20374 Federal Register / Vol. 87, No. 67 / Thursday, April 7, 2022 / Proposed Rules 

b. To what extent are there practical 

alternatives to equating Petitioners’ 

proposed ‘‘private railcar delay charge’’ 

to a demurrage or storage charge and 

what are the merits of those 

alternatives? 

9. Commenters should address the 

following questions about how the 

regulations proposed by Petitioners 

would be implemented: 

a. Which party would be responsible 

for tracking the CLM Event Sighting 

Codes for private freight cars and 

invoicing in accordance with the 

proposed regulations? 

b. Joint Shippers suggest that the 

Board could require carriers to credit 

charges against their demurrage 

invoices. (Joint Shippers Reply 5.) How 

would compensation be handled under 

this proposal for rail users that do not 

incur demurrage charges or incur fewer 

charges than would be owed pursuant to 

the proposed regulations? 

10. Petitioners suggest that the 

proposed regulations should apply only 

to Class I carriers. (Pet. 1–2.) How, if at 

all, would Class II and Class III carriers 

be impacted by the proposed 

regulations, if limited to Class I carriers? 

Interested persons may file comments 

by June 30, 2022. Replies will be due by 

August 1, 2022. 

It is ordered: 

1. Comments are due by June 30, 

2022; replies are due by August 1, 2022. 

2. Notice of this decision will be 

published in the Federal Register. 

3. This decision is effective on its 

service date. 

Decided: April 1, 2022. 

By the Board, Board Members Fuchs, 

Hedlund, Oberman, Primus, and Schultz. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. 2022–07349 Filed 4–6–22; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2022–0024; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BG21 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for the Dixie Valley Toad 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the Dixie Valley toad (Anaxyrus 

williamsi), a toad species from Nevada, 

as an endangered species under the 

Endangered Species Act of 1973, as 

amended (Act). This determination also 

serves as our 12-month finding on a 

petition to list the Dixie Valley toad. 

After a review of the best available 

scientific and commercial information, 

we find that listing the species is 

warranted. An temporary rule 

(emergency action) listing this species 

as endangered for 240 days is published 

concurrently in this issue of the Federal 

Register. We find that the designation of 

critical habitat for the Dixie Valley toad 

is not determinable at this time. We 

solicit additional data, information, and 

comments that may assist us in making 

a final decision on this action. We also 

are notifying the public that we have 

scheduled an informational meeting 

followed by a public hearing on the 

proposed rule. 

DATES: We will accept comments 

received or postmarked on or before 

June 6, 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. Public 

informational meeting and public 

hearing: On May 9, we will hold a 

public informational meeting 5 p.m. to 

5:35 p.m., Pacific Time, followed by a 

public hearing 5:35 to 7 p.m., Pacific 

Time. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R8–ES–2022–0024, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

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

to: Public Comments Processing, Attn: 

FWS–R8–ES–2022–0024, 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). 

FOR FURTHER INFORMATION CONTACT: 

Marc Jackson, Field Supervisor, U.S. 

Fish and Wildlife Service, Reno Fish 

and Wildlife Office, 1340 Financial 

Blvd., Suite 234, Reno, Nevada 89502; 

telephone 775–861–6300. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

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 for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current population 

levels, and current and projected trends; 

and 

(d) 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, additional 

information on the potential effects of 

geothermal plants on amphibians or 

wetland ecosystems, 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 of this 

species. 

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, 


khammond on DSKJM1Z7X2PROD with PROPOSALS
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although noted, do not provide 

substantial information necessary to 

support a determination. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the species is threatened instead of 

endangered, or we may conclude that 

the species does not warrant listing as 

either an endangered species or a 

threatened species. 

Public Hearing 

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

a public hearing on this proposal, if 

requested. At this time, we have 

preemptively scheduled a public 

informational meeting and public 

hearing on this proposed rule. We will 

hold the public informational meeting 

and public hearing on the date and at 

the times listed above under Public 

informational meeting and public 

hearing in DATES. We are holding the 

public informational meeting and public 

hearing via the Zoom online video 

platform and via teleconference so that 

participants can attend remotely. For 

security purposes, registration is 

required. To listen and view the meeting 

and hearing via Zoom, listen to the 

meeting and hearing by telephone, or 

provide oral public comments at the 

public hearing by Zoom or telephone, 

you must register. For information on 

how to register, or if you encounter 

problems joining Zoom the day of the 

meeting, visit https://www.fws.gov/ 

office/reno-fish-and-wildlife. Registrants 

will receive the Zoom link and the 

telephone number for the public 

informational meeting and public 

hearing. If applicable, interested 

members of the public not familiar with 

the Zoom platform should view the 

Zoom video tutorials (https://

support.zoom.us/hc/en-us/articles/ 

206618765-Zoom-video-tutorials) prior 

to the public informational meeting and 

public hearing. 

The public hearing will provide 

interested parties an opportunity to 

present verbal testimony (formal, oral 

comments) regarding this proposed rule 

to list the Dixie Valley toad as an 

endangered species. The public hearing 

is a forum for accepting formal verbal 

testimony and is not an opportunity for 

open dialogue. In the event there is a 

large attendance, the time allotted for 

oral statements may be limited. 

Therefore, anyone wishing to make an 

oral statement at the public hearing for 

the record is encouraged to provide a 

prepared written copy of their statement 

to us through the Federal eRulemaking 

Portal, or U.S. mail (see ADDRESSES, 

above). There are no limits on the length 

of written comments submitted to us. 

Anyone wishing to make an oral 

statement at the public hearing must 

register before the hearing https://

www.fws.gov/office/reno-fish-andwildlife. The use of a virtual public 

hearing is consistent with our 

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

Reasonable Accommodation 

The Service is committed to providing 

access to the public informational 

meeting and public hearing for all 

participants. Closed captioning will be 

available during the public 

informational meeting and public 

hearing. Further, a full audio and video 

recording and transcript of the public 

hearing will be posted online at https:// 

www.fws.gov/office/reno-fish-andwildlife after the hearing. Participants 

will also have access to live audio 

during the public informational meeting 

and public hearing via their telephone 

or computer speakers. Persons with 

disabilities requiring reasonable 

accommodations to participate in the 

meeting and/or hearing should contact 

the person listed under FOR FURTHER

INFORMATION CONTACT at least 5 business 

days prior to the date of the meeting and 

hearing to help ensure availability. An 

accessible version of the Service’s 

public informational meeting 

presentation will also be posted online 

at https://www.fws.gov/office/reno-fishand-wildlife prior to the meeting and 

hearing (see DATES, above). See https:// 

www.fws.gov/office/reno-fish-andwildlife for more information about 

reasonable accommodation. 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

Dixie Valley toad. The SSA team was 

composed of Service biologists, in 

consultation with other scientific 

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 and its habitat. 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 will seek expert opinions of at least 

three appropriate specialists regarding 

the SSA. The SSA report and other 

materials related to this proposed rule 

can be found at https://

www.regulations.gov under Docket No. 

FWS–R8–ES–2022–0024. 

I. Proposed Listing Determination 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the Dixie 

Valley toad (Anaxyrus williamsi) is 

presented in the SSA report (Service 

2022, entire). 

The Dixie Valley toad was described 

as a distinct species in the western toads 

(Anaxyrus boreas) species complex in 

2017 due to morphological differences, 

genetic information, and its isolated 

distribution (Gordon et al. 2017, entire). 

Forrest et al. (2017, entire) also 

published a paper describing Dixie 

Valley toad and came up with similar 

results but stopped short of concluding 

that it is a unique species. We evaluated 

both papers and concluded the Gordon 

et al. (2017, entire) paper provided a 

better sampling design to answer 

species-level genetic questions and 

conducted a more thorough 

morphological analysis. Additionally, 

the Dixie Valley toad has been accepted 

as a valid species by the two leading 

authoritative amphibian internet sites: 

(1) Amphibiaweb.org (AmphibiaWeb 

2022, website) and (2) Amphibian 

Species of the World (Frost 2021, 

website). Because both the larger 

scientific community and our own 

analysis of the best available scientific 

information indicate that the findings of 

Gordon et al. (2017 entire) are well 

supported, we are accepting their 

conclusions that the Dixie Valley toad is 

a unique species (Anaxyrus williamsi). 

Therefore, we have determined that the 

Dixie Valley toad is a listable entity 

under the Act. 


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Fourteen different morphological 

characteristics of Dixie Valley toads 

were measured and compared to several 

other species within the western toads 

species complex (Gordon et al. 2017, pp. 

125–131). While all 14 morphological 

characteristics measured for Dixie 

Valley toad were significantly different 

from the other species within the 

western toads species complex, the most 

striking differences were the average 

size of adults (mean snout-to-vent 

length (SVL) of 54.6 millimeters (mm) 

(2.2 inches (in)), which makes it the 

smallest species within the A. boreas 

species complex), the close-set eyes and 

perceptively large tympanum (eardrum), 

and its unique coloration (Gordon et al. 

2017, pp. 125–131). 

Limited information is available 

specific to the life history of the Dixie 

Valley toad; therefore, closely associated 

species are used as surrogates where 

appropriate. Breeding (denoted by 

observing a male and female in 

amplexus, egg masses, or tadpoles) 

occurs annually between March and 

May (Forrest 2013, p. 76). Breeding 

appears protracted due to the thermal 

nature of the habitat and can last up to 

3 months (March–May) with toads 

breeding early in the year in habitats 

closer to the thermal spring sources and 

then moving downstream into habitats 

as they warm throughout spring and 

early summer. Other toad species 

typically have a much more contracted 

breeding season of 3–4 weeks (e.g., 

Sherman 1980, pp. 18–19, 72–73). Dixie 

Valley toad tadpoles hatch shortly after 

being deposited; time to hatching is not 

known but is likely dependent on water 

temperature (e.g., black toad (Anaxyrus 

exsul) tadpoles hatch in 7 to 9 days; 

Sherman 1980, p. 97). Fully 

metamorphosed Dixie Valley toadlets 

were observed 70 days after egg laying 

(Forrest 2013, pp. 76–77). 

The Dixie Valley toad is a narrowranging endemic (highly local and 

known to exist only in their place of 

origin) known from one population in 

the Dixie Meadows area of Churchill 

County, Nevada. The species occurs 

primarily on Department of Defense 

(Fallon Naval Air Station) lands (90 

percent) and Bureau of Land 

Management (BLM) lands (10 percent). 

The wetlands located in Dixie Meadows 

cover 307.6 hectares (ha) (760 acres (ac)) 

and are fed by geothermal springs. The 

potential area of occupancy is estimated 

to be 146 ha (360 ac) based on the extent 

of wetland-associated vegetation. The 

species is heavily reliant on these 

wetlands, as it is rarely encountered 

more than 14 meters (m) (46 feet (ft)) 

from aquatic habitat (Halstead et al. 

2021, p. 7). 

The Nevada Department of Wildlife 

received approval by the Legislative 

Council Bureau to add Dixie Valley 

toads as a protected amphibian by the 

State of Nevada under Nevada 

Administrative Code (NAC) 

503.075(2)(b). The revised list of 

protected amphibians is expected to be 

finalized in 2022. Per NAC 503.090(1), 

there is no open season on those species 

of amphibian classified as protected. Per 

NAC 503.094, the State issues permits 

for the take and possession of any 

species of wildlife for strictly scientific 

or educational purposes. The Nevada 

Department of Conservation and Natural 

Resources includes the Nevada Division 

of Natural Heritage (NDNH), which 

tracks the species status of plants and 

animals in Nevada. The NDNH 

recognizes Dixie Valley toads as 

critically imperiled, rank S1. Ranks of 

S1 are defined as species with very high 

risks of extirpation in the jurisdiction 

due to very restricted range, very few 

populations or occurrences, very steep 

declines, severe threats, or other factors. 

For an extensive discussion of 

biological background information, 

previous Federal actions, biological 

status, the threats analysis, conservation 

efforts and regulatory mechanisms, our 

determination of status under the Act, 

and conservation measures available to 

listed and proposed species, consult the 

temporary rule, emergency action, for 

the Dixie Valley toad published 

concurrently in this issue of the Federal 

Register. The temporary rule further 

contains the rationale for this proposal 

to list the Dixie Valley toad as an 

endangered species under the Act. 

II. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

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

include those areas used throughout all 

or part of the species’ life cycle, even if 

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

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Additionally, our regulations at 50 CFR 

424.02 define the word ‘‘habitat,’’ for 

the purposes of designating critical 

habitat only, as the abiotic and biotic 

setting that currently or periodically 

contains the resources and conditions 

necessary to support one or more life 

processes of a species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. 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 nonFederal 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’’ 


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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). 

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, 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 

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 in the SSA report, 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 

emergency listing rule for the Dixie 

Valley toad, we determined that the 

present or threatened destruction, 

modification, or curtailment of habitat 

or range is a threat to Dixie Valley toad 

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 the Dixie 

Valley toad. 

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 Dixie Valley toad is determinable. 


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

state that critical habitat is not 

determinable when one or both of the 

following situations exist: 

(i) Data sufficient to perform required 

analyses are lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where this species is 

located. Careful assessments of the 

economic impacts that may occur due to 

a critical habitat designation are not yet 

complete. Therefore, data sufficient to 

perform required analyses are lacking, 

and we conclude that the designation of 

critical habitat for the Dixie Valley toad 

is not determinable at this time. The Act 

allows the Service an additional year to 

publish a critical habitat designation 

that is not determinable at the time of 

listing (16 U.S.C. 1533(b)(6)(C)(ii)). 

Required Determinations 

Clarity of the Rule 

We are required by E.O.s 12866 and 

12988 and by the Presidential 

Memorandum of June 1, 1998, to write 

all rules in plain language. This means 

that each rule we publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

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 (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, May 4, 

1994), E.O. 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 requested information from the 

Paiute-Shoshone Tribe of the Fallon 

Reservation and Colony and have 

continued to coordinate during the SSA 

process. We are requesting the Tribe’s 

partner review of the draft SSA report 

concurrent with the comment period 

identified in this proposed rule, which 

is published concurrently with the 

temporary rule found in the Rules and 

Regulations section of this issue of the 

Federal Register (see Docket No. FWS– 

R8–ES–2022–0024 at https://

www.regulations.gov). We will continue 

to work with Tribal entities during the 

development of a final listing rule for 

the Dixie Valley toad, and for a 

designation of critical habitat if found to 

be prudent and determinable. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Reno Fish 

and Wildlife Office (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Reno Fish 

and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Published concurrently in the Rules 

and Regulations section of this issue of 

the Federal Register, we are exercising 

our authority pursuant to section 4(b)(7) 

of the Endangered Species Act of 1973, 

as amended, to emergency list for 240 

days the Dixie Valley toad (Anaxyrus 

williamsi) as an endangered species due 

to the imminent development of a 

geothermal project in Dixie Meadows, 

Nevada, and the potential resulting 

effects to the geothermal springs relied 

upon by the Dixie Valley toad. For the 

reasons discussed in the preamble of 

that temporary rule, we propose to make 

the emergency listing permanent. 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2022–07375 Filed 4–6–22; 8:45 am] 

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