Federal Register, Volume 90 Issue 5 (Wednesday, January 8, 2025)

[Federal Register Volume 90, Number 5 (Wednesday, January 8, 2025)]
[Proposed Rules]
[Pages 1421-1433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31761]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2024-0041; FXES1111090FEDR-256-FF09E21000] RIN
1018-BH49

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for the Bleached Sandhill Skipper

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the bleached sandhill skipper (Polites sabuleti sinemaculata), an
insect subspecies from Humboldt County, Nevada, as an endangered
species under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the bleached sandhill skipper. After a review of the best
available scientific and commercial information, we find that listing
the subspecies is warranted. Accordingly, we propose to list the
bleached sandhill skipper as an endangered species under the Act. If we
finalize this rule as proposed, the final rule would add this
subspecies to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the subspecies. We find that a designation of
critical habitat for the bleached sandhill skipper is not determinable
at this time.

DATES: We will accept comments received or postmarked on or before
March 10, 2025.
Comments submitted electronically using the Federal eRulemaking
Portal (see ADDRESSES, below) must be received by 11:59 p.m. eastern
time on the closing date. We must receive requests for a public
hearing, in writing, at the address shown in FOR FURTHER INFORMATION
CONTACT by February 24, 2025.

ADDRESSES: You may submit comments by one of the following methods:

[[Page 1422]]

(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2024-0041,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2024-0041, 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 subspecies status assessment report, are available on the Service's
website at https://www.fws.gov/office/reno-fish-and-wildlife, at
https://www.regulations.gov at Docket No. FWS-R8-ES-2024-0041, or both.

FOR FURTHER INFORMATION CONTACT: Justin Barrett, Deputy Field
Supervisor, U.S. Fish and Wildlife Service, Reno Fish and Wildlife
Field Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502-7147;
telephone 775-861-6300.
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-R8-ES-2024-0041 on https://www.regulations.gov for a document that summarizes this proposed rule.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. The Act defines a ``species'' as
including any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or
wildlife which interbreeds when mature. Under the Act, a species
warrants listing if it meets the definition of an endangered species
(in danger of extinction throughout all or a significant portion of its
range) or a threatened species (likely to become an endangered species
within the foreseeable future throughout all or a significant portion
of its range). If we determine that a species warrants listing, we must
list the species promptly and designate the species' critical habitat
to the maximum extent prudent and determinable. We have determined that
the bleached sandhill skipper meets the definition of an endangered
species; therefore, we are proposing to list it as such. Listing a
species as an endangered or threatened species can be completed only by
issuing a rule through the Administrative Procedure Act rulemaking
process (5 U.S.C. 551 et seq.).
What this document does. This document proposes to add the bleached
sandhill skipper to the List of Endangered and Threatened Wildlife as
an endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or humanmade factors affecting its
continued existence. We have determined that the bleached sandhill
skipper is endangered due to the following threats: increased warming
and drying conditions due to the synergistic effects of climate change
and groundwater pumping.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable,
concurrently with listing to designate critical habitat for the
species. We have not yet been able to obtain the necessary economic
information needed to develop a proposed critical habitat designation
for the bleached sandhill skipper, although we are in the process of
obtaining this information. At this time, we find that designation of
critical habitat for the bleached sandhill skipper is not determinable.
When critical habitat is not determinable, the Act allows the Service
an additional year to publish a critical habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The subspecies' biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this subspecies;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the subspecies, its
habitat, or both.
(2) Threats and conservation actions affecting the subspecies,
including:
(a) Factors that may be affecting the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or humanmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this subspecies.
(c) Existing regulations or conservation actions that may be
addressing threats to this subspecies.
(3) Additional information concerning the historical and current
status of this subspecies.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire

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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 determination 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. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the subspecies is
threatened instead of endangered, or we may conclude that the
subspecies does not warrant listing as either an endangered species or
a threatened 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 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

We identified the bleached sandhill skipper as a Category 2
candidate on November 21, 1991 (56 FR 58804). Category 2 candidates
were defined as species for which we had information that proposed
listing was possibly appropriate, but conclusive data on biological
vulnerability and threats were not available to support a proposed rule
at the time. In the February 28, 1996, Candidate Notice of Review (61
FR 7596), we discontinued the designation of Category 2 species as
candidates; therefore, the bleached sandhill skipper was no longer a
candidate species.
On January 29, 2010, we received a petition from WildEarth
Guardians requesting that 10 subspecies of Great Basin butterflies,
including the bleached sandhill skipper, be listed as an endangered or
threatened species with critical habitat under the Act. On October 4,
2011, we made our 90-day finding that the petition presented
substantial scientific or commercial information indicating that
listing of the bleached sandhill skipper may be warranted, and we
initiated a status review for this subspecies (76 FR 61532). On
September 4, 2012, we published a 12-month finding that the bleached
sandhill skipper did not warrant listing under the Act (77 FR 54294).
On October 16, 2022, we received a petition from the Center for
Biological Diversity requesting that the bleached sandhill skipper be
listed as a threatened species or an endangered species and critical
habitat be designated for this subspecies under the Act. On August 17,
2023, we made our 90-day finding that the petition presented
substantial scientific or commercial information indicating that
listing of the bleached sandhill skipper may be warranted (88 FR
55991). The petition also requested that the bleached sandhill skipper
be emergency listed as endangered. The Act does not provide for a
process to petition for emergency listing. However, in light of the
concerns raised by the petitioner, at the time the petition was
received, we did consider the immediacy of possible threats to the
subspecies and whether emergency listing may be necessary. We reviewed
the information in the petition and in our files, and because the
threats were not deemed to be of such a magnitude and extent that
immediate species protection was necessary, we did not find emergency
listing to be an appropriate course of action. This proposed rule
constitutes our 12-month finding on the petition.

Peer Review

A species status assessment (SSA) team prepared an SSA report for
the bleached sandhill skipper. 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 subspecies, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the subspecies.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act, we solicited independent
scientific review of the information contained in the bleached sandhill
skipper SSA report. We sent the SSA report to 10 independent peer
reviewers and received 3 responses. Results of this structured peer
review process can be found at https://www.regulations.gov. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which is the foundation
for this proposed rule.

Summary of Peer Reviewer Comments

As discussed in Peer Review above, we received comments from three
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers concurred with our methods and conclusions and provided
additional information, clarifications, and suggestions, including
updates to the discussion on population counts, clarifications in
terminology and discussions of physiological limits, and editorial
suggestions. Otherwise, no substantive changes to our analysis and
conclusions within the SSA report were deemed necessary, and peer
reviewer comments are addressed in version 1.1 of the SSA report.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
bleached sandhill skipper is presented in the SSA report (version 1.1;
Service 2024, pp. 9-23).
The bleached sandhill skipper is a small-sized, narrow endemic
butterfly found in Humboldt County, Nevada. The bleached sandhill
skipper is one of 13 named subspecies of the sandhill skipper and can
be distinguished from other sandhill skipper subspecies based on the
unusually pale coloration of the wings that give the subspecies a
bleached appearance (Austin 1987, p. 8). It occupies alkali meadows in
three isolated populations: Pueblo Slough, Gridley Lake, and Rincon
Creek which are located within an approximately 14-mile (22-kilometer)
area (figure 1). The populations at Pueblo Slough and Gridley Lake are
primarily found on Bureau of Land Management (BLM)

[[Page 1424]]

lands, with some occurrences on private land, and the population at
Rincon Creek is found on the Sheldon National Wildlife Refuge. The
three populations are genetically differentiated (Jahner 2023, pp. 3,
9-10) which suggests limited gene flow and that dispersal is minimal.
Additionally, the combination of small wing size and large thorax,
coupled with short generation time (approximately one year) and short
adult flight period further suggests low dispersal habits (Scott 1986,
pp. 42-43, 425; Sekar 2011, pp. 179-182; Stantec 2020, p. 10).
[GRAPHIC] [TIFF OMITTED] TP08JA25.007

Figure 1--Distribution of the Bleached Sandhill Skipper

[[Page 1425]]

The specific timing and expression of life-history characteristics
of the bleached sandhill skipper have not been studied in detail, but
its phenology is likely similar to other P. sabuleti subspecies and
univoltine (having one adult flight period per year) skipper species
found in similar habitat communities (Service 2024, pp. 11-12).
Bleached sandhill skippers occupy alkali meadow communities
dominated by saltgrass (Distichlis spicata) and rabbitbrushes
(Chrysothamnus spp. and Ericameria spp.). Saltgrass is the presumed
sole larval hostplant, providing food and shelter for larvae and
presumably shelter for pupae; the availability of nutritious saltgrass
plants throughout the fall is essential for larvae growth, development,
and survival (Austin 1987, p. 8; Service 2024, p. 15). Rabbitbrushes
are the primary nectar sources for adults; the availability of non-
senescing plants during late summer through fall is essential for adult
reproduction and survival. These food plants typically grow in areas
where there is a shallow water table, and they rely on groundwater as
their primary source of water uptake. Lastly, all bleached sandhill
skipper life stages--egg, larvae, pupae, and adult-- require suitable
microclimate, including suitable temperatures and moisture levels.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis, which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf).
The foreseeable future extends as far into the future as the U.S.
Fish and Wildlife Service and National Marine Fisheries Service can
make reasonably reliable predictions about the threats to the species
and the species' responses to those threats. We need not identify the
foreseeable future in terms of a specific period of time. We will
describe the foreseeable future on a case-by-case basis, using the best
available data and taking into account considerations such as the
species' life-history characteristics, threat projection timeframes,
and environmental variability. In other words, the foreseeable future
is the period of time over which we can make reasonably reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction, in light of the conservation purposes of the Act.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess bleached sandhill skipper viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the subspecies' ecological

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requirements for survival and reproduction at the individual,
population, and species levels and described the beneficial and risk
factors influencing the subspecies' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual subspecies' life-
history needs. The next stage involved an assessment of the historical
and current condition of the subspecies' demographics and habitat
characteristics, including an explanation of how the subspecies arrived
at its current condition. The final stage of the SSA involved making
predictions about the subspecies' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages of the SSA process, we used the best available information to
characterize viability as the ability of a species to sustain
populations in the wild over time, which we then used to inform our
regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket FWS-R8-ES-
2024-0041 on https://www.regulations.gov and at https://www.fws.gov/office/reno-fish-and-wildlife.

Summary of Biological Status and Threats

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

Species Needs

The SSA report contains a detailed discussion of the bleached
sandhill skipper individual, population, and subspecies requirements
(Service 2024, pp. 9-23); we provide a summary here. Based upon the
best available scientific and commercial information, and acknowledging
existing ecological uncertainties, the resource and demographic needs
for breeding, feeding, sheltering, and microclimate conditions of the
bleached sandhill skipper are summarized below.
Bleached sandhill skippers need alkali meadow communities dominated
by saltgrass (the sole larval food plant) and rabbitbrushes (the
primary adult nectar source). Each stage of the bleached sandhill
skipper's life cycle relies on saltgrass (Austin 1987, p. 8). The
density or cover of saltgrass needed for the bleached sandhill skipper
is unknown. The quality (health) of saltgrass is important during the
larval stage as green plants are more nutritious (due to increased
moisture content) and likely more edible. Because rabbitbrushes are the
primary nectar plants for adults (Austin 1987, p. 8; Stantec 2020, p.
125), they are essential for reproduction and survival of bleached
sandhill skippers.
All life stages--egg, larvae, pupae, and adult--require suitable
microclimate, including suitable temperatures and moisture levels.
Bleached sandhill skippers are poikilothermic, meaning that their body
temperature is controlled by ambient temperature, which controls
critical physiological functions and behaviors, such as respiration,
immunity, metabolism, growth and development, fecundity, flight
ability, dispersal, oviposition, feeding, and diapause. Moisture
conditions are also an important determinant of survival, especially in
desert areas. The optimal range of temperature and moisture levels is
unknown for bleached sandhill skipper (see ``Climate Change'' below),
but as a desert occupant, it likely experiences conditions close to its
upper thermal and moisture limits under normal conditions (Service
2024, pp. 21-23). Studies from a number of other insects, including
butterflies, across broad geographic areas show significant fitness
(growth, development, fecundity, and survival) consequences as
temperatures exceed upper thermal limits (Service 2024, pp. 17-19).
Although the optimal range of temperature for bleached sandhill skipper
is unknown, based on studies conducted for other butterfly species,
substantial fitness consequences (reproduction and survival) are likely
triggered when temperatures exceed 35-41 degrees Celsius (C) (95- 105
degrees Fahrenheit (F)) (Service 2024, pp. 17-19, 49-51).
Bleached sandhill skipper populations, owing to their
poikilothermic physiology, can experience large swings in abundance
year-to-year in response to environmental conditions. Thus, to
successfully recruit over time, populations need to be large (thousands
of individuals) and maintain robust growth rates ([lambda] >1.0).
Populations also require large sizes and gene flow to maintain genetic
health and evolutionary potential. Bleached sandhill skipper
populations also require high quality and quantity of habitat to
support a robust demography. The amount of habitat required is unknown,
but we know that suitable habitat means non-senescing patches of
saltgrass and rabbitbrushes embedded within a healthy alkali meadow
vegetation community with few dispersal barriers.

Threats

The main threats affecting the bleached sandhill skipper are
related to warming and drying conditions due to climate change and
exacerbated by groundwater pumping. We also evaluated existing
regulatory mechanisms and ongoing conservation measures. In the SSA
report, we considered additional threats: livestock grazing and
potential impacts from future geothermal development. We concluded
that, as indicated by the best available scientific and commercial
information, these additional threats individually are having no to
minor impact, but the effects could be intensified through synergistic
interactions among all threats. For full descriptions of all threats
and how they impact the bleached sandhill skipper, please see the SSA
report (Service 2024, pp. 29-56).
Climate Change
Bleached sandhill skipper fitness is tightly controlled by the
microclimate (temperature and moisture) experienced by individuals and
the quality and quantity of habitat resources (nectar resources and
hostplants) (Service 2024, pp. 11-19). Changes in the microclimate
conditions and the quality of their habitat, therefore, directly and
indirectly influence critical processes such as adult flight ability
and timing, reproductive behavior, fecundity, oviposition, feeding,
development, and diapause (Palumbo 2011, entire; Caldas 2012, entire).
Furthermore, the bleached sandhill skipper is a desert occupant, likely
living close to its upper thermal limits under normal conditions,
leaving little buffer for accommodating warming and drying conditions.
The climate within bleached sandhill skipper range has been drying
and warming over the last several decades. The Southwest region where
the bleached sandhill skipper occurs is one of the hottest and driest
areas of the United States, and climate change has exacerbated these
conditions. Average annual temperatures have increased almost 1.1
degrees Celsius ([deg]C) (2.0 degrees Fahrenheit ([deg]F)) over the
last century (Garfin et al. 2014, p. 464). Every part of the Southwest
experienced higher average temperatures between 2000 and 2020 than the
long-term average (1895-2020) (Environmental Protection Agency (EPA),
2023, p. 3). Within the last decade (comparing 2010-2019 to 1958-2009)
in Humboldt County, Nevada, the average annual number of days where the
maximum

[[Page 1427]]

temperature exceeded the 35 [deg]C (95 [deg]F) thermal limit of
bleached sandhill skipper, increased by 2 days (21 versus 23 days) and
1.5 days (3 versus 4.5 days) for 38 [deg]C (100 [deg]F). During the
years (2020-2022), the average annual number of days where the maximum
temperature exceeded 35 [deg]C (95 [deg]F) increased from the
historical average by 15 days, with 5 and 10 days in fall and summer,
respectively, and 38 [deg]C (100 [deg]F) was exceeded for 3 days, with
2 days in fall and one day in summer (Service 2024, pp. 47-50).
Temperatures are increasing more at night than during the day and
more in winter than in summer, leading to fewer cold snaps, more
heatwaves, fewer frosty days and nights, less snow, and earlier
snowmelt (Stewart et al. 2005, p. 1152; Mote et al. 2006, entire;
Knowles et al. 2006, p. 4557; Abatzoglou and Kolden 2013, entire;
Snyder et al. 2019, p. 3; Service 2024, p. 49). Both daytime high
temperatures and nighttime low temperatures have exhibited widespread
warming trends (Garfin et al. 2013, pp. 79-80; Service 2024, p. 49). In
recent decades, reductions in precipitation and winter snowpack--key
sources of moisture--have been observed (Garfin et al. 2014, p. 465).
Since 2001, large portions of the arid Southwest have experienced
prolonged drought, with widespread drought occurring in 2002, 2003,
2007, and 2009 (MacDonald 2010, p. 21256). During these years, the
region's precipitation averaged as much as 22-25 percent below the
20th-century mean, with local deficits being greater (MacDonald 2010,
p. 21256; Service 2024, pp. 49-53). Based on the long-term Palmer
Drought Severity Index, drought conditions in the Southwest have varied
since 1895 (EPA 2023, p. 3; Service 2024, p. 46) and since 1990, the
Southwest has seen some of the most persistent droughts on record
(Garfin et al 2013, p. 84).
The warming and drying conditions are also likely impacting the
quality of bleached sandhill skipper habitat, specifically causing
early senescence or loss of saltgrass and rabbitbrushes, although the
extent to which this situation is occurring is unknown. Given the
subspecies' limited dispersal ability (Service 2024, p. 12), low
genetic diversity (Jahner 2023, pp. 3-4), inflexible thermal limits,
and narrow diet, bleached sandhill skippers likely lack the capacity to
timely and sufficiently adapt to warming temperatures and drying
conditions.
Groundwater Pumping
Bleached sandhill skippers are found across two different
groundwater basins. The Pueblo Slough and Rincon Creek populations are
found within Continental Lake Valley groundwater basin, and the Gridley
Lake population is found within Gridley Lake Valley groundwater basin
(Service 2024, pp. 31-39). Pumping of groundwater occurs in these
basins for many uses, but the vast majority is for irrigation of
agricultural crops (Nevada Division of Water Resources (NDWR) 2023a, p.
1; NDWR 2023b, p. 1). Groundwater pumping that exceeds aquifer recharge
may result in surface or groundwater level decline, spring drying and
degradation, or the loss of aquatic habitat (Zektser et al. 2005, pp.
396-397; Aldous and Gannett 2021, p. 10). Saltgrass and rabbitbrushes
are groundwater-dependent species with shallow root systems. Because of
their shallow root systems, they can be harmed by long-term declining
or fluctuating water tables (Groeneveld 1994, entire; Manning 1999,
entire; Elmore et al. 2006, pp. 775-776; Patten et al. 2008, p. 8).
With declining water tables, as the depth to groundwater increases, the
ability of shallow roots to access this water resource is affected. A
long-term decline in groundwater supply may shift the vegetative
community from groundwater-dependent plants to more upland species that
rely on precipitation rather than groundwater (Patten et al. 2008, p.
10) or to successional dead-ends where further disturbance results in
bare soils dominated by nonnative species (Manning 1999, p. 236).
Groundwater pumping for irrigation occurs hydrologically upgradient
from all three populations. Increasing depth-to-groundwater levels have
been documented for several groundwater wells upgradient of the Pueblo
Slough population (Service 2024, pp. 31-38). Although there are no
wells upgradient of the other two populations with sufficient data to
determine trends, the increasing depth-to-groundwater trend near Pueblo
Slough, coupled with an analysis of normalized vegetation difference
index (NVDI) data (a measure of vegetation health; higher values mean
more dense and green vegetation) adjusted for climate variability,
suggests a drying of the groundwater- dependent vegetation communities
across the two water basins where bleached sandhill skipper are found.
These data suggest that pumping is currently contributing to increasing
the depth-to-groundwater levels at Pueblo Slough and Gridley Lake and
drying of the groundwater-dependent vegetation (Service 2024, pp. 31-
38). Gridley Lake Valley groundwater basin (where the Gridley Lake
population is located) is currently appropriated and pumped above
perennial yield, which is consistent with this assessment. Continental
Lake Valley groundwater basin (where Rincon Creek and Pueblo Slough
populations are located) is close to fully appropriated and pumped
around 25 percent of perennial yield. Our assessment of the available
data clearly indicates that, despite being pumped below perennial yield
in this valley, the increasing depth-to-groundwater trend is still
being realized (Service 2024, pp. 38-39).
In the near-term (years 2020-2029), continued and/or increased
groundwater pumping is projected, which will continue to increase the
depth to groundwater, impairing the ability of saltgrass and
rabbitbrushes to connect with the water table (due to shallow root
systems) (Service 2024, p. 65). Thus, we anticipate that continued
groundwater pumping, coupled with the impacts of climate change, will
continue to cause drying of these areas such that they will no longer
support a vegetation community needed to support bleached sandhill
skipper populations.

Conservation Efforts and Regulatory Mechanisms

The Nevada Department of Wildlife and the Nevada Department of
Conservation and Natural Resources do not have authority to manage or
conserve terrestrial invertebrates such as the bleached sandhill
skipper. Nevada Revised Statute (NRS) section 501.110 outlines the
``Classification of Wildlife'' in Nevada and lists the Nevada
Department of Wildlife as having authority over wild mammals, wild
birds, fish, reptiles, amphibians, mollusks, and crustaceans but does
not mention insects. The Nevada Department of Agriculture has statutory
authority over insects that are ``normally considered to be a pest of
cultivated plants, uncultivated plants, agricultural commodities,
horticultural products or nursery stock, or that the Director [of the
Department of Agriculture] declares to be a pest'' (NRS section
555.005(5)). Because the bleached sandhill skipper is not an
agricultural pest, it is functionally unmanaged by any State agency.
The bleached sandhill skipper has been placed on Nevada's list of
``at-risk species'' by the Nevada Division of Natural Heritage (Nevada
Division of Natural Heritage 2022, p. 16). However, species included on
the At[hyphen]Risk Plant and Animal Tracking List are not provided any
protections by the State (Nevada Division of Natural Heritage 2022, p.
1). The bleached sandhill skipper is considered a BLM Sensitive

[[Page 1428]]

Species in Nevada (BLM 2017, p. 24). BLM Sensitive Species are
``species requiring special management consideration to promote their
conservation and reduce the likelihood and need for future listing
under the Act'' (BLM 2008, p. 3). Beyond the Sensitive Species
designation, other BLM regulations do not provide protections for the
bleached sandhill skipper. The BLM Winnemucca District Resources
Management Plan requires that proposed actions on BLM land do not
affect a species in such a way that it may lead to further listing
under the Act (BLM 2013, p. 34). This is the only regulatory mechanism
providing any level of protection for the bleached sandhill skipper.

Cumulative Effects

We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the subspecies. To assess the current and future condition
of the subspecies, we evaluate the effects of all the relevant factors
that may be influencing the subspecies, including threats and
conservation efforts. Because the SSA framework considers not just the
presence of the factors, but to what degree they collectively influence
risk to the entire subspecies, our assessment integrates the cumulative
effects of the factors and replaces a standalone cumulative-effects
analysis.

Current and Near-Term Conditions

Since 2010, periodic standardized surveys (visual encounter
techniques resulting in numbers of individuals counted) have been
conducted at Pueblo Slough (Service and BLM 2014, entire; Service and
BLM 2022, entire); count data are available for 6 out of the last 10
years (figure 2). At Pueblo Slough, bleached sandhill skipper counts
have steeply declined since 2014, with counts decreasing from an
estimated 7,482 individuals in 2014 to an estimate of 245 individuals
in 2023 (figure 2). Prior to 2014, bleached sandhill skipper numbers
were suggested to be in the thousands, but this information is
anecdotal as standardized surveys were not conducted before that time.
Although the count data do not provide an abundance estimate, the
decline from thousands of butterflies to hundreds of butterflies
indicates that the population size is now much smaller, approximately
97 percent less than it had been in 2014. Thus, these data also suggest
a declining population trend.
[GRAPHIC] [TIFF OMITTED] TP08JA25.008

Figure 2--Number of Individuals Counted During Standardized Transect
Surveys at Pueblo Slough

(Stantec 2015, p. 14; Stantec 2016, p. 9; Stantec 2020, p. 10; Arid
West 2022, p. 10; Arid West 2023, p. 11; Stantec 2023, p. 2. Trend
line: linear model in R using Tidyverse, ggplot2, and Viridis
packages.)

From Gridley Lake, we have only 1 year of count data (from 2023),
and the number of bleached sandhill skippers counted was low (313
individuals). Similarly, we have only 1 year of count data (from 2015)
from Rincon Creek, and the number of bleached sandhill skippers counted
there was also low (78 individuals). Therefore, data are not available
to discern population trends for either Gridley Lake or Rincon Creek
populations.
Data are too limited to assess whether the extent and health of
saltgrass and rabbitbrushes have changed over time at all three
populations. However, NVDI data suggest that the health of the
vegetation community has declined at Pueblo Slough and Gridley Lake and
this trend is expected to continue into the near-term.
The steep decline in bleached sandhill skipper population counts
coupled with recent studies implicating climate change as the cause of
butterfly declines in the Southwestern United States (Crossley et al.
2021, p. 2,707; Forister et al. 2021, p. 1,044) suggest that climate
change is a key driver in bleached sandhill population dynamics at
Pueblo Slough. Given the regional extent of climate change, it is
likely that it is a key driver of the population dynamics at Gridley
Lake and Rincon Creek populations as well. Taken together with the
magnitude of warming and drying that has occurred in the last couple of
decades, it can be reasonably discerned that climate change and
groundwater pumping is having negative impacts on all three bleached
sandhill skipper populations.
Current and Near-Term Condition Summary
Bleached sandhill skipper viability requires multiple, resilient
populations (high abundance and strong growth rates). Until recently,
bleached sandhill skipper populations appeared to have sufficient
abundances and growth rates to withstand unfavorable environmental
conditions despite its narrow geographic range (low redundancy) and
seemingly low representation (owing to the limited ability to shift its
range and its low within and among population genetic diversity).
However, over the

[[Page 1429]]

last 10 years, bleached sandhill skipper abundance has been declining
at Pueblo Slough, due to climate change and groundwater pumping.
Gridley Lake and Rincon Creek populations, because of their proximity
to Pueblo Slough, are likely experiencing and responding similarly to
rising temperatures and drying conditions. Thus, given its overall
declining population health (low number of individuals, deteriorating
habitat conditions), the subspecies is considered to have low
resiliency.
Because the subspecies is limited to a relatively small area (three
populations within an approximately 14-mile (22-kilometer) area), and
because all three populations are considered to have low resiliency,
the subspecies is considered to have little redundancy. A single
catastrophic event, such as a severe drought or heat wave, could result
in the extinction of the subspecies. Additionally, given the
subspecies' narrow range and limited to no dispersal capabilities, we
consider the subspecies to have low representation, and we do not
expect any significant changes in behavioral, ecological, or genetic
variation.
Within the near-term (by 2029), the synergistic effects of climate
change and groundwater pumping are projected to intensify, further
reducing the bleached sandhill skipper's ability to sustain itself,
while concurrently impairing the subspecies' ability to withstand
stochasticity and catastrophic events. Moreover, current and near-term
declining population health will further constrain the bleached
sandhill skipper's low representation, thereby exacerbating declines in
the subspecies' resiliency and redundancy over time.

Future Condition

As part of the SSA, we also developed three future-condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the bleached sandhill skipper.
Our scenarios assumed a moderate to major increase in the warming and
drying conditions within bleached sandhill skipper habitats, due to
climate change and the synergistic effects of continued or enhanced
groundwater pumping activities. Because we determined that the current
condition of the bleached sandhill skipper is consistent with an
endangered species (see Determination of Bleached Sandhill Skipper
Status, below), we are not presenting the results of the future
scenarios in this proposed rule. Please refer to the SSA report
(Service 2024, pp. 58-81) for the full analysis of future scenarios.

Determination of the Bleached Sandhill Skipper Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range and a ``threatened species'' as a species likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether a species meets the definition of an endangered species or a
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) overutilization for commercial, recreational,
scientific, or educational purposes; (C) disease or predation; (D) the
inadequacy of existing regulatory mechanisms; or (E) other natural or
manmade factors affecting its continued existence.
We presented summary evaluations of the primary threats analyzed in
the SSA report including climate change (Factor E) and groundwater
pumping (Factor A). We also evaluated existing regulatory mechanisms
(Factor D) and ongoing conservation measures. In the SSA report, we
also considered additional threats: livestock grazing (Factor A) and
geothermal development (Factor A). We concluded that, as indicated by
the best available scientific and commercial information, livestock
grazing and geothermal development currently have no impact to minor
impacts on the bleached sandhill skipper and its habitat and, thus, the
overall effect of these activities now and into the near-term is
expected to be minimal. However, we consider each of these factors in
the determination for the subspecies, because although they may have
low impacts on their own, combined with impacts of other threats, they
could further reduce the already low number of bleached sandhill
skippers.

Status Throughout All of Its Range

After evaluating threats to the subspecies and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we have determined that the bleached sandhill skipper has
limited resiliency, redundancy, and representation to maintain
viability over time. Since 2014, counts of bleached sandhill skipper
have been declining at Pueblo Slough, due to climate change and
exacerbated by groundwater pumping. Gridley Lake and Rincon Creek
populations have limited population data, but because of their
proximity to Pueblo Slough, they are likely experiencing and responding
similarly to warming temperatures and drying conditions. Because the
subspecies is limited to a relatively small area (three populations
within an approximately 14-mile (22-kilometer) area), the subspecies is
considered to have little redundancy. A single catastrophic event, such
as a severe drought or heat wave, could result in the extinction of the
subspecies. Additionally, given the subspecies' narrow range and
limited to no dispersal capabilities, we consider the subspecies to
have low representation, and we do not expect any significant changes
in behavioral, ecological, or genetic variation.
Within the near-term (by 2029), the synergistic effects of climate
change and groundwater pumping are projected to intensify, further
reducing the bleached sandhill skipper's ability to sustain itself,
while concurrently impairing the subspecies' ability to withstand
stochasticity and catastrophic events. Moreover, current and near-term
declining population health will further constrain the bleached
sandhill skipper's seemingly low evolutionary potential, thereby
exacerbating declines in the subspecies' resiliency and redundancy over
time.
With declining population health (low number of individuals,
deteriorating habitat conditions) coupled with its small geographic
range, the subspecies currently has limited ability to withstand
inherent stochasticity (environmental, demographic, and genetic),
catastrophic events (e.g., heat waves and droughts), and changing
environmental conditions (e.g., chronic increases in temperatures,
drying conditions). Thus, extirpation risks at all three populations
are expected to continue and increase in the near-term.
We do not find the bleached sandhill skipper meets the definition
of a threatened species because the subspecies currently has a low
number of individuals, has already shown population declines resulting
in low resiliency of its populations, and has deteriorating habitat
conditions driven or exacerbated by the identified threats. Because the
bleached sandhill skipper has low redundancy and representation is
limited, the subspecies is vulnerable to even a single catastrophic
heat wave or drought event. Thus, after assessing the best scientific
and commercial data available, we conclude that the bleached

[[Page 1430]]

sandhill skipper is currently in danger of extinction throughout all of
its range.

Status Throughout a Significant Portion of Its Range

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

Determination of Status

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

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self- sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting'') and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Reno Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this subspecies is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Nevada would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the bleached sandhill skipper. Information on
our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/service/financial-assistance.
Although the bleached sandhill skipper is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this subspecies. Additionally, we
invite you to submit any new information on this subspecies whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled, ``Interagency Cooperation,'' and it
mandates all Federal action agencies to use their existing authorities
to further the conservation purposes of the Act and ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any 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 critical
habitat proposed to be designated for such species. Although the
conference procedures are required

[[Page 1431]]

only when an action is likely to result in jeopardy or adverse
modification, action agencies may voluntarily confer with the Service
on actions that may affect species proposed for listing or critical
habitat proposed to be designated. In the event that the subject
species is listed or the relevant critical habitat is designated, a
conference opinion may be adopted as a biological opinion and serve as
compliance with section 7(a)(2).
Examples of discretionary actions for the bleached sandhill skipper
that may be subject to conference and consultation procedures under
section 7 are land management or other landscape-altering activities on
Federal lands administered by the BLM, the Natural Resources
Conservation Service, and the Federal Highway Administration as well as
actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section 10 of the Act) or that involve
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Federal
agencies should coordinate with the local Service Field Office (see FOR
FURTHER INFORMATION CONTACT) with any specific questions on section 7
consultation and conference requirements.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, and the Service's
implementing regulations codified at 50 CFR 17.21, make it illegal for
any person subject to the jurisdiction of the United States to commit,
to attempt to commit, to solicit another to commit or to cause to be
committed any of the following acts with regard to any endangered
wildlife: (1) import into, or export from, the United States; (2) take
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect) within the United States, within the territorial
sea of the United States, or on the high seas; (3) possess, sell,
deliver, carry, transport, or ship, by any means whatsoever, any such
wildlife that has been taken illegally; (4) deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of commercial activity; or (5) sell or
offer for sale in interstate or foreign commerce. Certain exceptions to
these prohibitions apply to employees or agents of the Service, the
National Marine Fisheries Service, other Federal land management
agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22,
and general Service permitting regulations are codified at 50 CFR part
13. With regard to endangered wildlife, a permit may be issued: for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.

II. Critical Habitat

Background

Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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 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

[[Page 1432]]

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 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 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 available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available at the time of those planning efforts calls for a different
outcome.

Critical Habitat Determinability

Our regulations at 50 CFR 424.12(a)(2) state that critical habitat
is not determinable when one or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the bleached sandhill skipper and habitat characteristics
where the subspecies is located. A careful assessment of the economic
impacts that may occur due to a critical habitat designation is still
ongoing, and we are in the process of acquiring the complex information
needed to perform that assessment. Therefore, due to the current lack
of data sufficient to perform required analyses, we conclude that the
designation of critical habitat for the bleached sandhill skipper is
not determinable at this time. The Act allows the Service an additional
year to publish a critical habitat designation that is not determinable
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule

We are required by Executive Order (E.O.) 12866 and E.O. 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.

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 Secretaries' Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We will work with Tribal entities during the future
development of a proposed rule for the designation of critical habitat
for the bleached sandhill skipper.

[[Page 1433]]

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Skipper, bleached
sandhill'' in alphabetical order under INSECTS to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
----------------------------------------------------------------------------------------------------------------
Insects
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Skipper, bleached sandhill..... Polites sabuleti Wherever found........ E [Federal Register
sinemaculata. citation when
published as a final
rule].

* * * * * * *
----------------------------------------------------------------------------------------------------------------

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-31761 Filed 1-7-25; 8:45 am]
BILLING CODE 4333-15-P