Federal Register, Volume 87 Issue 177 (Wednesday, September 14, 2022) 2022 Federal Register, 87 FR 56381-56393; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Proposed Rules]
[Pages 56381-56393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18852]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2021-0163; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BG15

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Tricolored Bat

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 tricolored bat (Perimyotis subflavus), a bat species from
Guatemala, Honduras, Belize, Nicaragua, Mexico, a small part of
southeastern Canada, and all or portions of the following 39 States and
the District of Columbia: Alabama, Arkansas, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico,
New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia,
Wisconsin, West Virginia, and Wyoming, 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 tricolored bat. 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 tricolored bat as an endangered
species under the Act. If we finalize this rule as proposed, it will
add this species to the List of Endangered and Threatened Wildlife and
extend the Act's protections to the species. We find that designating
critical habitat for this species is not prudent. 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
November 14, 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: We will hold a
public informational meeting from 6:00 p.m. to 7:30 p.m., eastern time,
followed by a public hearing from 7:30 p.m. to 8:30 p.m., eastern time,
on October 12, 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 FWS-R5-ES-2021-0163,
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-R5-ES-2021-0163, 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).
Public informational meeting and public hearing: The public
informational meeting and the public hearing will be held virtually
using the Zoom platform. See Public Hearing, below, for more
information.

FOR FURTHER INFORMATION CONTACT: Sonja Jahrsdoerfer, Field Supervisor,
U.S. Fish and Wildlife Service, Pennsylvania Field Office, 110 Radnor
Rd, Suite 101, State College, PA 16801; telephone 814-234-4090.
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.

[[Page 56382]]

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 range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity
(including vandalism and disturbance of winter habitat) and
identification of critical habitat can be expected to increase the
degree of such threat to the species; or
(b) Such designation of critical habitat would not be beneficial to
the species. In determining whether a designation would not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species, or whether any areas meet the definition of
``critical habitat.''
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
threatened instead of endangered, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species.

Public Hearing

We have scheduled a public informational meeting with a public
hearing on this proposed rule for the tricolored bat. We will hold the
public informational meeting and public hearing on the date and time
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/species/tricolored-bat-perimyotis-subflavus. 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.

Previous Federal Actions

On June 14, 2016, we received a petition from the Center for
Biological Diversity and Defenders of Wildlife requesting that the
tricolored bat be listed as endangered or threatened and that critical
habitat be designated for this species under the Act. On December 20,
2017, we published a finding that the petition presented substantial
scientific or commercial information indicating that the petitioned
action may be warranted (82 FR 60362).

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for
the tricolored bat. The SSA core team included Service biologists, who
consulted with other species and analytical experts (Service 2021,
entire). 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 review from six species experts regarding the SSA report. We
received responses from two of the six experts. We also sent the SSA
report to State, Federal, Tribal, and other (e.g., nongovernmental
organizations) entities with expertise in bat biology or threats to the
species for review.

[[Page 56383]]

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, *life history, and ecology of
the tricolored bat is presented in the SSA report (Service 2021,
entire).
The tricolored bat is a wide-ranging bat species found in 39
States, the District of Columbia, 4 Canadian provinces, Belize,
Guatemala, Honduras, Nicaragua, and Mexico. Tricolored bat is one of
the smallest bats in eastern North America and is distinguished by its
unique tricolored fur that appears dark at the base, lighter in the
middle, and dark at the tip (Barbour and Davis 1969, p. 115).
Tricolored bats often appear yellowish (varying from pale yellow to
nearly orange), but may also appear silvery-gray, chocolate brown, or
black (Barbour and Davis 1969, p. 115). Males and females are colored
alike, and females consistently weigh more than males (LaVal and LaVal
1980, p. 44). Newly volant (able to fly) young are much darker and
grayer than adults (Allen 1921, p. 55). Other distinguishing
characteristics include 34 teeth (compared with 38 teeth in eastern
North American Myotis spp. for which this species is sometimes
confused), a calcar (i.e., spur of cartilage arising from the inner
side of the ankle) with no keel (ridge along the breastbone to which
the flight muscles are attached), and only the anterior third of the
uropatagium (i.e., the membrane that stretches between the legs) is
furred (Barbour and Davis 1969, p. 115; Hamilton and Whitaker 1979, p.
85).

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. On
July 5, 2022, the U.S. District Court for the Northern District of
California vacated regulations that the Service (jointly with the
National Marine Fisheries Service) promulgated in 2019 modifying how
the Services add, remove, and reclassify threatened and endangered
species and the criteria for designating listed species' critical
habitat (Center for Biological Diversity v. Haaland, No. 4:19-cv-05206-
JST, Doc. 168 (CBD v. Haaland)). As a result of that vacatur,
regulations that were in effect before those 2019 regulations now
govern species classification and critical habitat decisions. Our
analysis for this proposal applied those pre-2019 regulations. However,
given that litigation remains regarding the court's vacatur of those
2019 regulations, we also undertook an analysis of whether the proposal
would be different if we were to apply the 2019 regulations. We
concluded that the proposal would have been the same if we had applied
the 2019 regulations. The analyses under both the pre-2019 regulations
and the 2019 regulations are included in the decision file for this
proposal.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Because
the decision in CBD v. Haaland vacated our 2019 regulations regarding
the foreseeable future, we refer to a 2009 Department of the Interior
Solicitor's opinion entitled ``The Meaning of `Foreseeable Future' in
Section 3(20) of the Endangered Species Act'' (M-37021). That
Solicitor's opinion that foreseeable future ``must be rooted in the
best available data that allow predictions into the future'' and
extends as far as those predictions are ``sufficiently reliable to
provide a reasonable degree of confidence in the prediction, in light
of the conservation purposes of the Act.'' Id. at 13.
It is not always possible or necessary to define the 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' 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 our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act

[[Page 56384]]

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 No. FWS-R5-ES-2021-0163 on
https://www.regulations.gov.
To assess tricolored bat 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

The individual, population-level, and species-level needs of the
tricolored bat are summarized below in Tables 1-3. For additional
information, please see the SSA report (Service 2021, chapter 2).

Table 1--The Ecological Requisites for Survival and Reproductive Success
of Tricolored Bat Individuals
------------------------------------------------------------------------
Life stage Season
------------------------------------------------------------------------
Pups.............................. Summer--roosting habitat with
suitable conditions for lactating
females and for pups to stay warm
and protected from predators while
adults are foraging.
Juveniles......................... Summer--other maternity colony
members (colony dynamics,
thermoregulation); suitable
roosting and foraging habitat near
abundant food and water resources.
Fall--suitable roosting and foraging
habitat near abundant food and
water resources.
Winter--habitat with suitable
microclimate conditions.
Reproductive Females.............. Summer--other maternity colony
members (colony dynamics); network
of suitable roosts (i.e., multiple
summer roosts in close proximity)
near conspecifics and foraging
habitat near abundant food and
water resources.
All Adults........................ Spring--suitable roosting and
foraging habitat near abundant food
and water resources; habitat
connectivity and open-air space for
safe migration between winter and
summer habitats.
Summer--roosts and foraging habitat
near abundant food and water
resources.
Fall--suitable roosting and foraging
habitat near abundant food and
water resources; cave and/or mine
entrances (or other similar
locations, e.g., culvert, tunnel)
for conspecifics to swarm and mate;
habitat connectivity and open-air
space for safe migration between
winter and summer habitats.
Winter--habitat with suitable
microclimate conditions.
------------------------------------------------------------------------

Table 2--Population-Level Requirements for a Healthy Population of
Tricolored Bats
------------------------------------------------------------------------
Parameter Requirements
------------------------------------------------------------------------
Population growth rate, [lambda].. At a minimum, [lambda] must be >=1
for a population to remain stable
over time.
Population size, N................ Sufficiently large N to allow for
essential colony dynamics and to be
resilient to environmental
fluctuations.
Winter roosting habitat........... Safe and stable winter roosting
sites with suitable microclimates.
Migration habitat................. Safe space to migrate between spring/
fall habitat and winter roost
sites.
Spring and fall roosting, A matrix of habitat of sufficient
foraging, and commuting habitat. quality and quantity to support
bats as they exit hibernation
(lowest body condition) or as they
enter into hibernation (need to put
on body fat).
Summer roosting, foraging, and A matrix of habitat of sufficient
commuting habitat. quality and quantity to support
maternity colonies.
------------------------------------------------------------------------

Table 3--Species-Level Ecology of Tricolored Bats: Requisites for Long-
Term Viability (Ability To Maintain Self-Sustaining Populations Over a
Biologically Meaningful Timeframe)
------------------------------------------------------------------------
Requisites for
3 Rs long-term Description
viability
------------------------------------------------------------------------
Resiliency (populations able Demographic, Self-sustaining
to withstand stochastic physically, and populations are
events). genetically demographically,
healthy genetically, and
populations physiologically
across a robust; have
diversity of sufficient quantity
environmental of suitable habitat.
conditions.
Redundancy (number and Multiple and Sufficient number and
distribution of populations sufficient distribution to
to withstand catastrophic distribution of guard against
events). populations population losses
within areas of and losses in
unique species adaptive
variation, i.e., diversity, i.e.,
representation reduce covariance
units. among populations;
spread out
geographically but
also ecologically.

[[Page 56385]]

Representation (genetic and Maintain adaptive Populations
ecological diversity to diversity of the maintained across
maintain adaptive potential). species. breadth of
behavioral,
physiological,
ecological, and
environmental
diversity.
Maintain Maintain evolutionary
evolutionary drivers--gene flow,
processes. natural selection--
to mimic historical
patterns.
------------------------------------------------------------------------

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. For a full description, see
the SSA report (Service 2021, entire).
Although there are other stressors affecting tricolored bat, the
primary factor influencing its viability is white-nose syndrome (WNS),
a disease of bats caused by a fungal pathogen. Some of the other
factors that influence tricolored bat's viability include wind-energy-
related mortality, habitat loss, and effects from climate change. These
stressors and their effects to tricolored bat are summarized below:
White Nose Syndrome
For over a decade, WNS has been the foremost stressor on tricolored
bat. WNS is a disease of bats that is caused by the fungal pathogen
Pseudogymnoascus destructans (Pd). Pd invades the skin of bats,
initiating a cascade of physiological and behavioral processes that
often lead to mortality. Infection leads to increases in the frequency
and duration of arousals during hibernation and raises energetic costs
during torpor bouts, both of which cause premature depletion of
critical fat reserves needed to survive winter (Turner et al. 2011, p.
15; Reeder et al. 2012, p. 5; Carr et al. 2014, p. 21; McGuire et al.
2017, p. 682; Cheng et al. 2019, p. 2). Bats that do not succumb to
starvation in hibernacula often seek riskier roosting locations near
entrances to roosts or emerge from roosts altogether, where they face
exposure to winter conditions and scarce prey resources on the
landscape (Langwig et al. 2012, p. 2).
Pd continues to spread driven by natural interactions among bats
and their environment, despite effective conservation measures to
reduce human contributions to its spread. The fungus arrives on a few
bats and spreads through the colony as a result of swarming and
roosting interactions until most individuals are exposed to the
pathogen. Such interactions may occur in hibernacula or at nearby
roosts where conspecifics (members of the same species) engage in
mating activity (Neubaum and Siemers, 2021, p. 2). Once Pd arrives, WNS
soon develops in these infected populations. Since the arrival of Pd in
2006 and the writing of this proposed rule, it has spread to 40 States
in the United States and 8 provinces in Canada.
Wind-Energy-Related Mortality
Wind-energy-related mortality of tricolored bat is a consequential
stressor at local and regional levels. Tricolored bats are killed at
wind energy projects primarily through collisions with moving turbine
blades. Wind power is a rapidly growing portion of North America's
energy portfolio in part due to changes in State energy goals (NCSL
2021, entire) and recent technological advancements (Berkeley Lab 2020,
entire) and declining costs (Wiser et al. 2021, entire), allowing
turbines to be placed in less windy areas.
Bat fatality varies across facilities, between seasons, and among
species. Analyses suggest that the impact of wind related mortality is
discernible from the effects of WNS in the ongoing decline of
tricolored bat (Wiens et al. 2022, pp. 215-251; Whitby et al. 2022, pp.
145-163). Abundance of tricolored bat is projected to decrease by 19-21
percent by 2030 under current wind development scenarios (Wiens et al.
2022, pp. 215-251). As the wind energy risk index (the overall result
of a risk assessment) increased, there is a decline in the predicted
relative abundance of tricolored bats (Whitby et al. 2022, pp. 145-
163). In other words, as wind energy installations increase in size,
number, or distribution, tricolored bat survey counts declined.
Habitat Loss and Disturbance
Habitat loss and disturbance may result in the loss of suitable
roosting or foraging habitat or loss of hibernacula. There are a
variety of causes of habitat loss and disturbance that affect the
tricolored bat such as (but not limited to) forest removal or
conversion and anthropogenic hibernacula disturbance or destruction
from human entry into hibernation sites. Loss of roosting, foraging,
and commuting habitat may vary in the impacts to tricolored bats
depending on the timing, location, and extent of the removal (Service
2021, pp. 49, 50). Although there have been losses of tricolored bat
habitat and impacts could be high in the future, we find the current
impact of habitat loss to be ``Low'' because the severity of
population-level declines is slight. (Service 2021, p. 43). Forest
removal may result in the following impacts to tricolored bats: loss of
suitable roosting or foraging habitat, longer flights between suitable
roosting and foraging due to habitat fragmentation of remaining forest
patches, fragmentation of maternity colonies due to removal of travel
corridors, and direct injury or mortality (during active season tree
removal). Loss or modification of winter habitats may also result in
negative impacts to tricolored bat, especially given the species' high
site fidelity and narrow microclimate requirements for hibernation.
Additionally, disturbance (e.g., human entry) during hibernation
results in increased arousals in tricolored bat, which leads to
increased energy expenditure at a time when food and water resources
are scarce or unavailable. Disturbance is more impactful in hibernacula
where a species is affected by WNS because more frequent arousals from
torpor increases the probability of mortality in bats with limited fat
stores (Boyles and Willis 2010, p. 96) and human entry is likely to
contribute to the spread of Pd in both long and short distances
(Bernard et al. 2020, p. 5-6).
While temporary or permanent habitat loss may occur throughout the
species' range, impacts to tricolored bat and its habitat typically
occur at a more local scale (i.e., individuals and potentially
colonies). However, mortality resulting from the loss of summer
roosting and foraging habitat, winter hibernacula, or both may compound
the impacts from WNS.
Climate Change
Climate change factors that may impact bats include changes in
extreme drought, cold, or excessive rainfall, which may lead to changes
in

[[Page 56386]]

hibernation patterns or direct mortality from extreme events (Jones et
al. 2009, p. 94). Potential impacts of climate change that include
effects to bat foraging, roosting, reproduction, and biogeography have
also been reviewed and discussed (Sherwin et al. 2013). Additionally,
climate change is likely to influence disease dynamics (for example, Pd
survival) as temperature, humidity, phenology and other factors affect
the interactions between Pd and hibernating bats (Hayman et al. 2016,
p. 5; McClure et al. 2020, p. 2; Hoyt et al. 2021, p. 8).
Changing climatic conditions, including changes in temperature and
precipitation, influence tricolored bat's resource needs, such as
suitable summer and winter roosting habitat, foraging habitat, and prey
availability. Although pervasive across tricolored bat's range, the
magnitude, direction, and seasonality of climate change will vary
geographically (e.g., some regions will experience more frequent
droughts, which may lead to reduced tricolored bat survival or
reproductive success; alternatively, some regions will experience
heavier and more frequent precipitation events that may lead to
decreased foraging bouts and insect availability). In addition, the
resiliency of populations and inherent differences (e.g., genetics)
among populations may result in differing ability for tricolored bat to
respond to the same types of changes across the range. Therefore, the
overall impact of climate change for such a wide-ranging species is
challenging to describe. Although there may be some benefit to
tricolored bat from a changing climate, overall negative impacts are
anticipated.
In evaluating current conditions of the tricolored bat, we used the
best available data (further described in the SSA report; Service 2021,
pp. 51-57). Winter hibernacula counts provide the most consistent,
long-term, reliable trend data and provide the most direct measure of
WNS impacts. We also used summer data (mist-net capture data and mobile
and stationary acoustic data) in evaluating population trends, although
the availability and quality of summer data varies temporally and
spatially.
Available evidence, including both winter and summer data,
indicates tricolored bat abundance has and will continue to decline
substantially under current demographic and stressor conditions,
primarily driven by the effects of WNS. To assess changes in diversity
(genetic and ecological), we identified and delineated the variation
across tricolored bat's range into three geographical representation
units using the following proxies: variation in biological traits,
genetic diversity, peripheral populations, habitat niche diversity, and
steep environmental gradients (marked change in bioclimate such as
temperature or precipitation) (Service 2021, p. 27).
WNS has caused estimated tricolored bat population declines of 90-
100 percent across 59 percent of the species' range (Cheng et al. 2021,
p. 7). Current demographic conditions based on past declines indicate
the rangewide number of tricolored bat's known extant winter colonies
has declined by 29 percent; in other words, almost one third of the
species known hibernacula are extirpated but steep declines have been
observed across a larger portion of its range. For the purposes of our
analysis an extant winter colony is one in which at least two
tricolored bats have been found; therefore, although the number of
extant winter colonies has declined by 29 percent, the number of bats
within winter colonies across the range has declined substantially.
Tricolored bat winter abundance has declined across all representation
units but varies spatially (24-89 percent). Declining trends in
tricolored bat occurrence and abundance is also evident from summer
data: (1) tricolored bat rangewide occupancy declined 28 percent in the
period 2010-2019; (2) mobile acoustic detections decreased 53 percent
in the period 2009-2019; and (3) summer mist-net captures declined 12
to 19 percent compared to pre-WNS capture rates. Based on current
demographic and stressor conditions, future projections of tricolored
bat abundance, number of hibernacula, and spatial extent will continue
to decline. Under these current conditions (no expansion or increase in
threats), by 2030, rangewide abundance declines by 89 percent, the
number of known winter colonies declines by 91 percent, and tricolored
bat's spatial extent declines by 65 percent (Service 2021, entire).
Projected declines in tricolored bat's abundance, number of winter
colonies, and spatial extent are widespread across all representation
units under current conditions.
As discussed above, multiple data types and analyses indicate
downward trends in tricolored bat population abundance and distribution
over the last 14 years, and the best available information indicate
that this downward trend will continue. Tricolored bat abundance
(winter and summer), number of known occupied hibernacula, spatial
extent, and summer habitat occupancy across the range and within all
representation units are decreasing.
Since the first detection of WNS in 2006, tricolored bat abundance
has declined, leaving many individual colonies with small numbers of
individuals. At these low population sizes, colonies are vulnerable to
individual extirpations from stochastic events and are vulnerable to
the effects of cumulative impacts from multiple stressors. Furthermore,
small populations generally cannot rescue one another from such a
depressed state owing to the tricolored bat's low reproductive output
(two pups per year) and high philopatry (tending to return to or remain
near a particular site or area). These inherent life-history traits
limit the ability of populations to recover from these low abundances.
Consequently, effects of small population sizes exacerbate the effects
of current and future declines due to continued exposure to WNS,
mortality from wind turbines, and impacts associated with habitat loss
and climate change.
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. Using the SSA framework,
we considered the cumulative impacts of white nose syndrome, wind
energy-related mortality, habitat loss, and impacts of climate change
on the tricolored bat. 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.

Conservation Efforts and Regulatory Mechanisms

Below is a brief description of conservation measures and
regulatory mechanisms that are currently in place. Please see the SSA
report for a more detailed description (Service 2021, Appendix 4).
Multiple national and international efforts are underway in an
attempt to reduce the impacts of WNS. To date, there are no proven
measures to reduce the severity of impacts. More than 100

[[Page 56387]]

State and Federal agencies, Tribes, organizations, and institutions are
engaged in this collaborative work to combat WNS and conserve affected
bats. Partners from all 39 States in the tricolored bat range, Canada,
and Mexico are engaged in collaborations to conduct disease
surveillance, population monitoring, and management actions in
preparation for or response to WNS; however, there are currently no
conservation measures known to reduce the severity of WNS impacts.
To reduce bat fatalities, some wind facilities ``feather'' turbine
blades (i.e., pitch turbine blades parallel with the prevailing wind
direction to slow rotation speeds) at low wind speeds when bats are
more at risk. The wind speed at which the turbine blades begin to
generate electricity is known as the ``cut-in speed,'' and this can be
set at the manufacturer's speed or at a higher threshold, typically
referred to as curtailment. The effectiveness of feathering below
various cut-in speeds differs among sites and years (Arnett et al.
2013, entire; Berthinussen et al. 2021, pp. 94-106); nonetheless, most
studies involving all bat species have shown fatality reductions of
greater than 50 percent associated with raising cut-in speeds by 1.0-
3.0 meters per second (m/s) above the manufacturer's cut-in speed
(Arnett et al. 2013, entire; USFWS unpublished data).
All States have active forestry programs with a variety of goals
and objectives. Several States have established habitat protection
buffers around known Indiana bat (Myotis sodalis) hibernacula that will
also serve to benefit other bat species by maintaining sufficient
quality and quantity of swarming habitat. Some States conduct some of
their forest management activities in the winter within known listed
bat home ranges as a measure to protect maternity colonies and non-
volant pups during summer months. Depending on the type and timing of
activities, forest management can be beneficial to bat species (e.g.,
maintaining or increasing suitable roosting and foraging habitat).
Forest management that results in heterogeneous (including forest type,
age, and structural characteristics) habitat may benefit tree-roosting
bat species (Silvis et al. 2016, p. 37). Silvicultural practices can
meet both male and female tricolored bat roosting requirements by
maintaining large-diameter snags in early stages of decay, while
allowing for regeneration of forests (Lacki and Schwierjohann 2001, p.
487).
Many State and Federal agencies, conservation organizations, and
land trusts have installed bat-friendly gates to protect important
hibernation sites. All known hibernacula within national grasslands and
forestlands of the Rocky Mountain Region of the U.S. Forest Service
(USFS) are closed during the winter hibernation period, primarily due
to the threat of WNS; these closures also reduce disturbance to bats
inhabiting these hibernacula (USFS 2013, unpaginated). Because of
concern over the importance of bat roosts, including hibernacula, the
American Society of Mammalogists developed guidelines for protection of
roosts, many of which have been adopted by government agencies and
special interest groups (Sheffield et al. 1992, p. 707). Also,
regulations, such as those implementing the Federal Cave Resources
Protection Act (16 U.S.C. 4301 et seq.), protect caves on Federal lands
by limiting access to some caves, thereby reducing disturbance.
Finally, many Indiana bat hibernacula have been gated and permanently
protected, which consequently benefits tricolored bats also occupying
these hibernacula.
Tricolored bat is listed as endangered under Canada's Species at
Risk Act (COSEWIC 2013, entire). In addition, tricolored bat receives
varying degrees of protection through State laws as it is designated as
endangered in Connecticut, Indiana, Massachusetts, New Hampshire, Ohio,
Pennsylvania, Vermont, and Virginia; State-threatened in Tennessee and
Wisconsin; and special concern in Alabama, Georgia, Iowa, Maine,
Michigan, Minnesota, Missouri, South Carolina, and West Virginia.
Future Condition
As part of the SSA, we also developed future condition scenarios to
capture the range of uncertainties regarding future threats and the
projected responses by the tricolored bat. To project future installed
wind capacity, we relied upon National Renewable Energy Laboratory's
(NREL; Cole et al. 2020) and Canadian Energy Regulator's (CER 2020)
projections for the U.S. and Canada. To project future impacts of WNS,
we relied on (1) predicted current and future occurrence of Pd on the
landscape using two different models and (2) the WNS impacts schedule,
both created from empirical Pd spread rates and WNS impact data.
Because we determined that the current condition of the tricolored bat
was consistent with an endangered species (see Determination of
Tricolored Bat Status, below), we are not presenting the results of the
future scenarios in this proposed rule. Please refer to the SSA report
(Service 2021) for the full analysis of future scenarios.

Determination of Tricolored Bat 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

WNS has been the foremost stressor on tricolored bat for more than
a decade and continues to be currently. The fungus that causes the
disease, Pd, invades the skin of bats and leads to infection that
increases the frequency and duration of arousals during hibernation
that eventually deplete the fat reserves needed to survive winter,
often resulting in mortality. WNS has caused estimated tricolored bat
population declines of 90 to 100 percent across 59 percent of the
species' range (Factor C). Winter abundance (from known hibernacula)
has declined rangewide (52 percent) and across all representation units
(24 to 89 percent), and the number of extant winter colonies also
declined rangewide (29 percent). Rangewide summer occupancy (from
mobile and stationary acoustic and mist-net capture data) declined by
28 percent from 2010 to 2019. Summer data collected from mobile
acoustic transects found a 53-percent decline in rangewide relative
abundance from 2009 to 2019, and summer mist-net captures declined by
12 to 19 percent (across representation units) compared to pre-WNS
capture rates.
Tricolored bat abundance and spatial extent has also substantially
declined. Consequently, the species is more vulnerable to catastrophic
events because the risk is no longer spread across as large an area as
it once was.

[[Page 56388]]

For example, the number of known extant winter colonies has declined 29
percent since the year 2000 and there has been a shift to smaller
colony sizes in those that remain. Lastly, as populations have been
extirpated and areas occupied by the species have declined, so has
redundancy.
Tricolored bat representation has also been reduced with declines
in abundance in all representation units and habitat types (loss of
extent of occurrence). The steep declines in abundance and reductions
in extent of occurrence have likely led to corresponding steep
reductions in genetic diversity, and thereby has reduced tricolored bat
adaptive capacity as the species loses inherent genetic material and
variation in ecological settings.
As discussed above, multiple data types and analyses indicate
downward trends in tricolored bat population abundance and distribution
over the last 14 years, and to the best available scientific
information indicates that this downward trend will change near term to
the extent that we predict a decrease in rangewide abundance of 89
percent over the next decade. Additionally, the number of winter
colonies will likely decline by 91 percent, and the species' spatial
extent will likely decline by 65 percent by 2030. The projected
widespread reduction in the distribution of occupied hibernacula under
current conditions will lead to losses in the diversity of environments
and climatic conditions occupied, which will impede the tricolored
bat's ability to adapt to changing environmental conditions, more so as
populations continue to decline in health and distribution. Moreover,
at its current low abundance, loss of genetic diversity via genetic
drift (random fluctuations in the numbers of gene variants in a
population) will likely accelerate. Consequently, decreasing genetic
diversity will further lessen tricolored bat's ability to adapt to
novel changes (currently ongoing as well as future changes) and
exacerbate declines due to continued exposure to WNS and other
stressors.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the tricolored bat's current population status indicates that
this species is currently in danger of extinction. The species
continues to experience the catastrophic effects of WNS and the
compounding effects of other stressors. These threats and their effects
on the species are highly likely to continue.
Since the first detection of white nose syndrome in 2006,
tricolored bat abundance declined, on average, by 93 percent in known
hibernacula with WNS, with most (93%) winter colonies having fewer than
100 individuals (Cheng et al. 2021, p. 7). At these low population
sizes, colonies are vulnerable to extirpation from stochastic events
(resiliency). Furthermore, tricolored bat's ability to recover from low
population size is limited given their low reproductive output (two
pups per year). Therefore, tricolored bat's resiliency is greatly
compromised in its current condition.
Additionally, under current conditions, tricolored bat's spatial
extent has declined and is projected to continue decline, with a 65
percent reduction by 2030. As the tricolored bat's abundance and
spatial extent declined, the species has become more vulnerable to
catastrophic events (declined redundancy).
In addition to reduced redundancy and resiliency, the bat's
representation has also been reduced. Tricolored bat's capacity to
adapt is constrained by its life history and the current level of its
intraspecific diversity (e.g., genetic, phenotypic, behavioral,
ecological variability). The declines in abundance have likely led to
reductions in genetic diversity, and thereby reduced tricolored bat
adaptive capacity and therefore its representation.
The species meets the definition of endangered rather than
threatened. Thus, after assessing the best available information, we
determine that tricolored bat is in danger of extinction throughout all
of its range.

Status Throughout a Significant Portion of Its Range

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

Determination of Status

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

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, 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 goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from

[[Page 56389]]

protected status (``delisting''), and methods for monitoring recovery
progress. Recovery plans also establish a framework for agencies to
coordinate their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Revisions of the plan may be done to
address continuing or new threats to the species, as new substantive
information becomes available. The recovery outline, draft recovery
plan, final recovery plan, and any revisions will be available on our
website as they are completed (https://www.fws.gov/program/endangered-species or https://www.fws.gov/species/tricolored-bat-perimyotis-subflavus) or from our Pennsylvania Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Alabama, Arkansas,
Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana,
Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire,
New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Virginia, Wisconsin, West Virginia, and Wyoming would
be eligible for Federal funds to implement management actions that
promote the protection or recovery of the tricolored bat. Information
on our grant programs that are available to aid species recovery can be
found at: https://www.fws.gov/grants.
Although the tricolored bat is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service, U.S. Forest Service, Bureau of Land Management, National Park
Service, and other Federal agencies; issuance of section 404 Clean
Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; forest management activities funded by Federal agencies on
private lands (e.g., Natural Resources Conservation Service); and
construction and maintenance of roads or highways by the Federal
Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies, as described below.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
for scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing.
At this time, we are unable to identify specific activities that
would not be considered to result in a violation of section 9 of the
Act because the tricolored bat occurs in a variety of habitat
conditions across its range and it is likely that site-specific
conservation measures may be needed for activities that may directly or
indirectly affect the species.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens of these taxa at least 100 years
old, as defined by section 10(h)(1) of the Act.
(2) Disturbance or destruction (or otherwise making unsuitable) of
known hibernacula due to commercial or

[[Page 56390]]

recreational activities during known periods of hibernation.
(3) Unauthorized destruction or modification of suitable forested
habitat (including unauthorized grading, leveling, burning, herbicide
spraying, or other destruction or modification of habitat) in ways that
kill or injure individuals by significantly impairing the species'
essential breeding, foraging, sheltering, commuting, or other essential
life functions.
(4) Unauthorized removal or destruction of trees and other natural
and manmade structures being used as roosts by the tricolored bat that
results in take of the species.
(5) Unauthorized release of biological control agents that attack
any life stage of this taxon.
(6) Unauthorized removal or exclusion from buildings or artificial
structures being used as roost sites by the species, resulting in take
of the species.
(7) Within areas used by the species, unauthorized building and
operation of wind energy facilities that result in take of the species.
(8) Unauthorized discharge into sinkholes of chemicals, fill, or
other materials that may lead to contamination of known tricolored bat
hibernacula.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the appropriate
field office (see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D).

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).
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 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).
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. We note that the court in CBD v. Haaland vacated the
provisions from the 2019 regulations that had modified the criteria for
designating critical habitat, including designating critical habitat in
areas outside the geographical area occupied by the species at the time
of listing. Therefore, the regulations that now govern designations of
critical habitat are the implementing regulations that were in effect
before the 2019 regulations.
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

[[Page 56391]]

materials; or experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(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)) currently in effect
state that designation of critical habitat is not prudent when any of
the following situations exist:
(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; or
(ii) Such designation of critical habitat would not be beneficial
to the species. In determining whether a designation would not be
beneficial, the factors the Services may consider include but are not
limited to: Whether the present or threatened destruction,
modification, or curtailment of a species' habitat or range is not a
threat to the species or, whether any areas meet the definition of
``critical habitat.''
We examined the types of habitat that the tricolored bat uses for
roosting and hibernating, such as live and dead leaf clusters of live
or recently dead deciduous hardwood trees, Spanish moss (Tillandsia
usneoides), Usnea trichodea lichen, pine needles, eastern red cedar,
and artificial roosts (e.g., barns, beneath porch roofs, bridges,
concrete bunkers). During the winter, tricolored bats hibernate
predominately in caves and mines, although in the southern United
States, where caves are sparse, tricolored bat often hibernate in road-
associated culverts. Although individual bats are killed due to habitat
loss, summer (roosting sites) and winter (hibernation sites) habitat is
not limiting throughout the range of the species.
The individual needs of the tricolored bat (outlined above in Table
1) may be met in a variety of forested habitats, as evidenced by the
species' large historical range over 39 States, southeastern Canada,
and central America, in which it occupied, prior to WNS, a wide variety
of elevations, forest community types, latitudes, and climates. While
temporary or permanent suitable forested habitat loss may occur
throughout the species' range, impacts to tricolored bat typically
occur at a more local scale (i.e., individuals and potentially
colonies), and summer forested habitat continues to be widely available
across the species' range. Based on this information, forested habitat
loss is not a major driver of the species' status, and suitable forest
habitat is not limiting for tricolored bat now nor is it likely to be
limiting in the future. Therefore, we conclude that designating the
forest habitat of the tricolored bat as critical habitat is not
prudent.
In addition, the primary forms of human disturbance to hibernating
bats result from human entry such as recreational caving, vandalism,
cave commercialization (cave tours and other commercial uses of caves),
and research-related activities (Service 2007, p. 80). Human
disturbance at hibernacula can cause bats to arouse more frequently,
causing premature energy store depletion and starvation (Thomas 1995,
p. 944; Speakman et al. 1991, p. 1103), leading to marked reductions in
bat populations (Tuttle 1979, p. 3) and increased susceptibility to
disease. WNS infection leads to increases in the frequency and duration
of arousals during hibernation and raises energetic costs during torpor
bouts, both of which cause premature depletion of critical fat reserves
needed to survive winter. In our April 27, 2016, determination that
designating critical habitat for the northern long-eared bat is not
prudent, we outlined a wide array of disturbances to hibernating bats
resulting from the above activities (81 FR 24707). Given tricolored
bat's similar susceptibility to the above-mentioned threats and
overlapping range, we find that our not-prudent determination for the
tricolored bat is consistent with our not-prudent finding for northern
long-eared bat critical habitat. Identifying wintering habitat
(hibernacula) as critical habitat on published maps for the tricolored
bat would likely increase the threat from human entry and could
increase the spread of WNS by identifying specific sensitive areas.
This not-prudent determination is based on the regulations that
preceded the Service's 2019 revisions of 50 CFR part 424 (84 FR 45020;
August 27, 2019) because on July 5, 2022, the U.S. District Court for
the Northern District of California vacated those 2019 regulations.
However, we considered whether the analysis of the prudency of
designating critical habitat and the conclusion drawn from that
analysis contained in this listing rule would be any different under
the regulations at 50 CFR part 424 as they existed while the 2019
revisions were in place. We have concluded that our analysis and
conclusion would not be different. To verify whether there would be a
different outcome, we considered whether the tri-colored bat involves
any of the circumstances in which designation of critical habitat may
be not prudent under the 2019 revisions. We found that several of the
circumstances for which designation of critical habitat would be not
prudent under the 2019 revisions apply to the tri-colored bat. As a
result of this analysis, we found that the outcome of the prudency
determination would have remained the same under either situation.
Therefore, in accordance with 50 CFR 424.12(a)(1), we determine
that designation of critical habitat is not prudent for the tricolored
bat.

Public Hearings

[[Page 56392]]

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/species/tricolored-bat-perimyotis-subflavus. 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. While the public informational meeting will be an
opportunity for dialogue with the Service, the public hearing is not:
It is a forum for accepting formal verbal testimony. 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/species/tricolored-bat-perimyotis-subflavus. The
use of a virtual public hearing is consistent with our regulations at
50 CFR 424.16(c)(3).

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.

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

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with listing a species as an endangered or
threatened species under the Endangered Species 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 solicited information, provided
updates and invited participation in the SSA process in emails sent to
Tribes, nationally, in April 2020 and November 2020. We will continue
to work with Tribal entities during the development of a final rule for
the tricolored bat.

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 Pennsylvania Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service's Species Assessment Team and the
Pennsylvania 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. In Sec. 17.11, amend paragraph (h) by adding an entry for ``Bat,
tricolored (Perimyotis subflavus)'' in alphabetic order under Mammals
to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

[[Page 56393]]

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

* * * * * * *
Bat, tricolored................. Perimyotis Wherever found.... E [Federal Register
subflavus. citation when
published as a final
rule].

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

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-18852 Filed 9-13-22; 8:45 am]
BILLING CODE 4333-15-P