble bee under the baseline (i.e., even 
absent designation of new critical habitat for this species). 
Additionally, there are multiple overlapping conservation requirements 
for some of the listed species.
    For these reasons, incremental effects of the critical habitat 
designation on the costs of future section 7 consultations are likely 
to be limited to the additional administrative effort to evaluate the 
potential for adverse modification of rusty patched bumble bee critical 
habitat (IEc 2024, p. 10). The breakdown of the anticipated annual cost 
of section 7 consultations for the proposed designation is 
approximately $11,000 for programmatic consultations, $90,000 for 
formal consultations, $250,000 for informal consultations, and $31,000 
for technical assistance. Therefore, the incremental costs of 
designating critical habitat for the rusty patched bumble bee are 
likely to be on the order of $390,000 (2024 dollars) in a given year 
(IEc 2024, p. 15). In conclusion, the rule is unlikely have an economic 
effect of $200 million or more in any given year and, therefore, is 
unlikely meet the threshold in section 3(f)(1) of E.O. 12866, as 
amended by E.O. 14094 (IEc 2024, p. 18).
    We are soliciting data and comments from the public on the economic 
analysis discussed above. During the development of a final 
designation, we will consider the information presented in the economic 
analysis 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) of the Act, our implementing 
regulations at 50 CFR 424.19, and the 2016 Policy. 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 species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i) of the Act, 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, we 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) of the Act 
requires us to consider those impacts whenever we designate critical 
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or 
another Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information,

[[Page 93259]]

including a reasonably specific justification of an incremental impact 
on national security that would result from the designation of that 
specific area as critical habitat. That justification could include 
demonstration of probable impacts, such as impacts to ongoing border-
security patrols and surveillance activities, or a delay in training or 
facility construction, as a result of compliance with section 7(a)(2) 
of the Act. If the agency requesting the exclusion does not provide us 
with a reasonably specific justification, we will contact the agency to 
recommend that it provide a specific justification or clarification of 
its concerns relative to the probable incremental impact that could 
result from the designation. If we conduct an exclusion analysis 
because the agency provides a reasonably specific justification or 
because we decide to exercise the discretion to conduct an exclusion 
analysis, we will defer to the expert judgment of DoD, DHS, or another 
Federal agency as to: (1) Whether activities on its lands or waters, or 
its activities on other lands or waters, have national-security or 
homeland-security implications; (2) the importance of those 
implications; and (3) the degree to which the cited implications would 
be adversely affected in the absence of an exclusion. In that 
circumstance, in conducting a discretionary section 4(b)(2) exclusion 
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.
    We are aware of a number of small parcels of land that are owned or 
leased by the DoD that overlap with this proposed designation. During 
the development of this proposed rule, we have initiated coordination 
efforts with the DoD agency that owns each parcel, and we will continue 
to work with those DoD agencies that may be affected by this 
designation as we develop any final rule. These parcels are generally 
small and highly dispersed throughout the proposed critical habitat 
designation.

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. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are approved and permitted conservation 
agreements or plans covering the species in the area--such as safe 
harbor agreements (SHAs), candidate conservation agreements with 
assurances (CCAAs), ``conservation benefit agreements'' or 
``conservation agreements'' (``CBAs'') (CBAs are a new type of 
agreement replacing SHAs and CCAAs in use after April 2024 (see 89 FR 
26070, April 12, 2024)), or HCPs--or whether there are non-permitted 
conservation agreements and partnerships that may be impaired by 
designation of, or exclusion from, critical habitat. In addition, we 
look at whether Tribal conservation plans or partnerships, Tribal 
resources, or government-to-government relationships of the United 
States with Tribal entities may be affected by the designation. We also 
consider any State, local, social, or other impacts that might occur 
because of the designation.
Tribal Lands
    Several Executive Orders, Secretary's Orders, and policies concern 
working with Tribes. These guidance documents generally confirm our 
trust responsibilities to Tribes, recognize that Tribes have sovereign 
authority to control Tribal lands, emphasize the importance of 
developing partnerships with Tribal governments, and direct the Service 
to consult with Tribes on a government-to-government basis.
    A joint Secretary's Order (S.O.) that applies to both the Service 
and the National Marine Fisheries Service (NMFS)--Secretary's Order 
3206, ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (June 5, 1997) (S.O. 
3206)--is the most comprehensive of the various guidance documents 
related to Tribal relationships and Act implementation, and it provides 
the most detail directly relevant to the designation of critical 
habitat. In addition to the general direction discussed above, the 
appendix to S.O. 3206 explicitly recognizes the right of Tribes to 
participate fully in any listing process that may affect Tribal rights 
or Tribal trust resources; this includes the designation of critical 
habitat. Section 3(B)(4) of the appendix requires the Service to 
consult with affected Tribes when considering the designation of 
critical habitat in an area that may impact Tribal trust resources, 
Tribally-owned fee lands, or the exercise of Tribal rights. That 
provision also instructs the Service to avoid including Tribal lands 
within a critical habitat designation unless the area is essential to 
conserve a listed species, and it requires the Service to ``evaluate 
and document the extent to which the conservation needs of the listed 
species can be achieved by limiting the designation to other lands.''
    Our implementing regulations at 50 CFR 424.19 and the 2016 Policy 
are consistent with S.O. 3206. When we undertake a discretionary 
exclusion analysis under section 4(b)(2) of the Act, in accordance with 
S.O. 3206, we consult with any Tribe whose Tribal trust resources, 
Tribally-owned fee lands, or Tribal rights may be affected by including 
any particular areas in the designation. We evaluate the extent to 
which the conservation needs of the species can be achieved by limiting 
the designation to other areas and give great weight to Tribal concerns 
in analyzing the benefits of exclusion.
    However, S.O. 3206 does not override the Act's statutory 
requirement of designation of critical habitat. As stated above, we 
must consult with any Tribe when a designation of critical habitat may 
affect Tribal lands or resources. The Act requires us to identify areas 
that meet the definition of ``critical habitat'' (i.e., areas occupied 
at the time of listing that contain the essential physical or 
biological features that may require special management considerations 
or protection and unoccupied areas that are essential to the 
conservation of a species), without regard to land ownership. While 
S.O. 3206 provides important direction, it expressly states that it 
does not modify the Secretaries' statutory authority under the Act or 
other statutes.
    The proposed critical habitat designation includes portions of the 
following Tribal lands or resources, as noted above in table 1 and the 
unit descriptions: Shakopee Mdewakanton Sioux Community and Shakopee 
Mdewakanton Sioux Community Off-Reservation Land Trust (proposed Unit 
1), Ho-Chunk Nation (proposed Unit 7), and Forest County Potawatomi 
Off-Reservation Land Trust (proposed Unit 8).

Summary of Exclusions Considered Under Section 4(b)(2) of the Act

    In preparing this proposal, we have determined that no HCPs or 
other management plans for the rusty patched bumble bee currently 
exist. We have determined that there are lands within the proposed 
designation of critical habitat for rusty patched bumble bee owned or 
managed by the DoD, and we have reached out the DoD to evaluate if 
there is a need to exclude these lands from the designation based on 
national security. In addition, the proposed critical habitat 
designation includes Tribal lands or resources that we may consider for 
exclusion, in keeping with S.O. 3206.
    If through the public comment period we receive information that we

[[Page 93260]]

determine indicates that there are potential economic, national 
security, or other relevant impacts from designating particular areas 
as critical habitat, then as part of developing the final designation 
of critical habitat, we will evaluate that information and may conduct 
a discretionary exclusion analysis to determine whether to exclude 
those areas under the authority of section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19. If we receive a request for 
exclusion of a particular area and after evaluation of supporting 
information we do not exclude, we will fully describe our decision in 
the final rule for this action.

Required Determinations

Clarity of the Rule

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

Regulatory Planning and Review (Executive Orders 12866, 13563, and 
14904)

    Executive Order 14094 amends and reaffirms the principles of E.O. 
12866 and E.O. 13563 and states that regulatory analysis should 
facilitate agency efforts to develop regulations that serve the public 
interest, advance statutory objectives, and are consistent with E.O. 
12866 and E.O. 13563, and the Presidential Memorandum of January 20, 
2021 (Modernizing Regulatory Review). Regulatory analysis, as 
practicable and appropriate, shall recognize distributive impacts and 
equity, to the extent permitted by law. 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; title II of Pub. L. 104-121, March 29, 1996), whenever an 
agency is required to publish a notice of rulemaking for any proposed 
or final rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effects of the rule 
on small entities (i.e., small businesses, small organizations, and 
small government jurisdictions). However, no regulatory flexibility 
analysis is required if the head of the agency certifies the rule will 
not have a significant economic impact on a substantial number of small 
entities. The SBREFA amended the RFA to require Federal agencies to 
provide a certification statement of the factual basis for certifying 
that the rule will not have a significant economic impact on a 
substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation 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 ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355, May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 (or any successor order, such as 
E.O. 14094 (88 FR 21879, April 11, 2023)); and (ii) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. In our economic analysis, we did not find that this proposed 
critical habitat designation would significantly affect energy 
supplies, distribution, or use.

[[Page 93261]]

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 are not likely to 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. Small governments will be affected 
only to the extent that any programs having Federal funds, permits, or 
other authorized activities must ensure that their actions will not 
adversely affect the critical habitat. Therefore, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the rusty patched bumble bee in a takings implications 
assessment. The Act does not authorize the Services to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures or restrictions on use 
of or access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for the rusty patched bumble 
bee, 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 E.O. 13132 (Federalism), this proposed rule does 
not have significant federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal Government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that this proposed 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

[[Page 93262]]

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

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

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, May 4, 1994), E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), the President's 
memorandum of November 30, 2022 (Uniform Standards for Tribal 
Consultation; 87 FR 74479, December 5, 2022), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. During the development of this proposed rule, we approached 
the Tribes whose lands overlapped with the range of the rusty patched 
bumble bee in an effort to coordinate with them on the proposed 
critical habitat designation. We received interest from the Prairie 
Island Indian Community in working with us on rusty patched bumble bee 
conservation (unrelated to this proposed designation). The proposed 
critical habitat does not overlap with Prairie Island Indian Community 
lands, but we will continue to coordinate with the Tribe in recovery 
efforts for the species. We will continue to work with all interested 
Tribal entities during the development of a final rule for the 
designation of critical habitat for the rusty patched bumble bee.

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 Minnesota-Wisconsin Ecological Services Field 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 Assessment Team and the 
Minnesota-Wisconsin Ecological Services Field 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. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by revising the entry for ``Bee, bumble, rusty 
patched'' under INSECTS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
            Common name                Scientific name          Where listed       Status   and applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Insects
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Bee, bumble, rusty patched........  Bombus affinis.......  Wherever found.......        E   82 FR 3186, 1/11/
                                                                                             2017; 50 CFR
                                                                                             17.95(i).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (i) by adding an entry for ``Rusty 
Patched Bumble Bee (Bombus affinis)'' before the entry for ``Casey's 
June Beetle (Dinacoma caseyi)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
Rusty Patched Bumble Bee (Bombus affinis)
    (1) Critical habitat units are depicted for Boone, Cook, Kane, 
Lake, Lee, McHenry, Ogle, and Winnebago Counties, Illinois; Johnson 
County, Iowa; Carver, Dakota, Hennepin, Olmsted, Pierce, Ramsey, Rice, 
Scott, St. Croix, Washington, and Winona Counties, Minnesota; Bath and 
Highland Counties, Virginia; Greenbrier and Pocahontas Counties, West 
Virginia; and Dane, Iowa, Kenosha, Milwaukee, Ozaukee, Racine, Sauk, 
Washington,

[[Page 93263]]

and Waukesha Counties, Wisconsin, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the rusty patched bumble bee consist 
of the following components:
    (i) For overwintering, upland forest interior habitat containing 
leaf litter and without dense understory vegetation.
    (ii) For nesting, upland forest edge interface between forested and 
non-forested natural habitats that extends approximately 30 meters into 
the forest.
    (iii) For nesting, abandoned rodent burrows, other mammal burrows, 
existing cavities with ample cover, or similar existing cavities at the 
soil surface or below to 4 feet underground.
    (iv) For nesting and overwintering, well-drained, loose soils 
sheltered from the elements.
    (v) For foraging, diverse, abundant, native floral resources for 
the entire active flight season.
    (3) Critical habitat does not include human-made 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 FINAL RULE].
    (4) Data layers defining map units were created using the data from 
the Service's modeled High Potential Zones and potential dispersal 
areas for rusty patched bumble bee. The projection used in mapping and 
calculating distances and locations within the units was EPSG code 
4269--North American Datum 1983 (NAD83), which is a geographic 
coordinate system used for mapping locations in North America. The maps 
in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site at https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis, at https://www.regulations.gov at Docket No. FWS-R3-ES-2024-0132, and at the 
field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:
BILLING CODE 4333-15-P

[[Page 93264]]

Figure 1 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP26NO24.003

    (6) Unit 1: Minneapolis-St. Paul Metropolitan; Ramsey, Scott, 
Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix Counties, 
Minnesota.
    (i) Unit 1 consists of 567,805 acres (ac) (229,782 hectares (ha)) 
in the Minneapolis-St. Paul metropolitan area of Minnesota in Ramsey, 
Scott, Dakota, Pierce, Washington, Carver, Hennepin, and St. Croix 
Counties. Unit 1 is composed of primarily private lands (499,204 ac 
(202,021 ha)), local government-owned lands (40,596 ac (16,429 ha)), 
university or school lands (7,190 ac (2,910 ha)), Minnesota State lands 
(11,983 ac (4,849 ha)), and Tribal lands (3,091 ac (1,251 ha)). Federal 
lands (5,741 ac (2,323 ha)) in Unit 1 include National Park Service's 
Mississippi National River and Recreational Area and Lower St. Croix 
National Scenic Riverway, and the Service's Minnesota Valley National 
Wildlife Refuge. Approximately 212 ac (86 ha) of privately owned lands 
are managed by the U.S. Department of Agriculture's Natural Resources 
Conservation Service (USDA-NRCS) Wetlands Reserve Program. Tribal lands 
include Shakopee Mdewakanton Sioux Community and Shakopee Mdewakanton 
Sioux Community Off-Reservation Land Trust.
    (ii) Map of Units 1, 2, and 3 follows:

[[Page 93265]]

Figure 2 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.004

    (7) Unit 2: Northfield; Dakota and Rice Counties, Minnesota.
    (i) Unit 2 consists of 12,557 ac (5,082 ha) in Dakota and Rice 
Counties. This unit includes private lands (12,056 ac (4,879 ha)), 
local government-owned lands (489 ac (198 ha)), and Minnesota State 
lands (12 ac (5 ha)).
    (ii) Map of Unit 2 is provided at paragraph (6)(ii) of this entry.
    (8) Unit 3: Rochester; Olmsted County, Minnesota.
    (i) Unit 3 consists of 43,091 ac (17,438 ha) in Olmsted County. 
This unit includes private lands (41,819 ac (16,924 ha)), local 
government-owned lands (939 ac (380 ha)), and Minnesota State lands 
(332 ac (134 ha)).
    (ii) Map of Unit 3 is provided at paragraph (6)(ii) of this entry.
    (9) Unit 4: Winona; Winona County, Wisconsin.
    (i) Unit 4 consists of 29,823 ac (12,069 ha) in Winona County. This 
unit includes private lands (29,340 ac (11,873 ha)), local government-
owned lands (423 ac (171 ha)), and Minnesota State lands (60 ac (24 
ha)).
    (ii) Map of Unit 4 follows:

[[Page 93266]]

Figure 3 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.005

    (10) Unit 5: Denzer; Sauk County, Wisconsin.
    (i) Unit 5 consists of 27,009 ac (10,930 ha) in Sauk County. This 
unit is composed of private lands (26,471 ac (10,712 ha)), including 
2,345 ac (949 ha) owned by nongovernmental organizations, and Wisconsin 
State lands (538 ac (218 ha)).
    (ii) Map of Units 5, 6, and 7 follows:

[[Page 93267]]

Figure 4 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(10)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.006

    (11) Unit 6: Bunker Hill; Iowa County, Wisconsin.
    (i) Unit 6 consists of 18,686 ac (7,562 ha) in Iowa County. This 
unit includes private lands (13,559 ac (5,487 ha)) and Wisconsin State 
lands (5,126 ac (2,075 ha)).
    (ii) Map of Unit 6 is provided at paragraph (10)(ii) of this entry.
    (12) Unit 7: Madison; Dane and Iowa Counties, Wisconsin.
    (i) Unit 7 consists of 210,753 ac (85,289 ha) in Dane and Iowa 
Counties. This unit includes primarily private lands (195,952 ac 
(79,299 ha)), local government-owned lands (8,679 ac (3,512 ha)), 
university or school lands (1,086 ac (440 ha)), and Wisconsin State 
lands (4,518 ac (1,828 ha)). This unit contains 4 ac (2 ha) of Ho-Chunk 
Nation Tribal lands. Federal lands (515 ac (208 ha)) in Unit 7 include 
the U.S. Forest Service's Forest Products Experimental Laboratory, 
National Park Service's Ice Age National Scenic Trail, and the Dane 
County Waterfowl Production Area owned by the U.S. Fish and Wildlife 
Service. In this unit, approximately 304 ac (123 ha) of private lands 
are managed by the USDA-NRCS Wetlands Reserve Program, and 
approximately 53 ac (21 ha) of private lands are managed by the USDA-
NRCS Emergency Waters Protection Program.

[[Page 93268]]

    (ii) Map of Unit 7 is provided at paragraph (10)(ii) of this entry.
    (13) Unit 8: Milwaukee; Waukesha, Ozaukee, Washington, Milwaukee, 
and Racine Counties, Wisconsin.
    (i) Unit 8 consists of 252,992 acres (102,382 hectares) in 
Waukesha, Ozaukee, Washington, Milwaukee, and Racine Counties. This 
unit includes primarily private lands (232,722 ac (94,179 ha)), local 
government-owned lands (17,995 ac (7,282 ha)), university or school 
lands (14 ac (6 ha)), and Wisconsin State lands (2,121 ac (858 ha)). 
Tribal lands include the Forest County Potawatomi Off-Reservation Land 
Trust (10 ac (4 ha)). Federally owned lands include 5 ac (2 ha) owned 
by the Bureau of Land Management and 126 ac (51 ha)) of Department of 
Defense-owned lands. Approximately 66 ac (27 ha) of private lands in 
this unit are managed by USDA-NRCS Wetlands Reserve Program.
    (ii) Map of Unit 8 follows:

Figure 5 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(13)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.007

    (14) Unit 9: Rockford; Winnebago, Boone, and Ogle Counties, 
Illinois.
    (i) Unit 9 consists of 150,108 ac (60,747 ha) in Boone, Ogle, and 
Winnebago Counties. This unit includes primarily private lands (136,826 
ac (55,371 ha)), local government-owned lands (7,898 ac (3,196 ha)), 
university or school lands (2,395 ac (969 ha)), and Illinois State 
lands (2,990 ac (1,210 ha)). Approximately 669 ac (271 ha) of private 
lands in this unit are managed by the USDA-NRCS Wetlands Reserve 
Program.
    (ii) Map of Unit 9 and 12 follows:

[[Page 93269]]

Figure 6 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(14)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.008

    (15) Unit 10: McHenry; McHenry and Lake Counties, Illinois, and 
Kenosha County, Wisconsin.
    (i) Unit 10 consists of 68,295 ac (27,638 ha) in McHenry and Lake 
Counties, Illinois, and Kenosha County, Wisconsin. This unit includes 
primarily private lands (59,158 ac (23,940 ha)), local government-owned 
lands (1,406 ac (569 ha)), university or school lands (2,284 ac (924 
ha)), and Illinois State lands (5,445 ac (2,204 ha)). The Bureau of 
Land Management owns 2 ac (1 ha) of land in this unit. A conservation 
easement within the Hackmatack National Wildlife Refuge, managed by the 
Service, falls partially (39 ac (16 ha)) within this unit. 
Approximately 412 ac (167 ha) of private lands within this unit are 
managed by the USDA-NRCS Wetlands Reserve Program.
    (ii) Map of Units 10 and 11 follows:

[[Page 93270]]

Figure 7 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(15)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.009

    (16) Unit 11: Elgin; Lake, Cook, Kane, and McHenry Counties, 
Illinois.
    (i) Unit 11 consists of 75,080 ac (30,384 ha) in Cook, Kane, Lake, 
and McHenry Counties. This unit includes primarily private lands 
(56,318 ac (22,791 ha)), local government-owned lands (13,710 ac (5,548 
ha)), university or school lands (4,884 ac (1,977 ha)), and Illinois 
State lands (168 ac (68 ha)).
    (ii) Map of Unit 11 is provided at paragraph (15)(ii) of this 
entry.
    (17) Unit 12: Lost Nation; Ogle and Lee Counties, Illinois.
    (i) Unit 12 consists of 15,043 ac (6,088 ha) in Lee and Ogle 
Counties. This unit is composed of private lands (14,416 ac (5,834 
ha)), including 2,189 ac (886 ha) owned by nongovernmental 
organizations, and State lands owned by Iowa Department of Natural 
Resources (627 ac (254 ha)).
    (ii) Map of Unit 12 is provided at paragraph (14)(ii) of this 
entry.
    (18) Unit 13: Iowa City; Johnson County, Iowa.
    (i) Unit 13 consists of 45,902 ac (18,576 ha) in Johnson County. 
This unit includes primarily private lands (30,397 ac (12,301 ha)), 
local government-owned lands (1,857 ac (751 ha)), and Iowa State lands 
(2,287 ac (926 ha)). Federal lands (11,362 ac (4,598 ha)) in this unit 
include U.S. Army Corps of Engineers' Coralville Lake and the 
Coralville Reservoir. A portion of the U.S. Army Corps of Engineers' 
land in this unit is managed by the State of Illinois (1,333 ac (539 
ha)) and the University of Iowa (421 ac (170 ha)).
    (ii) Map of Unit 13 follows:

[[Page 93271]]

Figure 8 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(18)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.010

    (19) Unit 14: Black Creek Mountain; Highland and Bath Counties, 
Virginia, and Greenbrier and Pocahontas Counties, West Virginia.
    (i) Unit 14 consists of 118,603 ac (47,997 ha) in Highland and Bath 
Counties, Virginia, and Greenbrier and Pocahontas Counties, West 
Virginia. This unit includes Federal lands (105,558 ac (42,718 ha)), 
private lands (11,200 ac (4,532 ha)), and Virginia State lands (1,845 
ac (747 ha)). Federal lands include the Monongahela and the George 
Washington-Jefferson National Forests.
    (ii) Map of Unit 14 follows:

[[Page 93272]]

Figure 9 to Rusty Patched Bumble Bee (Bombus affinis) Paragraph 
(19)(ii)
[GRAPHIC] [TIFF OMITTED] TP26NO24.011

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-27316 Filed 11-25-24; 8:45 am]
BILLING CODE 4333-15-C