Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6101 

L Street NE, Washington, DC 20554. In 

addition to filing comments with the 

FCC, interested parties should serve the 

Petitioner as follows: M. Scott Johnson, 

Esq., Smithwick & Belendiuk, PC, 5028 

Wisconsin Avenue NW, Washington, 

DC 20016. 

FOR FURTHER INFORMATION CONTACT: 

Joyce Bernstein, Media Bureau, at (202) 

418–1647; or Joyce Bernstein, Media 

Bureau, at Joyce.Bernstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: In support 

of its channel allotment request, the 

Petitioner states that Vernon is a 

community deserving of a new 

television broadcast service. According 

to the Petitioner, Vernon (pop. 5,551/ 

2010 Census) has a mayor, Board of 

Registrars, Circuit Clerk, Judge Probate, 

Sheriff, and six-member City Council. 

The community also has police, fire, 

and utility departments, as well as a 

public library, regional hospital, airport, 

numerous businesses and places of 

worship, and its own Zip Code. In 

addition, the proposed allotment would 

allow the provision of noncommercial 

educational television service to areas 

not currently served by Alabama 

Educational Television Commission 

(AETC). The Petitioner states its 

intention to file an application for 

channel *4, if allotted, and take all 

necessary steps to obtain a construction 

permit. The Commission concludes the 

request to amend the Table of 

Allotments warrants consideration. The 

Petitioner’s proposal would result in a 

first local service to Vernon consistent 

with the Commission’s television 

allotment policies. Channel *4 can be 

allotted to Vernon, consistent with the 

minimum geographic spacing 

requirements for new digital television 

(DTV) allotments in § 73.623(d) of the 

Commission’s rules, at 33°54′44.26′′ N 

and 87°48′06.20′′ W. In addition, the 

allotment point complies with 

§ 73.625(a)(1) of the rules as the entire 

community of Vernon is encompassed 

by the 35 dBm contour. 

This is a synopsis of the 

Commission’s Notice of Proposed 

Rulemaking, MB Docket No. 22–30; 

RM–11916; DA 22–30, adopted January 

20, 2022, and released January 20, 2022. 

The full text of this document is 

available for download at https://

www.fcc.gov/edocs. To request materials 

in accessible formats (braille, large 

print, computer diskettes, or audio 

recordings), please send an email to 

FCC504@fcc.gov or call the Consumer & 

Government Affairs Bureau at (202) 

418–0530 (VOICE), (202) 418–0432 

(TTY). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

Members of the public should note 

that all ex parte contacts are prohibited 

from the time a notice of proposed 

rulemaking is issued to the time the 

matter is no longer subject to 

Commission consideration or court 

review, see 47 CFR 1.1208. There are, 

however, exceptions to this prohibition, 

which can be found in § 1.1204(a) of the 

Commission’s rules, 47 CFR 1.1204(a). 

See §§ 1.415 and 1.420 of the 

Commission’s rules for information 

regarding the proper filing procedures 

for comments, 47 CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Proposed Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.622(j), amend the Table of 

Allotments under Alabama by adding an 

entry for Vernon in alphabetical order to 

read as follows: 

§ 73.622 Digital television table of 

allotments. 

* * * * * 

(j) * * * 

Community Channel No. 

ALABAMA 

* * * * * 

Vernon .................................. * 4 

* * * * * 

[FR Doc. 2022–02212 Filed 2–2–22; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2020–0017; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BF94 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Tiehm’s Buckwheat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the Tiehm’s 

buckwheat (Eriogonum tiehmii), which 

the Service has proposed to list as 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

In total, we propose to designate 

approximately 910 acres (368 hectares) 

in one unit in Nevada as critical habitat 

for Tiehm’s buckwheat. We also 

announce the availability of a draft 

economic analysis of the proposed 

critical habitat designation. 

DATES: We will accept comments 

received or postmarked on or before 

April 4, 2022. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by March 21, 2022. 

ADDRESSES: Written comments: You may 

submit comments by one of the 

following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter the docket number or RIN for this 

rulemaking (presented above in the 

document headings). For best results, do 

not copy and paste either number; 

instead, type the docket number or RIN 

into the Search box using hyphens. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, check the 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R8–ES–2020–0017, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 


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We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

The coordinates or plot points or both 

from which the critical habitat maps are 

generated are included in the decision 

file and are available at https://

www.regulations.gov under Docket No. 

FWS–R8–ES–2020–0017. Any 

additional supporting information that 

we developed for this critical habitat 

designation will be available at https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Marc Jackson, Field Supervisor, U.S. 

Fish and Wildlife Service, Reno 

Ecological Services Field Office, 1340 

Financial Boulevard, Suite 234, Reno, 

NV 89502; telephone 775–861–6337. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Relay Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, when we determine that any 

species is an endangered or threatened 

species, we are required to designate 

critical habitat, to the maximum extent 

prudent and determinable. Designations 

of critical habitat can be completed only 

by issuing a rule. 

What this document does. This 

document proposes to designate critical 

habitat for Tiehm’s buckwheat, which 

the Service has proposed to list as an 

endangered species under the Act, in a 

portion of Esmeralda County, Nevada. 

The basis for our action. Under 

section 4(a)(3) of the Act, if we 

determine that a species is an 

endangered or threatened species we 

must, to the maximum extent prudent 

and determinable, designate critical 

habitat. Section 3(5)(A) of the Act 

defines critical habitat as (i) the specific 

areas within the geographical area 

occupied by the species, at the time it 

is listed in accordance with the 

provisions of section 4 of the Act, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed in accordance with the 

provisions of section 4 of the Act, upon 

a determination by the Secretary that 

such areas are essential for the 

conservation of the species. Section 

4(b)(2) of the Act states that the 

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from the 

critical habitat designation if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific data 

available, that the failure to designate 

such area will result in the extinction of 

the species. 

Abbreviations and Acronyms Used in 

This Proposed Rule 

For the convenience of the reader, a 

list of the abbreviations and acronyms 

used in this proposed rule follows: 

Act = Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.), as amended 

BIA = Bureau of Indian Affairs 

BLM = Bureau of Land Management 

CBD = Center for Biological Diversity 

CFR = Code of Federal Regulations 

DEA = draft economic analysis 

DoD = Department of Defense 

FLPMA = Federal Land Policy and 

Management Act (43 U.S.C. 1701 et seq.) 

FR = Federal Register 

HCP = habitat conservation plan 

IEc = Industrial Economics, Incorporated 

IEM = incremental effects memorandum 

INRMP = integrated natural resources 

management plan 

Ioneer = Ioneer USA Corporation 

NDF = Nevada Division of Forestry 

NDNH = Nevada Division of Natural Heritage 

NDOW = Nevada Department of Wildlife 

NEPA = National Environmental Policy Act 

(42 U.S.C. 4321 et seq.) 

RMP = resource management plan 

Service = U.S. Fish and Wildlife Service 

SSA = species status assessment 

UNR = University of Nevada, Reno 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, Native 

American Tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including 

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may be not prudent: 

(a) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(b) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(c) Areas within the jurisdiction of the 

United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; or 

(d) No areas meet the definition of 

critical habitat. 

(2) Specific information on: 

(a) The amount and distribution of 

habitat for Tiehm’s buckwheat; 

(b) What areas, that were occupied at 

the time of proposed listing (86 FR 

55775; October 7, 2021) and that contain 

the physical and biological feature 

essential to the conservation of the 

species and which may require special 

management considerations or 

protection, should be included in the 

designation and why; 

(c) Any additional areas occurring 

within the range of the species 

(Esmeralda County, Nevada), that 

should be included in the designation 

because they (1) are occupied at the 

time of listing and contain the physical 

or biological features that are essential 

to the conservation of the species and 

that may require special management 

considerations, or (2) are unoccupied at 

the time of listing and are essential for 

the conservation of the species; 

(d) Special management 

considerations or protections that may 

be needed in critical habitat areas we 

are proposing; and 

(e) What areas not occupied at the 

time of proposed listing are essential for 

the conservation of the species. We 

particularly seek comments: 

(i) Regarding whether occupied areas 

are adequate for the conservation of the 

species; 

(ii) Providing specific information 

regarding whether or not unoccupied 

areas would, with reasonable certainty, 

contribute to the conservation of the 

species and contain the physical and 

biological feature essential to the 

conservation of the species; and 

(iii) Explaining whether or not 

unoccupied areas fall within the 

definition of ‘‘habitat’’ at 50 CFR 424.02 

and why. 


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Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6103 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(4) Information on the projected and 

reasonably likely impacts of climate 

change on Tiehm’s buckwheat proposed 

critical habitat. 

(5) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the benefits of including or excluding 

specific areas. 

(6) Information on the extent to which 

the description of probable economic 

impacts in the draft economic analysis 

(DEA) is a reasonable estimate of the 

likely economic impacts and any 

applicable additional information. 

(7) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act; whether the benefits of potentially 

excluding any specific area outweigh 

the benefits of including that area under 

section 4(b)(2) of the Act; and, in 

particular, whether any areas should be 

considered for exclusion under section 

4(b)(2) of the Act based on a 

conservation program or plan, and why. 

These may include Federal, lands with 

permitted conservation plans covering 

the species in the area such as 

conservation easements, or nonpermitted conservation agreements and 

partnerships that are under 

development. Detailed information 

regarding these plans, agreements, 

easements, and partnerships is also 

requested, including: 

(a) The location and size of lands 

covered by the plan, agreement, 

easement, or partnership; 

(b) The duration of the plan, 

agreement, easement, or partnership; 

(c) Who holds or manages the land; 

(d) What management activities are 

conducted; 

(e) What land uses are allowable; and 

(f) If management activities are 

beneficial to Tiehm’s buckwheat and its 

habitat. 

(8) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. If 

you request the exclusion of any areas 

from the final designation, please 

provide credible information regarding 

the existence of a meaningful economic 

or other relevant impact supporting the 

benefit of exclusion of that particular 

area. Also, please note that submissions 

merely stating support for, or opposition 

to, the action under consideration 

without providing supporting 

information, although noted, will not be 

considered in making a determination, 

as section 4(b)(2) of the Act directs that 

the Secretary shall designate critical 

habitat on the basis of the best scientific 

information available. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determination may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), our final critical 

habitat designation may not include all 

areas proposed, may include some 

additional areas that meet the definition 

of critical habitat, and may exclude 

some areas if we find the benefits of 

exclusion outweigh the benefits of 

inclusion. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for 

Tiehm’s buckwheat in this document. 

For more information on the species, 

general information about Tiehm’s 

buckwheat habitat, and previous 

Federal actions associated with listing 

Tiehm’s buckwheat, refer to the 12- 

month finding published in the Federal 

Register on June 4, 2021 (86 FR 29975), 

the proposed listing rule published in 

the Federal Register on October 7, 2021 

(86 FR 55775), and associated 

supporting documents available online 

at https://www.regulations.gov under 

Docket No. FWS–R8–ES–2020–0017. 

Supporting Documents 

The Service prepared a species status 

assessment (SSA) report (Service 2021a, 

entire), 12-month finding (86 FR 29975; 

June 4, 2021), and proposed listing rule 

(86 FR 55775; October 7, 2021) for 

Tiehm’s buckwheat. The science 

provided in the SSA report, 12-month 

finding, and the proposed listing rule is 

the basis for this proposed critical 

habitat rule. The SSA report, 12-month 

finding, and proposed listing rule 

represent a compilation of the best 

scientific and commercial data available 

regarding a full status assessment of the 

species, including past, present, and 

future impacts (both negative and 

beneficial) affecting the species. The 

SSA report underwent independent 

peer review by scientists with expertise 

in botany, rare plant conservation, and 

plant ecology. The Service also sent the 

SSA report to three partner agencies, the 

Nevada Division of Forestry (NDF), the 

Nevada Division of Natural Heritage 

(NDNH), and the Bureau of Land 

Management (BLM), for review. We 

received comments from NDNH and 

BLM. Comments we received during 

peer and partner review were 

considered and incorporated into our 

SSA report. 

Additionally, a team of Service 

biologists, in consultation with other 

species experts, collected and analyzed 

the best available information 

(including the information presented in 

the SSA report and proposed listing 

rule) to support this proposed critical 

habitat designation. As such, the science 

used and presented in this proposed 

rule represents a compilation of the best 

scientific information available. 

In accordance with our joint policy on 

peer review published in the Federal 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6104 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we are seeking the expert opinions of at 

least three appropriate specialists 

regarding the science that informs this 

proposed rule. The purpose of peer 

review is to ensure that the science 

behind our critical habitat designation is 

based on scientifically sound data, 

assumptions, and analyses. We will 

consider any comments we receive, as 

appropriate, before making a final 

agency determination. 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, on which are found 

those physical or biological features: 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely, by vagrant individuals). 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat,’’ for 

the purposes of designating critical 

habitat only, as the abiotic and biotic 

setting that currently or periodically 

contains the resources and conditions 

necessary to support one or more life 

processes of a species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not require implementation of 

restoration, recovery, or enhancement 

measures by non-Federal landowners. 

Where a landowner requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the Federal agency 

would be required to consult with the 

Service under section 7(a)(2) of the Act. 

However, even if the Service were to 

conclude that the proposed activity 

would result in destruction or adverse 

modification of the critical habitat, the 

Federal action agency and the 

landowner are not required to abandon 

the proposed activity, or to restore or 

recover the species; instead, they must 

implement ‘‘reasonable and prudent 

alternatives’’ to avoid destruction or 

adverse modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). In identifying those 

physical or biological features that occur 

in specific occupied areas, we focus on 

the specific features that are essential to 

support the life-history needs of the 

species, including, but not limited to, 

water characteristics, soil type, 

geological features, prey, vegetation, 

symbiotic species, or other features. A 

feature may be a single habitat 

characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. The implementing regulations 

at 50 CFR 424.12(b)(2) further delineate 

unoccupied critical habitat by setting 

out three specific parameters: (1) When 

designating critical habitat, the 

Secretary will first evaluate areas 

occupied by the species; (2) the 

Secretary will only consider unoccupied 

areas to be essential where a critical 

habitat designation limited to 

geographical areas occupied by the 

species would be inadequate to ensure 

the conservation of the species; and (3) 

for an unoccupied area to be considered 

essential, the Secretary must determine 

that there is a reasonable certainty both 

that the area will contribute to the 

conservation of the species and that the 

area contains one or more of those 

physical or biological features essential 

to the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from an SSA 

report, listing rule, and other 

information developed during the 

listing process for the species. 

Additional information sources may 

include any generalized conservation 

strategy, criteria, or outline that may 

have been developed for the species; the 

recovery plan for the species, if one has 

been developed; articles in peerreviewed 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6105 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, may 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of the species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of those planning efforts calls 

for a different outcome (i.e., if new 

information sufficiently justifies the 

proposed conservation effort). 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

regulations (50 CFR 424.12(a)(1)) state 

that the Secretary may, but is not 

required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) The Secretary otherwise 

determines that designation of critical 

habitat would not be prudent based on 

the best scientific data available. 

There is currently no imminent threat 

of overutilization for commercial, 

recreational, scientific, or educational 

purposes (see 16 U.S.C. 1533(a)(1)(B)) 

identified for Tiehm’s buckwheat, and 

identification and mapping of critical 

habitat is not expected to initiate any 

such threat. Threats of illegal collection 

or other human activity are not expected 

to increase due to the identification of 

critical habitat. Habitat impacts are a 

threat to the species, as noted in the 

proposed listing determination for 

Tiehm’s buckwheat (86 FR 55775; 

October 7, 2021), and these impacts are 

from causes that can be addressed 

through management actions resulting 

from consultations under section 7(a)(2) 

of the Act. The species occurs solely 

within the United States, and available 

habitat, particularly those areas that 

meet the definition of critical habitat, 

provides significant conservation value. 

Overall, our analysis of the best 

available scientific and commercial 

information indicates there are areas 

within the range of Tiehm’s buckwheat 

that meet the definition of critical 

habitat. Therefore, because none of the 

circumstances listed in our regulations 

at 50 CFR 424.12(a)(1) have been met 

and because the Secretary has not 

identified other circumstances for 

which this designation of critical habitat 

would be not prudent, we have 

determined that the designation of 

critical habitat for Tiehm’s buckwheat is 

prudent. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

Tiehm’s buckwheat is determinable. 

Our regulations at 50 CFR 424.12(a)(2) 

state that critical habitat is not 

determinable when one or both of the 

following situations exist: 

(i) Data sufficient to perform required 

analyses are lacking; or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

When critical habitat is not 

determinable, the Act allows the Service 

an additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where the species is 

located. This and other information 

represent the best scientific data 

available and led us to conclude that the 

designation of critical habitat is 

determinable for Tiehm’s buckwheat. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. 

The regulations at 50 CFR 424.02 

define ‘‘physical or biological features 

essential to the conservation of the 

species’’ as the features that occur in 

specific areas and that are essential to 

support the life-history needs of the 

species, including, but not limited to, 

water characteristics, soil type, 

geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkali soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or a particular level of 

nonnative species consistent with 

conservation needs of the listed species. 

The features may also be combinations 

of habitat characteristics and may 

encompass the relationship between 

characteristics or the necessary amount 

of a characteristic essential to support 

the life history of the species. 

In considering whether features are 

essential to the conservation of the 


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species, the Service may consider an 

appropriate quality, quantity, and 

spatial and temporal arrangement of 

habitat characteristics in the context of 

the life-history needs, condition, and 

status of the species. These 

characteristics include, but are not 

limited to: (1) Space for individual and 

population growth and for normal 

behavior; (2) food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, or rearing (or 

development) of offspring; and (5) 

habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distributions of a species. 

Using the species’ habitat, ecology, 

and life history, which are summarized 

below and are described more fully in 

the proposed listing rule (86 FR 55775; 

October 7, 2021) and the SSA report 

(Service 2021a, entire) that was 

developed to supplement the proposed 

listing rule, which are available at 

https://www.regulations.gov under 

Docket No. FWS–R8–ES–2020–0017, we 

considered the following habitat 

characteristics to derive the specific 

physical or biological features essential 

for the conservation of Tiehm’s 

buckwheat. 

Habitat Characteristics 

Tiehm’s buckwheat occurs between 

5,906 and 6,234 feet (ft) (1,800 and 

1,900 meters (m)) in elevation and on all 

aspects with slopes ranging from 0 to 50 

degrees (Ioneer 2020a, p. 5; Morefield 

1995, p. 11). The species occurs on dry, 

upland sites, subject only to occasional 

saturation by rain and snow, and is not 

found in association with free surface or 

subsurface waters (Morefield 1995, p. 

11). Tiehm’s buckwheat dominates the 

sparsely vegetated community in which 

it occurs, resulting in an open plant 

community with low plant cover and 

stature (Morefield 1995, p. 12). The 

vegetation varies from pure stands of 

Tiehm’s buckwheat to sparse 

associations with a few other lowgrowing herbs and grass species, 

suggesting the species is not shadetolerant and requires direct sunlight. 

The most common associates of Tiehm’s 

buckwheat are species found in salt 

desert shrubland communities such as 

shadscale saltbush (Atriplex 

confertifolia), James’ galleta (Hilaria 

jamesii), and alkali sacaton (Sporobolus 

airoides) (Morefield 1995, p. 12). 

Like most terrestrial plants, Tiehm’s 

buckwheat requires soil for physical 

support and as a source of nutrients and 

water. Tiehm’s buckwheat is restricted 

to dry, open, relatively barren, lightcolored, rocky clay soils derived from 

an uncommon formation of interbedded 

claystones, shales, tuffaceous 

sandstones, and limestones (Ioneer 

2020a, p. 5; Morefield 1995, p. 10). The 

soils are poor, with little development, 

lack an A horizon (top layer of mineral 

soil horizons), and are full of broken 

pieces of the parent bedrock (Ioneer 

2020a, p. 5; Morefield 1995, p. 11). Soils 

are characterized by a variety of 

textures, and include clay soils, sandy 

clay loams, sandy loams, and loams 

(McClinton et al. 2020, p. 29). This 

specialized substrate is called channery 

soil, which consists of 15 to 35 percent 

thin, flat fragments of sandstone, shale, 

slate, limestone, or schist (United States 

Department of Agriculture (USDA) 

2015, p. 7). 

Tiehm’s buckwheat is distributed on 

these soils along an outcrop of lithium 

clay in exposed former lake beds (Ioneer 

2020a, p. 5). Soil pH ranges from 7.64 

to 8.76 (Ioneer 2020a, p. 6). Initial soil 

sample analyses demonstrate that boron 

and carbonates were commonly present 

at excessive levels and that sulfur, 

calcium, and potassium were commonly 

present at high levels (Ioneer 2020a, p. 

6). Further analyses indicate that soils 

occupied by Tiehm’s buckwheat have 

on average extremely low phosphorus, 

low nitrogen, high boron, and high pH 

(McClinton et al. 2020, p. 35). There 

were significant differences in soil 

characteristics between soils occupied 

and unoccupied by Tiehm’s buckwheat, 

including potassium, zinc, sulfur, and 

magnesium, which were on average 

lower in occupied soils, and boron, silt, 

bicarbonate, and pH, which were, on 

average, higher, although there was 

variation among subpopulations and 

adjacent, unoccupied sites (McClinton 

et al. 2020, pp. 35, 53). For example, 

boron was higher in Tiehm’s buckwheat 

subpopulations 1, 2, and 3 than in 

subpopulations 4, 5, 6, 7, and 8 (Shams 

et al. 2021, pp. 4–5; McClinton et al. 

2020, p. 30). Taking all soil components 

into consideration as well as results of 

greenhouse propagation experiments 

(McClinton et al. 2020, p. 36), there is 

a unique envelope of soil conditions in 

which Tiehm’s buckwheat thrives that 

is different from adjacent unoccupied 

soils (Service 2021a, pp. 16–18). 

Tiehm’s buckwheat is a perennial 

plant species that is not rhizomatous or 

otherwise clonal. Therefore, like other 

buckwheat species, reproduction in 

Tiehm’s buckwheat is presumed to 

occur via sexual means (i.e., seed 

production and recruitment). As with 

most plant species, Tiehm’s buckwheat 

does not require separate sites for 

reproduction other than the locations in 

which parent plants occur and any area 

necessary for pollinators and seed 

dispersal. The primary seed dispersal 

agents of Tiehm’s buckwheat are 

probably gravity, wind, and water 

(Morefield 1995, p. 14). Upon 

maturation of the fruit, seeds are likely 

to fall to the ground in the immediate 

vicinity of the parent plant, becoming 

lodged in the soil surface (Ioneer 2020a, 

p. 4). The number of seeds produced by 

individual Tiehm’s buckwheat plants is 

variable with research demonstrating it 

can range anywhere from 50 to 450 

seeds per plant (Service 2021a, pp. 15– 

16; McClinton et al. 2020, p. 22). We 

have no information on the longevity 

and viability of Tiehm’s buckwheat seed 

in the soil seed bank (i.e., natural 

storage of seeds within the soil of 

ecosystems) or what environmental cues 

are needed to trigger germination. 

However, many arid plants possess seed 

dormancy, enabling them to delay 

germination until receiving necessary 

environmental cues (Jurado and Flores 

2005, entire; Pake and Venable 1996, 

pp. 1432–1434). 

Buckwheat, in general, are sexual 

reproducers and insects are the most 

common pollinators (Gucker and Shaw 

2019, pp. 5–6). Some studies have 

shown that buckwheat flowers can be 

pollinated by everything from beeflies 

and closely related spider predators (the 

Acroceridea (Cyrtidae)) to specialist 

pollinators, while other buckwheat 

species are also capable of selfpollination (Neel and Ellstrand 2003, p. 

339; Archibald et al. 2001, p. 612; 

Moldenke 1976, pp. 20–25). Primary 

pollinators and insect visitors (insects 

that visit a plant to feed on pollen, 

nectar, or other flower parts, but may 

not necessarily play a role in 

pollination) to Tiehm’s buckwheat 

include bees, wasps, beetles, and flies, 

and have an abundance and diversity 

exceptionally high for a plant 

community dominated by a single plant 

species (Service 2021a, p. 16; McClinton 

et al. 2020, pp. 11–22). 

Successful transfer of pollen among 

Tiehm’s buckwheat subpopulations may 

be inhibited if subpopulations are 

separated by distances greater than 

pollinators can travel and/or a 

pollinator’s nesting or foraging habitat 

and behavior is negatively affected 

(Dorchin et al. 2013, entire; BLM 2012, 

p. 2; Cranmer et al. 2012, p. 562). Flight 

distances are generally correlated with 

body size in bees; larger bees are able to 

fly farther than smaller bees (Greenleaf 

et al. 2007, pp. 592–594; Gathmann and 

Tscharntke 2002, entire). There is 

evidence to suggest that larger bees, 

which are able to fly longer distances, 

do not need their habitat to remain 

contiguous, but it is more important that 


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the protected habitat is large enough to 

maintain floral diversity (BLM 2012, p. 

18). While researchers have reported 

long foraging distance for solitary bees, 

the majority of individuals remain close 

to their nest, thus foraging distance 

tends to be 1,640 ft (500 m) or less 

(Antoine and Forrest 2021, p. 152; 

Danforth et al. 2019, p. 207; BLM 2012, 

p. 19). Nest building is common in some 

solitary wasps (Sphecidae and 

Pompilidae). However, the distances 

between hunting sites and nests are 

unknown for wasps, but many wasps 

probably hunt close to their nest (within 

3 to 66 ft (1 to 20 m)) (O’Neil 2019, pp. 

108–111, 152). Most butterflies, flies, 

and beetles find egg laying and feeding 

sites as they move across the landscape. 

The most common bee and wasp 

pollinators have a fixed location for 

their nest, and thus their nesting success 

is dependent on the availability of 

resources within their flight range 

(Xerces 2009, p. 14). 

Many insect communities are known 

to be influenced not only by local 

habitat conditions, but also the 

surrounding landscape condition (Klein 

et al. 2004, p. 523; Inouye et al. 2015, 

pp. 119–121; Dorchin et al. 2013, entire; 

Tepedino et al. 2011, entire; Xerces 

2009, pp. 11–26). In order for genetic 

exchange of Tiehm’s buckwheat to 

occur, insect visitors and pollinators 

must be able to move freely between 

subpopulations. Alternative pollen and 

nectar sources (other plant species 

within the surrounding vegetation) are 

needed to support pollinators during 

times when Tiehm’s buckwheat is not 

flowering. Conservation strategies that 

maintain plant-pollinator interactions, 

such as maintenance of diverse, 

herbicide-free nectar resources, would 

serve to attract a wide array of insects, 

including pollinators of Tiehm’s 

buckwheat (BLM 2012, pp. 5–6, 19; 

Cranmer et al. 2012, p. 567). 

Summary 

Based on our current knowledge of 

the physical or biological features and 

habitat characteristics required to 

sustain the species’ life-history 

processes, we determine that the 

following physical and biological 

features are essential to the conservation 

of Tiehm’s buckwheat: 

1. Plant community. A plant 

community that supports all life stages 

of Tiehm’s buckwheat includes: 

a. Open to sparsely vegetated areas 

with low native plant cover and stature. 

b. An intact, native vegetation 

assemblage that can include, but is not 

limited to, shadscale saltbush, James’ 

galleta, and alkali sacaton to protect 

Tiehm’s buckwheat from nonnative, 

invasive plant species and provide the 

habitats needed by Tiehm’s buckwheat’s 

insect visitors and pollinators. 

c. A diversity of native plants whose 

blooming times overlap to provide 

insect visitors and pollinator species 

with flowers for foraging throughout the 

seasons and to provide nesting and egglaying sites; appropriate nest materials; 

and sheltered, undisturbed habitat for 

hibernation and overwintering of 

pollinator species and insect visitors. 

2. Pollinators and insect visitors. 

Sufficient pollinators and insect 

visitors, particularly bees, wasps, 

beetles, and flies, are present for the 

species’ successful reproduction and 

seed production. 

3. Hydrology. Hydrology that is 

suitable for Tiehm’s buckwheat consists 

of dry, open, relatively barren, upland 

sites subject to occasional precipitation 

from rain and/or snow for seed 

germination. 

4. Suitable soils. Soils that are 

suitable for Tiehm’s buckwheat consist 

of: 

a. Light-colored, rocky soils derived 

from an uncommon formation of 

interbedded claystones, shales, 

tuffaceous sandstones, and limestones. 

b. Soils that are poor, with little 

development; lack an A horizon; and are 

full of broken pieces of the parent 

bedrock. 

c. Soils characterized by a variety of 

textures, and include clay soils, sandy 

clay loams, sandy loams, and loams. 

d. Soils with pH ranges from 7.64 to 

8.76. 

e. Soils that commonly have on 

average boron and bicarbonates present 

at higher levels, and potassium, zinc, 

sulfur, and magnesium present at lower 

levels. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features which are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The area 

proposed for designation as critical 

habitat may require some level of 

management to address the current and 

future threats to the physical and 

biological features essential to the 

conservation of Tiehm’s buckwheat 

A detailed discussion of threats to 

Tiehm’s buckwheat and its habitat can 

be found in the SSA report (Service 

2021a, pp. 23–48). The features essential 

to the conservation of Tiehm’s 

buckwheat (plant community, 

pollinators and insect visitors, and 

suitable hydrology and soils, required 

for the persistence of adults as well as 

successful reproduction of such 

individuals and the formation of a 

seedbank) may require special 

management considerations or 

protection to reduce threats; these 

threats are more fully described in the 

proposed listing rule (86 FR 55775; 

October 7, 2021). The current range of 

Tiehm’s buckwheat is subject to 

anthropogenic threats such as mineral 

development, road development and 

off-highway vehicle (OHV) activity, 

livestock grazing, nonnative and 

invasive plant species, and climate 

change, as well as natural threats such 

as herbivory and potential effects 

associated with small population size 

(Service 2021a, pp. 23–54). 

Management activities that could 

ameliorate these threats include (but are 

not limited to): Treatment of nonnative, 

invasive plant species; minimization of 

OHV access and placement of new roads 

away from the species and its habitat; 

regulations or agreements to minimize 

the effects of mineral exploration and 

development where the species resides; 

minimization of livestock use or other 

disturbances that disturb the soil or 

seeds; minimization of habitat 

fragmentation; and monitoring for 

herbivory. These activities would 

protect the physical or biological 

features for the species by preventing 

the loss of habitat; protecting the plant’s 

habitat, pollinator and insect visitors, 

and soils from undesirable patterns or 

levels of disturbance; and facilitating 

management for desirable conditions 

that are necessary for Tiehm’s 

buckwheat to fulfill its life-history 

needs. 

Tiehm’s buckwheat occurs entirely on 

Federal lands managed by the BLM. As 

described in the Tonopah Resource 

Management Plan (RMP), habitat for all 

federally listed endangered and 

threatened species and for all Nevada 

BLM sensitive species will be managed 

to maintain or increase current species 

populations. The introduction, 

reintroduction, or augmentation of 

Nevada BLM sensitive species may be 

allowed in coordination with Nevada 

Department of Wildlife (NDOW) or the 

Service, if it is deemed appropriate. 

Such actions will be considered on a 

case-by-case basis and will be subject to 

applicable procedures (BLM 1997, p. 9). 

BLM has issued policy guidance to 

implement its obligations under the 

Federal Land Policy and Management 

Act (FLPMA; 43 U.S.C. 1701 et seq.). 

These include BLM’s Integrated 

Vegetation Management Handbook H– 

1740–2, which guides BLM’s various 

programs to use an interdisciplinary and 


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collaborative process to plan and 

implement a set of actions that improve 

biological diversity and ecosystem 

function that promote and maintain 

native plant communities that are 

resilient to disturbance and invasive 

species (BLM 2008, p. 2). 

Additionally, the BLM Manual 

section MS–6840, release 6–125 (BLM 

2008, pp. 1–48), provides guidance with 

respect to sensitive species. Tiehm’s 

buckwheat is managed as a BLM 

sensitive species; BLM sensitive species 

are defined as ‘‘species that require 

special management consideration to 

avoid potential future listing under the 

[Act]’’ (BLM 2008, Glossary, p. 5). 

Under this policy, BLM can initiate 

proactive conservation measures, 

including programs, plans, and 

management practices, to reduce or 

eliminate threats affecting the status of 

BLM sensitive species, or to improve the 

condition of the species’ habitat on 

BLM-administered lands (BLM 2008, 

MS–6840.02, MS–6840.06.2.C., and 

definition of ‘‘conservation,’’ pp. 3, 37, 

and Glossary 2). 

In response to the September 2020 

herbivory event on Tiehm’s buckwheat 

subpopulations, BLM has been 

monitoring the species. Photo plots 

were established near undamaged plants 

in subpopulations 1, 3, and 6 to help 

determine whether herbivory is 

continuing (Crosby 2020a, pers. comm.; 

Crosby, 2020b, pers. comm.). Ocular 

estimates from the photo plots indicate 

that herbivory is not ongoing (Crosby, 

2020b, pers. comm.). Game cameras that 

were installed by BLM when damage to 

the species was first reported were 

removed in mid-November 2020, but 

may be reinstalled if deemed necessary 

(Crosby, 2020a, pers. comm). 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. We are not currently 

proposing to designate any areas outside 

the geographical area occupied by the 

species because we have not identified 

any unoccupied areas that meet the 

definition of critical habitat. The 

occupied areas are sufficient for the 

conservation of the species because the 

physical and biological features that 

support the plant occur there. The areas 

outside of the occupied area do not 

support these physical and biological 

features and we are not confident that 

they would support populations of 

Tiehm’s buckwheat. 

We are proposing to designate one 

occupied critical habitat unit for 

Tiehm’s buckwheat. The one unit is 

comprised of approximately 910 acres 

(ac) (368 hectares (ha)) in Nevada and is 

completely on lands under Federal 

(BLM) land ownership. The unit was 

determined using location information 

for Tiehm’s buckwheat from E.M. 

Strategies and the NDNH (Kuyper 2019, 

entire; Morefield 2010, entire; Morefield 

2008, entire). These locations were 

classified into one discrete population, 

with eight subpopulations, based on 

mapping standards devised by 

NatureServe and its network of Natural 

Heritage Programs (NatureServe 2004, 

entire). This unit includes the physical 

footprint of where the plants currently 

occur, as well as their immediate 

surroundings out to 1,640 ft (500 m) in 

every direction from the periphery of 

each subpopulation. This area of 

surrounding habitat contains 

components of the physical and 

biological features (i.e., the pollinator 

community and its requisite native 

vegetative assembly) necessary to 

support the life-history needs of 

Tiehm’s buckwheat (Antoine and 

Forrest 2021, p. 152; O’Neil 2019, pp. 

108–111, 152; Danforth et al. 2019, p. 

207; BLM 2012, p. 19; Xerces 2009, p. 

14; Greenleaf et al. 2007, pp. 592–594; 

Gathmann and Tscharntke 2002, entire). 

This essential habitat configuration was 

based on the best available nesting, egglaying, and foraging information for the 

bee, wasp, beetle, and fly pollinators 

and insect visitors of Tiehm’s 

buckwheat (McClinton et al. 2020, p. 

18), as most insect communities are 

known to be influenced not only by 

local habitat conditions, but also the 

surrounding landscape conditions 

(Klein et al. 2004, p. 523; Inouye et al. 

2015, pp. 119–121; Dorchin et al. 2013, 

entire; Tepedino et al. 2011, entire; 

Xerces 2009, pp. 11–26). 

The critical habitat designation is 

defined by the map, as modified by any 

accompanying regulatory text, presented 

at the end of this document under 

Proposed Regulation Promulgation. We 

include more detailed information on 

the boundaries of the critical habitat 

designation in the preamble of this 

document. We will make the 

coordinates or plot points or both on 

which the map is based available to the 

public on https://www.regulations.gov 

at Docket No. FWS–R8–ES–2020–0017, 

and at the field office responsible for the 

designation (see FOR FURTHER

INFORMATION CONTACT above). 

Proposed Critical Habitat Designation 

We are proposing one unit as critical 

habitat for Tiehm’s buckwheat. The unit 

is considered occupied at the time of 

listing. The critical habitat area, the 

Rhyolite Ridge area of the Silver Peak 

Range in Esmeralda County, Nevada, 

that we describe below constitutes our 

current best assessment of areas that 

meet the definition of critical habitat for 

Tiehm’s buckwheat. Table 1(below) 

shows the proposed critical habitat unit 

and its approximate area. 

TABLE 1—PROPOSED CRITICAL HABITAT UNIT FOR TIEHM’S BUCKWHEAT (ENGONUM TICHMII) 

[Area estimates reflect all lands within the critical habitat boundary.] 

Unit name 

Federally owned land * Total area 

acres hectares acres hectares 

Rhyolite Ridge Unit .......................................................................................... 910 368 

.......................................................................................................................... 910 368 

* These lands are Federal lands managed by the Bureau of Land Management (BLM). 

We present brief a description of the 

critical habitat unit, and reasons why it 

meets the definition of critical habitat 

for Tiehm’s buckwheat, below. 

Rhyolite Ridge Unit 

The Rhyolite Ridge Unit consists of 

approximately 910 ac (368 ha) of 

Federal land. This unit is located 

approximately 13 miles (21 kilometers) 

west of Silver Peak in Esmeralda 

County, Nevada. Cave Springs Road, a 


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rural, county unpaved road, bisects the 

unit. One hundred percent of this unit 

is on Federal lands managed by the 

BLM. This unit is currently occupied 

and contains the single population 

comprised of eight subpopulations of 

Tiehm’s buckwheat. This unit is 

essential to the conservation and 

recovery of Tiehm’s buckwheat because 

it supports all of the habitat that is 

occupied by Tiehm’s buckwheat across 

the species’ range. This unit currently 

has all of the physical and biological 

features described above essential to the 

conservation of the species, including a 

plant community that supports all life 

stages of Tiehm’s buckwheat; sufficient 

pollinators and insect visitors, 

particularly bees, wasps, beetles, and 

flies; hydrology suitable for Tiehm’s 

buckwheat that consists of dry, open, 

relatively barren, upland sites subject to 

occasional precipitation from rain and/ 

or snow; and soils that are suitable for 

Tiehm’s buckwheat. Special 

management considerations or 

protection may be required to address 

mineral development, road 

development and OHV activity, 

livestock grazing, nonnative invasive 

plant species, and herbivory (see 

Special Management Considerations or 

Protection). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final rule revising the 

definition of destruction or adverse 

modification on August 27, 2019 (84 FR 

44976). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

Compliance with the requirements of 

section 7(a)(2) is documented through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species and/or avoid the 

likelihood of destroying or adversely 

modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 set forth 

requirements for Federal agencies to 

reinitiate formal consultation on 

previously reviewed actions. These 

requirements apply when the Federal 

agency has retained discretionary 

involvement or control over the action 

(or the agency’s discretionary 

involvement or control is authorized by 

law) and, subsequent to the previous 

consultation, when: (1) The amount or 

extent of taking specified in the 

incidental take statement is exceeded; 

(2) new information reveals effects of 

the action that may affect listed species 

or critical habitat in a manner or to an 

extent not previously considered; (3) the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion; or (4) a new species 

is listed or critical habitat designated 

that may be affected by the identified 

action. 

In such situations, Federal agencies 

sometimes may need to request 

reinitiation of consultation with us, but 

the regulations also specify some 

exceptions to the requirement to 

reinitiate consultation on specific land 

management plans after subsequently 

listing a new species or designating new 

critical habitat. See the regulations for a 

description of those exceptions. 

Application of the ‘‘Destruction or 

Adverse Modification’’ Standard 

The key factor related to the 

destruction or adverse modification 

determination is whether 

implementation of the proposed Federal 

action directly or indirectly alters the 

designated critical habitat in a way that 

appreciably diminishes the value of the 

critical habitat as a whole for the 

conservation of the listed species. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

violate section 7(a)(2) of the Act by 

destroying or adversely modifying such 

habitat, or that may be affected by such 

designation. 

Activities that the Service may, 

during a consultation under section 

7(a)(2) of the Act, consider likely to 

destroy or adversely modify the critical 

habitat of Tiehm’s buckwheat include, 

but are not limited to, actions that are 

likely to cause large-scale habitat 

impacts, adversely affecting the physical 

and biological features at a scale and 

magnitude such that the designated 

critical habitat would no longer be able 

to provide for the conservation of the 


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species. Examples include removing 

corridors for pollinator movement and 

seed dispersal; significantly disrupting 

the native vegetative assemblage, seed 

bank, or soil composition and structure; 

or significantly fragmenting the 

landscape and decreasing the resiliency 

and representation of the species 

throughout its range (Service 2021b, p. 

14). For such activities, the Service 

would likely require reasonable and 

prudent alternatives to ensure the 

implementation of project-specific 

conservation measures designed to 

reduce the scale and magnitude of these 

habitat impacts. 

Exemptions 

Application of Section 4(a)(3)(B)(i) of 

the Act 

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that the 

Secretary shall not designate as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation. No 

DoD lands with a completed INRMP are 

within the proposed critical habitat 

designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

designated critical habitat based on 

economic impacts, impacts on national 

security, or any other relevant impacts. 

In considering whether to exclude a 

particular area from the designation, we 

identify the benefits of including the 

area in the designation, identify the 

benefits of excluding the area from the 

designation, and evaluate whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If the analysis 

indicates that the benefits of exclusion 

outweigh the benefits of inclusion, the 

Secretary may exercise discretion to 

exclude the area only if such exclusion 

would not result in the extinction of the 

species. In making the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. We describe below the process 

that we undertook for taking into 

consideration each category of impacts 

and our analyses of the relevant 

impacts. 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. To assess the probable 

economic impacts of a designation, we 

must first evaluate specific land uses or 

activities and projects that may occur in 

the area of the critical habitat. We then 

must evaluate the impacts that a specific 

critical habitat designation may have on 

restricting or modifying specific land 

uses or activities for the benefit of the 

species and its habitat within the areas 

proposed. We then identify which 

conservation efforts may be the result of 

the species being listed under the Act 

versus those attributed solely to the 

designation of critical habitat for this 

particular species. The probable 

economic impact of a proposed critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis, which includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat 

(e.g., under the Federal listing as well as 

other Federal, State, and local 

regulations). Therefore, the baseline 

represents the costs of all efforts 

attributable to the listing of the species 

under the Act (i.e., conservation of the 

species and its habitat incurred 

regardless of whether critical habitat is 

designated). The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts would 

not be expected without the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat, above and 

beyond the baseline costs. These are the 

costs we use when evaluating the 

benefits of inclusion and exclusion of 

particular areas from the final 

designation of critical habitat should we 

choose to conduct a discretionary 

section 4(b)(2) exclusion analysis. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM; Service 2021b, 

entire) considering the probable 

incremental economic impacts that may 

result from this proposed designation of 

critical habitat. The information 

contained in our IEM was then used to 

develop a screening analysis of the 

probable effects of the designation of 

critical habitat for Tiehm’s buckwheat 

(Industrial Economics Inc. (IEc) 2021, 

entire). We began by conducting a 

screening analysis of the proposed 

designation of critical habitat in order to 

focus our analysis on the key factors 

that are likely to result in incremental 

economic impacts. The purpose of the 

screening analysis is to filter out 

particular geographic areas of critical 

habitat that are already subject to such 

protections and are, therefore, unlikely 

to incur incremental economic impacts. 

In particular, the screening analysis 

considers baseline costs (i.e., absent 

critical habitat designation) and 

includes any probable incremental 

economic impacts where land and water 

use may already be subject to 

conservation plans, land management 

plans, best management practices, or 

regulations that protect the habitat area 

as a result of the Federal listing status 

of the species. Ultimately, the screening 

analysis allows us to focus our analysis 

on evaluating the specific areas or 

sectors that may incur probable 

incremental economic impacts as a 

result of the designation. If the proposed 

critical habitat designation contains any 

unoccupied units, the screening 

analysis assesses whether those units 

require additional management or 

conservation efforts that may incur 

incremental economic impacts. This 

screening analysis combined with the 

information contained in our IEM 

constitute what we consider to be our 

draft economic analysis (DEA) of the 

proposed critical habitat designation for 

Tiehm’s buckwheat; our DEA is 

summarized in the narrative below. 

Executive Orders 12866 and 13563 

direct Federal agencies to assess the 

costs and benefits of available regulatory 

alternatives in quantitative (to the extent 

feasible) and qualitative terms. 

Consistent with the Executive orders’ 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely 


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affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 

that may result from the proposed 

designation of critical habitat for 

Tiehm’s buckwheat, first we identified, 

in the IEM dated July 21, 2021 (Service 

2021b, entire), probable incremental 

economic impacts associated with the 

following categories of activities: 

Mining and minerals exploration, 

livestock grazing, and recreation. We 

considered each industry or category 

individually. Additionally, we 

considered whether their activities have 

any Federal involvement. Critical 

habitat designation generally will not 

affect activities that do not have any 

Federal involvement; under the Act, 

designation of critical habitat only 

affects activities conducted, funded, 

permitted, or authorized by Federal 

agencies. Because the species is already 

proposed for listing, in areas where 

Tiehm’s buckwheat is present, Federal 

agencies need to conference with the 

Service under section 7(a)(4) of the Act 

if it is determined that any activities 

they authorize, fund, or carry out are 

likely to jeopardize the continued 

existence of the species. Upon 

publication of this proposed critical 

habitat designation in the Federal 

Register, Federal agencies also need to 

conference with the Service under 

section 7(a)(4) if it is determined that 

any activities they authorize, fund, or 

carry out are likely to destroy or 

adversely modify the critical habitat. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

would result from the species being 

listed and those attributable to the 

critical habitat designation (i.e., 

difference between the jeopardy and 

adverse modification standards) for 

Tiehm’s buckwheat critical habitat. The 

following specific circumstances help to 

inform our evaluation: (1) The essential 

physical and biological features 

identified for critical habitat are the 

most important features essential for the 

life-history needs of the species, and (2) 

any actions that would result in 

sufficient adverse effect to the essential 

physical and biological features of 

critical habitat would also constitute 

jeopardy to Tiehm’s buckwheat. The 

IEM outlines our rationale concerning 

this limited distinction between 

baseline conservation efforts and 

incremental impacts of the designation 

of critical habitat for Tiehm’s 

buckwheat. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

The proposed critical habitat 

designation for Tiehm’s buckwheat 

includes one critical habitat unit 

(Rhyolite Ridge Unit) totaling 

approximately 910 ac (368 ha), which 

was occupied by Tiehm’s buckwheat at 

the time of proposed listing and is 

currently occupied. Any actions that 

may affect the species or its habitat 

would also affect critical habitat, and it 

is unlikely that any additional 

conservation efforts would be 

recommended to address the adverse 

modification standard over and above 

those recommended as necessary to 

avoid jeopardizing the continued 

existence of Tiehm’s buckwheat. 

Therefore, the proposed critical habitat 

designation is expected to result in only 

administrative costs. While additional 

analysis will require time and resources 

by both the Federal action agency and 

the Service, it is believed that, in most 

circumstances, these costs would be 

relatively minor and administrative in 

nature. 

This proposed critical habitat 

designation is expected to result in six 

consultations in 10 years (IEc 2021, p. 

3). This additional administrative effort 

includes a projected estimate of five 

formal consultations and one 

programmatic consultation, which is 

aggregated into a given year to give a 

total annual incremental cost for the 

purpose of determining whether the rule 

is economically significant under 

Executive Order 12866 (IEc 2021, 

Exhibit 3, p. 12). The analysis forecasts 

no incremental costs associated with 

project modifications that would 

involve additional conservation efforts 

for Tiehm’s buckwheat. The projected 

incremental costs for each 

programmatic, formal, informal, and 

technical assistance effort are estimated 

to be approximately $5,300 (formal 

consultation), $2,600 (informal 

consultation), $9,800 (programmatic 

consultation), and $420 (technical 

assistance). Analyzing the potential for 

adverse modification of the species’ 

critical habitat during section 7 

consultation will likely result in a total 

annual incremental cost of less than 

approximately $37,000 (2021 dollars) in 

a given year for Tiehm’s buckwheat (IEc 

2021, Exhibits 4 and 5, p. 13); therefore, 

the annual administrative burden is 

extremely unlikely to generate costs 

exceeding $100 million in a single year 

(i.e., the threshold for an economically 

significant rule under Executive Order 

12866). 

We are soliciting data and comments 

from the public on the DEA discussed 

above, as well as on all aspects of this 

proposed rule and our required 

determinations. During the development 

of a final designation, we will consider 

the information presented in the DEA 

and any additional information on 

economic impacts we receive during the 

public comment period to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under the authority of 

section 4(b)(2) and our implementing 

regulations at 50 CFR 17.90. If we 

receive credible information regarding 

the existence of a meaningful economic 

or other relevant impact supporting a 

benefit of exclusion, we will conduct an 

exclusion analysis for the relevant area 

or areas. We may also exercise the 

discretion to evaluate any other 

particular areas for possible exclusion. 

Furthermore, when we conduct an 

exclusion analysis based on impacts 

identified by experts in, or sources with 

firsthand knowledge about, impacts that 

are outside the scope of the Service’s 

expertise, we will give weight to those 

impacts consistent with the expert or 

firsthand information unless we have 

rebutting information. We may exclude 

an area from critical habitat if we 

determine that the benefits of excluding 

the area outweigh the benefits of 

including the area, provided the 

exclusion will not result in the 

extinction of this species. 

Consideration of National Security 

Impacts 

Section 4(a)(3)(B)(i) of the Act may 

not cover all DoD lands or areas that 

pose potential national-security 

concerns (e.g., a DoD installation that is 

in the process of revising its INRMP for 

a newly listed or proposed listed species 

or a species previously not covered). If 

a particular area is not covered under 

section 4(a)(3)(B)(i), then nationalsecurity or homeland-security concerns 

are not a factor in the process of 

determining what areas meet the 

definition of ‘‘critical habitat.’’ 

However, the Service must still consider 

impacts on national security, including 

homeland security, on those lands or 

areas not covered by section 

4(a)(3)(B)(i), because section 4(b)(2) 

requires the Service to consider those 

impacts whenever it designates critical 

habitat. Accordingly, if DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns, or we have 

otherwise identified national-security or 

homeland-security impacts from 

designating particular areas as critical 

habitat, we generally have reason to 

consider excluding those areas. 

However, we cannot automatically 

exclude requested areas. When DoD, 


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DHS, or another Federal agency requests 

exclusion from critical habitat on the 

basis of national-security or homelandsecurity impacts, we must conduct an 

exclusion analysis if the Federal 

requester provides credible information, 

including a reasonably specific 

justification of an incremental impact 

on national security that would result 

from the designation of that specific 

area as critical habitat. That justification 

could include demonstration of 

probable impacts, such as impacts to 

ongoing border-security patrols and 

surveillance activities, or a delay in 

training or facility construction, as a 

result of compliance with section 7(a)(2) 

of the Act. If the agency requesting the 

exclusion does not provide us with a 

reasonably specific justification, we will 

contact the agency to recommend that it 

provide a specific justification or 

clarification of its concerns relative to 

the probable incremental impact that 

could result from the designation. If we 

conduct an exclusion analysis because 

the agency provides a reasonably 

specific justification or because we 

decide to exercise the discretion to 

conduct an exclusion analysis, we will 

defer to the expert judgment of DoD, 

DHS, or another Federal agency as to: 

(1) Whether activities on its lands or 

waters, or its activities on other lands or 

waters, have national-security or 

homeland-security implications; (2) the 

importance of those implications; and 

(3) the degree to which the cited 

implications would be adversely 

affected in the absence of an exclusion. 

In that circumstance, in conducting a 

discretionary section 4(b)(2) exclusion 

analysis, we will give great weight to 

national-security and homeland-security 

concerns in analyzing the benefits of 

exclusion. 

Under section 4(b)(2) of the Act, we 

also consider whether a nationalsecurity or homeland-security impact 

might exist on lands not owned or 

managed by DoD or DHS. In preparing 

this proposal, we have determined that 

the lands within the proposed 

designation of critical habitat for 

Tiehm’s buckwheat are not owned or 

managed by DoD or DHS. Therefore, we 

anticipate no impact on national 

security or homeland security. However, 

if through the public comment period 

we receive credible information 

regarding impacts on national security 

or homeland security from designating 

particular areas as critical habitat, then 

as part of developing the final 

designation of critical habitat, we will 

conduct a discretionary exclusion 

analysis to determine whether to 

exclude those areas under authority of 

section 4(b)(2) and our implementing 

regulations at 50 CFR 17.90. 

Consideration of Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security discussed 

above. Other relevant impacts may 

include, but are not limited to, impacts 

to Tribes, States, local governments, 

public health and safety, community 

interests, the environment (such as 

increased risk of wildfire, or pest and 

invasive species management), Federal 

lands, and conservation plans, 

agreements, or partnerships. To identify 

other relevant impacts that may affect 

the exclusion analysis, we consider a 

number of factors, including whether 

there are permitted conservation plans 

covering the species in the area—such 

as HCPs, safe harbor agreements, or 

candidate conservation agreements with 

assurances—or whether there are nonpermitted conservation agreements and 

partnerships that may be impaired by 

designation of, or exclusion from, 

critical habitat. In addition, we look at 

whether Tribal conservation plans or 

partnerships, Tribal resources, or 

government-to-government 

relationships of the United States with 

Tribal entities may be affected by the 

designation. We also consider any State, 

local, public-health, communityinterest, environmental, or social 

impacts that might occur because of the 

designation. 

When analyzing other relevant 

impacts of including a particular area in 

a designation of critical habitat, we 

weigh those impacts relative to the 

conservation value of the particular 

area. To determine the conservation 

value of designating a particular area, 

we consider a number of factors, 

including, but not limited to, the 

additional regulatory benefits that the 

area would receive due to the protection 

from destruction or adverse 

modification as a result of actions with 

a Federal nexus, the educational 

benefits of mapping essential habitat for 

recovery of the listed species, and any 

benefits that may result from a 

designation due to State or Federal laws 

that may apply to critical habitat. 

After identifying the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

evaluate whether the benefits of 

exclusion outweigh those of inclusion. 

If our analysis indicates that the benefits 

of exclusion outweigh the benefits of 

inclusion, we then determine whether 

exclusion would result in extinction of 

the species. If exclusion of an area from 

critical habitat will result in extinction, 

we will not exclude it from the 

designation. 

In the case of Tiehm’s buckwheat, the 

benefits of critical habitat include 

public awareness of the presence of 

Tiehm’s buckwheat and the importance 

of habitat protection, and, where a 

Federal nexus exists, increased habitat 

protection for Tiehm’s buckwheat due 

to protection from destruction or 

adverse modification of critical habitat. 

Conservation Plans 

We evaluate the existence of a 

conservation plan when considering the 

benefits of inclusion. We consider a 

variety of factors, including, but not 

limited to, whether the plan is finalized; 

how it provides for the conservation of 

the essential physical or biological 

features; whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in a management plan will be 

implemented into the future; whether 

the conservation strategies in the plan 

are likely to be effective; and whether 

the plan contains a monitoring program 

or adaptive management to ensure that 

the conservation measures are effective 

and can be adapted in the future in 

response to new information. 

Private or Other Non-Federal 

Conservation Plans or Agreements and 

Partnerships 

We sometimes exclude specific areas 

from critical habitat designations based 

in part on the existence of private or 

other non-Federal conservation plans or 

agreements and their attendant 

partnerships. A conservation plan or 

agreement describes actions that are 

designed to provide for the conservation 

needs of a species and its habitat, and 

may include actions to reduce or 

mitigate negative effects on the species 

caused by activities on or adjacent to the 

area covered by the plan. Conservation 

plans or agreements can be developed 

by private entities with no Service 

involvement, or in partnership with the 

Service, sometimes through the 

permitting process under section 10 of 

the Act. 

When we undertake a discretionary 

section 4(b)(2) analysis, we evaluate a 

variety of factors to determine how the 

benefits of any exclusion and the 

benefits of inclusion are affected by the 

existence of private or other non-Federal 

conservation plans or agreements and 

their attendant partnerships. The factors 

we consider may differ, depending on 

whether we are evaluating a 

conservation plan that involves permits 

under section 10 or a non-permitted 

plan (see 50 CFR 17.90(d)(3) and (4)). 


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There are no habitat conservation plans 

for the area in the proposed critical 

habitat designation for Tiehm’s 

buckwheat. 

Ioneer USA Corporation (Ioneer) 

As part of the proposed Rhyolite 

Ridge Lithium-Boron project, Ioneer 

USA Corporation (Ioneer) is developing 

a conservation strategy for Tiehm’s 

buckwheat to protect and preserve the 

continued viability of the species on a 

long-term basis. Currently, the 

conservation strategy is in the early 

stages (Ioneer 2020b, entire). 

Ioneer has also implemented or 

proposed various protection measures 

for Tiehm’s buckwheat. Ioneer funded 

the development of a habitat suitability 

model to identify additional potential 

habitat for Tiehm’s buckwheat through 

field surveys (Ioneer 2020a, p. 12). In 

addition, a demographic monitoring 

program was initiated in 2019, to detect 

and document trends in population size, 

acres inhabited, size class distribution, 

and cover with permanent monitoring 

transects established in subpopulations 

1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16). 

Ioneer also funded collection of Tiehm’s 

buckwheat seed in 2019 (Ioneer 2020a, 

pp. 13–14). Some of this seed was used 

by the University of Nevada, Reno 

(UNR), for a propagation trial and 

transplant study (Ioneer 2020a, p. 14). 

The remainder of this seed is in longterm storage at Rae Selling Berry Seed 

Bank at Portland State University 

(Ioneer 2020a, p. 13). As part of its 

proposed mining plan of operations, 

Tiehm’s buckwheat protection plan, 

Ioneer also plans to avoid 

subpopulations 1, 2, 3, and 8 (Ioneer 

2020a, p. 11), fence and place signage 

around subpopulations 1 and 2 (Ioneer 

2020a, p. 11), and remove and salvage 

all remaining plants in subpopulations 

4, 5, 6, and 7 and translocate them to 

another location (Ioneer 2020a, p. 15). 

However, the proposed Rhyolite Ridge 

Lithium-Boron project may or may not 

be permitted by the BLM, and these 

protection measures may or may not be 

fully implemented. 

Tribal Lands 

Several Executive orders, Secretarial 

Orders, and policies concern working 

with Tribes. These guidance documents 

generally confirm our trust 

responsibilities to Tribes, recognize that 

Tribes have sovereign authority to 

control Tribal lands, emphasize the 

importance of developing partnerships 

with Tribal governments, and direct the 

Service to consult with Tribes on a 

government-to-government basis. In 

addition, we look at the existence of 

Tribal conservation plans and 

partnerships. In preparing this proposal, 

we have determined that the proposed 

designation of critical habitat does not 

include any Tribal lands or trust 

resources. We anticipate no impact on 

Tribal lands or partnerships from this 

proposed designation of critical habitat. 

We may also consider areas not 

identified for inclusion or exclusion 

from the final critical habitat 

designation based on information we 

may receive during the public comment 

period. As noted above, we have 

requested that the entities seeking 

inclusion or exclusion of areas provide 

credible information regarding the 

existence of a meaningful economic or 

other relevant impact supporting a 

benefit of exclusion for that particular 

area (see 50 CFR 17.90). A final 

determination on whether the Secretary 

will exercise her discretion to include or 

exclude this area from critical habitat 

for Tiehm’s buckwheat will be made at 

the time of our final determination 

regarding critical habitat. During the 

development of a final designation, we 

will consider any additional 

information we receive through the 

public comment period regarding other 

relevant impacts of the proposed 

designation and will determine whether 

any specific areas should be excluded 

from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 424.19. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of Executive Order 12866 

while calling for improvements in the 

nation’s regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. Executive Order 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. We have 

developed this proposed rule in a 

manner consistent with these 

requirements. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 


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concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

whether potential economic impacts to 

these small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, and as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate the potential incremental 

impacts of rulemaking on those entities 

directly regulated by the rulemaking 

itself; in other words, the RFA does not 

require agencies to evaluate the 

potential impacts to indirectly regulated 

entities. The regulatory mechanism 

through which critical habitat 

protections are realized is section 7 of 

the Act, which requires Federal 

agencies, in consultation with the 

Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies would be directly regulated if 

we adopt this proposed critical habitat 

designation. The RFA does not require 

evaluation of the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities would be directly 

regulated by this rulemaking, the 

Service certifies that, if made final as 

proposed, the critical habitat 

designation for Tiehm’s buckwheat will 

not have a significant economic impact 

on a substantial number of small 

entities. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if made 

final as proposed, the critical habitat 

designation for Tiehm’s buckwheat will 

not have a significant economic impact 

on a substantial number of small 

business entities. Therefore, an initial 

regulatory flexibility analysis is not 

required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. There 

are no operation, management, and 

maintenance activities of utility 

facilities (e.g., hydropower facilities, 

powerlines, pipelines) that we are aware 

of or that have been known to occur 

within the range of Tiehm’s buckwheat 

and its proposed critical habitat unit. If 

proposed in the future, these are 

activities that the Service consults on 

with Federal agencies (and their 

respective permittees, including utility 

companies) under section 7 of the Act. 

As discussed in the DEA, the costs 

associated with consultations related to 

occupied critical habitat would be 

largely administrative in nature and are 

not anticipated to reach $100 million in 

any given year based on the anticipated 

annual number of consultations and 

associated consultation costs, which are 

not expected to exceed $37,000 per year 

(2021 dollars) (IEc 2021, p. 13). In our 

economic analysis, we did not find that 

this proposed critical habitat 

designation would significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following finding: 

(1) This proposed rule would not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, or Tribal governments, or 

the private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it is not 

anticipated to reach a Federal mandate 

of $100 million in any given year; that 

is, it is not a ‘‘significant regulatory 

action’’ under the Unfunded Mandates 

Reform Act. The designation of critical 

habitat imposes no obligations on State 

or local governments. Small 

governments could be affected only to 

the extent that any programs having 

Federal funds, permits, or other 

authorized activities must ensure that 


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their actions will not adversely affect 

the critical habitat. By definition, 

Federal agencies are not considered 

small entities, although the activities 

they fund or permit may be proposed or 

carried out by small entities. 

Consequently, we do not believe that 

the proposed critical habitat designation 

would significantly or uniquely affect 

small government entities. Therefore, a 

Small Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with Executive Order 

12630 (Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights), we 

have analyzed the potential takings 

implications of designating critical 

habitat for Tiehm’s buckwheat in a 

takings implications assessment. The 

Act does not authorize the Service to 

regulate private actions on private lands 

or confiscate private property as a result 

of critical habitat designation. 

Designation of critical habitat does not 

affect land ownership, or establish any 

closures or restrictions on use of or 

access to the designated areas. 

Furthermore, the designation of critical 

habitat does not affect landowner 

actions that do not require Federal 

funding or permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. However, Federal agencies are 

prohibited from carrying out, funding, 

or authorizing actions that would 

destroy or adversely modify critical 

habitat. A takings implications 

assessment has been completed for the 

proposed designation of critical habitat 

for Tiehm’s buckwheat, and it 

concludes that, if adopted, this 

designation of critical habitat does not 

pose significant takings implications for 

lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with Executive Order 

13132 (Federalism), this proposed rule 

does not have significant federalism 

effects. A federalism summary impact 

statement is not required. In keeping 

with Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this 

proposed critical habitat designation 

with, appropriate State resource 

agencies. From a federalism perspective, 

the designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the Federal Government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The proposed 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule would not unduly burden the 

judicial system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, this proposed rule identifies the 

physical or biological features essential 

to the conservation of the species. The 

proposed areas of critical habitat are 

presented on maps, and the proposed 

rule provides several options for the 

interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with regulations 

adopted pursuant to section 4(a) of the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This position was upheld 

by the U.S. Court of Appeals for the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied 516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

There are no Tribal lands included in 

this proposed designation of critical 

habitat. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Reno Fish 

and Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 


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Assessment Team and the Reno Fish 

and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 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. 

■ 2. Amend § 17.96, in paragraph (a), by 

adding an entry for ‘‘Family 

Polygonaceae: Eriogonum tiehmii 

(Tiehm’s buckwheat)’’ in alphabetical 

order to read as follows: 

§ 17.96 Critical habitat—plants. 

(a) * * * 

Family Polygonaceae: Eriogonum 

tiehmii (Tiehm’s buckwheat) 

(1) The critical habitat unit is 

depicted for Esmeralda County, Nevada, 

on the map in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of Tiehm’s buckwheat 

consist of the following: 

(i) Plant community. A plant 

community that supports all life stages 

of Tiehm’s buckwheat includes: 

(A) Open to sparsely vegetated areas 

with low native plant cover and stature. 

(B) An intact, native vegetation 

assemblage that can include, but is not 

limited to, Atriplex confertifolia 

(shadscale saltbush), Hilaria jamesii 

(James’ galleta), and Sporobolus airoides 

(alkali sacaton) to protect Tiehm’s 

buckwheat from nonnative, invasive 

plant species and provide the habitats 

needed by Tiehm’s buckwheat’s insect 

visitors and pollinators. 

(C) A diversity of native plants whose 

blooming times overlap to provide 

insect visitors and pollinator species 

with flowers for foraging throughout the 

seasons and to provide nesting and egglaying sites; appropriate nest materials; 

and sheltered, undisturbed habitat for 

hibernation and overwintering of 

pollinator species and insect visitors. 

(ii) Pollinators and insect visitors. 

Sufficient pollinators and insect 

visitors, particularly bees, wasps, 

beetles, and flies, are present for the 

species’ successful reproduction and 

seed production. 

(iii) Hydrology. Hydrology that is 

suitable for Tiehm’s buckwheat consists 

of dry, open, relatively barren, upland 

sites subject to occasional precipitation 

from rain and/or snow for seed 

germination. 

(iv) Suitable soils. Soils that are 

suitable for Tiehm’s buckwheat consist 

of: 

(A) Light-colored, rocky soils derived 

from an uncommon formation of 

interbedded claystones, shales, 

tuffaceous sandstones, and limestones. 

(B) Soils that are poor, with little 

development; lack an A horizon; and are 

full of broken pieces of the parent 

bedrock. 

(C) Soils characterized by a variety of 

textures, and include clay soils, sandy 

clay loams, sandy loams, and loams. 

(D) Soils with pH ranges from 7.64 to 

8.76. 

(E) Soils that commonly have on 

average boron and bicarbonates present 

at higher levels, and potassium. zinc, 

sulfur, and magnesium present at lower 

levels. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on [EFFECTIVE DATE OF 

THE FINAL RULE]. 

(4) Data layers defining the map unit 

were created by the Service, and the 

critical habitat unit was then mapped 

using Universal Transverse Mercator 

Zone 11N coordinates. The map in this 

entry, as modified by any accompanying 

regulatory text, establishes the 

boundaries of the critical habitat 

designation. The coordinates or plot 

points or both on which the map is 

based are available to the public at 

https://www.regulations.gov at Docket 

No. FWS–R8–ES–2020–0017 and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting the 

Service regional office, the address of 

which is listed at 50 CFR 2.2. 

(5) Rhyolite Ridge Unit, Esmeralda 

County, Nevada. 

(i) The Rhyolite Ridge Unit consists of 

approximately 910 acres (368 hectares) 

of occupied habitat in the Rhyolite 

Ridge area of the Silver Peak Range in 

Esmeralda County, Nevada. All lands 

within this unit are under Federal 

ownership (Bureau of Land 

Management). 

(ii) Map of the Rhyolite Ridge Unit 

follows: 

BILLING CODE 4333–15–P 


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khammond on DSKJM1Z7X2PROD with PROPOSALSEP03FE22.043</GPH>

Figure 1 toEriogonum tiehmii (Tiehm's buckwheat) paragraph (5)(ii) 

ll 

Rhyolite Ridge Unit: 

Critical Habitat for Tiehm·s buckwheat 

Esmeralda County, Nevada 

N 

A 

Legend 

1111 Tiehm's buckwheat subpopulations 

-- Roads 

JS:f~~,~ffl Tiehm's buckwheat critical habitat 

0 1 ---=======-----Miles 0.5 

--====---•Kilometers 

0 0.5 1 

N 

A 
6118 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02298 Filed 2–2–22; 8:45 am] 

BILLING CODE 4333–15–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2019–0018; 

FF09E22000 FXES1113090FEDR 223] 

RIN 1018–BE09 

Endangered and Threatened Wildlife 

and Plants; Reclassification of the 

Red-Cockaded Woodpecker From 

Endangered to Threatened With a 

Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; revisions and 

reopening of comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

October 8, 2020, proposed rule to 

reclassify the red-cockaded woodpecker 

(Dryobates borealis) as a threatened 

species with a rule issued under section 

4(d) of the Endangered Species Act of 

1973 (Act), as amended. This action will 

allow all interested parties the 

opportunity to comment on the revised 

proposed section 4(d) rule language set 

forth in this document, which addresses 

concerns raised in the public comments 

we received on the October 8, 2020, 

proposed rule. Comments previously 

submitted on the proposed 

reclassification of the red-cockaded 

woodpecker and previously proposed 

section 4(d) rule need not be 

resubmitted, as they will be fully 

considered in preparation of the final 

determination. 

DATES: The public comment period on 

the proposed rule that published on 

October 8, 2020, at 85 FR 63474, is 

reopened. We will accept comments 

received or postmarked on or before 

March 7, 2022. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2019–0018, 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–R4–ES–2019–0018, 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: 

This document and supporting 

materials (including the species status 

assessment report and references cited) 

are available at https://

www.regulations.gov under Docket No. 

FWS–R4–ES–2019–0018 and at the 

Southeast Regional Office (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Aaron Valenta, Chief, Division of 

Restoration and Recovery, U.S. Fish and 

Wildlife Service, Southeast Regional 

Office, 1875 Century Boulevard, 

Atlanta, GA 30345; telephone 404–679– 

4144. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Requested 

We intend that any final action 

resulting from the October 8, 2020, and 

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 and information from 

other governmental agencies, Native 

American Tribes, the scientific 

community, industry, or any other 

interested party concerning these 

proposed rules. 

We particularly seek comments or 

information on regulations that are 

necessary and advisable for the 

conservation and management of the 

red-cockaded woodpecker, including 

whether the measures outlined in this 

document for the revised proposed 

section 4(d) rule are necessary and 

advisable for the conservation of the 

red-cockaded woodpecker. Specifically, 

we seek comments on: 

(1) Whether the included prohibitions 

in the revised proposed section 4(d) rule 

would adequately and appropriately 

provide for the conservation of the redcockaded woodpecker; 

(2) Whether it is appropriate to except 

incidental take that results from redcockaded woodpecker management and 

military training activities on 

Department of Defense (DoD) 

installations with a Service-approved 

integrated natural resources 

management plan (INRMP); 

(3) Whether different or additional 

conditions, if any, should be applied to 

the exception for DoD installations in 

order to provide adequately for the 

conservation of the red-cockaded 

woodpecker; 

(4) Whether it is appropriate to except 

incidental take that results from habitat 

management activities intended to 

restore or maintain red-cockaded 

woodpecker habitat on Federal land 

management agency properties; 

(5) Whether different or additional 

conditions, if any, should be applied to 

the exception for Federal land 

management agency properties in order 

to provide adequately for the 

conservation of the red-cockaded 

woodpecker; 

(6) Whether it is appropriate to except 

incidental take associated with 

prescribed burns and the application of 

herbicides on private lands when 

compatible with maintaining any 

known red-cockaded woodpecker 

populations; 

(7) Whether different or additional 

conditions, if any, should be applied to 

the exception for prescribed burns and 

the application of herbicides on private 

lands in order to provide adequately for 

the conservation of the red-cockaded 

woodpecker; 

(8) Whether it is appropriate to except 

incidental take that results from the 

installation of artificial cavity inserts 

and drilled cavities on public and 

private lands; 

(9) Whether different or additional 

conditions, if any, should be applied to 

the exception for the installation of 

artificial cavities in order to provide 

adequately for the conservation of the 

red-cockaded woodpecker; 

(10) Whether we should provide 

additional clarity on the minimum 

diameter of trees that are appropriate for 

selection for installation of artificial 

cavities and, if so, what the best 

available science indicates regarding a 

universally applicable minimum tree 

diameter; 

(11) Whether any other forms of take 

should be excepted from the 

prohibitions in the revised proposed 

section 4(d) rule; 


khammond on DSKJM1Z7X2PROD with PROPOSALS