[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
[Proposed Rules]
[Pages 16320-16363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05326]



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Vol. 87

Tuesday,

No. 55

March 22, 2022

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(D) Rule for Sand Dune Phacelia and Designation of 
Critical Habitat; Proposed Rule

Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2021-0070; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BF89


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Sand Dune Phacelia and Designation of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the sand dune phacelia (Phacelia argentea), a plant species from 
coastal southern Oregon and northern California, as a threatened 
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 sand dune phacelia. 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 sand dune phacelia as a threatened species with a rule issued 
under section 4(d) of the Act (``4(d) rule''). 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 sand dune phacelia 
under the Act. In total, approximately 252 acres (102 hectares) in Coos 
and Curry Counties in Oregon, and Del Norte County in California, 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 sand dune phacelia.

DATES: We will accept comments received or postmarked on or before May 
23, 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 May 6, 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-R1-ES-2021-0070, 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: For the critical habitat 
designation, the draft economic analysis and the coordinates or plot 
points or both from which the maps are generated are included in the 
decision file and are available at the Oregon Ecological Services 
website (https://www.fws.gov/oregonfwo/) and at https://www.regulations.gov under Docket No. FWS-R1-ES-2021-0070. Additional 
supporting information that we developed for this critical habitat 
designation will be available at the Service's website set out above, 
at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, Oregon 
Fish and Wildlife Office, 2600 SE 98th Avenue, Suite 100, Portland, OR 
97266; telephone (503) 231-6179. Individuals in the United States who 
are deaf, deafblind, hard of hearing, or have a speech disability may 
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

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:
    <bullet> Proposes to list sand dune phacelia as a threatened 
species under the Act.
    <bullet> Proposes a rule issued under section 4(d) of the Act 
(``4(d) rule'') that would make it unlawful to remove and reduce to 
possession the species from areas under Federal jurisdiction; 
maliciously damage or destroy the species on areas under Federal 
jurisdiction; or remove, cut, dig up, or damage or destroy the species 
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; import or export; sell; or involve in interstate or foreign 
commerce.
    <bullet> Proposes to designate critical habitat for the species on 
approximately 252 acres (ac) (102 hectares (ha)) in Coos and Curry 
Counties in Oregon, and Del Norte County in California.
    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 stressors related to 
Factors A and E (invasive species encroachment and competition, climate 
change, and small population size) are causing sand dune phacelia to be 
threatened.
    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

[[Page 16321]]

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 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;
    (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) Information on regulations that are necessary and advisable to 
provide for the conservation of the sand dune phacelia and that the 
Service can consider in developing a 4(d) rule for the species. In 
particular, information concerning the extent to which we should 
include any of the Act's section 9 prohibitions in the 4(d) rule or 
whether we should consider any additional exceptions from the 
prohibitions in the 4(d) rule.
    (6) 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.
    (7) Specific information on:
    (a) The amount and distribution of sand dune phacelia habitat;
    (b) What areas, that were 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 
(in Coos or Curry County in Oregon, or Del Norte County in California) 
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.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) 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.
    (10) 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.
    (11) 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.
    (12) 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

[[Page 16322]]

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 
endangered instead of threatened, 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 of critical habitat, and may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion. In 
addition, we may change the parameters of the prohibitions or the 
exceptions to those prohibitions in the 4(d) rule if we conclude it is 
appropriate in light of comments and new information received. For 
example, we may expand the prohibitions to include prohibiting 
additional activities if we conclude that those additional activities 
are not compatible with conservation of the species. Conversely, we may 
establish additional exceptions to the prohibitions in the final rule 
if we conclude that the activities would facilitate or are compatible 
with the conservation and recovery of the species.

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 March 7, 2014, the Service received a petition requesting that 
sand dune phacelia be listed as an endangered or threatened species 
and, if applicable, critical habitat be designated for this species 
under the Act (Center for Biological Diversity et al. 2014, entire). 
Our subsequent 90-day finding (80 FR 37568, July 1, 2015) concluded 
that the petition provided substantial information, and that the status 
of sand dune phacelia warranted further review.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the sand dune phacelia. 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 three appropriate specialists regarding the SSA. We 
received three responses. We also sent the SSA report to seven 
partners, including scientists with expertise in botany and coastal 
native dune plant conservation, for review. We received review from 
three partners: Oregon Department of Agriculture's Native Plant 
Conservation Program, the California Department of Parks and 
Recreation, and the Tolowa Dunes Stewards.

I. Proposed Listing Determination

Background

    Sand dune phacelia (Phacelia argentea), also known as silvery 
phacelia, is an evergreen, herbaceous, flowering perennial in the 
forget-me-not family (Boraginaceae), and its status as a taxonomically 
valid species is well-accepted (Nelson and MacBride 1916, p. 34). It is 
found only on coastal dune habitat in southern Oregon (Coos and Curry 
Counties) and far northern California (Del Norte County) coasts. A 
rangewide survey conducted in 2017 documented 26 occupied sites 
(including 1 entirely introduced population), with 16 sites in Oregon 
and the remaining 10 in California (Brown 2020a database). Sand dune 
phacelia occurs on the open sand above the high tide line, further 
inland on semi-stabilized and open dunes, and on coastal bluffs (Kalt 
2008, p. 2). It has been described as occurring at elevations ranging 
from 10 to 40 feet (3 to 12 meters) and on slopes less than 30 percent 
composed of sand or (rarely) gravel (Rodenkirk 2019, p. 7).
    Sand dune phacelia exhibits multiple adaptations for living in 
drought-like, nutrient-poor areas with high winds, blowing sand, and 
salt spray. It forms mats that reduce its exposure to wind and spray 
and has silvery hairs on its leaves, which allow it to resist 
desiccation in its harsh environment of blowing sand. Its tap root may 
be extensive, facilitating life in an environment of shifting sands and 
maximizing the plant's ability to uptake water (Rodenkirk 2019, p. 12).
    Sand dune phacelia occurs in sandy habitats that are sufficiently 
free of competing vegetation to provide space and a high light 
environment to allow for seedling establishment and growth (Kalt 2008, 
p. 4; Meinke 2016, p. 2). Reproductively mature plants begin to bloom 
in late April and May, with flowers persisting through August (Meinke 
1982, p. 282). Sand dune phacelia appears to be largely incapable of 
significant self-pollination (Meinke 2016, p. 3), relying upon 
pollination by bees (Rittenhouse 1995, p. 8).
    A thorough review of the taxonomy, life history, and ecology of the 
sand dune phacelia (Phacelia argentea) is presented in the SSA report 
(Service 2021, pp. 7-20).

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:

[[Page 16323]]

    (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 species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent 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-R1-ES-2021-0070 on https://www.regulations.gov and at https://www.fws.gov/oregonfwo.
    To assess sand dune phacelia viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    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.

Individual Needs

    Sand dune phacelia occurs in sandy habitats that are sufficiently 
free of competing vegetation to allow for seedling establishment and 
growth (Kalt 2008, p. 4; Meinke 2016, p. 2). Drought has been 
implicated in low seedling recruitment and adult mortality (Rodenkirk 
2019, p. 17), but precise moisture requirements are unknown. 
Nutritional needs are evidently low, as sand is nutrient poor. Whether 
sand dune phacelia is mycorrhizal (like many other dune species) is 
unknown. A high light environment is important for sand dune phacelia 
to complete its life cycle and reproduce. There is evidence that high 
light exposure is needed for seed germination (Meinke 2016, p. 5) as 
well as for seedling establishment and growth (Rodenkirk 2019, p. 19; 
Jacobs 2019, p. 92).

[[Page 16324]]

Population Needs

    To be adequately resilient, populations of sand dune phacelia need 
sufficient numbers of reproductive individuals to withstand stochastic 
events. Sufficient annual seed production and seedling establishment is 
necessary to offset mortality of mature sand dune phacelia plants 
within a population. Because large individuals produce the most seed 
(Meinke 2016, p. 3), their loss is likely to have the greatest impact 
on the overall population. However, no quantitative analyses have been 
completed to determine minimum viable population size for sand dune 
phacelia.
    Sandy habitat that is relatively free of vegetative competition is 
important for population persistence (Rodenkirk 2019, p. 16; 
Rittenhouse 1995, p. 8). Historically, sand dunes shifted as dictated 
by prevailing winds, tides, and storm surge, and these forces 
maintained and supported native dune plant communities adapted to 
highly dynamic environments. In the absence of sand-disturbing forces, 
dune habitats are susceptible to rapid colonization by nonnative 
species such as European beachgrass (Ammophila arenaria) and gorse 
(Ulex europaea), as well as encroachment by native successional species 
like shore pine (Pinus contorta ssp. contorta) (Meinke 2016, p. 2).
    Sand dune phacelia is largely dependent upon pollination by bees. 
In coastal dune habitats, bee abundance and species richness are 
positively correlated with the presence of sand dune phacelia (Julian 
2012, p. 3), and negatively correlated with cover of European 
beachgrass and other invasive vegetation (Julian 2012, p. 21).

Species Needs

    To maintain viability, sand dune phacelia should have a sufficient 
number of sustainable populations that are well-distributed throughout 
its geographic range and throughout the variety of ecological settings 
in which the species is known to exist. Suitable habitat must be 
available, and the number and distribution of adequately resilient 
populations must be sufficient for the species to withstand 
catastrophic events. No quantitative analysis exists upon which to 
determine the minimum number of populations or the quantity of suitable 
habitat necessary for sand dune phacelia to maintain viability as a 
species.
    The historical extent and distribution of sand dune phacelia across 
the southern Oregon and far northern California coasts is not precisely 
known. The species may have been more abundant, widespread, and 
contiguously distributed on the landscape prior to the loss and 
stabilization of sand dune habitats, off-highway vehicle use, and the 
introduction of invasive species (particularly European beachgrass) 
(Meinke 2016, p. 2). Due to its specialized adaptations to the sand 
dune environment, it is unlikely that sand dune phacelia ever occurred 
in a diverse range of ecological environments, and no information 
exists on the genetics of sand dune phacelia that would allow an 
assessment of whether populations demonstrate sufficient genetic 
variability to persist under changing environmental conditions.
    In summary, individual sand dune phacelia plants require sandy 
substrate with limited vegetative competition for light, moisture, and 
growing space. Populations must be sufficiently large and sustainable 
to withstand stochastic events, have sufficient annual seed production, 
and an adequate pollinator community. For species viability, sand dune 
phacelia must have sufficiently resilient populations that are well 
distributed across its range and sufficient genetic diversity to adapt 
to changing conditions (table 1).

                    Table 1--Individual, Population, and Species Needs of Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
            Individuals                                Populations                              Species
----------------------------------------------------------------------------------------------------------------
Bare sandy substrate...............  Sufficiently large number of reproductive        Sufficient number of
                                      individuals per population to withstand          adequately resilient
                                      stochastic events.                               populations well
                                                                                       distributed across the
                                                                                       range
High light environment.............  Sufficient annual seed production to offset      Sufficient genetic
                                      mortality.                                       diversity to adapt to
                                                                                       change over time (no
                                                                                       information on genetics)
Water..............................  Dune/sandy habitat with low degree of invasive
                                      species.
Pollinators........................  Sufficient abundance and diversity of
                                      pollinators for outcrossing/optimal seed
                                      production.
----------------------------------------------------------------------------------------------------------------

Threats

    We considered a comprehensive set of sand dune phacelia stressors 
that have been cited in the literature (Rodenkirk 2019, entire), in the 
data provided from our partners (Brown 2020a database), and in the 
petition (Center for Biological Diversity et al. 2014, entire). For 
each stressor we assessed whether there was sufficient evidence that 
the influence of the stressor rose to the scope and magnitude necessary 
to impact sand dune phacelia populations, and thus be carried forward 
in our analysis of current and future condition. We also examined 
positive influence factors (conservation efforts) in a similar manner.
Invasive Plants
    Invasive, introduced plant species are considered one of the most 
influential stressors to sand dune phacelia and its habitat (Kalt 2008, 
p. 7; Rodenkirk 2019, p. 6). European beachgrass, gorse, and other 
invasive plant species outcompete sand dune phacelia throughout its 
range (Rodenkirk 2019, p. 6). Introduced to the Pacific Northwest 
region of the United States and California in the 1800s, European 
beachgrass is an aggressive, perennial, rhizomatous grass. It was 
extensively planted to stabilize sand and build dunes parallel to the 
ocean shore to protect infrastructure from the effects of ocean storms 
and tides (Hacker et al. 2011, p. 2; Oregon Department of Fish and 
Wildlife (ODFW) 2016, pp. 67). Colonizing European beachgrass captures 
sand with its deep roots and spreading shoots, forming dense 
monocultures of grass that outcompete many native dune species, 
including sand dune phacelia, for growing space, sunlight, and moisture 
(Rittenhouse 1996, p. 3). The steep, heavily vegetated foredunes seen 
today along much of the Oregon, and to a lesser extent California, 
coastlines are the result of European beachgrass colonization 
(Rittenhouse 1995, p. 9; Zarnetske et al. 2010, pp. 12). Dune 
stabilization by European beachgrass also facilitates the establishment 
and succession of native trees and shrubs that proliferate in the 
absence of natural disturbance regimes,

[[Page 16325]]

thereby resulting in the conversion, and ultimate loss, of native dune 
habitat (Rittenhouse 1996, p. 3; Brown 2020a database).
    According to population surveys conducted in California, European 
beachgrass poses the most consequential threat to sand dune phacelia 
populations in that State (Jacobs 2019, p. 9; Imper 1987, p. 1; Kalt 
2008, p. 7). In Oregon, the expansion of European beachgrass was a 
likely factor in the extirpation of two sand dune phacelia populations 
near Bandon (Christy 2007, p. 15), and adverse effects to sand dune 
phacelia populations from European beachgrass have been documented at 
multiple locations throughout its range (Rittenhouse 1995, p. 9; Kagan 
and Titus 1998a, p. 10; Kagan and Titus 1998b, p. 3; Titus 1998, p. 12; 
Rodenkirk 2019, entire; Brown 2020a database).
    We are also aware that under certain ocean shore alteration permits 
in Oregon, landowners are required to stabilize the dune against 
erosion in order to protect properties and shoreline. European 
beachgrass is often used because it is readily available and effective 
for that purpose (Bacheller 2021, pers. comm.). This permitting 
requirement may promote the spread of European beachgrass, although to 
our knowledge this is not currently occurring within the range of sand 
dune phacelia.
    Gorse is an introduced spiny shrub that forms impenetrable thickets 
that overtake dune habitats. It is widely recognized as a threat to 
native plant species and dune habitats (Christy 2007, entire; ODFW 
2016, p. 7). Widespread in the Bandon, Oregon, area, it poses a threat 
to sand dune phacelia populations in the northern region of its range 
(Kagan and Christy 1998, p. 14; Christy 2007, p. 17; Kalt 2008 p. 8; 
Rodenkirk 2019, p. 6; Brown 2020a database). Gorse is also highly 
flammable and produces copious amounts of seed that can persist in the 
environment for 30 years or more (Goodwin 2018, p. 119).
    There is broad consensus in the scientific literature and available 
data that invasive species presently pose a population-level threat to 
sand dune phacelia rangewide and will continue to do so into the 
future, so we included this threat in our analysis of current and 
future condition.
Recreational Impacts
    Legal and illegal off-highway vehicle (OHV) use can damage or kill 
sand dune phacelia. While widely perceived as a potential threat (Kalt 
2008, p. 9; Brown 2020a database; Rodenkirk 2019, p. 6), documented 
impacts from OHVs are limited to individuals at a small number of sites 
throughout its range, most notably in California (Imper, 1987, p. 1; 
Gedik 2009, p. 7; Tolowa Dune Stewards 2013, p. 18; Jacobs 2019, pp. 
15, 102). Impacts of OHV use to sand dune phacelia in Oregon are 
thought to be minimal and localized (Rittenhouse 1995, p. 9), with most 
OHV use occurring in areas unoccupied by sand dune phacelia (Kalt 2008, 
p. 9).
    Trampling by pedestrians and equestrians is noted in the literature 
as a concern throughout the range of sand dune phacelia. Trampling can 
both decrease the size of sand dune phacelia mats and destroy 
individuals (Rodenkirk 2019, p. 6). However, light levels of 
disturbance can also partially destabilize dunes and reduce invasive 
species proliferation, thus benefitting sand dune phacelia habitat 
(Kalt 2008, p. 10). Additional study is needed to investigate the 
effects of human traffic on sand dune phacelia populations (Jacobs 
2019, pp. 113-114).
    In general, while noted as a stressor and documented as destructive 
to individuals at some sites, lack of available data on population-
level effects of recreational use on sand dune phacelia precluded us 
from carrying forward the influence of recreation in our analysis of 
current and future condition. However, we do acknowledge that 
recreational impacts, primarily from OHV use, are damaging sand dune 
phacelia habitat at some sites, and may be especially deleterious to 
small populations.
Coastal Development
    Coastal development may directly damage sand dune phacelia plants 
or result in habitat loss due to conversion of sand dunes to other uses 
(Kalt 2008, p. 9). Coastal development may be more consequential in 
Oregon, where State-listed plants receive no protection on private 
lands. In California, the California Environmental Quality Act, the 
Native Plant Protection Act, and the California Coastal Act regulate 
development to minimize impacts to coastal dunes and other 
Environmentally Sensitive Habitat Areas.
    Most extant populations of sand dune phacelia occur on public lands 
where protections are in place that safeguard against direct mortality 
or habitat loss, and we found insufficient data to support the claim 
that development is currently impacting the remaining extant 
populations on private land. For example, the two primary private land 
parcels that currently support sand dune phacelia are the Pacific 
Shores Subdivision in California and the sites at the Bandon Dunes Golf 
Resort in Oregon. Seventy-five percent of the undeveloped, privately 
owned lots at Pacific Shores have been acquired by the California 
Department of Fish and Wildlife for inclusion into a conservation area, 
and efforts are underway to purchase the remaining undeveloped private 
holdings (Jerabek 2020, pers. comm.). At the Bandon Dunes Golf Resort, 
a stated goal of the conservation-minded owner is to protect and 
enhance the sand dune phacelia population there, which after heavy 
infestations of gorse were cleared (Gunther 2012, no pagination) now 
represents the largest population rangewide (Brown 2020a database).
    It is possible that coastal development had impacts on sand dune 
phacelia historically, leading to its present-day condition of small 
and fragmented populations. However, based on our assessment of current 
land ownership and population condition, the best available data does 
not indicate that development is presently a population-level threat to 
sand dune phacelia. This stressor may have had historical impacts but 
no longer appears influential, and, based on land ownership of extant 
population sites, it seems unlikely to become influential in the 
future.
Livestock Grazing
    Livestock grazing occurs throughout the range of sand dune phacelia 
on some private lands; however, it usually occurs on well-stabilized 
(vegetated) dunes and coastal meadows, which are not suitable sand dune 
phacelia habitat. Furthermore, in some cases grazing may actually 
benefit sand dune phacelia by reducing competition from invasive 
species (Rodenkirk 2019, p. 22). Negative effects of livestock grazing 
on sand dune phacelia populations have not been documented, and grazing 
was not listed as a threat to any of the populations in the most recent 
rangewide survey (Brown 2020a database). Given current land ownership, 
we do not expect grazing to impact populations in the future. 
Therefore, we did not include livestock grazing in our threat analysis.
Overutilization
    Because of sand dune phacelia's attractive foliage, illegal removal 
of it for horticultural purposes has been cited as a threat (Rodenkirk 
2019, p. 6; Oregon Department of Agriculture (ODA) 2020, no 
pagination). We could find no information with which to validate this 
claim or assess its impacts on sand dune phacelia populations. As such, 
we do not consider overutilization to be a threat influencing 
populations of sand

[[Page 16326]]

dune phacelia currently or into the future.
Sea Level Rise
    The best available data does not indicate that sea level rise is 
currently influencing sand dune phacelia, and it is unknown how changes 
in sea levels may have affected the species in the past. However, 
because sea level rise is expected to increase in the future with 
climate change, and near-shore species could be affected by sea level 
rise and associated erosion and storm surge (IPCC 2014, p. 67), we 
consider the impact of projected sea level rise on sand dune phacelia 
in our analysis of future conditions.
Small Population Size
    We acknowledge that, prior to habitat fragmentation, many of the 
populations, especially those south of the town of Bandon, Oregon, and 
near Crescent City, California, were most likely functionally 
continuous (Brown 2020b, pers. comm.). Our assessment of population 
abundance and habitat quality from recent surveys indicates that the 
number of populations of sand dune phacelia is reduced compared to 
documented historical occurrences. Many of the remaining populations 
are very small in size, and most populations are isolated from one 
another by large tracts of unsuitable habitat, making genetic exchange 
and dispersal among most populations unlikely without human 
intervention. No information exists on the minimum number of 
individuals required to support a sand dune phacelia population. 
However, a population size of about 25 individuals appears to be 
biologically relevant given the best available data. Specifically, the 
current abundance of nearly every extant population falls either below 
25 (1 to 24 individuals) or well above 25 (100 or more individuals), 
with all populations with fewer than 25 individuals also undergoing 
population decline (Brown 2020a database). Therefore, in the absence of 
any existing minimum viable population analysis to draw upon, we assume 
that at least 25 individuals are necessary for sand dune phacelia 
population viability. As such, low abundance was a factor in our 
analysis of current condition, and we considered small populations that 
currently support fewer than 25 individuals as unlikely to persist in 
our future condition analysis.
Pollinator Decline
    Because sand dune phacelia is largely reliant upon pollination to 
successfully reproduce, pollinator decline is cited as a potential 
threat to sand dune phacelia (ODA 2020; no pagination). Furthermore, 
bee abundance and diversity were found to be positively correlated with 
the presence of sand dune phacelia in one study in California (Julian 
2012, p. iii). While we recognize the important role pollinators play 
in the needs of sand dune phacelia, we found no data with which to 
assess the status of pollinator communities at extant sand dune 
phacelia sites, nor to indicate that pollinator decline was affecting 
sand phacelia populations. Therefore, we acknowledge the importance of 
a healthy and diverse pollinator community but were unable to include 
this factor in our analysis of current and future conditions.
Summary of Threats
    The primary threat currently acting upon sand dune phacelia 
populations is that of invasive species, which is expected to continue 
impacting the species into the future and was therefore included in our 
analysis of current and future condition. In addition, our current and 
future condition analysis included the consideration of sea level rise 
and small population size. Other stressors mentioned above may act on 
sand dune phacelia individuals, or have highly localized impacts, but 
do not rise to the level of impacting populations. However, we 
acknowledge that all stressors may exacerbate the effects of other 
ongoing threats.
Regulatory Conservation Efforts
    Sand dune phacelia is listed as threatened by the Oregon Department 
of Agriculture (ODA) and has a State listing status of 1, indicating 
that it is threatened or endangered throughout its range (Oregon 
Biodiversity Information Center 2019, p. 33). Native plant species that 
are listed as threatened or endangered in Oregon are protected on all 
non-federal public lands (Oregon Revised Statutes (ORS) 564.105). Any 
land action on Oregon public lands that results, or might result, in 
the collection or disturbance of a threatened or endangered species 
requires either a permit or a consultation with ODA staff. The State 
consultation process for public land managers requires a written 
evaluation of projects that impact listed plant species, and the ODA 
may recommend alternatives to avoid or minimize impacts to those 
species; a formal consultation or permit may be required. Prohibitions 
for listed plant species in the State of Oregon are provided by ORS 
603-073-0003, which states ``Willful or negligent cutting, digging, 
trimming, picking, removing, mutilating, or in any manner injuring, or 
subsequently selling, transporting, or offering for sale any plant, 
flower, shrub, bush, fruit, or other vegetation growing on the right of 
way of any public highway within this state, within 500 feet of the 
center of any public highway, upon any public lands, or upon any 
privately owned lands is prohibited without the written permission of 
the owner or authorized agent of the owner.'' Additionally, ORS 
564.105(3) calls for the State to establish programs for the protection 
and conservation of plant species, and the State participates in 
conservation management actions as staffing and funding allows. In 
practice, however, resource limitations often prevent implementation of 
the full suite of affirmative management actions required to achieve 
the recovery of State listed plants. As an example, the eradication or 
control of widespread invasive species such as gorse, one of the 
primary threats to sand dune phacelia, would pose enormous resource 
requirements that far exceed the State's capacity.
    Oregon State Parks contain nearly 50 percent of all sand dune 
phacelia populations rangewide. Under the master-plan level designation 
for Oregon State parks, sites that contain listed species are 
automatically placed in a category of administrative conservation 
designation, which provides sand dune phacelia populations with 
protection from development. While no formal conservation plans to 
benefit sand dune phacelia are in place, invasive control actions at 
several parks improve sand dune habitat and may assist with restoring 
or maintaining suitable conditions for sand dune phacelia in the future 
(Bacheller 2020, pers. comm.). Oregon State Parks are not supported by 
tax dollars, as are other State agencies, but are supported by a 
combination of State Park user fees, recreational vehicle license fees, 
and a portion of State lottery revenues. As a result, Oregon State Park 
budgets can be subject to significant fluctuations in revenue and are 
often limited, which can affect their capacity to implement management 
actions for conservation, such as habitat restoration for rare plants 
on State Park lands.
    In California, sand dune phacelia is designated as a California 
Rare Plant with a rank of 1B.1, meaning that it is rare, threatened, or 
endangered in California and elsewhere, and is seriously endangered in 
California. Impacts to species of this rank or their habitat must be 
analyzed during preparation of environmental documents relating to the 
California Environmental Quality Act (CEQA).

[[Page 16327]]

Under CEQA, state public agencies (including State Parks) must provide 
measures to reduce or avoid adverse environmental impacts of proposed 
projects, including impacts to designated rare plants such as sand dune 
phacelia. Designation as a California Rare Plant generally reduces 
negative impacts to sand dune phacelia caused by development or other 
land use programs and actions but does not ameliorate the primary 
threat to the species, which is that of invasive species encroachment. 
All of the plants constituting California Rare Plant Rank 1B meet the 
definitions of the California Endangered Species Act of the California 
Fish and Game Code, and are eligible for State listing, however, sand 
dune phacelia is not listed under the California Endangered Species 
Act.
    The Federal Lands Policy and Management Act of 1976, as amended 
(FLPMA; 43 U.S.C. 1701 et seq.) governs the management of public lands 
administered by the Bureau of Land Management (BLM). Under FLPMA, the 
BLM administers a special status species policy that calls for the 
conservation of BLM special status species and the ecosystems upon 
which they depend on BLM-administered lands. BLM special status species 
are any species listed or proposed for listing under the Endangered 
Species Act, or species designated as ``Bureau sensitive'' by the State 
Director(s). Sand dune phacelia is designated as a Bureau sensitive 
special status plant species and is thus the recipient of proactive 
conservation efforts on BLM lands as staffing and resources allow. On 
Federal lands in Oregon, the BLM regularly restores sand dune phacelia 
habitat through the removal or control of invasive species at Lost 
Lake, Floras Lake, and Storm Ranch (Rodenkirk 2019; entire). BLM is 
updating its management plan for the New River Area of Critical 
Environmental Concern, where the majority of sand dune phacelia 
populations on BLM land occurs (Wright, pers. comm. 2020). The new plan 
will include an emphasis on restoring native dune plant communities, 
including those with sand dune phacelia.
Voluntary Conservation Efforts
    Rangewide, the largest sand dune phacelia population is located on 
private land at the Bandon Dunes Golf Resort, and while no formal 
conservation agreements or commitments exist, the private land owner 
has been actively maintaining sand dune phacelia habitat through 
ongoing removal of European beachgrass and gorse (Gunther 2012, no 
pagination). In California, the South Lake Tolowa Restoration effort 
has removed European beachgrass from approximately 25 ac (10 ha) at 
Tolowa Dunes State Park and the Lake Earl Wildlife Area (Jacobs 2019, 
pp. 24-25). Conducted by California State Parks and a volunteer group 
called the Tolowa Dunes Stewards (Jacobs 2019, p. 10), restoration 
efforts initiated in 2010 increased the sand dune phacelia population 
from approximately 2,300 plants to 5,936 plants in 2017 (Brown 2020a 
database). The South Lake Tolowa population is now the largest in 
California, and the second largest rangewide. Volunteers from the 
Tolowa Dunes Stewards have also restored 30 ac of habitat (12 hectares) 
at the nearby East Dead Lake population via the removal of European 
beachgrass (Jerabek 2020, pers. comm.). However, in the absence of 
committed funding or agreements associated with these restoration 
efforts, they are almost entirely reliant on grant funding and 
volunteer efforts (Jerabek 2020, pers. comm.). The significant gains 
made for sand dune phacelia at these sites could quickly be lost 
without continuous maintenance efforts, given the aggressive nature of 
European beachgrass and other invasive species.
    Rangewide, actions to control invasive species have demonstrated 
success in maintaining or increasing populations of sand dune phacelia 
(Gunther 2012, no pagination; Meinke 2016, p. 25; Jacobs 2019, p. 10; 
Rodenkirk 2019; entire). Sand dune phacelia is a management-dependent 
species, as restoration of dune habitat through ongoing control of 
invasive species is essential to the continuing viability of sand dune 
phacelia rangewide. Therefore, we considered the contribution of 
habitat management actions, and in particular control of invasive 
species, in our analysis of future conditions.
    We also considered whether or not our Policy for the Evaluation of 
Conservation Efforts (68 FR 15100, March 28, 2003) applies to sand dune 
phacelia habitat management efforts, but we determined that it does not 
apply because no formalized agreements exist to ensure the future 
mitigation of the threat posed by invasive species.
    In addition to habitat restoration activities, augmentation of sand 
dune phacelia populations using transplants has been carried out at 
several sites by BLM in partnership with Oregon State University 
(Meinke 2016, entire) and the Oregon Department of Agriculture (Brown 
2017, entire). While transplant efforts appear to be beneficial 
initially, transplant mortality over time tends to be high as 
outplanted individuals succumb to environmental conditions (Meinke 
2016, p. 18). Refinements to sand dune phacelia cultivation protocols 
are necessary to improve transplanting success (Meinke 2016, entire; 
Brown 2017, p. 5).
    Attempts are also underway by BLM to enhance or establish 
populations by directly seeding sand dune phacelia into suitable 
habitat (Wright 2020, pers. comm.). The recently introduced population 
at Storm Ranch is the largest population that occurs on Federal lands 
(Rodenkirk 2019, p. 28). Attempts to establish the Storm Ranch 
population began in 2012 with a seeding of 2 ac (0.8 ha) (Rodenkirk 
2019, p. 28). Initial seedings were unsuccessful, but eventually a 
population was established, with 1,596 plants counted in 2018. The 
population drastically declined in 2019, with only 620 plants observed 
(Rodenkirk 2019, p. 29). Long-term monitoring will assess whether this 
seeded population can maintain viability.
    Because of the high levels of plant mortality observed following 
transplantation efforts, and the significant uncertainty as to whether 
augmented or introduced populations may be capable of contributing to 
the maintenance or enhancement of sand dune phacelia populations over 
time, we did not include the seeded population at Storm Ranch, or 
outplanted individuals at other sites, in our analysis of current and 
future conditions.
    We determined that habitat restoration in the form of invasive 
species removal is the primary conservation effort influencing sand 
dune phacelia at the population level, and therefore carried it through 
our analysis of future condition. Augmentation and reintroduction are 
likely having a positive influence on sand dune phacelia, but we lack 
evidence that these conservation efforts are having population-level 
effects at this time.

Current Condition

Methodology
    We delineated three representation units (Oregon-North, Oregon-
South, and California) based on geographic breaks in the distribution 
of the species, because they could not otherwise be characterized by 
marked differences in genetic makeup, phenotypic variation, habitats, 
or ecological niches. No population viability assessment models exist 
to inform the categorization of population condition for sand dune 
phacelia. Therefore, we used the best

[[Page 16328]]

available science to score the overall current condition of each 
population qualitatively as high, moderate, or low, based upon our 
assessment of habitat condition, population abundance, and population 
trend over time. The average score was then used to rate the overall 
current condition of each population.
    Sand dune phacelia populations were surveyed rangewide in Oregon 
and California in 2017 by the Oregon Department of Agriculture's Plant 
Conservation Program (Brown 2020a database). The 2017 survey enumerated 
current population size, examined historical data to discern population 
trends, delineated the area occupied, briefly described the habitat, 
and identified stressors at each site. This effort provides the most 
current data available on nearly every extant population of sand dune 
phacelia.
    We excluded sites consisting of Phacelia species with intermediate 
morphology (those that appear hybridized). These plants were determined 
to most likely be crosses between sand dune phacelia and P. nemoralis 
ssp. oregonensis (Brown 2020a database; Meinke 1982, p. 260). In 
addition to different morphological attributes, the intermediate plants 
occur in rockier habitats as compared to areas occupied by sand dune 
phacelia, and rockier habitat is more indicative of P. nemoralis. While 
we suspect that these plants are most likely hybrids and not 
representatives of sand dune phacelia, no genetic information is 
available upon which to base this conclusion. Whether the presumed 
intergrades affect sand dune phacelia population viability is unknown. 
More information on intermediate populations, as well as on all 
populations, is included in the SSA (Service 2021, entire).
    Abundance categories were defined as ``Low'' (100 or fewer plants), 
``Moderate'' (101,500 plants), and ``High'' (over 500 plants). These 
rating categories were derived to reflect relative abundance between 
populations only, or an index of population size, because there is no 
information available on the minimum number of individuals necessary to 
maintain a viable population.
    Habitat condition was scored based on the most recently available 
observations at sand dune phacelia population sites. Because sand dune 
phacelia habitat quality is highly influenced by invasive species, the 
scores reflect the relative encroachment of invasive species at a given 
site as reported by the 2017 rangewide survey (Brown 2020a database) 
and by BLM. Quantitative data on invasive species in sand dune phacelia 
populations, such as percent cover of invasive species, are not 
available.
    Population trend data were derived from the 2017 rangewide survey 
(Brown 2020a database) and reflect documented abundance data across 
historical records. Trend data are necessarily coarse, as many 
populations were rarely or sporadically monitored prior to 2017. 
Increasing trends were rated as ``High,'' stable trends as 
``Moderate,'' and decreasing trends as ``Low.''
    The overall condition scores for all known extant populations of 
sand dune phacelia are presented in table 2.
Current Resiliency, Redundancy, and Representation
    Resiliency refers to the ability of populations to withstand 
stochastic events, and we assessed the resiliency of each population 
using the current habitat condition, population abundance, and 
population trend. Of the 25 naturally occurring (we did not include the 
1 entirely introduced population) extant sand dune phacelia populations 
we assessed, 4 are currently in high condition, 4 are in moderate 
condition, and 17 are in low condition (table 2). Therefore, resiliency 
is low for most populations rangewide, with 68 percent of all 
populations rated with low overall condition (figure 1).

[[Page 16329]]

[GRAPHIC] [TIFF OMITTED] TP22MR22.000

    Redundancy is a species' ability to withstand catastrophic events 
and is determined by the number of its populations and their 
distribution across the landscape. Currently, approximately 33,858 
naturally occurring sand dune phacelia plants exist in 25 populations 
along roughly 100 miles (161 kilometers (km)) of coastline. Our 
analysis of current redundancy concludes that, although most extant 
populations exhibit low resiliency, it is unlikely that a single 
catastrophic event could eliminate all extant populations, which are 
well distributed throughout all representation units, with the most 
robust populations located at either end of the range (figure 1).

[[Page 16330]]

[GRAPHIC] [TIFF OMITTED] TP22MR22.001

    Representation refers to the ability of a species to adapt to 
change and is based upon considerations of phenotypic, genetic, and 
ecological diversity, as well as the species' ability to colonize new 
areas. There is little evidence of phenotypic variation among 
individuals of sand dune phacelia, and no data are available on 
potential genetic diversity. As a narrow endemic, sand dune phacelia is 
highly specialized and restricted in its ecological niche, with all 
occupied sites sharing similar features, and differences being largely 
related to the population's distance from the ocean and position in 
relation to the dune (e.g., foredune, backdune). As such, sand dune 
phacelia demonstrates little ecological diversity. However, the ability 
of a species to adapt is gauged not only by diversity among

[[Page 16331]]

individuals, but also by its ability to colonize new areas. Currently, 
populations of sand dune phacelia are patchy and dispersed, often 
isolated by large tracts of intervening habitat made unsuitable by 
human development or invasive species. The lack of available and 
unoccupied suitable habitat leaves less opportunity for a species to 
exploit new resources outside of the area it currently occupies and to 
adapt to changing conditions. Further, the lack of connectivity between 
populations may result in reduced gene flow and genetic diversity, 
rendering the species less able to adapt to novel conditions.
    The low level of phenotypic and ecological diversity demonstrated 
within this species, as well as restricted opportunity for colonization 
into new areas, indicates some limitations in representation for sand 
dune phacelia. However, sand dune phacelia continues to be represented 
by multiple populations distributed throughout the known historical 
range of the species, although the resiliency of most of these 
populations is low.

Future Condition

    The intent of this analysis is to assess the viability of sand dune 
phacelia into the future under various plausible future scenarios. 
Further explanation on our methodology and assumptions for our future 
condition analysis can be found in our SSA report (Service 2021, 
Chapter 6). We assessed the future condition of sand dune phacelia by 
considering how invasive species competition, the effects of climate 
change, small population size, and habitat management efforts may 
affect populations over time. We considered the impacts of both habitat 
management (invasive species removal) and climate change on the extent 
of invasive species cover expected to occur in the future at each site. 
Climate change is also projected to affect sea levels; thus, we 
assessed each site for potential effects of inundation due to sea level 
rise. In addition to the overall current condition categories of 
``high,'' ``moderate,'' and ``low'' that were based on current habitat 
and demographic factors, we included for the future condition analysis 
the additional categories of ``very high,'' ``very low,'' and 
``extirpated'' for populations where the overall condition was already 
high but projected to improve, was already low but projected to 
deteriorate further, or where the population (with fewer than 25 
individuals) was expected to become extirpated, respectively.
Future Timeframe
    We considered a timeframe for this analysis based upon the extent 
into the future we could reasonably forecast the impact of the threats 
on the species, given the data and models available to us. Global 
climate models project changes in global temperature and other 
associated climatic changes based on potential future scenarios of 
greenhouse gas concentrations in the atmosphere (i.e., Representative 
Concentration Pathways, or RCPs). RCP 4.5 assumes major near-future 
cuts to carbon dioxide emissions, and RCP 8.5 assumes that current 
emissions practices continue with no significant change (Terando et al. 
2020, p. 10). Thus, these RCPs represent conditions in the upper and 
lower ends of the range of what can reasonably be expected for the 
future effects of climate change (Terando et al. 2020, p. 17). Climate 
model projections are fairly aligned until about mid-century when they 
start to diverge more, as this is the timeframe during which our near-
future carbon emissions begin to manifest in projections of future 
climate. Although all projections into the future show global 
temperature and sea level rise increasing, the variability or 
uncertainty in the magnitude of changes expected becomes much greater 
at this point. Therefore, we determined that the period of time from 
the present to about mid-century to be the timeframe over which we 
could most reliably project the future condition of sand dune phacelia. 
As such, the timeframe for our analysis of the future condition of sand 
dune phacelia extends to approximately the year 2060, which is the mid-
century timeframe available for the sea level rise projections we used 
to assess inundation at sand dune phacelia populations (Service 2021, 
p. 43).
Climate Change
    Warming temperatures have already been documented and are expected 
to continue in the Pacific Northwest, though changes will be somewhat 
muted in coastal areas (Mote et al. 2019, summary p. 1). There have 
been no clear discernible trends in annual precipitation, though there 
will likely be modest increases in the winter and decreases of similar 
scale in the summer (Mote et al. 2019, summary p. 1). Warming summer 
temperatures paired with decreased summer precipitation may lead to 
increased drought risk, which has the potential to cause stress, 
desiccation, and even mortality in plant communities. Although 
increased temperatures and decreased precipitation during the summer 
growing season are likely to have negative effects on sand dune 
phacelia, whether these changes will result in population-level impacts 
in the next 40 years is unclear given the available data. Therefore, we 
were unable to analyze the impacts of drought in our future scenarios.
    Sea level rise projections in 1-foot increments were available at 
three locations that span the entire range of sand dune phacelia (Coos 
Bay and Port Orford in Oregon, and Crescent City in California). One 
foot (0.3 meter) of sea level rise is projected to occur under RCP 8.5 
by 2060 in Oregon and by 2070 in northern California but is not 
projected to occur within this timeframe under RCP 4.5 (Climate Central 
2020, no pagination). According to the sea level rise modeling tool we 
used (National Oceanographic and Atmospheric Administration 2020, no 
pagination), this amount of sea level rise under RCP 8.5 is not 
projected to inundate the areas currently occupied by sand dune 
phacelia. Further details of the sea level rise analysis we conducted, 
including potential indirect effects such as erosion and storm surge 
that we were unable to project, are available in the SSA (Service 2021, 
Chapter 6, Appendix 2).
Invasive Species
    As described previously in this report, invasive plant species, in 
particular European beachgrass and gorse, unequivocally represent the 
primary driver of sand dune phacelia's status presently and into the 
future. Though some uncertainty remains as to how climate change will 
impact biological invasions into the future, it is widely agreed that 
changing climate, especially temperature and precipitation regimes, 
will exacerbate the invasions of many alien species under future 
conditions (Gervais et al. 2020, p. 1).
    Although relatively few in number, some studies have demonstrated 
the impacts of climate change on invasive species by modeling the 
abundance, distribution, spread, and impact of invasive species in the 
Pacific Northwest relative to climate model projections (Gervais et al. 
2020, p. 1). Further, there is evidence that climate-induced expansions 
of invasive species are already underway in this region (Gervais et al. 
2020, p. 1). The best available information at this time does not allow 
us to quantify the magnitude of these expansions, nor does it allow us 
to predict how the population dynamics of sand dune phacelia at 
occupied sites may be affected. However, we expect that the pressure 
currently exerted upon sand dune phacelia populations due to 
encroachment by invasive plant species

[[Page 16332]]

is likely to increase into the future in response to climate change. We 
expect the negative impacts to sand dune phacelia from climate-related 
invasive species expansion to be most evident under the higher 
emissions scenario (RCP 8.5).
Small Population Size
    We considered populations with fewer than 25 individuals likely to 
become extirpated in the future. While small population size does not 
appear to be a threat at the species level because there are multiple 
adequately-sized populations found throughout the range of the species, 
very small populations are at elevated risk for local extirpation, and 
thus small population size is a threat at the population level. None of 
the sites with very small populations currently have habitat management 
practices to remove invasive species, and we did not assume new efforts 
would be initiated but acknowledge that extirpation of very small 
populations could be prevented with management intervention.
Habitat Management
    As previously described, the removal of invasive species has been 
shown to be the most effective strategy for maintaining and increasing 
populations of sand dune phacelia. Because there are no management 
plans in place at any of the population sites that would ensure the 
continuation of or initiate new habitat management practices, and 
funding for these practices is tenuous, we assumed that either habitat 
management currently in place would continue or cease, but that 
management efforts would not increase. We also assumed that populations 
with current management practices in place would improve in condition 
into the future with continued management, and those without management 
currently in place would decline in condition into the future.
Future Scenarios
    We considered two plausible future scenarios in our analysis of 
future viability of sand dune phacelia. Scenario 1 assumes that current 
habitat management actions to control invasive species will continue to 
occur and will continue to benefit sand dune phacelia into the future. 
Thus, the condition of populations of sand dune phacelia at sites that 
are currently receiving habitat management will continue to improve 
into the future. Conversely, under this scenario we assume that if no 
actions to control invasive species are currently being implemented in 
or adjacent to sand dune phacelia populations, no new efforts are 
likely to be initiated, and habitat conditions will subsequently worsen 
over time. Scenario 1 also assumes that RCP 4.5 is in effect, with 
associated effects to sea level rise and a moderate increase in 
invasive species expansion. Scenario 2 assumes that any habitat 
management actions that are presently occurring will be discontinued 
over time, and therefore no habitat management actions to control 
invasive species are in effect in the future. Scenario 2 also assumes 
that RCP 8.5 is in effect, with the associated effects to sea level 
rise and a greater increase in invasive species expansion. Therefore, 
these two scenarios represent our best understanding of the most 
optimistic and the least optimistic of plausible futures we can expect 
for sand dune phacelia.
Future Resiliency, Redundancy, and Representation
    Rangewide, we conclude that under Scenario 1, nearly half (12 of 
25) of all sand dune phacelia populations would become extirpated by 
2060, and many of the remaining populations (7 of 13) would deteriorate 
to Low or Very Low condition. However, the condition of those 
populations that currently benefit from the active control of invasive 
species would increase over time due to improved habitat conditions, 
such that five populations would be in High or Very High condition 
under Scenario 1. Future population resiliency fares worse under 
Scenario 2, with well over half of all populations (68 percent) 
becoming extirpated, and all remaining populations projected to be in 
Low or Very Low condition (table 3). Thus, under either future scenario 
we considered, many populations will become extirpated, and future 
resiliency will be low among most remaining populations.

[[Page 16333]]

[GRAPHIC] [TIFF OMITTED] TP22MR22.002

    Future redundancy of sand dune phacelia declines under both future 
scenarios we considered. Under Scenario 1, only 13 of the 25 extant 
populations would exist rangewide by 2060, with about half of those in 
Low or Very Low condition. However, five populations would remain in 
High or Very High condition, with at least one population considered in 
Very High condition in each representation unit. In the event of a 
catastrophe in a part of its range, sand dune phacelia would likely 
continue to exist in other parts of its range, albeit in low numbers 
and condition. Under Scenario 2, only eight populations are estimated 
to remain extant in 2060 and would be evenly split between Low and Very 
Low condition. Due to the greatly reduced number of remaining 
populations (mostly with low resiliency) under either future scenario, 
sand dune phacelia redundancy will be low, rendering the species 
vulnerable to catastrophic events within the future timeframe we 
considered.
    Representation is not expected to change significantly under either 
future scenario we considered. All representation units will retain 
populations, and each will have at least one population in Very High 
condition under Scenario 1. However, only 13 populations are projected 
to exist rangewide, with over half (54 percent) being in Very Low or 
Low condition. Under Scenario 2, all populations are in Very Low or Low 
condition, with very few populations existing in any of the 
representation units. Fewer populations in the future would provide 
less opportunity for diversity among individuals, with fewer 
individuals available to contribute to the adaptive capacity of the 
species. Isolation is also expected to increase in the future with the 
expected reduction in size and number of populations on the landscape, 
further decreasing the likelihood of genetic exchange. These factors 
may result in a modest reduction in representation into the future, but 
overall, populations (though fewer) will still be distributed across 
the range of the species providing adequate representation.
    Overall, we expect the viability of the species to decline by 
varying degrees under the future scenarios considered. Persistence of 
the two populations that contain 89 percent of known individuals, even 
under the more

[[Page 16334]]

favorable future scenario considered, appears to depend upon continued 
removal of introduced, invasive species. By mid-century (roughly 2060), 
we expect sand dune phacelia will still occur on the landscape, but 
likely with a significantly reduced number of sufficiently resilient 
populations that are even more sparsely distributed across the 
historical range of the species.
    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 Sand Dune Phacelia Status

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

Status Throughout All of Its Range

    We carefully assessed the best scientific and commercial 
information available regarding the past, present, and future stressors 
to sand dune phacelia. The potential stressors we considered were: 
Invasive species encroachment and competition (Factors A and E); 
recreational impacts from OHV use and trampling (Factor A); coastal 
development (Factor A); livestock grazing (Factor A); regulatory and 
voluntary conservation efforts (Factor D); climate change impacts 
including sea level rise and drought (Factor E); small population size 
(Factor E); and pollinator decline (Factor E). There is no evidence 
that overutilization (Factor B) or disease and predation (Factor C) are 
impacting sand dune phacelia. We evaluated each potential stressor to 
determine which stressors were likely to be drivers of the species' 
current and future condition, and found that invasive species, climate 
change, and small population size are the primary threats to the 
species.
    There are 25 naturally occurring, extant populations of sand dune 
phacelia. Nearly 70 percent (17) of these populations are currently in 
low condition according to our assessment, and nearly half (12) of the 
populations have fewer than 25 individuals. However, extant populations 
are distributed across the historical range of the species, and there 
remains at least one highly resilient population and one moderately 
resilient population in each of the three representative areas (in the 
northern, middle, and southern regions of the range). Populations that 
are currently in poor condition, many of which have fewer than 25 
individuals, are at risk of extirpation without management 
intervention. Many of these populations, especially those with very low 
abundance, may never be likely to contribute meaningfully to the 
species' viability. However, even without the very small (fewer than 25 
individuals) populations on the landscape, the species would still 
maintain 13 populations across the range, with 8 of those populations 
being in moderate or high condition and evenly distributed across all 3 
representation units. The distribution and maintenance of sufficiently 
resilient populations, albeit few of them, across the historical range 
of the species indicates an adequate degree of redundancy, making it 
unlikely that a single catastrophic event would lead to the extirpation 
of all extant populations.
    While we have little evidence of diversity among members of the 
species, sand dune phacelia is a relatively localized endemic 
inhabiting a narrow ecological niche, so broad diversity is not 
necessarily expected. Populations of sand dune phacelia remain 
distributed across the three representation units and throughout its 
known historical range, and therefore the species is currently 
represented across the breadth of any ecological diversity that exists 
within its range.
    We know that the most influential threat to sand dune phacelia, 
encroachment by invasive species (Factors A and E), can be successfully 
mitigated with active habitat management. Effective habitat management 
is currently ongoing at several population sites, including at the 
largest population strongholds at the northern and southern extents of 
the species' range (Bandon Preserve and Golf Course in Oregon and 
Tolowa Dunes in California). It is also possible that if management 
efforts continue or increase, they could promote the increase and 
expansion of populations into the future.
    Because of the presence of multiple populations in moderate to high 
condition (or with adequate resiliency) distributed across all regions 
of the species' historical range (redundancy) and across the breadth of 
ecological conditions inhabited by the species (representation), as 
well as the success of current conservation efforts to mitigate the 
primary threat (invasive species) at population strongholds, we 
determined that sand dune phacelia is not currently in danger of 
extinction throughout its range.
    Upon determining that sand dune phacelia is not at risk of 
extinction now, we consider whether it is likely to become endangered 
in the foreseeable future. According to our assessment of plausible 
future scenarios, we conclude that the species is likely to become 
endangered within the foreseeable future throughout all of its range 
through decreased resiliency, redundancy, and representation. For the 
purposes of this determination, the foreseeable future is considered to 
be approximately 40 years from now (or approximately 2060), based on 
the timeframe with which we could most reliably project the impacts of 
climate change and the species' response to those impacts.
    As previously noted, the primary driver of the sand dune phacelia's 
status is habitat loss due to encroachment and competition by invasive 
species (Factors A and E). This species is considered management-
dependent, relying on active and continuous removal of invasive species 
such as European beachgrass and gorse to maintain habitat

[[Page 16335]]

conditions to support sand dune phacelia. Invasive species removal, 
especially that which is effective and consistent enough to maintain 
sand dune phacelia populations over time, is costly and labor-
intensive, and requires a significant commitment of resources. 
Currently, while invasive species removal efforts are responsible for 
maintaining the few (8 of 25) sand dune phacelia populations that are 
in moderate to high condition, no formal commitments or agreements are 
in place to continue these efforts, and many of these efforts are 
dependent upon the will and resources of volunteer groups or private 
landowners. The remaining strongholds of sand dune phacelia would 
likely decline quickly in the absence of effective habitat management 
efforts that are currently ongoing. Specifically, in the most severe 
future scenario we considered, which includes the cessation of all 
management efforts into the future, our analysis projects the 
extirpation of most (17) populations in the future, with those 
remaining (8) declining to low or very low condition.
    Climate change (Factor E) may elevate the risk of drought, lead to 
increased erosion caused by sea level rise and the increased frequency 
and magnitude of storm surge, or potentially result in other negative 
influences to sand dune phacelia, but we were unable to reliably 
project how these influences would impact the species in our future 
analysis. Climate change is expected to exacerbate the threat of 
invasive species into the future, regardless of which emissions 
scenarios we consider. Given the severity of the threat of invasive 
species and the tenuous nature of habitat management into the future, 
the synergistic effects of climate change and invasive species on sand 
dune phacelia could be significant regardless of the magnitude of 
climate change impacts on their own.
    Small population size (Factor E) is a threat that affects nearly 
half of the extant sand dune phacelia populations. These 12 populations 
have fewer than 25 individuals and have no programs in place or 
conservation efforts ongoing to ameliorate the threat of invasive 
species, which is the primary cause of low sand dune phacelia abundance 
at these sites. Without the implementation of habitat management 
practices at these sites, we expect these very small populations to 
become extirpated in the future.
    Regulatory mechanisms (Factor D) and voluntary conservation efforts 
by the States of Oregon and California, BLM, volunteer groups, and 
private landowners, provide benefit to sand dune phacelia at the 
affected population sites, mostly through invasive species removal 
efforts and to some degree augmentation and reintroduction efforts. 
However, while these efforts have helped reduce the impacts of invasive 
species and small population size locally at certain populations, these 
influences remain prominent threats to sand dune phacelia and continue 
to affect the species as a whole.
    Due to the continuation of threats at increasing levels into the 
future, we anticipate a significant reduction in the distribution of 
sand dune phacelia as the result of the extirpation of multiple 
populations. Even in the most optimistic future scenario we considered, 
nearly half of the extant populations of sand dune phacelia would 
likely become extirpated, with only six populations remaining with 
moderate to high/very high resiliency. The less optimistic future 
projection would result in most populations becoming extirpated, and 
any remaining populations would be in low or very low condition. These 
types of declines illustrate a loss of resiliency among most 
populations, as well as a significant reduction in redundancy and 
representation, with fewer populations on the landscape to withstand 
catastrophic events and maintain adaptive capacity. Remaining 
populations in either future scenario will have lower resiliency, 
leading to lower overall redundancy and representation. Even in the 
most optimistic future scenario, the species will have low viability 
and is therefore at risk of becoming endangered within the foreseeable 
future.
    Thus, after assessing the best available information, we conclude 
that sand dune phacelia is likely to become in danger of extinction 
within the foreseeable future 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. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), 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 that 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. Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for sand dune phacelia, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered.
    For sand dune phacelia, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. We examined the threats of invasive 
species and of climate change, including cumulative effects.
    The threat of invasive species is pervasive throughout the range of 
sand dune phacelia. The type of invasive species may vary regionally 
(gorse, for example, is more prevalent in the northern extent of the 
range), but the threat of invasive species encroachment in general is 
equal in severity throughout the range. Similarly, both the efficacy of 
mitigating the threat of invasive species through habitat restoration, 
and the uncertainty related to funding availability to do so, appear 
consistent throughout the species' range.
    The effects of climate change appear to be similar across the 
historical range of sand dune phacelia. Increases in temperature and 
changes in seasonal precipitation that could increase the risk of 
drought in the future are expected to occur to a similar magnitude 
across the range of the species. Storm surge, which can lead to 
flooding and erosion at coastal sites, is also expected to increase 
with climate change, and we have no data to indicate that these impacts 
would not be approximately equivalent across the range of sand dune 
phacelia.

[[Page 16336]]

Sea level rise projections are also nearly identical across the coastal 
habitat occupied by sand dune phacelia. Specifically, RCP 8.5 indicates 
that the impacts of sea level rise are essentially equal across all 
sites: Within the foreseeable future all sites will experience a 1-foot 
(0.3 m) or less increase in sea level rise, which will not inundate any 
of the population sites. The synergistic effects of climate change and 
invasive species, with biological invasions being facilitated by 
climate change, are also expected to occur in approximately equal 
magnitude throughout the range of sand dune phacelia and likely 
represent the more influential effect of climate change on the species 
given that sea level rise is not projected to inundate any extant 
population sites.
    The threat of small population size also appears to be distributed 
throughout the range, with low-abundance populations throughout the 
range and distributed across all three representation units.
    While there may be some variation in the source and intensity of 
each individual threat at each population location, we found no 
concentration of threats in any portion of the sand dune phacelia's 
range at a biologically meaningful scale. Thus, there are no portions 
of the species' range where the threats facing the species are 
concentrated to a degree where the species in that portion would have a 
different status from its rangewide status. Therefore, no portion of 
the species' range provides a basis for determining that the species is 
in danger of extinction in a significant portion of its range, and we 
determine that the species is likely to become in danger of extinction 
within the foreseeable future throughout all of its range. This does 
not conflict with the courts' holdings in Desert Survivors v. 
Department of the Interior, 331 F.Supp.3d 1131, 1136 (N.D. Cal. 2018), 
and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 
959 (D. Ariz. 2017) because, in reaching this conclusion, we did not 
need to consider whether any portions are significant and therefore did 
not apply the aspects of the Final Policy's definition of 
``significant'' that those court decisions held were invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the sand dune phacelia meets the definition 
of a threatened species. Therefore, we propose to list the sand dune 
phacelia as a threatened 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, self-sustaining, 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 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 Oregon Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Oregon and California 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the sand dune phacelia. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/grants.
    Although the sand dune phacelia 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

[[Page 16337]]

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 Bureau of Land 
Management.
    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. The discussion below regarding protective 
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him [or her] with regard to the permitted activities for those 
species. He [or she] may, for example, permit taking, but not 
importation of such species, or he [or she] may choose to forbid both 
taking and importation but allow the transportation of such species'' 
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
proposed rule that is designed to address sand dune phacelia 
conservation needs. Although the statute does not require us to make a 
``necessary and advisable'' finding with respect to the adoption of 
specific prohibitions under section 9, we find that this rule as a 
whole satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of sand dune phacelia. As discussed above under Summary of 
Biological Status and Threats, we have concluded that sand dune 
phacelia is likely to become in danger of extinction within the 
foreseeable future primarily due to encroachment by invasive species, 
small population size, and the effects of climate change. The 
provisions of this proposed 4(d) rule would promote conservation of 
sand dune phacelia by encouraging management of the landscape in ways 
that meet the conservation needs of the sand dune phacelia. The 
provisions of this proposed rule are one of many tools that we would 
use to promote the conservation of sand dune phacelia. This proposed 
4(d) rule would apply only if and when we make final the listing of the 
sand dune phacelia as a threatened species.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    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.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of the 
sand dune phacelia by prohibiting the following activities applicable 
to an endangered plant, except as otherwise authorized or permitted: 
Import or export; certain acts related to removing, damaging, and 
destroying on areas under Federal jurisdiction; delivery, receipt, 
transport, or shipment in interstate or foreign commerce in the course 
of commercial activity; and sale

[[Page 16338]]

or offering for sale in interstate or foreign commerce.
    As discussed above under Summary of Biological Status and Threats, 
encroachment by native and nonnative invasive species (Factors A and 
E), small population size (Factor E), and climate change (Factor E) 
affect the status of sand dune phacelia. Additionally, a range of 
activities have the potential to negatively affect individual sand dune 
phacelia, including recreational impacts such as off-road vehicle use 
and inadvertent trampling through pedestrian or equestrian activities. 
To protect the species from these stressors, in addition to the 
protections that apply to Federal lands, the 4(d) rule would prohibit a 
person from removing, cutting, digging up, or damaging or destroying 
the species on non-Federal lands in knowing violation of any law or 
regulation of any State or in the course of any violation of a State 
criminal trespass law. As most populations of sand dune phacelia occur 
off Federal land, these protections in the 4(d) rule are key to its 
effectiveness. For example, any damage to the species on non-Federal 
land in violation of a State off-highway vehicle law would be 
prohibited by the 4(d) rule. Additionally, any damage incurred by the 
species due to criminal trespass on non-Federal lands would similarly 
violate the proposed 4(d) rule. Regulating these activities will help 
preserve the species' remaining populations, slow their rate of 
decline, and decrease synergistic, negative effects from other 
stressors. As a whole, the proposed 4(d) rule would help in the efforts 
to recover sand dune phacelia by limiting specific actions that damage 
individual populations.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. Regulations governing permits for threatened 
plants are codified at 50 CFR 17.72, which states that the Director may 
issue a permit authorizing any activity otherwise prohibited with 
regard to threatened species. That regulation also states that the 
permit shall be governed by the provisions of 50 CFR 17.72 unless a 
special rule applicable to the plant is provided in 50 CFR 17.73 to 
17.78. We interpret that second sentence to mean that permits for 
threatened species are governed by the provisions of 50 CFR 17.72 
unless a special rule, which we have defined to mean a species-specific 
4(d) rule, provides otherwise. We recently promulgated revisions to 50 
CFR 17.71 providing that 50 CFR 17.71 will no longer apply to plants 
listed as threatened in the future. We did not intend for those 
revisions to limit or alter the applicability of the permitting 
provisions in 50 CFR 17.72, or to require that every species-specific 
4(d) rule spell out any permitting provisions that apply to that 
species and species-specific 4(d) rule.
    To the contrary, we anticipate that permitting provisions would 
generally be similar or identical for most species, so applying the 
provisions of 50 CFR 17.72 unless a species-specific 4(d) rule provides 
otherwise would likely avoid substantial duplication. Moreover, this 
interpretation brings 50 CFR 17.72 in line with the comparable 
provision for wildlife at 50 CFR 17.32, in which the second sentence 
states that the permit shall be governed by the provisions of 50 CFR 
17.32 unless a special rule applicable to the wildlife, appearing in 50 
CFR 17.40 to 17.48, provides otherwise. Under 50 CFR 17.72 with regard 
to threatened plants, a permit may be issued for the following 
purposes: for scientific purposes, to enhance propagation or survival, 
for economic hardship, for botanical or horticultural exhibition, for 
educational purposes, or for other purposes consistent with the 
purposes and policy of the Act. Additional statutory exemptions from 
the prohibitions are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
would be able to conduct activities designed to conserve sand dune 
phacelia that may result in otherwise prohibited activities without 
additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of sand dune phacelia. However, interagency cooperation may 
be further streamlined through planned programmatic consultations for 
the species between Federal agencies and the Service, where 
appropriate. We ask the public, particularly State agencies and other 
interested stakeholders that may be affected by the proposed 4(d) rule, 
to provide comments and suggestions regarding additional guidance and 
methods that the Service could provide or use, respectively, to 
streamline the implementation of this proposed 4(d) rule (see 
Information Requested, above).

III. 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). Additionally, our regulations 
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species.
    Conservation, as defined under section 3 of the Act, means 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

[[Page 16339]]

methods and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). 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 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

[[Page 16340]]

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 report and 
proposed listing determination for sand dune phacelia, we determined 
that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to sand dune phacelia and 
that those threats in some way can be addressed by section 7(a)(2) 
consultation measures. The species occurs wholly in the jurisdiction of 
the United States, and we are able to identify areas that meet the 
definition of critical habitat. 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 be 
not prudent, we have determined that the designation of critical 
habitat is prudent for sand dune phacelia.

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 sand 
dune phacelia 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 sand dune phacelia.

Physical or Biological Features Essential to the Conservation of the 
Species

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

Sandy Coastal Dune Habitat With Adequate Light Exposure, Water, and 
Growing Space

    Sandy coastal dune habitat above the high tide line that provides a 
high light environment, room for growth, and adequate moisture is 
required to support sand dune phacelia populations. Sandy areas must 
have open (unvegetated) space within them to accommodate population 
expansion. The physical features of sunlight, space, and water are 
essential for seedling establishment and growth, and facilitate the 
development of large, mature plants that produce copious amounts of 
seed. While we lack information on specific quantities associated with 
this need (such as maximum percent canopy cover that the species can 
tolerate), it is clear that sandy habitats that provide the essential 
features of sunlight, space, and water for sand dune phacelia tend to 
have lower cover of competitive invasive species, particularly European 
beachgrass and gorse.

Adequate Pollinator Community

    A sufficient abundance of pollinators, particularly leafcutter bees 
(Family: Megachilidae), are required for genetic exchange among sand 
dune phacelia individuals. Sand dune phacelia appears to be largely 
incapable of significant self-pollination (Meinke 2016, p. 3), relying 
primarily on leafcutter bees (Anthidium palliventre) and bumblebees 
(Bombus spp.) for pollination. Ants (Formica spp.) and beetles 
(unidentified spp.) have also been observed in association with sand 
dune phacelia flowers, but it is unclear how effective they are at 
pollination (Rittenhouse 1995, p. 8).

[[Page 16341]]

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of sand dune phacelia from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2021, entire, 
available on https://www.regulations.gov under Docket No. FWS-R1-ES-
2021-0070). We have determined that the following physical or 
biological features are essential to the conservation of sand dune 
phacelia:
    <bullet> Sandy coastal dune habitat above the high tide line that 
provides a high light environment, room for growth, and adequate 
moisture;
    <bullet> A sufficiently abundant pollinator community (which may 
include leafcutter bees and bumble bees) for pollination and 
reproduction;

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. In the case of sand dune phacelia, these essential features 
include sandy dune habitat with high light exposure and adequate 
moisture and unvegetated space, as well as a sufficiently large and 
diverse pollinator community, and a minimum of 25 reproductively mature 
sand dune phacelia plants within dispersal distance of one another to 
sustain a population.
    These features essential to sand dune phacelia conservation may 
require special management considerations or protection to reduce the 
threat of invasive species encroachment, and to withstand climate 
change effects such as drought and sea level rise. In addition, 
localized stressors related to recreational activity, such as off-road 
vehicle use and pedestrian or equestrian trampling, may also need to be 
mitigated by special management practices to maintain viable sand dune 
phacelia populations.
    Management activities that could ameliorate these threats include, 
but are not limited to: (1) Habitat restoration activities in sand dune 
habitat that include the removal of invasive species such as nonnative 
European beachgrass and gorse, or native successional species such as 
shore pine; (2) efforts to restore a diverse and abundant pollinator 
community, such as through restricting land management practices that 
harm pollinator species, or through support of a diverse native nectar 
plant community; (3) access restrictions and enforcement for off-road 
vehicle use in areas occupied by sand dune phacelia; (4) recreational 
restrictions to prevent trampling of sand dune phacelia by pedestrians 
or equestrians; and (5) augmentation and reintroduction programs to 
expand phacelia populations.
    These management activities will protect the physical and 
biological features (PBFs) essential for the conservation of sand dune 
phacelia by providing native sandy dune habitat that allows for sand 
dune phacelia population growth and expansion, supporting the 
pollinator community that enables sand dune phacelia reproduction, 
protecting sand dune phacelia populations from trampling and crushing, 
and maintaining an adequate number of sand dune phacelia individuals 
necessary to sustain viable populations.

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. We determined that the areas 
currently occupied by populations of sand dune phacelia made up of at 
least 25 individuals, if recovered, would be sufficient to conserve the 
species. The extant populations with at least 25 individuals are 
distributed across the three representation units and across the 
historical range of the species and, therefore, also span any 
ecological diversity that may exist within the species' range. 
Therefore, if these populations were recovered to sufficient 
resiliency, they would provide adequate redundancy and representation 
for the species. Because currently occupied areas are sufficient to 
recover the species, we conclude that currently unoccupied areas do not 
meet the definition of critical habitat because they are not essential 
to the conservation of the species. 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:
    Across the representation units, there are 25 naturally occurring 
sand dune phacelia populations consisting of a total of 94 polygons 
(patches of sand dune phacelia). We developed critical habitat units 
within each representation unit by joining patches of sand dune 
phacelia within each population to form discrete units; this was 
accomplished by joining patch vertices and creating minimum convex 
polygons. We considered patches to be part of the same population if 
they are within 0.30 miles (0.48 km) of each other in Oregon (as 
defined by Oregon Natural Heritage Information Center) or 0.25 miles 
(0.4 km) of each other in California (as defined by the California 
Natural Diversity Database).
    A minimum of 25 reproductively mature plants are required for 
breeding purposes to maintain viability in a population. Extant sand 
dune phacelia populations are isolated from one another on the 
landscape, with no possibility of natural dispersal between 
populations. As such, each individual population relies on having an 
adequate number of its own members to sustain itself and avoid 
extirpation. Although there are no data related to the minimum number 
of individuals necessary to sustain the viability of a sand dune 
phacelia population, we assume that at least 25 reproductively mature 
plants are needed for sufficient reproduction to allow the population 
to withstand stochastic events.
    Because we consider populations comprising fewer than 25 plants as 
being in low condition and unlikely to contribute meaningfully to 
recovery, we designated critical habitat only around populations with 
equal to or greater than 25 individuals. This consideration resulted in 
the creation of 13 critical habitat units.
    Some patches within the same population were separated by habitat 
that was unsuitable (i.e., does not contain PBFs). We avoided including 
unsuitable habitat within the critical habitat units by joining patches 
only if the intervening habitat contained at least one PBF. We further 
limited the inclusion of unsuitable habitat by removing areas from the 
unit that were clearly unsuitable (e.g., forest, water bodies) to the 
maximum extent possible given the scale of mapping.
    When determining proposed critical habitat boundaries, we made 
every

[[Page 16342]]

effort to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for sand dune phacelia. 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). Thirteen critical habitat units are proposed for designation 
based on the physical or biological features being present to support 
sand dune phacelia's life-history processes. All of the critical 
habitat units contain all of the identified physical or biological 
features and support multiple life-history processes necessary to 
support the sand dune phacelia's 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-R1-ES-
2021-0070, and on our internet site at https://www.fws.gov/oregonfwo.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 252 ac (102 ha) in 13 
units as critical habitat for sand dune phacelia. The critical habitat 
areas we describe below constitute our current best assessment of areas 
that meet the definition of critical habitat for sand dune phacelia. 
The 13 critical habitat units we propose are: (1) North Bandon 1, (2) 
North Bandon 2, (3) Lost Lake, (4) Floras Lake, (5) Cape Blanco, (6) 
Paradise Point, (7) Pistol River North, (8) Pistol River South, (9) 
Lone Ranch, (10) Pacific Shores, (11) Tolowa Dunes, (12) Point St. 
George, and (13) Pebble Beach. All 13 critical habitat units are 
occupied by the species. Table 4 shows the proposed critical habitat 
units and the approximate area, broken down by land ownership, for each 
unit.
    We present brief descriptions of all critical habitat units below. 
Note that all units of critical habitat described below meet the 
definition of critical habitat for sand dune phacelia because all of 
the units are occupied by sand dune phacelia, and all units contain all 
of the physical and biological features essential to the species.

                         Table 4--Proposed Critical Habitat Units for Sand Dune Phacelia
----------------------------------------------------------------------------------------------------------------
                                   Private  (ac    Federal  (ac      State (ac      County  (ac     Total  (ac
                                       (ha))           (ha))           (ha))           (ha))           (ha))
----------------------------------------------------------------------------------------------------------------
                                                     Oregon
----------------------------------------------------------------------------------------------------------------
North Bandon 1..................       0.6 (0.2)               0               0               0       0.6 (0.2)
North Bandon 2..................       54.4 (22)               0       6.9 (2.8)               0     61.3 (24.8)
Lost Lake.......................       2.8 (1.1)       0.8 (0.3)      0.1 (0.04)               0       3.7 (1.5)
Floras Lake.....................               0       5.8 (2.3)               0               0       5.8 (2.3)
Cape Blanco.....................               0               0       2.0 (0.8)               0       2.0 (0.8)
Paradise Point..................       3.7 (1.5)               0               0               0       3.7 (1.5)
Pistol River North..............               0               0       3.2 (1.3)               0       3.2 (1.3)
Pistol River South..............               0               0       0.7 (0.3)               0       0.7 (0.3)
Lone Ranch......................               0               0       6.5 (2.6)               0       6.5 (2.6)
----------------------------------------------------------------------------------------------------------------
                                                   California
----------------------------------------------------------------------------------------------------------------
Pacific Shores..................       54.4 (22)               0     37.9 (15.3)               0     92.3 (37.4)
Tolowa Dunes....................               0               0     69.6 (28.2)               0     69.6 (28.2)
Pt. St. George..................       0.1 (0.4)               0               0       1.0 (0.4)       1.1 (0.4)
Pebble Beach....................               0               0       1.3 (0.5)       0.4 (0.2)       1.7 (0.7)
                                 -------------------------------------------------------------------------------
    Totals......................      116 (46.9)       6.6 (2.8)    128.2 (51.9)       1.4 (0.6)   252.2 (102.1)
----------------------------------------------------------------------------------------------------------------
Note: Area estimates reflect suitable habitat within critical habitat unit boundaries, with non-habitat (as
  identified by textual description) excluded. Area sizes may not sum due to rounding.

Unit 1: North Bandon 1

    Unit 1 consists of 0.6 ac (0.2 ha) in Coos County, Oregon. It is at 
the northernmost limit of the sand dune phacelia's range in Coos County 
and is located on the privately owned Bandon Dunes Golf Resort. 
Invasive species are an ongoing threat at this site, and therefore 
invasive species management may be required. A stated goal of the 
conservation-minded owner is to protect and enhance sand dune phacelia 
at the site, and the population here has flourished due to the removal 
of heavy infestations of gorse (Gunther 2012, no pagination).

Unit 2: North Bandon 2

    Unit 2 consists of 61.3 ac (24.8 ha) in Coos County, Oregon, and 
currently supports the largest population of sand dune phacelia 
rangewide. The majority (54.4 ac (22 ha)) of the habitat at this site 
is on the privately owned Bandon Dunes Golf Resort. The population here 
is now the largest rangewide, with over 24,000 individuals (Brown 2020a 
database). Invasive species are the primary threat, and therefore 
invasive species management may be required. Conservation and 
restoration implemented by the golf resort are largely responsible for 
the high

[[Page 16343]]

condition of this population and its habitat. While there are no formal 
agreements in place to protect sand dune phacelia at the resort, we 
have no evidence at this time that management efforts at this site will 
be discontinued. Part of the population (6.9 ac (2.8 ha)) is in State 
park ownership (Bullard's Beach) and implementation of invasive species 
control, particularly gorse, could result in an expanded sand dune 
phacelia population in the park.

Unit 3: Lost Lake

    Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon. The Lost 
Lake unit contains land within the Coos Bay New River Area of Critical 
Environmental Concern (ACEC) (0.8 ac (0.3 ha)) that is federally 
managed by BLM, State-managed land (0.1 ac (0.04 ha)) within the Bandon 
State Natural Area (BSNA), and undeveloped private land (2.8 ac (1.1 
ha)). Stressors in Unit 3 include illegal off-highway vehicle (OHV) use 
and the persistent threat of invasive species. As such, managing OHV 
use may benefit the unit, and invasive species management may be 
required to maintain it. Sand dune phacelia has greatly benefited from 
BLM's efforts to remove invasive species in the Lost Lake area, and it 
is likely that there is room for expansion of this population provided 
that annual, or nearly annual, vegetation management continues. 
Augmentation efforts, including transplanting and seeding, have also 
occurred at Lost Lake on the ACEC.

Unit 4: Floras Lake

    Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon. Like 
Unit 3, Floras Lake is a part of BLM's New River ACEC. BLM monitors and 
regularly manages the habitat to maintain the open sand conditions that 
the sand dune phacelia requires, contributing to the fact that the 
population of sand dune phacelia at Floras Lake is the largest 
naturally occurring (i.e., not introduced) population on Federal land. 
BLM has augmented populations in this subunit with transplants. In 
addition to the threat of invasive species, other stressors include 
trampling by hikers and wintertime flooding from Floras Lake. Dependent 
upon the intensity, these activities could also be beneficial as they 
mobilize sand and clear habitat of invasive species. As such, 
mitigating the impacts of pedestrian use, flooding, and invasive 
species, may be required. Sea level rise may pose an additional threat. 
As determined by our future condition analysis, a 1-foot rise in sea 
level by 2060 would barely reach the seaward boundary of the unit; 
however, other accompanying effects of climate change, like increased 
storm surge, may also affect sand dune phacelia habitat in this unit.

Unit 5: Cape Blanco

    Unit 5 consists of 2.0 ac (0.8 ha) in Curry County, Oregon. The 
unit is State-managed by the Oregon Parks and Recreation Department 
(OPRD) and consists of sandy bluffs above the high tide line. A 
naturally occurring population was augmented with transplants in 2018. 
Invasive species are a threat at this site, and therefore invasive 
species management may be required.

Unit 6: Paradise Point

    Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon. It is 
separated from Unit 5 by the Elk River and bounded to the east by 
private ranchlands. Unit 6 is made up of undeveloped private land, 
limited to sandy bluffs between the high tide line and adjacent 
pastureland. Although it is privately owned, the State (OPRD) has 
jurisdiction over the land in Unit 6 as well as some adjacent State-
owned land. In addition to the threat of invasive species, other 
factors influencing the population at this site include OHV use, 
erosion, and storm surge associated with sea level rise. As such, 
invasive species management may be required, and other management 
associated with mitigating the impacts of OHV use, erosion, and 
flooding may also be beneficial.

Unit 7: Pistol River North

    Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon. The 
land on Unit 7 lies southwest of the Pistol River and is State-managed 
by OPRD (Pistol River State Park) and the Oregon Department of 
Transportation. As with all other units, invasive species are a threat, 
and therefore invasive species management may be required. Another 
stressor affecting Unit 7 is erosion, as the mouth of the Pistol River 
changes location annually, scouring the dunes and carrying sand out to 
sea.

Unit 8: Pistol River South

    Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon. The 
land is south of Unit 7 and also located on Pistol River State Park. 
Invasive species are a threat here, and the site is surrounded by 
European beachgrass and encroaching shore pine. As such, invasive 
species management may be required.

Unit 9: Lone Ranch

    Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and 
currently supports the third largest population of sand dune phacelia 
throughout its range. It is composed entirely of land managed by the 
State (OPRD; Boardman State Park). There is an imminent threat to the 
population at this site posed by a number of invasive species. As such, 
invasive species management may be required. Existing control of weedy 
species for recreational trail access may be maintaining existing 
suitable habitat.

Unit 10: Pacific Shores

    Unit 10 consists of 92.3 ac (37.4 ha) in Del Norte County, 
California. State lands make up 37.9 ac (15.3 ha) of this site, with 
the remaining 54.4 acres (22 ha) in private ownership at this time. 
This area represents an abandoned real estate venture, where lands were 
subdivided into 0.5-ac (0.20-ha) lots in the 1960s for residential 
development. Over 1,500 lots were sold and approximately 27 miles of 
road and electric transmission line were constructed. However, the area 
remains undeveloped due to permitting issues, and the empty lots are 
now being acquired for conservation by a coalition of entities for 
inclusion into the State's Lake Earl Wildlife Area. Approximately 430 
lots remain in private ownership. Invasive species are a threat here, 
and therefore invasive species management may be required. In addition, 
because much of the sand dune phacelia population in the unit occurs 
adjacent to roadways or other readily accessible areas, the unit is 
considered heavily impacted by human activities that include OHV use. 
Special management considerations to mitigate the impact to sand dune 
phacelia habitat from these activities may be required.

Unit 11: Tolowa Dunes

    Unit 11 consists of 69.6 ac (28.2 ha) in Del Norte County, 
California, and currently supports the second largest population of 
sand dune phacelia rangewide. The unit is State-managed in part by 
California State Parks (on Tolowa Dunes State Park) and the California 
Department of Fish and Wildlife (on Lake Earl Wildlife Area). Invasive 
species are a threat here and OHV use also impacts this site. As such, 
managing OHV use and invasive species may be required. The relatively 
high abundance of sand dune phacelia in Unit 11 is attributed to a 
concerted restoration program that has removed invasive species, 
particularly European beachgrass. These efforts have made this 
population the stronghold for the

[[Page 16344]]

species in California and an important contributor to sand dune 
phacelia resiliency and redundancy rangewide. However, much of the 
restoration at this site has been conducted by volunteers, and funding 
to continue maintaining restored habitat is uncertain.

Unit 12: Point Saint George

    Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County, 
California. The vast majority of the land (1 ac (0.4 ha)) is county-
managed by Del Norte County Parks, and the other 0.1 ac (0.04 ha) is 
privately owned. Invasive species, particularly annual grasses, are 
prolific in this unit and therefore invasive species management may be 
required. However, a large proportion of the sand dune phacelia 
population at this site occurs near a hiking trail where disturbance 
has kept the area relatively free of invasive species.

Unit 13: Pebble Beach

    Unit 13 consists of 1.7 ac (0.7 ha) in Del Norte County, 
California. While 0.4 ac (0.2 ha) of the land here is county land, the 
rest (1.3 ac (0.5 ha)) is State-managed by the California Department of 
Transportation. Invasive species pose a substantial threat at this 
site, primarily Hottentot fig or iceplant (Carpobrotus edulis), and 
therefore invasive species management may be required. Additionally, 
much of this unit is located within a road right-of-way, and therefore 
road development or maintenance activities could impact sand dune 
phacelia individuals, some of which are quite large and productive. As 
such, special management to mitigate the impact to sand dune phacelia 
habitat from these activities may be required.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or 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, 
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.

[[Page 16345]]

    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Actions that would destroy, alter, or convert sand dune 
habitat. Such activities could include, but are not limited to, the 
construction of new roads or utility lines, dune breaching or breaching 
of water bodies for flood control, bridge work, and the use of heavy 
equipment for regular maintenance activities (such as roadway 
maintenance). These activities could eliminate or reduce the sandy dune 
habitat necessary for sand dune phacelia growth and reproduction.
    (2) Actions that would inhibit or reduce native plant communities 
and the pollinator communities they support. Such activities could 
include, but are not limited to, herbicide or insecticide application. 
These activities could limit the ability of sand dune phacelia to 
reproduce by inhibiting pollinator communities.
    (3) Actions that would introduce or promote the proliferation of 
invasive or successional species plant species into sand dune habitat. 
Such activities could include, but are not limited to, vegetation 
management that encourages growth of competing native and nonnative 
species. These activities could increase competition for space for 
growth, sunlight, and nutrients between sand dune phacelia and 
nonnative or successional competitors such as European beachgrass and 
shore pine, respectively.

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 designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. We describe below the process that we undertook for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 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 sand dune phacelia (Industrial Economics, Inc. 
2021). We began by conducting a screening analysis of the proposed 
designation of critical habitat in order to focus our analysis on the 
key factors that are likely to result in incremental economic impacts. 
The purpose of the screening analysis is to filter out particular 
geographic areas of critical habitat that are already subject to such 
protections and are, therefore, unlikely to incur incremental economic 
impacts. In particular, the screening analysis considers baseline costs 
(i.e., absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. If the proposed critical habitat 
designation contains any unoccupied units, the screening analysis 
assesses whether those units require additional management or 
conservation efforts that may incur incremental economic impacts. This 
screening analysis combined with the information contained in our IEM

[[Page 16346]]

constitute what we consider to be our draft economic analysis (DEA) of 
the proposed critical habitat designation for the sand dune phacelia; 
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 that 
may result from the proposed designation of critical habitat for the 
sand dune phacelia, first we identified, in the IEM dated April 14, 
2021, probable incremental economic impacts associated with the 
following categories of activities: (1) Federal lands management (U.S. 
Bureau of Land Management) for recreational use, western snowy plover 
management, dune breaching, salt spray meadow restoration, and 
management plan updates; (2) bridge work; (3) breaching of water bodies 
for flood control purposes; and (4) road development and maintenance. 
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 sand dune phacelia 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 consultation 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 sand dune 
phacelia's critical habitat. Because the designation of critical 
habitat for sand dune phacelia 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 sand dune phacelia 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.
    We are proposing to designate approximately 252 ac (102 ha) of 
critical habitat for sand dune phacelia across Coos and Curry Counties 
in Oregon and Del Norte County in California. The designation is 
divided into 13 units, and all units are occupied by sand dune 
phacelia. We are not proposing to designate any units of unoccupied 
habitat. Approximately 51 percent of the proposed designation is 
located on State-owned lands, 46 percent is on privately owned lands, 3 
percent is on Federal lands, and less than 1 percent is on county-owned 
lands. Any actions that may affect the species or its habitat would 
also affect critical habitat, and it is unlikely that any additional 
conservation efforts would be recommended to address the adverse 
modification standard over and above those recommended as necessary to 
avoid jeopardizing the continued existence of sand dune phacelia. 
Therefore, only administrative costs are expected with the proposed 
critical habitat designation. 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.
    The probable incremental economic impacts of the sand dune phacelia 
critical habitat designation are expected to be limited to additional 
administrative effort resulting from an estimated 3 programmatic 
consultations, 10 formal consultations, 3 informal consultations, and 7 
technical assistance efforts related to section 7 consultation over the 
next 10 years. Because all of the proposed critical habitat units are 
occupied by the species, incremental economic impacts of critical 
habitat designation, other than administrative costs, are unlikely. The 
incremental costs for each programmatic, formal, informal, and 
technical assistance effort are estimated to be $9,800, $5,300, $2,600, 
and $420, respectively. These estimates assume that consultation 
actions will occur even in the absence of critical habitat due to the 
presence of the sand dune phacelia, and the amount of administrative 
effort needed to address the critical habitat during this process is 
relatively minor. Applying these unit cost estimates, this analysis 
estimates that considering adverse modification of sand dune phacelia 
critical habitat during section 7 consultation will result in 
incremental costs of no more than $9,300 (2021 dollars) per year, which 
is well below the annual administrative burden threshold of $100 
million of incremental administrative impacts in a single year.
    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

[[Page 16347]]

the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), 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 homeland-security 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 
national-security or homeland-security impact might exist on lands not 
owned or managed by DoD or DHS. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for sand dune phacelia are not owned or managed by DoD or DHS. 
Therefore, we anticipate no impact on national security or homeland 
security. However, if through the public comment period we receive 
credible information regarding impacts on national security or homeland 
security from designating particular areas as critical habitat, then as 
part of developing the final designation of critical habitat, we will 
conduct a discretionary exclusion analysis to determine whether to 
exclude those areas under authority of section 4(b)(2) and our 
implementing regulations at 50 CFR 17.90.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. Other relevant impacts may include, but are 
not limited to, impacts to Tribes, States, local governments, public 
health and safety, community interests, the environment (such as 
increased risk of wildfire or pest and invasive species management), 
Federal lands, and conservation plans, agreements, or partnerships. To 
identify other relevant impacts that may affect the exclusion analysis, 
we consider a number of factors, including whether there are permitted 
conservation plans covering the species in the area--such as HCPs, safe 
harbor agreements, or candidate conservation agreements with 
assurances--or whether there are non-permitted conservation agreements 
and partnerships that may be impaired by designation of, or exclusion 
from, critical habitat. In addition, we look at whether Tribal 
conservation plans or partnerships, Tribal resources, or government-to-
government relationships of the United States with Tribal entities may 
be affected by the designation. We also consider any State, local, 
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. In preparing this 
proposal, we have determined that there are currently no permitted 
conservation plans or other management plans for sand dune phacelia. 
There are no partnerships, management, or protection afforded by 
cooperative management efforts sufficient to provide for the 
conservation of the species. There are no areas for which exclusion 
would result in conservation, or in the continuation, strengthening, or 
encouragement of partnerships.
    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 Section 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 preparing this proposal, we have determined that 
no HCPs or other management plans for sand dune phacelia currently 
exist, and the proposed designation does not include any Tribal lands 
or trust resources. Therefore, we anticipate no impact on Tribal lands, 
partnerships, or HCPs from this proposed critical habitat designation 
and thus, as described above, we are not considering excluding any 
particular areas on the basis of the presence of conservation 
agreements or impacts to trust resources.

[[Page 16348]]

    During the development of a final designation, we will consider any 
additional information received through 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.

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. We are not aware of any energy-related 
activities or facilities within the boundaries of the proposed critical 
habitat designation. 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,

[[Page 16349]]

a Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments 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 sand dune phacelia 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 sand dune phacelia 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 
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

[[Page 16350]]

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

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that no Tribal 
lands fall within the boundaries of the proposed critical habitat for 
sand dune phacelia, 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 Oregon Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.12 paragraph (h) by adding an entry for ``Phacelia 
argentea (Sand dune phacelia)'' to the List of Endangered and 
Threatened Plants in alphabetical order under FLOWERING PLANTS to read 
as set forth below:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name               Common name          Where listed       Status       applicable rules
----------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                  * * * * * * *
Phacelia argentea................  Sand dune phacelia.  Wherever found.....         T   [Federal Register
                                                                                         citation when published
                                                                                         as a final rule];
                                                                                        50 CFR 17.73(j); \4d\
                                                                                        50 CFR 17.96(a).CH
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Revise Sec.  17.73 to read as follows:


Sec.  17.73   Special rules--flowering plants.

    (a)-(i) [Reserved]
    (j) Phacelia argentea (sand dune phacelia).--(1) Prohibitions. The 
following prohibitions that apply to endangered plants also apply to 
sand dune phacelia. Except as provided under paragraph (k)(2) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit, or cause to be committed, any of the following acts in 
regard to this species:
    (i) Import or export, as set forth at Sec.  17.61(b) for endangered 
plants.
    (ii) Remove and reduce to possession the species from areas under 
Federal jurisdiction as set forth at Sec.  17.61(c)(1) for endangered 
plants.
    (iii) Maliciously damage or destroy the species on any areas under 
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the 
species 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, as set forth at section 9(a)(2)(B) of the Act.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.61(d) for endangered plants.
    (v) Sale or offer for sale, as set forth at Sec.  17.61(e) for 
endangered plants.
    (2) Exceptions from prohibitions. In regard to Phacelia argentea, 
you may:
    (i) Conduct activities, including activities prohibited under 
paragraph (k)(1) of this section, if they are authorized by a permit 
issued in accordance with the provisions set forth at Sec.  17.72.
    (ii) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.71(b).
    (iii) Remove, cut, dig up, damage or destroy on areas not under 
Federal jurisdiction by any qualified employee or agent of the Service 
or State conservation agency which is a party to a Cooperative 
Agreement with the Service in accordance with section 6(c) of the Act, 
who is designated by that agency for such purposes, when acting in the 
course of official duties.
0
4. Amend Sec.  17.96 paragraph (a) by adding an entry for ``Family 
Boraginaceae: Phacelia argentea (sand

[[Page 16351]]

dune phacelia)'' after the entry for ``Family Boraginaceae: Amsinckia 
grandiflora (large-flowered fiddleneck)'', to read as set forth below:


Sec.  17.96   Critical habitat--plants.

    (a) Flowering plants.
* * * * *

Family Boraginaceae: Phacelia argentea (sand dune phacelia)

    (1) Critical habitat units are depicted for Coos and Curry 
Counties, Oregon, and Del Norte County, California, on the maps in this 
entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of sand dune phacelia consist of the 
following components:
    (i) Sandy coastal dune habitat above the high tide line that 
provides a high light environment, room for growth, and adequate 
moisture.
    (ii) A sufficiently abundant pollinator community (which may 
include leafcutter bees and bumble bees) for pollination and 
reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
[EFFECTIVE DATE OF THE FINAL RULE].
    (4) Data layers defining map units were created using Geographic 
Information Systems (GIS) feature classes from known extant 
populations. Critical habitat units were defined by applying the 
minimum convex polygon approach in GIS, thereby creating a single 
polygon from occupied habitat patches within each population consisting 
of 25 or more individuals. In a few cases, the unit boundaries were 
modified to align with the coastal boundary based on current National 
Agriculture Imagery Program natural color imagery. 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/oregonfwo, at 
https://www.regulations.gov at Docket No. FWS-R1-ES-2021-0070, 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.

[[Page 16352]]

    (5) Note: Index map follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.003
    
    (6) Unit 1: North Bandon 1, Coos County, Oregon; Unit 2: North 
Bandon 2, Coos County, Oregon.
    (i) Unit 1 consists of 0.6 acres (ac) (0.2 hectares (ha)) in Coos 
County, Oregon, and is composed of land in private ownership. Unit 2 
consists of 61.3 ac (24.8 ha) in Coos County, Oregon, and is composed 
of land in State (6.9 ac (2.8 ha)) and private ownership (54.4 ac (22 
ha)).

[[Page 16353]]

    (ii) Map of Unit 1 and Unit 2 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.004
    
    (7) Unit 3: Lost Lake, Coos County, Oregon.
    (i) Unit 3 consists of 3.7 ac (1.5 ha) in Coos County, Oregon, and 
is composed of land in State (0.1 ac (0.04 ha)), Federal (0.8 ac (0.3 
ha)), and private ownership (2.8 ac (1.1 ha)).

[[Page 16354]]

    (ii) Map of Unit 3 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.005
    
    (8) Unit 4: Floras Lake, Curry County, Oregon
    (i) Unit 4 consists of 5.8 ac (2.3 ha) in Curry County, Oregon, and 
is composed of land in Federal ownership.

[[Page 16355]]

    (ii) Map of Unit 4 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.006
    
    (9) Unit 5: Cape Blanco, Curry County, Oregon
    (i) Unit 5 consists of 2 ac (0.8 ha) in Curry County, Oregon, and 
is composed of land in State ownership.

[[Page 16356]]

    (ii) Map of Unit 5 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.007
    
    (10) Unit 6: Paradise Point, Curry County, Oregon.
    (i) Unit 6 consists of 3.7 ac (1.5 ha) in Curry County, Oregon, and 
is composed of land in private ownership.

[[Page 16357]]

    (ii) Map of Unit 6 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.008
    
    (11) Unit 7: Pistol River North, Curry County, Oregon.
    (i) Unit 7 consists of 3.2 ac (1.3 ha) in Curry County, Oregon, and 
is composed of land in State ownership.

[[Page 16358]]

    (ii) Map of Unit 7 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.009
    
    (12) Unit 8: Pistol River South, Curry County, Oregon
    (i) Unit 8 consists of 0.7 ac (0.3 ha) in Curry County, Oregon, and 
is composed of land in State ownership.

[[Page 16359]]

    (ii) Map of Unit 8 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.010
    
    (13) Unit 9: Lone Ranch, Curry County, Oregon
    (i) Unit 9 consists of 6.5 ac (2.6 ha) in Curry County, Oregon, and 
is composed of land in State ownership.

[[Page 16360]]

    (ii) Map of Unit 9 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.011
    
    (14) Unit 10: Pacific Shores, Del Norte County, California; Unit 
11: Tolowa Dunes, Del Norte County, California.
    (i) Unit 10 consists of 92.3 ac (37.4 ha) in Del Norte County, 
California, and is composed of land in State (37.9 ac (15.3 ha)) and 
private ownership (54.4 ac (22 ha)). Unit 11 consists of 69.6 ac (28.2 
ha) in Del Norte County, California, and is composed of land in State 
ownership.

[[Page 16361]]

    (ii) Map of Unit 10 and Unit 11 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.012
    
    (15) Unit 12: Point Saint George, Del Norte County, California.
    (i) Unit 12 consists of 1.1 ac (0.4 ha) in Del Norte County, 
California, and is composed of land in county (1 ac (0.4 ha)) and 
private ownership (0.1 ac (0.04 ha)).

[[Page 16362]]

    (ii) Map of Unit 12 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.013
    
    (16) Unit 13: Pebble Beach, Del Norte County, California.
    (i) Unit 13 consists of 1.7 ac (0.7 ha) in Del Norte County, 
California, and is composed of land in State (1.3 ac (0.5 ha)) and 
county ownership (0.4 ac (0.2 ha)).

[[Page 16363]]

    (ii) Map of Unit 13 follows:
    [GRAPHIC] [TIFF OMITTED] TP22MR22.014
    
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-05326 Filed 3-21-22; 8:45 am]
BILLING CODE 4333-15-P