Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8509 

2. Should the Commission include 

MTOs in a proposed demurrage billing 

regulation? 

3. Should a proposed demurrage 

billing regulation distinguish between 

the demurrage MTOs charge to shippers 

and the demurrage MTOs charge to 

VOCCs? That is, should the Commission 

regulate the format in which MTOs bill 

VOCCs? 

4. What percentage of demurrage and 

detention bills contain inaccurate 

information, and which information is 

most often disputed? 

5. How much does the type of 

information included on or with 

demurrage and detention billings vary 

among common carriers, among marine 

terminal operators, and between VOCCs 

and NVOCCs? 

B. Minimum billing information. 

6. What type of information should be 

required on billings. Should the 

Commission require certain essential 

information included on invoices such 

as: 

a. Bill of lading number 

b. Container number 

c. Billing date 

d. Payment due date 

e. Start/end of free time 

f. Start/end of demurrage/detention/per 

diem clock 

g. Demurrage/detention/per diem rate 

schedule 

h. Location of the notice of the charge 

(i.e., tariff, service contract number 

and section or MTO schedule) 

i. For import shipments: 

i. Vessel arrival date 

ii. Container availability date 

j. For export shipments: 

i. Earliest return date, including 

identifying any modifications to the 

earliest return date 

k. Any intervening clock-stopping 

events, for example: 

i. Unavailability of container 

ii. Unavailability of pickup or return 

locations 

iii. Unavailability of appointments 

(where applicable) 

iv. Restrictions on chassis accepted 

v. Force majeure-related events 

l. Please note if any portion of the 

charge is a pass-through of charges 

levied by the MTO or Port. 

C. Billing practices. 

7. What information or timeframes 

should be required for VOCC and 

NVOCC demurrage and detention bills? 

Should the Commission require 

different types of information or 

timeframes? 

8. Do common carriers invoice 

multiple parties for demurrage and/or 

detention charges? If multiple parties 

are invoiced for charges, should the 

billing party be required to identify all 

such parties receiving an invoice for the 

charges at issue? 

9. Should the billing party be required 

to identify the basis of why the invoiced 

party is the proper party in interest and 

therefore liable for the charges? (i.e., as 

shipper, consignee, beneficial cargo 

owner, motor carrier or an agent, or as 

a party acting on behalf of another party 

pursuant to the common carrier’s 

merchant clause in its bill of lading.) 

10. Should the Commission, for 

purposes of clarity and visibility of 

charges, require MTOs to bill demurrage 

directly to shippers (rather than billing 

VOCCs who then bill shippers for 

demurrage)? In that scenario, MTOs 

would bill shippers directly for 

demurrage, and carriers would continue 

to bill detention to shippers. 

11. How long from the point of 

accrual of a demurrage or detention 

charge does it typically take to receive 

a demurrage or detention invoice or 

billing? 

12. Should the Commission require 

demurrage and detention invoices to be 

issued within 60 days of date when the 

detention/demurrage/per diem stops 

accruing? 

13. Should the Commission require 

specific information be included on the 

invoice regarding how to dispute a 

charge? If so, what information should 

be required? For example, should the 

Commission require invoices to include 

contact information for disputing 

charges, identify circumstances for 

when a charge may be waived, or 

identify the billing parties’ evidentiary 

requirements sufficient to support a 

waiver of the charges? 

14. How long from the point of 

dismissal of a charge does it typically 

take to receive a refund? Should the 

Commission require that refunds of 

demurrage or detention bills be issued 

within a certain time period and what 

should that timeframe be? 

15. How would a regulation on 

demurrage and detention billing 

requirements impact, conflict with, or 

preempt any other applicable laws, 

regulations, or arrangements (such as 

the UIIA)? 

16. Please provide any other views or 

data you believe would help inform the 

Commission’s decision whether to 

pursue a proposed regulation on 

demurrage and detention billing 

information and practices. 

By the Commission. 

William Cody, 

Secretary. 

[FR Doc. 2022–02981 Filed 2–14–22; 8:45 am] 

BILLING CODE 6730–02–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 22–39; RM–11917; DA 

22–87; FR ID 71247] 

Television Broadcasting Services; 

Billings, Montana; Correction 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule; correction. 

SUMMARY: The Federal Communications 

Commission published a document in 

the Federal Register of February 4, 

2022, concerning a petition for 

rulemaking filed by Scripps 

Broadcasting Holdings LLC, licensee of 

KTVQ(TV), channel 10, Billings, 

Montana, requesting the substitution of 

channel 20 for channel 10 in the Table 

of Allotments. The document contained 

the incorrect call sign of the licensee. 

The document also contained an 

incorrect licensee name. 

DATES: February 15, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Joyce Bernstein, Media Bureau, at (202) 

418–1647 or Joyce.Bernstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: 

Correction 

In FR Doc. 2022–02337, in the 

Federal Register of February 4, 2022, 

appearing on page 6473, in the third 

column, correct the first sentence in the 

SUMMARY caption to read: 

SUMMARY: The Federal Communications 

Commission (Commission) has before it 

a petition for rulemaking filed by 

Scripps Broadcasting Holdings LLC 

(Petitioner), the licensee of KTVQ(TV), 

channel 10, Billings, Montana. 

Dated: February 7, 2022. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

[FR Doc. 2022–03069 Filed 2–14–22; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2021–0041; 

FF09E21000; FXES1111090FEDR 223] 

RIN 1018–BE65 

Endangered and Threatened Wildlife 

and Plants; Endangered Species for 

Prostrate Milkweed and Designation of 

Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 


lotter on DSK11XQN23PROD with PROPOSALS1
8510 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the prostrate milkweed (Asclepias 

prostrata), a plant species from Texas, 

as an endangered species and designate 

critical habitat under the Endangered 

Species Act of 1973, as amended (Act). 

This determination also serves as our 

12-month finding on a petition to list 

the prostrate milkweed. After a review 

of the best available scientific and 

commercial information, we find that 

listing the species is warranted. 

Accordingly, we propose to list the 

prostrate milkweed as an endangered 

species. If we finalize this rule as 

proposed, it would add this species to 

the List of Endangered and Threatened 

Plants and extend the Act’s protections 

to the species. We also propose to 

designate critical habitat for the 

prostrate milkweed under the Act. In 

total, approximately 691.3 acres (279.8 

hectares) in Starr and Zapata Counties, 

Texas, fall within the boundaries of the 

proposed critical habitat designation. 

We also announce the availability of a 

draft economic analysis of the proposed 

designation of critical habitat for 

prostrate milkweed. 

DATES: We will accept comments 

received or postmarked on or before 

April 18, 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 April 1, 2022. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter 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 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–R2–ES–2021–0041, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

The species status assessment report 

and the draft economic analysis are 

available at https://www.regulations.gov 

under Docket No. FWS–R2–ES–2021– 

0041. For the critical habitat 

designation, the coordinates or plot 

points or both from which the maps are 

generated are included in the decision 

file and are available at https://

www.fws.gov/southwest/es/ 

TexasCoastal/, at https://

www.regulations.gov under Docket No. 

FWS–R2–ES–2021–0041, and at the 

Texas Coastal Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). Any additional tools or 

supporting information that we may 

develop for the critical habitat 

designation will also be available at the 

Service website and field office set out 

above and may also be included in this 

preamble and/or at https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Chuck Ardizzone, Field Supervisor, 

Texas Coastal Ecological Services Field 

Office, 17629 El Camino Real, Suite 211, 

Houston, TX 77058; telephone 281– 

286–8282. 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, if we determine that a species 

warrants listing, we are required to 

promptly publish a proposal in the 

Federal Register, unless doing so is 

precluded by higher-priority actions and 

expeditious progress is being made to 

add and remove qualified species to or 

from the List of Endangered and 

Threatened Wildlife and Plants. The 

Service will make a determination on 

our proposal within 1 year. If there is 

substantial disagreement regarding the 

sufficiency and accuracy of the available 

data relevant to the proposed listing, we 

may extend the final determination for 

not more than six months. To the 

maximum extent prudent and 

determinable, we must designate critical 

habitat for any species that we 

determine to be an endangered or 

threatened species under the Act. 

Listing a species as an endangered or 

threatened species and designation of 

critical habitat can only be completed 

by issuing a rule. 

What this document does. We 

propose to list the prostrate milkweed as 

an endangered species under the Act, 

and we propose the designation of 

critical habitat for the species. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that competition from 

introduced invasive grass; habitat loss 

and degradations from root-plowing and 

conversion of native vegetation to 

improved buffelgrass pasture; habitat 

loss from right of way (ROW) 

construction and maintenance from 

energy development and road and 

utility construction; habitat loss from 

border security development and 

enforcement activities (Factor A); and 

the demographic and genetic 

consequences of small population sizes 

(Factor E) are threats to the prostrate 

milkweed. 

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

Secretary of the Interior (Secretary) to 

designate critical habitat concurrent 

with listing to the maximum extent 

prudent and determinable. Section 

3(5)(A) of the Act defines critical habitat 

as: (i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed, on which 

are found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

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

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8511 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Biological or ecological 

requirements of the species, including 

habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) Factors that may affect the 

continued existence of the species, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors. 

(3) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to this species 

and existing regulations that may be 

addressing those threats. 

(4) Additional information concerning 

the historical and current status, range, 

distribution, and population size of this 

species, including the locations of any 

additional populations of this species. 

(5) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

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

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may be not prudent: 

(a) The species is threatened by taking 

or other human activity 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. 

(6) Specific information on: 

(a) The amount and distribution of 

prostrate milkweed habitat; 

(b) What areas, that are occupied at 

the time of listing and that contain the 

physical or biological features essential 

to the conservation of the species, 

should be included in the designation 

and why; 

(c) Any additional areas occurring 

within the range of the species, 

including Starr and Zapata Counties, 

Texas, 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 protection that may be 

needed in critical habitat areas we are 

proposing, including managing for the 

potential effects of climate change; and 

(e) What areas not occupied at the 

time of 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 at least one physical 

or 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. 

(7) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(8) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the related benefits of including or 

excluding specific areas. 

(9) Information on the extent to which 

the description of probable economic 

impacts in the draft economic analysis 

is a reasonable estimate of the likely 

economic impacts and any additional 

information regarding probable 

economic impacts that we should 

consider. 

(10) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

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

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act, in 

particular for the critical habitat units 

on privately owned lands. If you think 

we should exclude any additional areas, 

please provide credible information 

regarding the existence of a meaningful 

economic or other relevant impact 

supporting a benefit of exclusion. 

(11) 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. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the species is threatened instead of 

endangered, or we may conclude that 

the species does not warrant listing as 

either an endangered species or a 

threatened species. For critical habitat, 

our final designation may not include 

all areas proposed, may include some 

additional areas that meet the definition 


lotter on DSK11XQN23PROD with PROPOSALS1
8512 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

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 

On June 25, 2007, we received a 

petition, dated June 18, 2007, from 

Forest Guardians (now WildEarth 

Guardians) that included the prostrate 

milkweed. On December 16, 2009, we 

published a 90-day finding (74 FR 

66866) that the petition presented 

substantial information that prostrate 

milkweed may be warranted for listing. 

At that time, we initiated a status review 

of the species. 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

prostrate milkweed. The SSA team was 

composed of Service biologists, in 

consultation with other species experts. 

The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. In accordance with 

our joint policy on peer review 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), and our 

August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought the expert opinions of six 

appropriate specialists regarding the 

SSA report. The Service received two 

responses. The Service also sent the 

SSA report to one partner, a botanist 

from the Texas Parks and Wildlife 

Department, and received a review from 

this partner. 

I. Proposed Listing Determination 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the prostrate 

milkweed (Asclepias prostrata) is 

presented in the SSA report (Service 

2020, entire). Prostrate milkweed is an 

herbaceous, flowering plant in the 

Apocynaceae (dogbane) family. It is 

native to Texas, USA, and Tamaulipas 

and eastern Nuevo Leo ́n, Mexico. 

Prostrate milkweed is a perennial 

species with cream, yellow, greenish, or 

pinkish flowers (Blackwell 1964, p. 

178). This species is distinctive in its 

prostrate habit; the leaves and stems 

sprawl outward along the surface of the 

ground. It is found in open spaces with 

full sun, and with little to no 

competition from surrounding plants 

(Poole and Janssen 1997, p. 117). It 

occurs in a subtropical, semiarid climate 

in sparsely vegetated habitats, including 

grasslands, savannas, and open areas of 

the Tamaulipan shrubland ecological 

region, on level or gently sloping 

uplands (Singhurst et al. 2015, p. 25; 

Carr 2011, pp. 37–38; Damude and 

Poole 1990, p. 13; Strong and 

Williamson 2015, p. 36). Prostrate 

milkweed occurs primarily in deep, 

loose, sandy soils formed over 

sandstone or indurated caliche 

(hardened soil layer cemented by 

calcium and magnesium carbonates) 

(Carr 2011, pp. 37–38; Strong and 

Williamson 2015, p. 36). 

Like all milkweeds, prostrate 

milkweed flowers have a unique and 

complex structure and pollination 

system. Pollinators are attracted to the 

copious nectar produced deep within 

the flower. To reach the nectar, insects 

of a particular size are forced against the 

flower’s central stalk in such a way that 

pollinia, which are sack-like structures 

full of pollen grains, adhere to their legs. 

When the insect visits another flower of 

the same species, the pollinia are often 

wedged against the stigma (the receptive 

female structure) and detach, thus 

delivering a large load of pollen and 

effecting fertilization. The closelyrelated zizotes milkweed, Asclepias 

oenotheroides, is effectively pollinated 

by very large wasps called tarantula 

hawks (species of Pepsis and 

Hemipepsis), and it is likely that these 

wasps and large bees also pollinate 

prostrate milkweed. Due to their 

relatively large size and the abundance 

of nectar produced by the flowers, these 

pollinators are able to fly relatively large 

distances between nectar sources 

(Gathman and Tscharntke 2002, entire; 

Greenleaf et al. 2007, entire). Hence, it 

is likely that prostrate milkweed can 

reproduce even when individuals are 

widely distributed at very low densities, 

due to the uniquely effective pollination 

system, large nectar reward, and large 

forage range of its pollinators. 

Fertilized flowers of prostrate 

milkweed produce capsules with about 

100 seeds each. The seeds have long, 

silky, white hairs and are dispersed by 

wind (Damude and Poole 1990, pp. 4– 

5; Richardson and King 2011, p. 76). 

Seed production of milkweeds is often 

resource limited (La Rosa and Conner 

2017, p. 151); resources for prostrate 

milkweed include rainfall, pollinators, 

and open, sparsely vegetated habitat. 

Prostrate milkweed remains as tubers, 

up to 12 inches (in) (30 centimeters 

(cm)) underground that are dormant 

during long droughts. New stems are 

stimulated to emerge from the soil by 

infrequent, heavy rainfall, and set seed 

following wildfire or, historically, a 

passing herd of bison has cleared 

competing grasses and forbs, and the 

deluges of tropical storms briefly 

replenish moisture. The species exists 

where competition from other plants is 

periodically reduced by wildfire or 

grazing. These life-history traits allow 

the species to rebound after periods of 

inhospitable conditions, and wellmanaged livestock grazing, which 

simulates the effects of bison, and 

rangeland management, including brush 

thinning and prescribed burning, can 

return an unsuitable area to conditions 

more suitable for prostrate milkweed. 

As a result, sufficiently resilient 

prostrate milkweed populations may be 

maintained on well-managed 

rangelands. Livestock grazing is the 

primary economic use of privatelyowned land throughout the range of 

prostrate milkweed in Texas and 

northeast Mexico, although the 

management regime of these rangelands 

is unknown. This adaptation also 

enables prostrate milkweed to occur 

along mowed road rights-of-way (ROWs) 

and in rangelands where soils are intact. 

Therefore, while there may be prostrate 

milkweed populations on these 

rangelands, we do not have evidence 

that they are present, nor do we have 

information that the grazing is managed 

in such a way as to promote resilient 

populations. However, it is unlikely to 

remain where soils are disturbed by 

plowing, bulldozing, or road grading 

because this destroys the tubers, 

preventing any plant regrowth. 

In the United States, prostrate 

milkweed occurs in south Texas from 

northwest Zapata County to the vicinity 

of Roma, in Starr County. All known 

U.S. populations are within 8 miles of 

the Rio Grande (Strong and Williamson 

2015, pp. 34–35). In Mexico, known 

locations for this species occur in 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8513 

isolated pockets widely scattered in 

northern Tamaulipas and eastern Nuevo 

Leo ́n, many over 100 miles (mi) (160 

kilometers (km)) from the Rio Grande 

(Strong and Williamson 2015, p. 35). 

The historical range of prostrate 

milkweed is unknown; therefore, it is 

presumed to be approximately the same 

as the current range in southern Texas 

and northern Mexico. However, the 

distribution of populations throughout 

this range may have been more 

abundant in the past. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

endangered species or a threatened 

species. The Act defines an endangered 

species as a species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range,’’ and a 

threatened species as a species that is 

‘‘likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range.’’ The Act requires that we 

determine whether any species is an 

endangered species or a threatened 

species because of any of the following 

factors: 

(A) The present or threatened destruction, 

modification, or curtailment of its habitat or 

range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing regulatory 

mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Service can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent a decision by the 

Service on whether the species should 

be proposed for listing as an endangered 

or threatened species under the Act. 

However, it does provide the scientific 

basis that informs our regulatory 

decisions, which involve the further 

application of standards within the Act 

and its implementing regulations and 

policies. The following is a summary of 

the key results and conclusions from the 

SSA report; the full SSA report can be 

found at Docket FWS–R2–ES–2021– 

0041 on https://www.regulations.gov 

and at https://www.fws.gov/southwest/ 

es/TexasCoastal/. 

To assess prostrate milkweed 

viability, we used the three conservation 

biology principles of resiliency, 

redundancy, and representation (Shaffer 

and Stein 2000, pp. 306–310). Briefly, 

resiliency supports the ability of the 

species to withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy supports the ability of the 

species to withstand catastrophic events 

(for example, droughts, large pollution 

events), and representation supports the 

ability of the species to adapt over time 

to long-term changes in the environment 

(for example, climate changes). In 

general, the more resilient and 

redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 


lotter on DSK11XQN23PROD with PROPOSALS1
8514 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

sustain populations in the wild over 

time. We use this information to inform 

our regulatory decision. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. 

For the prostrate milkweed to 

maintain viability, its populations or 

some portion thereof must have 

sufficient resiliency, redundancy, and 

representation. Several factors influence 

the resiliency of prostrate milkweed 

populations, including abundance and 

recruitment rate, in addition to elements 

of the species’ habitat that determine 

whether prostrate milkweed 

populations can grow. These resiliency 

factors and habitat elements are 

discussed in detail in the SSA report 

and summarized here. 

Species Needs 

Abundance—Prostrate milkweed 

abundance is difficult to assess due to 

its ability to remain dormant for 

multiple years until the necessary 

environmental conditions occur. 

Individual plants may emerge only a 

few times per decade, and not all plants 

will emerge at the same time (Price 

2005, pers. comm.; Best 2017, pers. 

comm.). Therefore, we considered 

populations to be extant if plants have 

been observed within the past 40 years 

(Hammerson et al. 2008, entire; Strong 

2020, pers. comm.) and with available 

habitat (i.e., not paved over) or with 

restorable habitat (i.e., nonnative grass 

could be removed). 

Populations of prostrate milkweed 

must be large enough to have a high 

probability of enduring random 

demographic and environmental 

variation. For example, species or 

populations may be classified as 

vulnerable when the probability of 

persisting 100 years is less than 90 

percent (Mace and Lande 1991, p. 151). 

This metric of population resilience, 

called minimum viable population 

(MVP), refers to the smallest population 

size that has a high probability of 

surviving over a specified period of 

time. Calculations of MVP require data 

that are not currently available for 

prostrate milkweed. As a practical 

alternative, we estimated the likely MVP 

range of prostrate milkweed by 

comparing it to species with similar lifehistory traits for which MVPs have been 

calculated (Pavlik 1996, p. 137). This 

method estimates a highly resilient 

population of prostrate milkweed has 

1,600 or more adult individuals (Service 

2020, p. 38). 

Determinations of MVP usually 

consider the effective population size, 

rather than total number of individuals 

(Pavlik 1996, entire); 10 genetically 

identical individuals (for example, 

clones or ramets) would have an 

effective population size of one. Because 

prostrate milkweed is likely selfincompatible and does not appear to 

form clonal colonies, the effective 

population size is likely to be nearly the 

same as the total population size. 

Recruitment Rate—A stable or 

increasing population requires 

recruitment rates that equal or exceed 

mortality rates (Service 2020, p. 38). All 

stages of recruitment, from flowering 

and seed production to germination and 

establishment, occur when the soil has 

available moisture. The porous soils of 

prostrate milkweed habitat dry quickly 

after a single heavy thunderstorm. Based 

on observations of other perennial forbs 

in this ecosystem, recruitment probably 

occurs during periods of extended 

rainfall, meaning multiple rain events 

over a period of several weeks (Service 

2020, p. 38). These events are rare in 

this semiarid region. Consequently, we 

expect that successful recruitment may 

occur only once or a few times per 

decade. Similarly, most mortality 

probably occurs during years of 

extended drought. Hence, both 

recruitment and mortality would have 

strong pulses and observed population 

sizes would vary widely from year to 

year, leading to potentially spurious 

interpretations of demographic trends 

(Service 2020, p. 38). 

Populations of prostrate milkweed 

require habitats that also support 

healthy populations of large native bees 

and wasps (Service 2020, p. 38). Native 

bees in turn require a diversity and 

abundance of native forb and shrub 

species that provide pollen and nectar. 

Tarantula hawks (Pepsis spp. and 

Hemipepsis spp.) may also be important 

pollinators of prostrate milkweed; 

tarantula hawks require healthy 

populations of their prey species, 

tarantulas (Best 2020, pers. comm.). 

Prostrate milkweed populations 

require competition from grasses and 

forbs to be periodically reduced (Service 

2020, p. 38). This requirement, which 

has been observed in other milkweed 

species, may be an adaptation to 

wildfire (Baum and Sharber 2012, pp. 

968–971). Although mowing or 

livestock grazing can also reduce 

competition, it is likely that prostrate 

milkweed is adapted to grasslands that 

were sustained by periodic wildfires 

(Service 2020, p. 39). 

Canopy Cover—Canopy cover refers 

to shade from trees, shrubs, prickly pear 

cactuses, or tall (>1 meter (m)) grass. 

Resilient prostrate milkweed 

populations need an open canopy with 

little or no herbaceous cover (Service 

2020, p. 3). Therefore, the species may 

occur in areas that mimic historical 

wildfire or grazing, such as along 

mowed road rights-of-way (Service 

2020, p. 3). 

Ground Cover—Ground cover refers 

to vegetation growing at the herbaceous 

layer (approximately <1 m) that would 

compete with prostrate milkweed plants 

for resources. Resilient prostrate 

milkweed populations need an open 

canopy with little or no herbaceous 

cover, so there is little competition with 

other plants (Service 2020, p. 3). 

Risk Factors for Prostrate Milkweed 

We reviewed the potential risk factors 

(i.e., threats, stressors) that may affect 

prostrate milkweed now and in the 

future. In this proposed rule, we will 

discuss only those factors in detail that 

could meaningfully impact the status of 

the species. Those risks that are not 

known to have effects on prostrate 

milkweed populations, such as 

quarrying/mining, hybridization, 

pollinator decline, and climate change, 

are not discussed here but are evaluated 

in the SSA report. The primary risk 

factors (i.e., threats) affecting the status 

of prostrate milkweed are: (1) 

Competition from introduced invasive 

grasses (Factor A from the Act); (2) 

habitat loss from root-plowing and 

conversion of native vegetation to 

pasture (Factor A); (3) habitat loss from 

ROW construction and maintenance 

from energy development and road and 

utility construction (Factor A); (4) 

habitat loss from border security 

development and enforcement activities 

(Factor A); and (5) the demographic and 

genetic consequences of small 

population sizes and population 

fragmentation (Factor E). 

Competition From Nonnative Invasive 

Grasses 

Nonnative invasive grass species 

displace native plants by competing for 

water, nutrients, and light, and their 

dense root systems prevent germination 

of native plant seeds (Texas Invasives 

2019, unpaginated). Buffelgrass 

(Pennisetum ciliare) is a perennial 

bunchgrass introduced from Africa that 

is now one of the most abundant 

introduced grasses in south Texas, and 

the most prevalent invasive grass within 

the range of prostrate milkweed. Since 

the 1950s, Federal and State land 

management agencies have promoted 

buffelgrass as a forage grass in south 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8515 

Texas (Smith 2010, p. 113). Buffelgrass 

is very well-adapted to the hot, semiarid climate of south Texas due to its 

drought resistance and ability to 

aggressively establish in heavily grazed 

landscapes (Smith 2010, p. 113). 

Buffelgrass continues to be planted in 

areas affected by drought and 

overgrazing to stabilize soils and to 

increase rangeland productivity. 

Buffelgrass often creates homogeneous 

monocultures by out-competing native 

plants for essential resources (Lyons et 

al. 2013, p. 8), and it produces 

phytotoxins in the soil that inhibit the 

growth of neighboring native plants (Vo 

2013, unpaginated). Furthermore, 

prescribed burning used for brush 

control promotes buffelgrass forage 

production in south Texas (Hamilton 

and Scifres 1982, p. 11). 

Most prostrate milkweed plants have 

been observed where buffelgrass is 

absent or at low densities (Eason 2019, 

pers. comm.; Strong 2019, pers. comm.). 

On national wildlife refuge lands, 

prostrate milkweed was found in areas 

where native grass was still dominant, 

but not where buffelgrass or woody 

vegetation was present in dense stands 

(Best 2005, p. 3). The unpaved ROWs on 

private lands in south Texas for oil and 

gas wells, wind farms, service roads, 

pipelines, and powerlines could benefit 

prostrate milkweed through the periodic 

mowing of road margins. However, 

disturbed soils along ROWs are rapidly 

colonized by buffelgrass. 

The Texas Natural Diversity Database 

(TXNDD) lists invasive species, 

primarily buffelgrass, as a pervasive 

threat of extreme severity to prostrate 

milkweed. The TXNDD defines a 

pervasive threat as one that affects all or 

most (71–100 percent) of a species’ 

populations, occurrences, or extent. An 

extreme level of severity is one that is 

likely to destroy or eliminate 

occurrences or habitat or reduce 

population sizes by 71–100 percent 

(TXNDD 2016). It is likely that 

buffelgrass has negatively impacted all 

Texas populations (TXNDD 2019–2020, 

entire; Eason 2019, pers. comm.; 

Kieschnick 2019, pers. comm.; Santore 

2019, unpaginated). Competition from 

buffelgrass is the greatest threat to 

prostrate milkweed. 

Root-Plowing and Conversion of Native 

Grassland and Savanna 

Root-plowing is a brush control 

method that uses powerful tracked 

vehicles to excavate the roots of woody 

plants with heavy steel subsoil rippers 

that dig several feet into the ground. The 

dead trees and shrubs are then burned, 

and the root-plowed soils are planted 

with buffelgrass for livestock grazing. 

Root-plowing and conversion to 

buffelgrass pasture is a widely 

conducted practice in south Texas and 

northeast Mexico, occurring in much of 

the potential habitat of prostrate 

milkweed. Extensive areas of recently 

root-plowed lands can be identified in 

aerial photographs. These practices have 

been and are still subsidized by the 

United States Department of Agriculture 

(USDA) Natural Resources Conservation 

Service and its precursor, the USDA 

Soil Conservation Service. 

Root-plowing temporarily reduces the 

encroachment of woody plants into the 

grassland component of former 

savannas. The conversion of native 

habitats to improved pastures 

dominated by buffelgrass or other 

introduced grasses greatly reduces the 

abundance and diversity of most native 

grass and forb species (Woodin et al. 

2010, p. 1). Very few, if any, prostrate 

milkweed plants survive following rootplowing and buffelgrass planting. This 

is likely due to the excavation and 

desiccation of most tubers during rootplowing; subsequently, the few 

remaining individuals decline due to 

competition from dense buffelgrass 

cover. 

Conversely, prostrate milkweed 

occurs in well-managed rangelands, 

provided that the soil was not 

previously root-plowed or otherwise 

disturbed (Service 2020, p. 53). Most 

milkweed species are unpalatable to 

cattle, and often increase in abundance 

on grazed lands. Livestock, including 

cattle, sheep, and horses, graze 

preferentially on grasses and forbs 

(broad-leaved herbaceous plants), 

including buffelgrass, and non-toxic 

herbaceous plants, and therefore reduce 

competition with prostrate milkweed 

from these plants (Service 2020, p. 41). 

In addition to grazing, livestock may 

also reduce competition with prostrate 

milkweed by trampling herbaceous 

plants (Service 2020, p. 41). Because 

prostrate milkweed is often observed in 

the wheel ruts of dirt roads, it appears 

to be unusually tolerant of trampling; 

thus, the effect of livestock trampling is 

minimal (Service 2020, pp. 41–42). 

Periodic livestock grazing reduces 

competition from native and introduced 

grasses. In South Texas, over-grazed 

rangelands typically become invaded by 

woody plants, reducing the habitat 

suitability for prostrate milkweed. 

Hence, management practices that 

promote sustainable grazing of native 

grasses are beneficial to prostrate 

milkweed (Service 2020, p. 41). 

Road and ROW Construction and 

Maintenance 

Oil and gas exploration and wind 

energy development are occurring at a 

rapid pace in Starr and Zapata Counties. 

Seismic exploration and the 

construction of roads and caliche pads 

for oil and gas wells and wind turbines 

can destroy plants and their habitats 

within the construction footprint 

(Reemts et al. 2014, pp. 123 and 125; 

Leslie 2016, p. 49). Additionally, graded 

service roads and other permanent 

structures may indirectly affect the 

hydrology of surrounding habitats by 

diverting and channeling water through 

drainage culverts. Invasive buffelgrass 

quickly colonizes disturbed roadsides, 

then invades adjacent habitats. Heavy 

vehicle traffic during oil and gas well 

drilling and wind farm construction 

may increase the frequency of road 

maintenance, such as grading or 

widening (Pen ̃ a 2019, pers. comm.). 

Grading or blading a caliche road 

involves scraping the road’s surface 

with a large heavy blade to remove ruts 

and roadside vegetation. Increased 

frequency of road maintenance that 

removes above-ground portions of 

plants could reduce or eliminate 

prostrate milkweed flower and fruit 

production. Conversely, grading or 

blading of caliche roads conducted 

during the milkweed’s dormant periods 

may benefit the species by temporarily 

reducing competition from grasses and 

forbs (TXNDD 2019, p. 11). TXNDD 

(2019) ranks road expansion as a 

pervasive threat (affects all or most (71– 

100 percent) of a species’ populations, 

occurrences, or extent) of extreme 

severity to prostrate milkweed. 

All or parts of nine prostrate 

milkweed occurrences are in the 

margins of improved highway ROWs. 

All of these highway ROW populations 

have declined since they were first 

observed, likely due to the frequency of 

soil disturbance and invasive grass 

competition (Service 2020, p. 40). In 

addition, from 2010 to 2012, Texas 

Department of Transportation (TxDOT) 

widened segments of U.S. Highway 83 

that affected at least three known 

prostrate milkweed sites: Arroyo del 

Tigre Grande, Mission Mier a Visita, and 

Arroyo Roma (Strong and Williamson 

2015, p. 51; Paradise 2019, pers. 

comm.). TxDOT has also scheduled 

additional road widening or 

construction at five known prostrate 

milkweed populations: Arroyo del Tigre 

Grande, Arroyo del Tigre Chiquito, 

Arroyo de los Mudos, Mission Mier a 

Visita, and Arroyo Roma (TxDOT 2019, 

unpaginated). U.S. Customs and Border 

Protection (CBP) has scheduled road 


lotter on DSK11XQN23PROD with PROPOSALS1
8516 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

improvements at the prostrate milkweed 

population site located in the Arroyo 

Morteros tract of the Lower Rio Grande 

Valley National Wildlife Refuge (NWR) 

(Vallejo 2019, pers. comm.). 

In contrast, all or parts of three 

prostrate milkweed occurrences are in 

the margins of unpaved rural roads. 

These relatively stable populations have 

persisted in narrow strips of native 

vegetation between the gravel or caliche 

roadbeds and the fence lines of adjacent 

private properties. The soils in these 

narrow, naturally vegetated strips have 

never been excavated, and they have 

relatively little buffelgrass cover. 

The installation of natural gas 

pipelines and fiber-optic cables has 

removed prostrate milkweed plants in 

the Dolores and Arroyo del Tigre 

Chiquito populations in the past 

(Damunde and Poole 1990, p. 32; 

Boydston 1993, unpaginated; Campos 

1993, unpaginated). In 1995, 

Southwestern Bell installed a fiber-optic 

cable in the Highway 83 ROW, 2.6 miles 

south of the Webb-Zapata County line, 

which removed at least 100 individuals 

at the Dolores population (Service 1995, 

p. 1). In 1993, prior to the fiber-optic 

cable installation, this population was 

estimated to have 100 to 200 individuals 

(TXNDD 2019, entire) and was the 

largest known population of prostrate 

milkweed. 

In summary, prostrate milkweed faces 

risks from ROWs and road construction 

and maintenance associated with oil 

and gas activities, wind energy 

development, and utility and pipeline 

corridor construction. 

Border Security Development and 

Enforcement Activities 

All known Texas populations of 

prostrate milkweed are within 9 miles 

(14.5 km) of the Texas-Mexico border. 

To address border security concerns, 

additional border barrier construction 

was proposed in the Rio Grande Valley, 

including the Arroyo Morteros tract of 

the Lower Rio Grande Valley NWR. 

Should border wall construction occur, 

and depending on the alignment, 

construction could remove prostrate 

milkweed plants that occur within the 

construction footprint. Additionally, 

CBP plans to improve roads across this 

tract (Vallejo 2019, pers. comm.) and 

may also install new drag strips along 

existing roads. Drag strips are 13- to 16- 

foot (ft) (4- to 5-m) -wide swaths cleared 

of all vegetation and regularly scraped 

to keep the soil surface loose, in order 

to detect recent foot traffic. Due to the 

high gypsum content, soils in this area 

are extremely vulnerable to gully 

erosion. Hence, the unvegetated, 

continually disturbed drag strips may 

exacerbate soil erosion and impact a 

much wider area. TXNDD ranks drag 

strip construction within prostrate 

milkweed populations as a small threat 

(defined as a threat that affects 1–10 

percent of the total population or 

occurrences or extent) with an extreme 

level of severity (likely to destroy or 

eliminate occurrences or habitat, or 

reduce population by 71–100 percent) 

(TXNDD 2016). Consequently, the 

construction of border barriers, roads, 

and drag strips are potential threats of 

high magnitude to prostrate milkweed 

populations, depending on their 

alignment, design, and proximity to 

populations and local topography. 

Native plant populations are legally 

protected on NWRs and, if listed under 

the Act, have additional legal 

protections from federally funded or 

regulated actions. However, a provision 

of the REAL ID Act of 2005 gives the 

Secretary of Homeland Security 

authority to waive other Federal laws, 

including the Endangered Species Act, 

in order to expedite construction of 

border barriers. Therefore, border barrier 

construction on private and public 

lands is exempt from consultation with 

the Service under section 7 of the Act. 

During the previous phase of border 

barrier construction, beginning in 2007, 

the Department of Homeland Security 

(DHS) and the Service coordinated to 

establish best management practices for 

the federally listed plants and animals 

in the project impact area (DHS 2008); 

nevertheless, these best management 

practices did not address prostrate 

milkweed. 

Small Population Sizes and Population 

Fragmentation 

Small, isolated populations are more 

vulnerable to catastrophic losses caused 

by random fluctuations in recruitment 

(demographic stochasticity) or 

variations in rainfall or other 

environmental factors (environmental 

stochasticity) (Service 2016, p. 20). 

Small, reproductively isolated 

populations are susceptible to the loss 

of genetic diversity, to genetic drift, and 

to inbreeding (Barrett and Kohn 1991, 

pp. 3–30). Due to the small size and 

isolation of prostrate milkweed 

populations, several may already suffer 

from genetic bottlenecks, genetic drift, 

inbreeding, and loss of allelic diversity. 

In addition to population size, it is 

likely that population density and 

connectivity also influence population 

viability (Service 2020, p. 51). Prostrate 

milkweed is very likely to be an obligate 

outcrosser (fertilization between 

different individuals), as are most other 

Asclepias species, which requires that 

genetically compatible individuals be 

clustered within the forage range of the 

native pollinators for reproduction to 

occur (Service 2020, p. 51). While the 

specific pollinators of this species have 

not been revealed, they are likely to be 

large bees or wasps, and the forage range 

could be up to several kilometers. If this 

is the case, viable populations of 

prostrate milkweed could be dispersed 

at very low densities over relatively 

large areas, provided that they lie within 

fairly contiguous habitats that are 

traversed by pollinating insects. Thus, 

the small, isolated clusters of prostrate 

milkweed that have been documented, 

principally along public roads that slice 

through large expanses of potential 

habitat on private lands, may represent 

only tiny fractions of larger, highly 

dispersed populations (Service 2020, p. 

51). 

Based strictly on the available 

scientific data, the documented 

populations of prostrate milkweed are 

all far below the estimated MVP level 

and may be affected by the demographic 

and genetic consequences of small 

population sizes and by fragmentation 

of populations. 

Summary 

Our analysis of the past, current, and 

future influences on the needs of 

prostrate milkweed for long-term 

viability revealed several threats that 

pose a risk to current and future 

viability: Competition from introduced 

invasive grass (buffelgrass); rootplowing of rangelands; development of 

new oil and gas wells, wind energy 

farms, roads, pipelines, and utility 

corridors; development of new border 

barriers and drag strips; and the 

demographic and genetic consequences 

of small population sizes and 

population fragmentation. Conversely, 

well-managed livestock grazing of 

rangeland is compatible with 

management of prostrate milkweed 

habitat and may actually benefit this 

species. 

Species Condition 

The current condition of prostrate 

milkweed takes into account the current 

status and risks to its populations. In the 

SSA report, for each population, we 

developed and assigned condition 

categories for two demographic factors 

and two habitat factors that are 

important for viability of prostrate 

milkweed. The condition scores for each 

factor were then used to estimate the 

probability of persistence over the next 

30 years. Populations were rated high, 

moderate, or low when that probability 

is greater than 90 percent, between 60 

and 90 percent, or between 10 and 60 

percent, respectively. Functionally 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8517 

extirpated populations are not expected 

to persist over 30 years or are already 

extirpated. 

There are 24 populations of prostrate 

milkweed remaining in Starr and Zapata 

Counties, Texas, and in Tamaulipas and 

eastern Nuevo Leo ́n, Mexico (see Table 

1, below). The species range extends 

more than 200 miles (320 kilometers) 

from northwest to southeast. In Texas, 

one population, Dolores, is somewhat 

isolated in northern Zapata County, 

with the nearest known population 

approximately 25 miles (40 km) away. 

In Mexico, eight known populations are 

located in isolated pockets widely 

scattered in Tamaulipas and eastern 

Nuevo Leo ́n. However, botanists have 

only surveyed a small proportion of the 

species’ range. Furthermore, the species 

remains dormant and undetectable 

except for short periods of time after 

infrequent, heavy rainfall. 

Consequently, although the species is 

certainly rare, its actual abundance is 

difficult to determine. It is likely that, 

historically, populations occurred 

between these areas, connecting the 

populations in Texas and Mexico. 

Because they are widely separated, 

natural gene flow or reestablishment 

following disturbance is very unlikely 

between the 24 known populations. 

Based upon our analysis of current 

conditions of these 24 extant 

populations, none are in high condition, 

5 are in moderate condition, and 19 are 

in low condition. 

TABLE 1—SUMMARY OF CURRENT

CONDITION FOR PROSTRATE MILKWEED

Population name Current 

condition 

Dolores ................................... Low. 

14493 ..................................... Low. 

14491 ..................................... Low. 

Arroyo del Tigre Grande ........ Moderate. 

Arroyo del Tigre Chiquito ....... Low. 

FM 2098 ................................. Low. 

Falcon .................................... Low. 

Los Alvaros ............................ Moderate. 

Arroyo Morteros Tract ............ Moderate. 

Los Arrieros Loop .................. Low. 

Arroyo de los Mudos .............. Low. 

Mission Mier a Visita .............. Low. 

San Julia ́n Road .................... Moderate. 

FM 3167 ................................. Moderate. 

Arroyo Roma .......................... Low. 

Arroyo Ramirez Tract ............. Low. 

Rancho La Coma ................... Low. 

Road to Guerrero Viejo .......... Low. 

Carboneras ............................ Low. 

Punta de Alambre .................. Low. 

Intersection of 101–180 ......... Low. 

Rio El Cata ́n ........................... Low. 

Rancho Loreto North ............. Low. 

Rancho Loreto South ............. Low. 

The two demographic factors used to 

analyze resiliency of prostrate milkweed 

populations are abundance and 

recruitment rate. Related to abundance, 

a highly resilient population of prostrate 

milkweed has 1,600 or more adult 

individuals, a moderately resilient 

population has from 800 to 1,600 

mature individuals, and a population 

with less than 800 mature individuals 

has low resilience (Service 2020, p. 38). 

Prostrate milkweed populations have 

high resiliency if the recruitment rate is 

greater than or equal to 25 percent of 

individuals producing viable seeds per 

year. Moderately resilient populations 

have recruitment rates of between 15 

and 24 percent per year, and 

populations with low resiliency have 

recruitment rates of less than 15 percent 

per year (Service 2020, p. 57). 

The two habitat factors used to 

analyze resiliency of prostrate milkweed 

populations were canopy cover and 

ground cover. Highly resilient 

populations have less than 30 percent 

canopy cover and have all bare ground 

or are sparsely vegetated with mostly 

native grass and/or forbs. Moderately 

resilient populations have between 30 

and 60 percent canopy cover and are 

sparsely vegetated with a mixture of 

native and nonnative grasses and/or 

forbs. Minimally resilient populations 

have between 61 and 100 percent 

canopy cover and a dense ground cover 

of native or introduced grasses and forbs 

and little or no bare ground (Service 

2020, p. 57). 

Redundancy is low for this species 

due to low numbers of populations in 

moderate to high condition for 

resiliency, making prostrate milkweed 

populations vulnerable to extirpations 

from catastrophic events. Because 

buffelgrass invasion is prevalent in this 

area, ecological diversity among the 

known populations is limited. Further, 

the populations are isolated and 

widespread across the range, and 

therefore gene flow among the 

populations is limited. As a 

consequence of these current 

conditions, the viability of the prostrate 

milkweed now primarily depends on 

maintaining and restoring the remaining 

isolated populations and potentially 

discovering or reintroducing new 

populations where feasible. 

As part of the SSA, we also developed 

three plausible future scenarios to 

capture the range of uncertainties 

regarding future threats and the 

projected responses by the prostrate 

milkweed. Our scenarios included a 

continuing conditions scenario, which 

incorporated the current risk factors 

continuing on the same trajectory that 

they are on now. We also evaluated a 

conservation scenario and a scenario 

with increased stressors. Because we 

determined that the current condition of 

the prostrate milkweed is consistent 

with an endangered species (see 

Determination of Species Status, below), 

we are not presenting the results of the 

future scenarios in this proposed rule. 

Please refer to the SSA report (Service 

2020) for the full analysis of future 

scenarios. 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have not only 

analyzed individual effects on the 

species, but we have also analyzed their 

potential cumulative effects. We 

incorporate the cumulative effects into 

our SSA analysis when we characterize 

the current and future condition of the 

species. To assess the current and future 

condition of the species, we undertake 

an iterative analysis that encompasses 

and incorporates the threats 

individually and then accumulates and 

evaluates the effects of all the factors 

that may be influencing the species, 

including threats and conservation 

efforts. Because the SSA framework 

considers not just the presence of the 

factors, but to what degree they 

collectively influence risk to the entire 

species, our assessment integrates the 

cumulative effects of the factors and 

replaces a standalone cumulative effects 

analysis. 

Determination of Prostrate Milkweed 

Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

endangered species as a species ‘‘in 

danger of extinction throughout all or a 

significant portion of its range,’’ and 

threatened species as a species ‘‘likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range.’’ The 

Act requires that we determine whether 

a species meets the definition of 

endangered species or threatened 

species because of any of the following 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

Overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) Disease or predation; (D) 

The inadequacy of existing regulatory 

mechanisms; or (E) Other natural or 

manmade factors affecting its continued 

existence. 

Status Throughout All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 


lotter on DSK11XQN23PROD with PROPOSALS1
8518 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

the threats under the section 4(a)(1) 

factors, we found that, of the 24 known 

prostrate milkweed populations 

remaining, 19 are small and isolated and 

are low resiliency, and five have 

moderate resiliency and connection to 

other populations, and none have high 

resiliency. Several factors pose a threat 

to prostrate milkweed, including 

competition from introduced invasive 

grass; habitat loss and degradations from 

root-plowing and conversion of native 

vegetation to improved buffelgrass 

pasture; habitat loss from ROW 

construction and maintenance from 

energy development and road and 

utility construction; habitat loss from 

border security development and 

enforcement activities (Factor A from 

the Act); and the demographic and 

genetic consequences of small 

population sizes (Factor E). 

All the aforementioned threats are 

currently affecting the known 

populations of prostrate milkweed. 

Buffelgrass has already negatively 

impacted all of the Texas populations 

(TXNDD 2019–2020, entire; Eason 2019, 

pers. comm.; Kieschnick 2019, pers. 

comm.; Santore 2019, unpaginated) and 

will continue to do so in the future. 

Habitat loss and degradation from rootplowing and conversion of native 

vegetation to improved buffelgrass 

pasture has also already been occurring 

for many years (Service 2020, p. 40). 

Habitat loss from ROW construction and 

maintenance from energy development 

and road and utility construction has 

already been observed from oil and gas 

development occurring in Zapata 

County. As of November 2019, no wind 

turbines, oil or gas well pads, pipelines, 

or energy service roads have been 

constructed directly within known 

prostrate milkweed populations. 

However, some Starr County prostrate 

milkweed populations are less than 2.0 

km (1.2 mi) from existing wind turbines 

(Service 2020, pp. 42–43), and a few 

wind energy farms are expected to be 

constructed in the future, which could 

lead to additional habitat loss. Habitat 

loss from border security development 

and enforcement activities has occurred 

in recent years and is expected to 

continue into the future. And, finally, 

the demographic and genetic 

consequences of small population sizes 

is a current threat to the prostrate 

milkweed. This situation is not 

expected to change into the future. 

In addition to the current threats, 

redundancy and representation are also 

limited. There are twenty-four known 

populations that are distributed widely 

across its range, and the majority of 

those populations are currently in low 

condition. Should a catastrophic event 

occur, the populations are vulnerable to 

extirpation because they are small and 

isolated from each other. The small, 

reproductively isolated populations are 

also susceptible to the loss of genetic 

diversity, genetic drift, and inbreeding 

due to random fluctuations in 

recruitment (demographic stochasticity) 

or variations in rainfall or other 

environmental factors (environmental 

stochasticity). Because of the overall 

species’ current resiliency, redundancy, 

and representation, prostrate milkweed 

is currently in danger of extinction 

throughout all of its range. We do not 

find the species meets the definition of 

a threatened species because the species 

has already shown low levels in current 

resiliency, redundancy, and 

representation due to the threats 

mentioned above. Thus, after assessing 

the best available information, we 

determine that prostrate milkweed is in 

danger of extinction throughout all of its 

range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. We have 

determined that the prostrate milkweed 

is in danger of extinction throughout all 

of its range and accordingly did not 

undertake an analysis of any significant 

portion of its range. Because the 

prostrate milkweed warrants listing as 

endangered throughout all of its range, 

our determination is consistent with the 

decision in Center for Biological 

Diversity v. Everson, 2020 WL 437289 

(D.D.C. Jan. 28, 2020), in which the 

court vacated the aspect of the Final 

Policy on Interpretation of the Phrase 

‘‘Significant Portion of Its Range’’ in the 

Endangered Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. 

Determination of Status 

Our review of the best available 

scientific and commercial information 

indicates that the prostrate milkweed 

meets the definition of an endangered 

species. Therefore, we propose to list 

the prostrate milkweed as an 

endangered species in accordance with 

sections 3(20) and 4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing results in 

public awareness, and conservation by 

Federal, State, Tribal, and local 

agencies, private organizations, and 

individuals. The Act encourages 

cooperation with the States and other 

countries and calls for recovery actions 

to be carried out for listed species. The 

protection required by Federal agencies 

and the prohibitions against certain 

activities are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning consists of 

preparing draft and final recovery plans, 

beginning with the development of a 

recovery outline and making it available 

to the public within 30 days of a final 

listing determination. The recovery 

outline guides the immediate 

implementation of urgent recovery 

actions and describes the process to be 

used to develop a recovery plan. 

Revisions of the plan may be done to 

address continuing or new threats to the 

species, as new substantive information 

becomes available. The recovery plan 

also identifies recovery criteria for 

review of when a species may be ready 

for reclassification from endangered to 

threatened (‘‘downlisting’’) or removal 

from protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Recovery teams 

(composed of species experts, Federal 

and State agencies, nongovernmental 

organizations, and stakeholders) are 

often established to develop recovery 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8519 

plans. When completed, the recovery 

outline, draft recovery plan, and the 

final recovery plan will be available on 

our website (https://www.fws.gov/ 

endangered), or from our Texas Coastal 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, State, and Tribal lands. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the State of Texas would be eligible 

for Federal funds to implement 

management actions that promote the 

protection or recovery of the prostrate 

milkweed. Information on our grant 

programs that are available to aid 

species recovery can be found at: 

https://www.fws.gov/grants. 

Although the prostrate milkweed is 

only proposed for listing under the Act 

at this time, please let us know if you 

are interested in participating in 

recovery efforts for this species. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 

the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with the Service. 

Federal agency actions within the 

species’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

include management and any other 

landscape-altering activities on Federal 

lands administered by the U.S. Fish and 

Wildlife Service. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered plants. The prohibitions 

of section 9(a)(2) of the Act, codified at 

50 CFR 17.61, make it illegal for any 

person subject to the jurisdiction of the 

United States to: Import or export; 

remove and reduce to possession from 

areas under Federal jurisdiction; 

maliciously damage or destroy on any 

such area; remove, cut, dig up, or 

damage or destroy on any other area in 

knowing violation of any law or 

regulation of any State or in the course 

of any violation of a State criminal 

trespass law; deliver, receive, carry, 

transport, or ship in interstate or foreign 

commerce, by any means whatsoever 

and in the course of a commercial 

activity; or sell or offer for sale in 

interstate or foreign commerce an 

endangered plant. Certain exceptions 

apply to employees of the Service, the 

National Marine Fisheries Service, other 

Federal land management agencies, and 

State conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered plants under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.62. With regard to endangered 

plants, a permit may be issued for 

scientific purposes or for enhancing the 

propagation or survival of the species. 

The statute also contains certain 

exemptions from the prohibitions, 

which are found in sections 9 and 10 of 

the Act. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. Based on the best available 

information, the following actions are 

unlikely to result in a violation of 

section 9, if these activities are carried 

out in accordance with existing 

regulations and permit requirements; 

this list is not comprehensive: 

(1) Normal agricultural and 

silvicultural practices, including 

herbicide and pesticide use, that are 

carried out in accordance with any 

existing regulations, permit and label 

requirements, and best management 

practices; and 

(2) Normal residential landscaping 

activities on non-Federal lands; and 

(3) Recreational use with minimal 

ground disturbance. 

Based on the best available 

information, the following activities 

may potentially result in a violation of 

section 9 of the Act if they are not 

authorized in accordance with 

applicable law; this list is not 

comprehensive: 

(1) Unauthorized handling, removing, 

trampling, or collecting of prostrate 

milkweed on Federal land; and 

(2) Removing, cutting, digging up, or 

damaging or destroying prostrate 

milkweed in knowing violation of any 

law or regulation of the State of Texas 

or in the course of any violation of a 

State criminal trespass law. 

II. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

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

include those areas used throughout all 

or part of the species’ life cycle, even if 

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

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 


lotter on DSK11XQN23PROD with PROPOSALS1
8520 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat’’ as, for 

the purposes of designating critical 

habitat only, ‘‘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. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Designation also does 

not allow the government or public to 

access private lands, nor does 

designation 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 the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

As the regulatory definition of 

‘‘habitat’’ reflects (50 CFR 424.02), 

habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

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

regulatory protections afforded by the 

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

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of the species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8521 

efforts if new information available at 

the time of those planning efforts calls 

for a different outcome. 

Prudency Determination 

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

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

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

As discussed earlier in this document, 

there is currently no imminent threat of 

collection or vandalism identified under 

Factor B for this species, and 

identification and mapping of critical 

habitat is not expected to initiate any 

such threat. In our SSA and proposed 

listing determination for prostrate 

milkweed, we determined that the 

present or threatened destruction, 

modification, or curtailment of habitat 

or range is a threat to prostrate 

milkweed and that those threats in some 

way can be addressed by section 7(a)(2) 

consultation measures. We are able to 

identify areas that meet the definition of 

critical habitat where the species occurs 

in the United States. Therefore, because 

none of the circumstances enumerated 

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 not 

be prudent, we have determined that the 

designation of critical habitat is prudent 

for prostrate milkweed. 

Critical Habitat Determinability 

Having determined that designation is 

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

we must find whether critical habitat for 

the prostrate milkweed 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 this 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 the prostrate 

milkweed. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features (PBFs) 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 lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkaline soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary 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 

species, we may consider an appropriate 

quality, quantity, and spatial and 

temporal arrangement of habitat 

characteristics in the context of the lifehistory needs, condition, and status of 

the species. These characteristics 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

Geological Substrate and Soils 

Prostrate milkweed grows in welldrained sandy soils of the Tamaulipan 

shrubland region of south Texas and 

northeast Mexico (Service 2020, pp. 22– 

26). In Starr and Zapata Counties, Texas, 

the soils of documented sites overlie 

Eocene and Oligocene sandstones and 

clays of the Laredo, Yegua, and Jackson 

geological formations (Stoeser et al. 

2005). In some occupied sites, a stratum 

of indurated caliche may also be 

present; in south Texas, caliche refers to 

soil strata of precipitated calcium 

carbonate formed during the early 

Pliocene (Spearing 1998, pp. 258, 398; 

Baskin and Hulbert, Jr. 2008, p. 93). Soil 

types of these occupied sites include 

deep eolian Hebbronville sands, Copita 

fine sandy loam, Brennan fine sandy 

loam, eroded Maverick soils, Catarina 

clay, and Zapata soils (USDA 1972; 

USDA 2011). Elevated levels of gypsum 

are present at some sites. 

The climate of the Tamaulipan 

shrubland region is subtropical and 

semi-arid. Much of the region’s 

precipitation occurs during infrequent 

periods of heavy rainfall that interrupt 

prolonged spells of very hot, dry 

weather. Rainfall readily infiltrates into 

the well-drained sandy soils of prostrate 

milkweed habitats, but moisture does 


lotter on DSK11XQN23PROD with PROPOSALS1
8522 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

not persist long in these soils. Many 

occupied sites have underlying strata of 

sandstone; these barriers to root growth 

limit the establishment of trees and 

taller shrubs. The growth of many plant 

species is also limited by high soil 

gypsum concentrations in some 

occupied sites. The rapid drying of soil, 

impenetrable rock strata, and high 

gypsum are all factors that reduce 

competition from woody plants, grasses, 

and other herbaceous plants. 

Prostrate milkweed forms tubers 

underground that are able to persist in 

a dormant condition for one to several 

years. The species responds very 

quickly to rainfall; the tubers sprout 

new stems that emerge, flower, and set 

seed in a matter of weeks, and the plants 

store carbohydrates, minerals, and water 

in tubers. Then the above-ground 

portions die back during hot, dry 

weather. Prostrate milkweed does not 

occur in areas of higher rainfall or 

where moisture persists longer in 

deeper silty or clayey soils. The species 

does not persist when occupied sites 

develop a dense shrub overstory or 

dense cover of grasses. We conclude 

that prostrate milkweed is endemic to 

sites where it escapes competition from 

other plants through its unique 

adaptation to ephemeral soil moisture, 

prolonged drought, and tolerance of 

high gypsum concentrations. 

Therefore, well-drained sandy soil 

overlying sandstone or indurated 

caliche strata is an essential physical 

feature of prostrate milkweed critical 

habitats. A high soil gypsum 

concentration contributes to the habitat 

suitability of some sites by reducing 

competition, and is an essential 

physical feature. 

Ecological Community 

Within the Tamaulipan shrubland 

ecological region, prostrate milkweed 

inhabits arid subtropical grasslands and 

shrub savannas. It requires an open 

canopy, where there is little or no shade 

from trees and shrubs, and relatively 

little competition from grasses and 

herbaceous plants; the estimated 

combined cover of woody plants, 

grasses, and herbaceous plants at a site 

in Zapata County was less than 30 

percent (Damude and Poole 1990, p. 16). 

It is likely that naturally occurring 

wildfires, in the past, maintained the 

relatively open structure of these plant 

communities (Scifres and Hamilton 

1993, pp. 8–21). We have observed an 

increased abundance of other Texas 

species of Asclepias, including antelope 

horns (A. asperula), Emory’s milkweed 

(A. emoryi), zizotes milkweed (A. 

oenotheroides), and wand milkweed (A. 

viridiflora), during the first few years 

after sites have burned; this firefollowing effect has been described for 

green milkweed (A. viridis) (Baum and 

Sharber 2012, entire). Prostrate 

milkweed, like other milkweeds, may 

also be stimulated to grow and flower 

after wildfires have reduced 

competition. 

Most Asclepias species require 

outcrossing for effective fertilization of 

flowers. All Asclepias species have 

highly specialized pollination 

mechanisms that require animal 

pollinators to carry pollen from one 

individual to another. Although the 

effective pollinators of prostrate 

milkweed have not been determined, 

these are likely to include large bees and 

wasps. For example, the closely related 

zizotes milkweed is effectively 

pollinated by very large wasps called 

tarantula hawks (Pepsis spp. and 

Hemipepsis spp.) (Service 2020, pp. 17, 

35–36). Therefore, prostrate milkweed 

habitats must also support populations 

of large bees and wasps that, in turn, 

require abundant, diverse sources of 

pollen and nectar. Much like 

milkweeds, many pollen and nectar 

plants are fire followers that are most 

abundant in sites that burn periodically, 

but decline when fires are infrequent. 

Buffelgrass is an African grass that is 

widely planted in south Texas for 

livestock forage. Buffelgrass is highly 

invasive, and frequently displaces 

native grasses and herbaceous plants 

(Best 2009, pp. 310–311), including 

prostrate milkweed (Service 2020, pp. 

39–40) and the pollen and nectar plants 

needed to support pollinator 

populations. The majority of prostrate 

milkweed plants have been observed in 

disturbed soils where buffelgrass is 

absent or at low densities (Eason 2019, 

pers. comm.; Strong 2019, pers. comm.). 

Prostrate milkweed requires an open 

canopy with less than 30 percent cover 

of native and nonnative grasses and 

herbaceous plants combined (Damude 

and Poole 1990, p. 16); so, assuming 

nonnative buffelgrass is more prevalent, 

we estimate that 20 percent or less cover 

of buffelgrass is at a low enough density 

for prostrate milkweed to survive. 

Therefore, prostrated milkweed habitats 

must also have less than 20 percent 

cover of buffelgrass for prostrate 

milkweed to have access to sufficient 

resources such as sunlight. 

In summary, the essential biological 

features of prostrate milkweed critical 

habitats are: (1) Open savannas and 

grasslands of the Tamaulipan shrubland 

ecological region; (2) vegetation 

composition that includes abundant, 

diverse pollen and nectar plants and 

healthy populations of native bee and 

wasp species; and (3) less than 20 

percent cover of buffelgrass. Periodic 

prescribed burning may be necessary to 

maintain the open structure and diverse 

composition of the species’ habitats. 

Summary of Essential Physical or 

Biological Features 

Additional information can be found 

in the SSA report (Service 2020, 

available on https://

www.regulations.gov under Docket No. 

FWS–R2–ES–2021–0041). We have 

determined that the following physical 

or biological features are essential to the 

conservation of prostrate milkweed: 

(1) Well-drained sandy soil overlying 

strata of sandstone or indurated caliche; 

(2) High soil gypsum concentration; 

(3) Open savannas and grasslands of 

the Tamaulipan shrubland ecological 

region; 

(4) Vegetation composition that 

includes abundant, diverse pollen and 

nectar plants and healthy populations of 

native bee and wasp species; and 

(5) Less than 20 percent cover of 

buffelgrass. 

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 that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

this species may require special 

management considerations or 

protection to reduce the following 

threats: Nonnative invasive grass; rootplowing and conversion of native 

vegetation to buffelgrass pasture; ROW 

construction and maintenance from 

energy development and road and 

utility construction; border security 

development and law enforcement 

activities; and small population sizes. 

Management activities that could 

ameliorate these threats include, but are 

not limited to: Prescribed burning, 

grazing, and/or brush thinning; 

nonnative invasive grass control; 

protection from activities that disturb 

the soil; and propagation and 

reintroduction of plants in restorable 

areas. 

In summary, we find that the 

occupied areas we are proposing to 

designate as critical habitat contain the 

PBFs that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection. Special 

management considerations or 

protection may be required of the 

Federal action agency to eliminate, or to 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8523 

reduce to negligible levels, the threats 

affecting the PBFs of each unit. 

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. While 

prostrate milkweed needs additional 

populations to reduce the likelihood of 

extinction in the future, we are not able 

to identify additional locations that may 

have a reasonable certainty of 

contributing to conservation at this time 

due to limited access to privately owned 

lands and information regarding lands 

that would be good candidates for 

introductions in the species’ range. 

In summary, for areas within the 

geographic area occupied by the species 

at the time of listing, we delineated 

critical habitat unit boundaries using 

the following criteria. First, using 

ArcGIS software, we identified potential 

habitats in Starr and Zapata Counties 

that have the essential features of 

geology and soils described above. The 

geographic information we obtained 

about the known populations exists as: 

(1) Vegetation surveys of entire tracts of 

land; (2) Element Occurrence (EO) 

polygons represented in the TXNDD; or 

(3) points and lines represented in the 

TXNDD. We then adapted methods to 

delineate critical habitats for each type 

of geographic information. 

We delineated all of the potential 

habitats that occur at the Arroyo 

Ramirez tract and the Arroyo Morteros 

tract of the Lower Rio Grande Valley 

NWR as proposed critical habitat (Units 

2 and 5). The Lower Rio Grande Valley 

NWR comprises several disconnected 

land parcels, rather than one big land 

area, and these parcels are referred to as 

‘‘tracts.’’ The two tracts that are 

included in proposed Units 2 and 5 are 

isolated areas of refuge land. These 

NWR tracts are managed for the 

conservation of native plants and 

animals, and we have conducted plant 

surveys and have extensive knowledge 

of habitat suitability of these tracts. 

Similarly, we delineated all of the 

potential habitats that occur at a private 

ranch (Unit 6) that is managed for 

wildlife and plant conservation as 

proposed critical habitat. The 

landowner has granted access for plant 

surveys and vegetation studies to 

researchers from the Texas Parks and 

Wildlife Department, academic 

institutions, and the Service. Two of the 

known populations are represented as 

polygons in the TXNDD located in the 

ROWs of unpaved county roads in Starr 

County. We have no information about 

the land uses or habitat suitability of 

areas outside these polygons. We 

delineated all of the potential habitats 

that occur within these polygons (Units 

4 and 7) as proposed critical habitat. 

Three of the known populations are 

represented as one or more points or 

lines in the TXNDD located on privately 

owned land. We have no information 

about the land uses or habitat suitability 

of areas outside the points and lines. 

Because critical habitats must be areas, 

not points or lines, we delineated all 

areas of potential habitat within a buffer 

of 50 m (164 ft) from these points and 

lines as proposed critical habitat units; 

we chose the 50-m distance because the 

TXNDD also used a 50-m buffer for most 

of these features to account for 

estimated geographic precision. To 

complete the delineations of critical 

habitat areas, we overlaid each critical 

habitat area described above on Digital 

Ortho-Quarter Quad aerial photographs 

to identify and exclude any portions of 

sites that consisted of unvegetated road 

beds that are frequently driven and are 

maintained by road grading, as well as 

structures and other developed areas 

that did not contain the geological and 

soil substrates and vegetative cover that 

are essential physical and biological 

features. 

We did not include one historical 

observation that has only approximate 

location data and cannot be mapped. 

We also did not include any of the 

populations reported in the U.S. 

Highway 83 ROW, all of which have 

declined since they were first reported. 

For example, part of EO 3 (Dolores) 

along U.S. 83 had about 200 individuals 

in 1988; four surveys conducted from 

2009 to 2017 found from 0 to 3 

individuals. The degree and frequency 

of soil disturbance in the ROWs of 

improved highways has caused almost 

complete replacement of the native 

plant community with introduced 

species, such as buffelgrass. Hence, the 

essential physical and biological 

features are no longer present along this 

improved highway ROW. For the same 

reasons, we did not include one site in 

the road bed of a Starr County park 

where the species was last observed in 

1995. 

The scale of the maps we prepared 

under the parameters for publication 

within the Code of Federal Regulations 

may not reflect the exclusion of such 

developed lands. Any such lands 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

proposed rule have been excluded by 

text in the proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, if the critical habitat 

is finalized as proposed, a Federal 

action involving these lands would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

We propose to designate as critical 

habitat lands that we have determined 

are occupied at the time of listing (i.e., 

currently occupied) and that contain 

one or more of the physical or biological 

features that are essential to support 

life-history processes of the species. 

Units are proposed for designation 

based on one or more of the physical or 

biological features being present to 

support prostrate milkweed’s lifehistory processes. Some units contain 

all of the identified physical or 

biological features and support multiple 

life-history processes. Some units 

contain only some of the physical or 

biological features necessary to support 

the prostrate milkweed’s particular use 

of that habitat. 

The proposed critical habitat 

designation is defined by the map or 

maps, as modified by any accompanying 

regulatory text, presented at the end of 

this document under Proposed 

Regulation Promulgation. 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 each map is based available to 

the public on https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2021–0041 and on our 

internet site https://www.fws.gov/ 

southwest/es/TexasCoastal/. 

Proposed Critical Habitat Designation 

We are proposing eight units as 

critical habitat for prostrate milkweed. 

The critical habitat areas we describe 

below constitute our current best 

assessment of areas that meet the 

definition of critical habitat for prostrate 

milkweed. The eight areas we propose 

as critical habitat units are all TXNDD 

EOs: Unit 1 (EO 3), Unit 2 (EO 10), Unit 


lotter on DSK11XQN23PROD with PROPOSALS1
8524 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

3 (EO 11), Unit 4 (EO 12), Unit 5 (EO 

15), Unit 6 (EO 16), Unit 7 (EO 17), and 

Unit 8 (EO 22). Table 2 shows the 

proposed critical habitat units and the 

approximate area of each unit. All units 

are occupied. 

TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR PROSTRATE MILKWEED

[Area estimates reflect all land within critical habitat unit boundaries] 

Critical habitat unit Land ownership by type 

Size of unit in 

acres 

(hectares) 

Occupied? 

1 (EO 3) ................................................... County Road ROW and Private ............................................... 10.51 (4.25) Yes. 

2 (EO 10) ................................................. Federal—Service ...................................................................... 105.43 (42.67) Yes. 

3 (EO 11) ................................................. Private ...................................................................................... 4.0 (1.62) Yes. 

4 (EO 12) ................................................. County Road ROW .................................................................. 4.2 (1.7) Yes. 

5 (EO 15) ................................................. Federal—Service ...................................................................... 62.49 (25.29) Yes. 

6 (EO 16) ................................................. County Road ROW and Private ............................................... 484.32 (196.0) Yes. 

7 (EO 17) ................................................. County Road ROW and Private ............................................... 19.35 (7.83) Yes. 

8 (EO 22) ................................................. Private ...................................................................................... 1.04 (0.42) Yes. 

Total .................................................. ................................................................................................... 691.3 (279.8) 

Note: Area sizes may not sum due to rounding. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for prostrate 

milkweed below. 

Unit 1: EO 3 

Unit 1 consists of six areas, totaling 

10.51 ac (4.25 ha), east of highway 83 

in northwest Zapata County. This unit 

is on private land and unpaved county 

road ROWs. The unit is occupied by the 

species and contains one or more of the 

PBFs essential to the conservation of 

prostrate milkweed. Although we have 

no recent information on threats that 

affect this unit, we conclude that this 

unit is affected by invasive nonnative 

grass (buffelgrass) and road maintenance 

operations. Therefore, special 

management considerations may be 

required to reduce invasion of 

nonnative species and impacts from 

ROW maintenance. 

Unit 2: EO 10 

Unit 2 consists of 105.43 ac (42.67 ha) 

in the 699.4-acre Arroyo Ramirez tract 

of Lower Rio Grande Valley NWR. This 

unit is in southwestern Starr County 

adjacent to the Rio Grande on the U.S.- 

Mexico border. The entire unit is on 

land owned and managed by the 

Service. The unit is occupied by the 

species and contains one or more of the 

PBFs essential to the conservation of 

prostrate milkweed. This unit could be 

directly impacted by border barrier 

construction and security operations 

(i.e., drag strips), or indirectly impacted 

by channeling of runoff along the barrier 

during heavy rainfall, in addition to 

invasion of buffelgrass. Therefore, 

special management may be required to 

mitigate impacts from border security 

operations and nonnative grass. 

Unit 3: EO 11 

Unit 3 consists of three areas, totaling 

4.0 ac (1.62 ha), on private land in 

southwestern Starr County. The unit is 

occupied by the species and contains 

one or more of the PBFs essential to the 

conservation of prostrate milkweed. We 

have no recent information on threats 

that affect this unit. 

Unit 4: EO 12 

Unit 4 consists of 4.2 ac (1.7 ha) along 

an unpaved county road ROW in 

southwestern Starr County. This ROW 

supports a narrow strip of diverse native 

vegetation that has likely not been 

plowed, bulldozed, or graded. The unit 

is occupied by the species and contains 

one or more of the PBFs essential to the 

conservation of prostrate milkweed. 

This unit is affected by invasive 

nonnative grass (buffelgrass) and 

maintenance and operation of the 

county road. Therefore, special 

management may be required to reduce 

invasion of nonnative species. 

Unit 5: EO 15 

Unit 5 consists of 62.49 ac (25.29 ha) 

in the 90.8-acre Arroyo Morteros tract of 

the Lower Rio Grande Valley NWR. This 

unit is in southwestern Starr County 

adjacent to the Rio Grande on the U.S.- 

Mexico border. The entire unit is on 

land owned and managed by the 

Service. The unit is occupied by the 

species and contains one or more of the 

PBFs essential to the conservation of 

prostrate milkweed. This unit could be 

directly impacted by border barrier 

construction and security operations 

(i.e., drag strips), or indirectly impacted 

by channeling of runoff along the barrier 

during heavy rainfall, in addition to 

invasion of buffelgrass. Therefore, 

special management may be required to 

mitigate impacts from border security 

operations and nonnative grass. 

Unit 6: EO 16 

Unit 6 consists of 484.32 ac (196.0 ha) 

entirely on the 488.5-acre private 

Martinez Ranch and along a county road 

ROW. This unit is in southern Starr 

County. The owner of the Martinez 

Ranch is a willing conservation partner 

in managing the property’s native plants 

and wildlife. The unit is occupied by 

the species and contains one or more of 

the PBFs essential to the conservation of 

prostrate milkweed. This unit is affected 

by invasive nonnative grass 

(buffelgrass). Therefore, special 

management may be required to reduce 

invasion of nonnative species. 

Unit 7: EO 17 

Unit 7 consists of 19.35 ac (7.83 ha) 

along both sides of an unpaved county 

road ROW and adjacent private land in 

western Starr County. This ROW 

supports a narrow strip of diverse native 

vegetation that has likely not been 

plowed, bulldozed, or graded. The unit 

is occupied by the species and contains 

one or more of the PBFs essential to the 

conservation of prostrate milkweed. 

This unit is affected by invasive 

nonnative grass (buffelgrass) and 

maintenance and operation of the 

county road. Therefore, special 

management may be required to reduce 

invasion of nonnative species. 

Unit 8: EO 22 

Unit 8 consists of 1.04 ac (0.42 ha) on 

private land in central Zapata County. 

The unit is occupied by the species and 

contains one or more of the PBFs 

essential to the conservation of prostrate 

milkweed. Although we have no recent 

information about threats that affect this 

unit, we estimate that this unit is 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8525 

affected by invasive nonnative grass 

(buffelgrass) and development and 

maintenance of oil and gas wells and 

utility corridors. Therefore, special 

management may be required to reduce 

invasion of nonnative species and 

impacts from ROW construction and 

maintenance from energy development 

and road and utility construction. 

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 that 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 the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

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, if subsequent to the previous 

consultation: (1) If the amount or extent 

of taking specified in the incidental take 

statement is exceeded; (2) if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered; (3) if the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion; or (4) if 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, be considered likely 

to destroy or adversely modify critical 

habitat include, but are not limited to: 

(1) Actions that would degrade or 

destroy native plant communities. Such 

activities could include, but are not 

limited to, road building, land clearing 

for oil and gas exploration or other 

purposes, introducing and encouraging 

the spread of nonnative species (i.e., 

buffelgrass), and border security 

operations. However, above-ground 

cutting or thinning of woody plants and 

prescribed burning are recommended 

management practices for conservation 

of prostrate milkweed and other native 

grasses and forbs, and would not 

destroy or adversely modify critical 

habitats. 

(2) Actions that would mechanically 

disturb the soil structure. Such activities 

could include, but are not limited to, 

bulldozing, root-plowing, ripping, 

excavating, or other mechanical 

operations that penetrate deep enough 

into the soil to cut or remove the tubers 

of prostrate milkweed. 

(3) Actions that would increase 

competition from woody plants or 

introduced grasses. Such activities 

could include, but are not limited to, 

intentional planting of introduced grass 

species, such as buffelgrass, 

bermudagrass (Cynodon dactylon), or 


lotter on DSK11XQN23PROD with PROPOSALS1
8526 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

Old World bluestems (introduced 

species of Dichanthium and 

Bothriochloa). 

Exemptions 

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

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

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

Secretary shall not designate as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act (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 

critical habitat if she determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless she 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will 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. 

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

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. 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 

4(b)(2) exclusion analysis. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM) considering the 

probable incremental economic impacts 

that may result from this proposed 

designation of critical habitat. The 

information contained in our IEM was 

then used to develop a screening 

analysis of the probable effects of the 

designation of critical habitat for the 

prostrate milkweed (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 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 

the prostrate milkweed; our DEA is 

summarized in the narrative below. 

Executive Orders (E.O.s) 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 E.O. 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely 

affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8527 

that may result from the proposed 

designation of critical habitat for the 

prostrate milkweed, first we identified, 

in the IEM dated March 11, 2021, 

probable incremental economic impacts 

associated with the following categories 

of activities: (1) Construction of a new 

highway; and (2) potential future border 

wall construction. 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. If we 

list the species, in areas where the 

prostrate milkweed is present, Federal 

agencies would be required to consult 

with the Service under section 7 of the 

Act on activities they fund, permit, or 

implement that may affect the species. 

If, when we list the species, we also 

finalize this proposed critical habitat 

designation, our consultations would 

include an evaluation of measures to 

avoid the destruction or adverse 

modification of critical habitat. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

would result from the species being 

listed and those attributable to the 

critical habitat designation (i.e., 

difference between the jeopardy and 

adverse modification standards) for the 

prostrate milkweed’s critical habitat. 

Because the designation of critical 

habitat for prostrate milkweed was 

proposed concurrently with the listing, 

it has been our experience that it is 

more difficult to discern which 

conservation efforts are attributable to 

the species being listed and those which 

will result solely from the designation of 

critical habitat. However, the following 

specific circumstances in this case help 

to inform our evaluation: (1) The 

essential physical or biological features 

identified for critical habitat are the 

same features essential for the life 

requisites of the species, and (2) any 

actions that would result in sufficient 

harm or harassment to constitute 

jeopardy to the prostrate milkweed 

would also likely adversely affect the 

essential physical or biological features 

of critical habitat. The IEM outlines our 

rationale concerning this limited 

distinction between baseline 

conservation efforts and incremental 

impacts of the designation of critical 

habitat for this species. This evaluation 

of the incremental effects has been used 

as the basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

The proposed critical habitat 

designation for the prostrate milkweed 

includes eight units totaling 691.3 ac 

(279.8 ha). All units are considered 

occupied by the prostrate milkweed and 

contain the physical and biological 

features essential to the conservation of 

the species. We are not proposing to 

designate any units of unoccupied 

habitat. Approximately 24 percent of the 

proposed designation is located on 

Federal land, 4 percent is on countyowned ROWs, and 71 percent is on 

private land. In these areas, any actions 

that may affect the species or its habitat 

would also affect designated 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 prostrate milkweed. 

Therefore, the potential incremental 

economic effects of the critical habitat 

designation are expected to be limited to 

administrative costs. 

While this 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 

predominantly be administrative in 

nature and would not be significant. 

Nearly all (97 percent) of the proposed 

critical habitat overlaps designated 

critical habitat for the endangered 

Zapata bladderpod (Physaria 

thamnophila). Proposed critical habitat 

also overlaps with designated critical 

habitat for the endangered ashy 

dogweed (Thymophylla tephroleuca) 

and star cactus (Astrophytum asterias). 

Because of the overall small size of the 

proposed critical habitat, there would 

likely only be a few consultations, with 

minor conservation efforts that would 

likely result in relatively low probable 

economic impacts. It is likely that the 

majority of costs would occur on two of 

the eight proposed critical habitat units, 

which are on Federal land (both are 

owned by the Service). Any potential 

future border wall construction has been 

paused at this time. 

The probable incremental economic 

impacts of the prostrate milkweed 

critical habitat designation are expected 

to be limited to additional 

administrative effort as well as minor 

costs of conservation efforts resulting 

from a small number of future section 7 

consultations. This is due to the fact 

that all of the proposed critical habitat 

areas are considered to be occupied by 

the species, and incremental economic 

impacts of critical habitat designation, 

other than administrative costs, are 

unlikely. The entities most likely to 

incur incremental costs are parties to 

section 7 consultations, including 

Federal action agencies and, in some 

cases, third parties, most frequently 

State agencies or municipalities. 

Activities we expect would be subject to 

consultations that may involve private 

entities as third parties are residential 

and commercial development that may 

occur on private lands. However, based 

on coordination efforts with State and 

local agencies, the cost to private 

entities within these sectors is expected 

to be relatively minor. We would expect 

no more than 1 formal consultation, 10 

information consultations, and 17 

technical assistance efforts to occur 

annually over the next year in proposed 

critical habitat areas for the prostrate 

milkweed, with annual costs to the 

Service and action agencies of less than 

$37,800. Thus, the annual 

administrative burden is unlikely to 

reach $100 million, which is the 

threshold for a significant regulatory 

action under E.O. 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 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. 


lotter on DSK11XQN23PROD with PROPOSALS1
8528 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

Consideration of National Security 

Impacts 

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

not cover all DoD lands or areas that 

pose potential national-security 

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

in the process of revising its INRMP for 

a newly listed species or a species 

previously not covered). If a particular 

area is not covered under section 

4(a)(3)(B)(i), then national-security or 

homeland-security concerns are not a 

factor in the process of determining 

what areas meet the definition of 

‘‘critical habitat.’’ However, the Service 

must still consider impacts on national 

security, including homeland security, 

on those lands or areas not covered by 

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

4(b)(2) requires the Service to consider 

those impacts whenever it designates 

critical habitat. Accordingly, if DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns, or we have 

otherwise identified national-security or 

homeland-security impacts from 

designating particular areas as critical 

habitat, we generally have reason to 

consider excluding those areas. 

However, we cannot automatically 

exclude requested areas. When DoD, 

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 owned or managed 

by DoD or DHS, or on any other lands. 

In preparing this proposal, we have 

determined that the lands within the 

proposed designation of critical habitat 

for prostrate milkweed are not owned or 

managed by DoD or DHS. Although two 

proposed units of critical habitat are 

located along the border, we do not 

anticipate that there will be an impact 

on national security or homeland 

security. We will work with CBP to 

ensure appropriate collaboration in our 

national security and conservation 

efforts. 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 (SHAs), 

or candidate conservation agreements 

with assurances (CCAAs)—or whether 

there are non-permitted conservation 

agreements and partnerships that may 

be impaired by designation of, or 

exclusion from, critical habitat. In 

addition, we look at whether Tribal 

conservation plans or partnerships, 

Tribal resources, or government-togovernment relationships of the United 

States with Tribal entities may be 

affected by the designation. We also 

consider any State, local, public-health, 

community-interest, environmental, or 

social impacts that might occur because 

of the designation. 

We have not identified any areas to 

consider for exclusion from critical 

habitat based on other relevant impacts 

because areas included in the proposed 

critical habitat are not covered under 

any permitted conservation plans (i.e., 

SHAs), CCAAs, non-permitted 

conservation agreements and 

partnerships, Tribal conservation plans 

or partnerships, or have any State, local, 

public-health, community-interest, 

environmental, or social impacts. 

However, during the development of 

a final designation, we will consider all 

information currently available or 

received during the public comment 

period. If we receive credible 

information regarding the existence of a 

meaningful impact supporting a benefit 

of excluding any areas, we will 

undertake an exclusion analysis and 

determine whether those 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. We may 

also exercise the discretion to undertake 

exclusion analyses for other areas as 

well, and we will describe all of our 

exclusion analyses as part of a final 

critical habitat determination. 

Summary of Exclusions Considered 

Under 4(b)(2) of the Act 

At this time, we are not considering 

any exclusions from the proposed 

designation based on economic impacts, 

national security impacts, or other 

relevant impacts—such as partnerships, 

management, or protection afforded by 

cooperative management efforts—under 

section 4(b)(2) of the Act. In this 

proposed rule, we are seeking credible 

information from the public regarding 

the existence of a meaningful impact 

supporting a benefit of excluding any 

areas that would be used in an 

exclusion analysis that may result in the 

exclusion of areas from the final critical 

habitat designation. (Please see FOR

FURTHER INFORMATION CONTACT for 

instructions on how to submit 

comments). 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8529 

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 E.O. 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. E.O. 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 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

whether potential economic impacts to 

these small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, and as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate the potential incremental 

impacts of rulemaking on those entities 

directly regulated by the rulemaking 

itself; in other words, the RFA does not 

require agencies to evaluate the 

potential impacts to indirectly regulated 

entities. The regulatory mechanism 

through which critical habitat 

protections are realized is section 7 of 

the Act, which requires Federal 

agencies, in consultation with the 

Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies would be directly regulated if 

we adopt the proposed critical habitat 

designation. The RFA does not require 

evaluation of the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities would be directly 

regulated by this rulemaking, the 

Service certifies that, if made final as 

proposed, the proposed critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities. 

In summary, we have considered 

whether the proposed designation 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if made 

final, the proposed critical habitat 

designation would 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. 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 


lotter on DSK11XQN23PROD with PROPOSALS1
8530 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

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 will not 

produce a Federal mandate of $100 

million or greater in any 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. Therefore, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for prostrate 

milkweed 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 prostrate milkweed, and it concludes 

that, if adopted, this designation of 

critical habitat does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant federalism effects. 

A federalism summary impact statement 

is not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this 

proposed critical habitat designation 

with, appropriate State resource 

agencies. From a federalism perspective, 

the designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the national 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 designated 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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8531 

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. 

We have determined that no Tribal 

lands fall within the boundaries of the 

proposed critical habitat for the 

prostrate milkweed, so no Tribal lands 

would be affected by the proposed 

designation. 

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 Texas 

Coastal Ecological Services Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the U.S. 

Fish and Wildlife Service’s Species 

Assessment Team and the Texas Coastal 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 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 § 17.12(h) by adding an 

entry for ‘‘Asclepias prostrata’’ to the 

List of Endangered and Threatened 

Plants in alphabetical order under 

FLOWERING PLANTS to read as 

follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

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

FLOWERING PLANTS

* * * * * * * 

Asclepias prostrata ......... Prostrate milkweed ....... Wherever found ............ E [Federal Register citation when published as a 

final rule]; 50 CFR 17.96(a).CH

* * * * * * * 

■ 3. Amend § 17.96(a) by adding an 

entry for ‘‘Family Apocynaceae: 

Asclepias prostrata (Prostrate 

Milkweed)’’ after the entry for ‘‘Family 

Apiaceae: Lomatium cookii (Cook’s 

lomatium, Cook’s desert parsley)’’ to 

read as follows: 

§ 17.96 Critical habitat—plants. 

(a) * * * 

Family Apocynaceae: Asclepias 

prostrata (Prostrate Milkweed) 

(1) Critical habitat units are depicted 

for Starr and Zapata Counties, Texas, on 

the maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of Asclepias prostrata 

consist of the following components: 

(i) Well-drained sandy soil overlying 

strata of sandstone or indurated caliche; 

(ii) High soil gypsum concentration; 

(iii) Open savannas and grasslands of 

the Tamaulipan shrubland ecological 

region; 

(iv) Vegetation composition that 

includes abundant, diverse pollen and 

nectar plants and healthy populations of 

native bee and wasp species; and 

(v) Less than 20 percent cover of 

Pennisetum ciliare (buffelgrass). 

(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 

RULE]. 

(4) Data layers defining map units 

were created using Texas Natural 

Diversity Database (2019–2020) survey 

data of the documented Asclepias 

prostrata locations in the United States 

to determine the geological formations 

and soil types they occupy. 

(i) We used the Esri ArcMap software 

to overlay the geographic coordinates of 

populations on a digitized map of Texas 

surface geology and a digitized soil 

survey map. We then clipped those 

areas of potential to lands that have 

documented populations of Asclepias 

prostrata. 

(ii) The maps in this entry, as 

modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at https://www.fws.gov/southwest/

es/TexasCoastal/, at https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2021–0041, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) Note: Index map follows: 

BILLING CODE 4333–15–P 


lotter on DSK11XQN23PROD with PROPOSALS1
8532 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

(6) Unit 1: Zapata County, Texas. 

(i) Unit 1 consists of 6 areas totaling 

10.51 ac (4.25 ha) east of highway 83 in 

northwest Zapata County. This unit is 

on private land and a county road right 

of way. 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.016</GPH>

Figure I to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph (5) 

N 

A 

0 5 

0 5 

Index map of Asclepias prostrata (prostrate milkweed) critical habitats. 

Starr and Zapata Counties, Texas. 

Laredo 

C 

Kilometers 

JO 15 20 25 

Miles 

10 .15 

1:750,000 

30 35 40 

20 25 30 

Aw,tm:,in.tprostrata critical habitat; 

ommctam:s amplified to enhance visibility. 

Highways 

Asclepias prostrata U.S. Range: 

Starr and Zapata Counties, Texas 
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8533 

(ii) Map of Unit 1 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.017</GPH>

Figure 2 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(6)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit I. 10.5 ac (425 ha). Zapata County, Texas. 

N 

A 

Kilometers 

0 0.2 0.4 0.6 0.8 

Miles 

0 0.2 6.4 0.6 0.8 

1:20,000 

JI' Key: 

~ Asclepias prostrata critical habitat. 

/ Divided highway 

J County Road 
8534 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

(7) Unit 2: Starr County, Texas. 

(i) Unit 2 consists of 105.43 ac (42.67 

ha) in the Arroyo Ramirez tract of Lower 

Rio Grande Valley National Wildlife 

Refuge. This unit is in southwestern 

Starr County adjacent to the Rio Grande 

on the U.S.-Mexico border. The entire 

unit is on land owned and managed by 

the Service. 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8535 

(ii) Map of Unit 2 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.018</GPH>

Figure 3 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(7)(ii) 

Asclepias prostrata (prostrate milkweed) critical 

habitats. Unit 2. Arroyo Ramirez tract, Lower Rio 

Grande Valley National Wildlife Refuge (LRGV 

NWR). 105.4 ac (42.7 ha). Starr County, Texas. 

R i 0 

Q; 

Location of Map Area .in Starr County 

N 

A 

Legend: 

LRGV NWR Tracts 

Critical Habitat:. 

42.67 ha {105.44 ac) 

WISR 

0 200 400 600 800 1,000 

Feet 

0 500 1,000 l,SOO 2,000 2,500 

1:20,000 
8536 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

(8) Unit 3: Starr County, Texas. 

(i) Unit 3 consists of 4.0 ac (1.62 ha) 

along both sides of a road right of way 

on private land in southern Starr 

County. 

(ii) Map of Unit 3 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8537 

(9) Unit 4: Starr County, Texas. (i) Unit 4 consists of 4.2 ac (1.7 ha) 

along the unpaved right of way of Los 

Arrieros Loop, a county road in 

southwestern Starr County. 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.019</GPH>

Figure 4 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(8)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 3. 4.00 ac (l .62 ha). Starr County, Texas. 

N 

A 

() 

Highway 

Residential street 

Private roads and pipelines 

§i11uaeieli!! 

0 0.1 0.2 0.3 

ii. 

0.1 0.2 

l:10,000 

().4 

0.3 

\ 

\ 

().5 

0.4 

\ 

\ f, i 

I 

e } 

! 

0.5 

i 

l 
8538 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

(ii) Map of Unit 4 follows: 

(10) Unit 5: Starr County, Texas. 

(i) Unit 5 consists of 62.49 ac (25.29 

ha) in the Arroyo Morteros tract of the 

Lower Rio Grande Valley National 

Wildlife Refuge. This unit is in western 

Starr County adjacent to the Rio Grande 

on the U.S.-Mexico border. The entire 

unit is on land owned and managed by 

the Service. 

(ii) Map of Unit 5 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.020</GPH>

Figure 5 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(9)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 4. 4.2 ac (I. 7 ha). Starr County, Texas. 

Key: 

• Asdepia.,· proS1ra1a critical habitat. 

I 

j 

Divided Highway 

County Road 

N 

A 

Kilometen. 

0,,2- 0.4 0.6 0.8 

0 0.2 0.4 o.6 0,8 

1:20,000 
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8539 

(11) Unit 6: Starr County, Texas. (i) Unit 6 consists of 484.32 ac (196.0 

ha) entirely on privately owned land 

and the adjacent right of way of San 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.021</GPH>

Figure 6 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(1 O)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 5. Arroyo Morteros tract, Lower Rio Grande Valley National Wildlife Refuge (LRGV 

NWR). 62.5 ac (25.3 ha). Starr County, Texas. 

Legend: 

LRGV NWR Tracts 

Critical Habitat: 25.29 ha (62.49 ac) 

Location of Map Area in Starr County 

i 0 G r 

QN 

A -:, 

!liielfS 9-' 

0 100 200 300 4-00 500 

Feet e 

0 250 500 750 l,000 1,250 

l:I0,000 
8540 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

Julian Road. This unit is in western 

Starr County. 

(ii) Map of Unit 6 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.022</GPH>

Figure 7 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(1 l)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 6. 484,3 ac (196.0 ha). Starr County, Texas. 

Location of Map Area in Starr County 

N 

A 

0 200 400 600 800 

Feet 

0 500 1,000 1,500 2,000 2,500 

1:15,000 

Legend: 

1.,000 

Private Conservation Land 

Critical Habitat: 

196.00 ha (484.32 ac) 

."0 

i:d. 

0 

i:i::: 

:>-, 

.... 

= 

= 

0 

u 

= 

~ 

..... 

-

= 

1-"') 

~ 
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8541 

(12) Unit 7: Starr County, Texas. 

(i) Unit 7 consists of 19.35 ac (7.83 ha) 

along both sides of a right of way and 

adjacent private land in western Starr 

County. 

(ii) Map of Unit 7 follows: 

(13) Unit 8: Zapata County, Texas. (i) Unit 8 consists of 1.04 ac (0.42 ha) 

on private land in central Zapata 

County. 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.023</GPH>

Figure 8 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(12)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 7. 19.4 ac (7.83 ha). 

Starr County, Texas. 

Key: 

6 Ascleplas p,-os11·a1a criiical habitat. 

j Counly Road 

Kilometers 

0.2 0.4 0.6 0.8 

'cs 

0.4 0.(i 0.8 

1:15,000 

N 

A 
8542 Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 

(ii) Map of Unit 8 follows: 


lotter on DSK11XQN23PROD with PROPOSALS1EP15FE22.024</GPH>

Figure 9 to Family Apocynaceae: Asclepias prostrata (Prostrate Milkweed) paragraph 

(13)(ii) 

Asclepias prostrata (prostrate milkweed) critical habitats. 

Unit 8. 1.04 ac (0.42 ha). 

Zapata County, Texas. 

Map 

Area 

in Zapata 

County 

N 

A 

0 

0 

0.2 

Key: 

6 Asclepias prostrata critical habitat. 

§iiswwr 

I 

j 

0.2 0.4 0.6 0.8 

0.4 0.6 

1:20,000 

Highway 

Private roads and pipelines 

0.8 
Federal Register / Vol. 87, No. 31 / Tuesday, February 15, 2022 / Proposed Rules 8543 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02544 Filed 2–14–22; 8:45 am] 

BILLING CODE 4333–15–C 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No.: 220207–0042] 

RIN 0648–BL13 

Fisheries of the Northeastern United 

States; Framework Adjustment 34 to 

the Atlantic Sea Scallop Fishery 

Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes to approve 

and implement Framework Adjustment 

34 to the Atlantic Sea Scallop Fishery 

Management Plan that establishes 

scallop specifications and other 

management measures for fishing years 

2022 and 2023. Framework 34 would 

incorporate the new specificationssetting methodology and other changes 

developed by Amendment 21 to the 

Atlantic Sea Scallop Fishery 

Management Plan into the 2022 fishing 

year specifications, as well implement 

measures for fishing years 2022 and 

2023to protect small scallops, promote 

scallop recruitment in the mid-Atlantic, 

and reduce bycatch of flatfish. This 

action would also address regulatory 

text that is unnecessary, outdated, or 

unclear. This action is necessary to 

prevent overfishing and improve both 

yield-per-recruit and the overall 

management of the Atlantic sea scallop 

resource. 

DATES: Comments must be received by 

March 2, 2022. 

ADDRESSES: The New England Fishery 

Management Council has prepared a 

draft environmental assessment (EA) for 

this action that describes the proposed 

measures in Framework Adjustment 34 

and other considered alternatives and 

analyzes the impacts of the proposed 

measures and alternatives. The Council 

submitted a draft of Framework 34 to 

NMFS that includes the draft EA, a 

description of the Council’s preferred 

alternatives, the Council’s rationale for 

selecting each alternative, and an Initial 

Regulatory Flexibility Analysis (IRFA). 

Copies of the draft of Framework 34, the 

draft EA, the IRFA, and information on 

the economic impacts of this proposed 

rulemaking are available upon request 

from Thomas A. Nies, Executive 

Director, New England Fishery 

Management Council, 50 Water Street, 

Newburyport, MA 01950 and accessible 

via the internet in documents available 

at: https://www.nefmc.org/library/ 

framework-34-1. 

You may submit comments on this 

document, identified by NOAA– 

NMFS—NOAA–NMFS–2022–0009, by 

either of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2022–0009 in the Search 

box. Click on the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Travis Ford, Fishery Policy Analyst, 

978–281–9233. 

SUPPLEMENTARY INFORMATION: 

Background 

The scallop fishery’s management 

unit ranges from the shorelines of Maine 

through North Carolina to the outer 

boundary of the Exclusive Economic 

Zone. The Atlantic Sea Scallop Fishery 

Management Plan (FMP), established in 

1982, includes a number of amendments 

and framework adjustments that have 

revised and refined the fishery’s 

management. The New England Fishery 

Management Council sets scallop 

fishery catch limits and other 

management measures through 

specification or framework adjustments 

that occur annually or biennially. The 

Council adopted Framework 34 to the 

Atlantic Sea Scallop FMP on December 

9, 2021. The Council submitted a draft 

of the framework, including a draft EA, 

for NMFS review and approval on 

January 3, 2022. This action proposes to 

approve and implement Framework 34, 

which establishes scallop specifications 

and other measures for fishing years 

2022 and 2023, including changes to the 

catch, effort, and quota allocations and 

adjustments to the rotational area 

management program for fishing year 

2022 and management measures to 

reduce bycatch of flatfish, and default 

specifications for fishing year 2023, as 

recommended by the Council. 

On January 12, 2022, NMFS 

published Amendment 21 to the 

Atlantic Sea Scallop FMP (87 FR 1688). 

Amendment 21 makes several changes 

to the management of the Northern Gulf 

of Maine (NGOM) and limited access 

general category (LAGC) individual 

fishing quota (IFQ) components. 

Framework 34 would incorporate the 

new specifications-setting methodology 

and other changes developed in 

Amendment 21 into the 2022 fishing 

year 2022. 

NMFS will implement these 

Framework 34 measures, if approved, as 

close as possible to the April 1 start of 

fishing year 2022. If NMFS implements 

these measures after the start of the 

fishing year, the default allocation 

measures currently established for 

fishing year 2022 will go into place on 

April 1, 2022. The Council reviewed the 

proposed regulations in this rule as 

drafted by NMFS and deemed them to 

be necessary and appropriate as 

specified in section 303(c) of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). 

Specification of Scallop Overfishing 

Limit (OFL), Acceptable Biological 

Catch (ABC), Annual Catch Limits 

(ACL), Annual Catch Targets (ACT), 

Annual Projected Landings (APL) and 

Set-Asides for the 2022 Fishing Year, 

and Default Specifications for Fishing 

Year 2023 

The Council set the proposed OFL 

based on a fishing mortality (F) of 0.61, 

equivalent to the F threshold updated 

through the Northeast Fisheries Science 

Center’s most recent scallop benchmark 

stock assessment that was completed in 

September 2020. The proposed ABC and 

the equivalent total ACL for each fishing 

year are based on an F of 0.45, which 

is the F associated with a 25-percent 

probability of exceeding the OFL. The 

Council’s Scientific and Statistical 

Committee (SSC) recommended scallop 

fishery ABCs of 56.7 million lb (25,724 

mt) for 2022 and 51.1 million lb (23,200 

mt) for the 2023 fishing year, after 

accounting for discards and incidental 

mortality. The SSC will reevaluate and 


lotter on DSK11XQN23PROD with PROPOSALS1