Federal Register Vol. 81, No.129,

I. Background

The NRC published the Decommissioning Planning Rule (DPR) in 2011 (76 FR 33512; June 17, 2011) with an effective date of December 17, 2012. The DPR applies to the operational phase of a licensed facility, and requires licensees to operate in a way to minimize spills, leaks, and other unplanned releases of radioactive contaminants into the environment. It also requires licensees to check periodically for radiological contamination throughout the site, including subsurface soil and groundwater. The DPR does not have a mandatory requirement for licensees to conduct radiological remediation during operation. In the Staff Requirements Memorandum (SRM), SRM-SECY-07-0177—Proposed Rule: Decommissioning Planning (10 CFR parts 20, 30, 40, 50, 70, and 72; RIN: 3150-AH45) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML073440549) that approved the proposed DPR, the Commission directed the staff to “make further improvements to the decommissioning planning process by addressing remediation of residual radioactivity during the operational phase with the objective of avoiding complex decommissioning challenges that can lead to legacy sites.” To assist in this process, the NRC staff held a public Webinar on July 25, 2011, during which input on a draft regulatory basis and a set of defined questions concerning a potential rulemaking was obtained from members of the public, licensees, Agreement States, non-Agreement States, and other interested persons. Additionally, interested persons were afforded an opportunity to provide written comments on the same issues (see 76 FR 42074; July 18, 2011). Based upon this input, the NRC staff revised its Draft Regulatory Basis (ADAMS Accession No. ML13109A281).

Subsequently, in SRM-SECY-12-0046—Options for Revising the Regulatory Approach to Groundwater Protection (ADAMS Accession No. ML121450704), the Commission directed the staff to continue the current regulatory approach for groundwater protection, including the recently imposed requirements contained in the DPR, and to solicit public comments on the technical basis for a proposed prompt remediation rule. The Commission also directed the staff to evaluate the pros and cons of moving forward with a proposed prompt remediation rulemaking, including the staff's initial analysis of whether the cost/benefit analysis satisfies the backfit requirements. The staff conducted an additional public meeting and Webinar on June 4, 2013 (see 78 FR 33008; June 3, 2013), and subsequently evaluated stakeholder comments. From this information, the staff identified the following three options for potential rulemaking on prompt remediation during the operational phase of facility life: (1) Proceed with rulemaking; (2) do not proceed with rulemaking; or (3) collect 2 years of information from implementation of the DPR before making a staff recommendation for potential rulemaking.

As a result of the ongoing discussions regarding the need for a prompt remediation regulation, SRM-SECY-13-0108—Staff Recommendations for Addressing Remediation of Residual Radioactivity During Operations (ADAMS Accession No. ML13354B759), instructed the staff to “collect 2 years of additional data from the implementation of the DPR. After collection and evaluation of the data and engaging stakeholders in a public meeting focused on operational experience from implementation of the Decommissioning Planning Rule, the staff should provide to the Commission a paper with the staff's recommendation for addressing remediation of residual radioactivity at licensed facilities during the operational phase of the facility.” Now that the data collection period on the implementation of the DPR has come to a close, the NRC staff is collecting supplementary input from the public and other interested stakeholders to inform the staff's recommendation to the Commission regarding the need for additional rulemaking requiring prompt remediation during operation.

Currently, there are no NRC regulations that require licensees to promptly remediate radiological contamination. To enhance stakeholder engagement in making a recommendation to the Commission regarding whether additional rulemaking in this area is warranted, the staff is holding a Webinar, hosting a public meeting, and requesting feedback on the following questions to facilitate discussion with, and solicit input from, interested stakeholders.

The NRC has asked many of the following questions before, and received some public input. Several commenters stated that an additional rule for prompt remediation is not necessary; and that issues can be addressed either by existing rules or by site-specific action. Others stated the proposed thresholds are not appropriate and that interim remediation is not cost effective. Those who supported an additional rule pointed to cases where there is significant contamination, and drew parallels to other regulations that require early cleanup, such as the Resource Conservation and Recovery Act. The NRC is now seeking further stakeholder input on these questions given the approximately 3 years that have passed since implementation of the DPR:

1. Given the information on site radiological contamination gained as a result of the implementation of the Decommissioning Planning Rule, should the NRC proceed with additional rulemaking to address remediation of residual radioactivity during the operational phase? Why or why not?

2. Based on the information on site contamination obtained from facilities that have entered decommissioning, should the NRC proceed with additional rulemaking to address remediation of residual radioactivity during the operational phase? Why or why not?

3. If the NRC does implement a rule that requires prompt remediation of radioactive spills and leaks, what concentration, dose limits, or other threshold limits should trigger prompt remediation? Should the thresholds differ for soil versus groundwater contamination?

4. Should the NRC allow licensees to justify delaying remediation under certain conditions when the contaminant level exceeds the threshold limit? If yes, then what conditions should be used to justify a delayed remediation?

5. Should factors such as safety, operational impact, and cost be a basis for delaying remediation?

6. If the NRC implements a rule that allows licensees to analyze residual radioactivity to justify delaying remediation, then what should the licensee's analysis cover? For example, what kind of dose assessment, risk-assessments, and/or cost-benefit analyses should be performed to justify delayed remediation? What other types of analyses are relevant to this process?

7. If the NRC implements a rule that allows licensees to analyze residual radioactivity to justify delaying remediation, what role should the cost of prompt remediation versus remediation at the time of decommissioning play in the analysis? What are the overall costs and benefits of prompt remediation of residual radioactivity?

8. If the NRC implements a rule that allows licensees to analyze residual radioactivity to justify delaying remediation, what standards or criteria should a licensee use to demonstrate to the NRC that a sufficient justification to delay remediation has been met?

9. Are there any other alternatives beyond those discussed in the Draft Regulatory Basis document that the NRC should have considered to address prompt remediation?

10. What other issues should the NRC staff consider in developing a technical basis for a potential rulemaking to address prompt remediation of residual radioactivity during site operation?

To facilitate the understanding of the public and other stakeholders of these issues and the submission of comments, the NRC staff has scheduled a public Webinar for July 11, 2016, from 1:00 p.m. to 4:00 p.m. (EDT). Webinar participants will be able to view the presentation slides prepared by the NRC and electronically submit comments over the Internet. Participants must register to participate in the Webinar. Registration information may be found in the meeting notice (ADAMS Accession No. ML16179A220). The meeting notice can also be accessed through the NRC's public Web site under the heading for Public Meetings; see Web page http://meetings.nrc.gov/pmns/mtg. Those who are unable to participate via Webinar may also participate via teleconference. For details on how to participate via teleconference, please contact Marlayna Vaaler; telephone: 301-415-3178; email: [email protected].

Please refer to Docket ID NRC-2011-0162 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0162.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. The ADAMS accession number for each document referenced in this document (if that document is available in ADAMS) is provided the first time that a document is referenced.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2011-0162 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in you comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

After the terrorist attacks on September 11, 2001, CBP amended its regulations to require vessel carriers to electronically submit certain advance cargo information, including cargo declarations, to CBP no later than 24 hours before the cargo is laden aboard a vessel at a foreign port. See 19 CFR 4.7 and 4.7a. The rule was published in the Federal Register (67 FR 66318) on October 31, 2002. Its purpose was to enable CBP to identify high-risk cargo before the vessel arrived in the United States.

Section 203 of the Security and Accountability for Every Port Act of 2006 (Pub. L. 109-347, 120 Stat. 1884 (SAFE Port Act)) directed the Secretary of Homeland Security, acting through the Commissioner of CBP, to promulgate regulations to “require the electronic transmission to the Department [of Homeland Security] of additional data elements for improved high-risk targeting, including appropriate security elements of entry data, as determined by the Secretary, to be provided as advanced information with respect to cargo destined for importation into the United States prior to loading of such cargo on vessels at foreign seaports.” Pursuant to this Act, and section 343(a) of the Trade Act of 2002 (19 U.S.C. 2071 note), CBP published an NPRM in the Federal Register on January 2, 2008 (73 FR 90), proposing to require importers and carriers to submit additional information pertaining to maritime cargo before the cargo is loaded on a vessel that is destined to the United States. The trade gave the proposed rule the shorthand name “10 + 2”, which references the number of advance data elements CBP was proposing to collect. Importers, described in the proposed rule as Importer Security Filing Importers, would generally be required to submit 10 additional data elements (the 10 of “10 + 2”). Carriers would generally be required to submit two additional data elements (the 2 of “10 + 2”).

On November 25, 2008, CBP published an interim final rule and solicitation of comments in the Federal Register (73 FR 71730, CBP Decision 08-46). The interim final rule was effective on January 26, 2009. However, a delayed compliance period of at least 12 months was provided to allow industry sufficient time to comply with the new requirements.

The interim final rule finalized most of the provisions of the NPRM, including all the provisions relating to the carrier requirements. The only portions of the NPRM that were not finalized were the six importer data elements for which CBP provided some flexibility regarding the time and/or manner of compliance. CBP solicited public comments on the flexibilities provided. CBP also invited comments on the revised Regulatory Assessment and Final Regulatory Flexibility Analysis. CBP has not yet published a final rule addressing the flexibilities and the Regulatory Assessment and Final Regulatory Flexibility Analysis.

The interim final rule added a new part 149 to the CBP regulations, entitled Importer Security Filing. The Importer Security Filing regulations require ISF Importers, as defined in 19 CFR 149.1, to transmit an ISF to CBP, for cargo other than foreign cargo remaining on board (FROB), no later than 24 hours before cargo is laden aboard a vessel destined to the United States. The transmission of the ISF filing for FROB is required any time prior to lading.

ISF Importers, or their agents, must submit 10 data elements to CBP for shipments consisting of goods intended to be entered into the United States and goods intended to be delivered to a foreign trade zone (FTZ). See 19 CFR 149.3(a). ISF Importers, or their agents, must submit five data elements to CBP for shipments consisting entirely of FROB and shipments consisting entirely of goods intended to be transported as Immediate Exportation (IE) or Transportation and Exportation (T&E) in-bond shipments. See 19 CFR 149.3(b).

This rulemaking proposes to expand the definition of the Importer Security Filing (ISF) Importer. Currently, an ISF Importer is generally defined in 19 CFR 149.1 as the party causing goods to arrive within the limits of a port in the United States by vessel.

The regulation provides that generally the ISF Importer is the goods' owner, purchaser, consignee, or agent such as a licensed customs broker. However, the regulation limits the definition of ISF Importer to certain named parties for foreign cargo remaining on board (FROB), immediate exportation (IE), and transportation and exportation (T&E) in-bond shipments, and for merchandise being entered into a foreign trade zone (FTZ). For FROB cargo, the regulation provides that the ISF Importer is the carrier; for IE and T&E in-bond shipments, and goods to be delivered to an FTZ, the regulation provides that the ISF Importer is the party filing the IE, T&E, or FTZ documentation.

Based on input from the trade as well as CBP's analysis, CBP has concluded that these limitations do not reflect commercial reality and, in some cases, designate a party as the ISF Importer even though that party has no commercial interest in the shipment and limited access to the ISF data. Therefore, as explained below, CBP is proposing to expand the definition of ISF Importer for FROB cargo, for IE and T&E shipments and for goods to be delivered to a FTZ.

Under the current definition, the ISF Importer for FROB shipments is the carrier. The interim final rule clarified that the carrier means the international carrier arriving in the United States, i.e., vessel operating carrier. See 73 FR 71743. The rationale for requiring the vessel operating carrier to provide the ISF for FROB shipments was that ultimately it is the vessel operating carrier that decides to transport the cargo to the United States.

There is still much debate within the shipping community about who should be the ISF importer for FROB shipments. This debate stems from the relationship between vessel operating carriers and non-vessel operating common carriers (NVOCCs).1 When a party wants to ship goods on a vessel, the party can either book the shipment directly with the vessel operating carrier or it can use an NVOCC who acts as an intermediary between the party shipping the goods and the vessel operating carrier.

When a party books a FROB shipment directly with a vessel operating carrier, the vessel operating carrier has direct access to the required ISF data and is able to file the ISF information with CBP. However, when a party uses an NVOCC, the vessel operating carrier frequently does not have access to the required ISF data elements. This is because the NVOCC may not want to share confidential business information with the vessel operating carrier, a potential competitor.

However, under the current definition of ISF Importer, the vessel operating carrier is always the ISF Importer for FROB shipments, even though it may not have access to the required information. In response to comments to the interim final rule, CBP addressed the issue of the NVOCC not sharing necessary ISF information with the vessel operating carrier by clarifying that the NVOCC can submit the ISF directly to CBP, if it does so as the vessel operating carrier's agent. See 73 FR 71744. Based on CBP's experience with the ISF program, CBP has concluded that the procedure of having the NVOCC act as the agent of the vessel operating carrier for FROB shipments is not effective. The current requirement has not facilitated the sharing of necessary ISF information between NVOCCs and vessel operating carriers and has not resulted in the filing of accurate information. Rather, this procedure has resulted in unclear lines of responsibility and has hampered CBP's enforcement of the ISF requirements.

In an effort to increase compliance and to ensure that the party that has direct access to ISF information is the party responsible for submitting the ISF to CBP, CBP is proposing to broaden the definition of an ISF Importer for FROB shipments to include NVOCCs. This change is consistent with the requirement of the SAFE Port Act, which provides that a requirement to provide information will be imposed on the party most likely to have direct knowledge of that information.2

Broadening the definition of ISF Importer to include NVOCCs is also consistent with the general definition that the ISF Importer means the party causing the goods to arrive within the limits of a port in the United States by vessel. The NVOCC acts as the party booking the shipment aboard the carrier and typically has advance knowledge of the voyage's itinerary, i.e., whether the vessel will enter a U.S. port. By booking the shipment, the NVOCC is the party causing the goods to arrive in the United States. In these instances, not only will the NVOCC be the party most able to obtain the required ISF information, but it will be the party that causes the goods to arrive within the limits of a port in the United States as FROB cargo.

In some circumstances, the vessel operating carrier would be the party that causes the goods to arrive in the United States despite the NVOCC having booked the shipment. An example would be when an NVOCC books a shipment not initially scheduled to arrive in the United States, but the vessel is diverted to the United States by the vessel operating carrier. If the cargo remains on board the vessel at the U.S. port and is not discharged until it arrives at the originally scheduled foreign destination port, this would create FROB cargo. In this situation, the vessel operating carrier would be the party that caused the cargo to arrive in the United States and thus the party responsible for filing the ISF.

As provided in 19 CFR 149.1(a), the ISF Importer for IE and T&E in-bond shipments and for shipments of goods to be delivered to an FTZ is the party that files the IE, T&E, or FTZ documentation with CBP. CBP believes that this definition needs to be broadened because often the party responsible for filing the ISF did not cause the goods to arrive within the limits of a port in the United States, but is a commercially disinterested party at the time of filing and/or may not have access to the required ISF data.

IE and T&E entries are frequently not filed until after the cargo has arrived within limits of a port in the United States. Therefore, there is not yet a party that files the IE or T&E documentation 24 hours prior to lading. In some cases, the party that will be responsible for filing the ISF has not yet been identified. In addition, in some cases, the party that will file the IE or T&E documentation has no commercial interest in the underlying merchandise and that party is a commercially disinterested party 24 hours prior to lading. In these cases, the party filing the IE or T&E entries with CBP did not cause the goods to arrive within the limits of a port in the United States and is not the party most likely to have direct knowledge of the required information. To address this problem, the goods' owner, purchaser, consignee, or agent such as a licensed customs broker will commonly file the ISF-10 required for shipments intended to be entered into the United States, which consists of 10 data elements, as opposed to the ISF-5 required for IE and T&E shipments, which consists of five data elements.

Similarly, for goods being entered into an FTZ, the party filing the FTZ documentation is frequently a commercially disinterested party and/or is not the party most able to obtain the required information. For example, it is common for the FTZ operator to file the FTZ documentation with CBP. However, the FTZ operator is commonly not the party causing the goods to enter the limits of the port in the United States and is a commercially disinterested party 24 hours prior to lading. As a result, the party responsible for filing the ISF is not the party most likely to have direct knowledge of the required information.

To address these issues, CBP is proposing to expand the definition of ISF Importer for IE and T&E in-bond shipments, and for goods to be delivered to an FTZ, to also include the goods' owner, purchaser, consignee, or agent such as a licensed customs broker. These are the same parties that are currently included within the definition of ISF Importer for all shipments other than FROB, IE and T&E in-bond shipments, and goods to be delivered to a FTZ. By broadening the definition to include these parties, the responsibility to file the ISF for IE, T&E, and FTZ shipments will be with the party causing the goods to enter the limits of a port in the United States and most likely to have access to the required ISF information and not with a commercially disinterested party.

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is a “significant regulatory action,” although not an economically significant regulatory action, under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has reviewed this proposed regulation.

Under current regulations, the party required to submit ISF is the party causing the goods to enter the limits of a port in the United States. However, the regulation limits the definition for FROB, IE, and T&E shipments as well as for merchandise being entered into a FTZ to certain named parties. Based on input from the trade as well as CBP's analysis, CBP has concluded that these limitations do not reflect commercial reality and, in some cases, designate a party as the ISF Importer even though that party has no commercial interest in the shipment and limited access to the ISF data. In some cases, the party responsible may not even be involved in the importation at the time the ISF must be filed. This causes confusion in the trade as to who is responsible for filing the ISF and raises confidentiality concerns as sometimes the private party with the information gives the information to the ISF importer who then sends it to CBP. Therefore, CBP is proposing to expand the definition of ISF Importer for FROB cargo, for IE and T&E shipments and for goods to be delivered to a FTZ. This change is consistent with the requirement of the SAFE Port Act, which provides that the requirement to file the ISF will be imposed on the party most likely to have direct knowledge of that information.

This proposed rule would modify the definition of the ISF Importer for FROB cargo, for IE and T&E shipments, and for goods to be delivered to a FTZ. The current definition causes confusion and confidentiality concerns. The current ISF Importer for FROB shipments is the vessel operating carrier. In cases where the shipper uses an intermediary, i.e., NVOCC, the vessel operating carrier does not have access to certain of the required elements for confidentiality reasons—only the intermediary has this information. In most cases, the NVOCC chooses to file this information directly to CBP, sidestepping the confidentiality concerns, but the legal burden is on the vessel operating carrier so some NVOCCs feel pressured to share this information with the carrier. This regulation would define the ISF Importer for FROB cargo as the vessel operating carrier or the NVOCC. Under this regulation, the NVOCC, rather than the vessel operating carrier, would be the ISF Importer if it is the party in possession of the required information.

Likewise, the definition of ISF Importer causes confusion for IE and T&E cargo. The ISF Importer in these cases is the filer of the IE or T&E documentation. This causes confusion because the IE or T&E documentation often is not created until the cargo arrives in the United States. By contrast, ISF information must be submitted at least 24 hours prior to lading. The proposed rule would expand the definition of ISF Importer for IE and T&E in-bond shipments to also include the goods' owner, purchaser, consignee, or agent such as a licensed customs broker. The proposed rule would also make a similar change to the definition of the ISF Importer of FTZ cargo. With this change, the ISF Importer will be a party with a bona fide interest in the commercial shipment and access to the required data.

The modification of the definition of ISF Importer will simply shift the legal responsibility in some cases for filing the ISF from one party to another for a subset of the total cargo (FROB; IE and T&E; and FTZ cargo). For IE, T&E, and FTZ cargo, the party who is currently required to file the data may not yet even be involved in the transaction at the time the data must be submitted. In these cases another party that has the data such as the owner, purchaser, consignee, or agent often files the data, though they are not legally obligated to file it. Under this proposed rule, these parties who have the data will be included in the definition of the party responsible for filing the data. Since these parties are generally the ones currently submitting this data to CBP, this change will have no significant impact. In some rare instances, this proposed rule may shift the burden of filing from one party to another. For example, since the party currently responsible for filing may not be involved in the transaction at the time the data must be submitted, it could be one of several parties (e.g., the owner, purchaser, consignee, or agent) that actually submits the information. Once this proposed rule is in effect, there will be clarity as to which party is responsible, which could change who actually submits the data. In the vast majority of cases, there will be no change in who submits the data, but it is possible that there will be a change. To the extent that there is a change in who actually submits the ISF data, there will be a shift in the time burden to do so from one party to the other. CBP estimates that submitting this information takes 2.19 hours at a cost of $50.14 per hour.3 This loaded wage rate was estimated by multiplying the Bureau of Labor Statistics' (BLS) 2014 median hourly wage rate for Ship and Boat Captains and Operators ($32.73) by the ratio of BLS' average 2014 total compensation to wages and salaries for Transportation and Material Moving occupations (1.5319), the assumed occupational group for ship and boat captains and operators, to account for non-salary employee benefits.4 5

Therefore, to the extent this proposed rule shifts the reporting burden from one party to the other, there will be a corresponding shift of $109.81 in opportunity cost per filing. CBP lacks data showing how often there would be a shift in the actual reporting burden as a result of this rule but it believes it to be very small and possibly zero. CBP requests comment on this matter.

For FROB, the ISF Importer must currently either obtain the information from a third party that has the necessary information or ask that the third party file the information directly to CBP. In some cases, the third party shares this information with the ISF Importer, but it usually files the data directly with CBP for confidentiality reasons. Under the proposed regulation, the party that has access to the ISF information would submit it directly to CBP. Since this third party is generally already providing the ISF information through the current ISF Importer or directly to CBP, this rule will not add a significant burden to these entities. As described above, to the extent that this rule shifts the reporting burden from one party to the other, there will be a corresponding shift of $109.81 in opportunity cost per filing. CBP lacks data showing how often there would be a shift in the actual reporting burden as a result of this rule but it believes it to be very small and possibly zero. CBP requests comment on this matter.

This proposed rule benefits all parties by eliminating the confusion surrounding the responsibility for the submission of ISF information. In addition, this rule would significantly reduce confidentiality concerns that may be caused by the current requirements. This rule would ensure the party with the best access to the information is the party who files the information, which will improve the accuracy of the information CBP uses for targeting. Finally, eliminating a step in the transmission process (sending the ISF information from the third party to the current ISF importer) will result in CBP getting the information sooner. Any extra time can be used for more extensive targeting.

This section examines the impact of the rulemaking on small entities as required by the Regulatory Flexibility Act (5 U.S.C. 603), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).

In the Interim Final Rule establishing the ISF requirements (73 FR 71730; November 25, 2008, CBP Decision 08-46; Docket Number USCBP-2007-0077), CBP concluded that many importers of containerized cargo are small entities. The rule could affect any importer of containerized cargo so it could have an impact on a substantial number of small entities.

This impact, however, is very small. The modification of the definition of ISF Importer will simply shift the legal responsibility in some cases for filing the ISF from one party to another for a subset of the total cargo (FROB; IE and T&E; and FTZ cargo). For IE, T&E, and FTZ cargo, the party who is currently required to file the data may not yet even be involved in the transaction at the time the data must be submitted. In these cases another party such as the owner, purchaser, consignee, or agent often files the data, though they are not legally obligated to file it. Under this proposed rule, these parties will be included in the definition of the party responsible for filing the data. Since these parties are currently submitting this data to CBP, this change will have no significant impact. For FROB, the ISF Importer must currently either obtain the information from a third party that has the necessary information or ask that the third party file the information directly to CBP. In some cases, the third party shares this information with the ISF Importer, but it usually files the data directly with CBP for confidentiality reasons. Under the proposed regulation, CBP is expanding the definition of ISF Importer so that the party that has access to the ISF information would submit it directly to CBP as the ISF Importer. Since this third party is already providing the ISF information through the current ISF Importer or directly to CBP, this proposed rule will not add a significant burden to these entities.

For these reasons, CBP certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) requires agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule is exempt from these requirements under 2 U.S.C. 1503 (Exclusions) which states that UMRA “shall not apply to any provision in a bill, joint resolution, amendment, motion, or conference report before Congress and any provision in a proposed or final Federal regulation that is necessary for the national security or the ratification or implementation of international treaty obligations.”

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information related to this NPRM are approved by OMB under collection 1651-0001.

For the reasons stated in the preamble, DHS proposes to amend part 149 of title 19 of the Code of Federal Regulations (19 CFR part 149), as set forth below:

On December 23, 2014, the Postal Service published a notice of proposed rulemaking (79 FR 76930-76931) to add a process for measuring address quality.

From that proposed rule, the mailing industry provided many insightful and valuable comments (outlined later in this document) to the Postal Service and requested that a revised proposed rule be published. Therefore, we are renaming and revising our original proposal, and publishing it with a request for additional comments. This proposed rulemaking is subject to both Postal Service management and Postal Regulatory Commission (PRC) approvals.

The Postal Service continues to look for opportunities to work with mailers to improve address quality and reduce undeliverable-as-addressed (UAA) mail. We have developed a newly proposed procedure, the Address Quality Census Measurement and Assessment Process, to measure address quality pertaining to move-related changes. This proposed process will allow the Postal Service to provide valuable feedback to mailers who enter eligible letter- and flat-size pieces of FCM and Standard Mail that meet the requirements for Basic or Full-Service mailings.

The Address Quality Census Measurement and Assessment Process will utilize a scorecard for mailers that conveys information on address hygiene as well as Move Update quality. The scorecard provides mailers with change-of-address (COA) data as well as details about mailpieces that are UAA.

Presently, one of the benefits of the Full-Service Intelligent Mail® program is free Address Change Service (ACSTM) for mailpieces prepared in accordance with Full-Service requirements. In order to further encourage the adoption of Full-Service and to increase the number of mailers that receive address quality information, the Postal Service is proposing to extend free ACS to mailers who enter qualifying Basic automation and non-automation mailpieces that meet the criteria of the Address Quality Census Measurement and Assessment Process and to mailers that meet a Full-Service threshold of 95 percent along with other requirements, which are outlined later in this document.

Today, some mailers who enter Periodicals could potentially be charged for manual address correction notices on mailpieces using a Full-Service ACS Service Type IDentifier (STID). The Postal Service is proposing that mailers who enter Full-Service Periodicals mailings using a Full-Service ACS STID will not be required to receive or pay for manual address correction notices unless they are requested. Although mailers who enter Periodicals will be provided with address quality data, these mailpieces will not be subject to the Address Quality Census Measurement and Assessment Process.

To further clarify this document, several terms are defined below:

99 Percent Accurate Method: Mailers who can demonstrate that their internal list management maintains address quality at 99 percent or greater accuracy for changes of address may be authorized to comply with the Move Update standard through the 99 Percent Accurate Method. The 99 Percent Accurate test is a computer-based process that performs Postal Service ZIP + 4® coding and change-of-address processing utilizing the customer's file as input. The 99 Percent Accurate test is accomplished by submitting the mailer's address file(s) to the Postal Service for processing.

Commercial Mailings: The Postal Service offers lower prices for business mailings, because mailers perform some of the work that would otherwise have to be done by the Postal Service (for example, sorting the mail by ZIP CodeTM or transporting the mail to a destination postal facility). Everyone benefits from “work-sharing.” Mailers make an investment in time and technology while paying less postage, and the Postal Service's costs are reduced, while mail is expedited through the system. Among other requirements, commercial mailings must comply with the Move Update standard as outlined in the DMM so that UAA mail is minimized.

eDoc Submitter: The electronic documentation (eDoc) Submitter is determined using the Customer Registration IDentifier (CRID) number that is used to upload the eDoc to the Postal Service for processing. The eDoc submitter most often is the Mail Preparer, but can also be the Mail Owner. All results of Address Quality Measurement will be displayed on the eDoc Submitter and Mail Owner scorecards; however, any additional postage assessments will be presented to the eDoc submitter.

Legal Restraint: Mailers of First-Class Mail and First-Class Package Service pieces who assert they are restricted by law from incorporating Postal Service COA information onto their mailpieces without permission from addressees may request Postal Service approval to meet their Move Update standard using the Legal Restraint method. Such mailers must be able to clearly demonstrate how the use of a primary Move Update method would violate the law. (See the Guide to Move Update at http://beta.postalpro.usps.com/node/1116). Pieces that meet the requirements for the Legal Restraint method will be excluded from the Mailer Scorecard and the Address Quality Census Measurement and Assessment Process, as long as the mailpieces use the appropriate CRID or Mailer IDentifier (MID).

Mailer: The term “mailer” within this document encompasses Mail Owners, Mail Preparers, and Mail Service Providers (MSPs).

Mailer Scorecard: This is an electronic report that contains mail quality measurements and assessments on mailings over a calendar month for Move Update, Full-Service Intelligent Mail, eInduction®, and Seamless Acceptance. The Scorecard is accessible through the Business Customer Gateway (BCG) and provides views for both Mail Owners and Mail Service Providers (MSPs).

Non-qualifying Mailings: The below non-qualifying mailpieces will be excluded from the Address Quality Census Measurement and Assessment Process and the Mailer Scorecard:

• Mailpieces which are undeliverable due to an address change which is Temporary, Foreign, Moved Left No Address (MLNA), and Box Closed No Order (BCNO).

• Mailpieces that are priced as single-piece.

• Mailpieces that qualify for the Legal Restraint method.

• Mailpieces without the documentation submitted electronically.

Qualifying Mailings: An eDoc submitter is eligible for the Address Quality Census Measurement and Assessment Process when at least one of its mailings qualifies for Full-Service in a calendar month. Thereafter, when mailers enter eligible mailings of letter- and flat-size pieces of FCM and Standard Mail that meet the requirements for Basic or Full-Service mailings in a subsequent calendar month, the Address Quality Census Measurement and Assessment Process will be used, if the postage statement and supporting documentation are submitted electronically and a unique Intelligent Mail barcode (IMb®) is included in the eDoc.

The Postal Service appreciates all of the comments that were provided by the mailing industry. The valuable feedback was used to establish revised proposed requirements for the Address Quality Census Measurement and Assessment Process. Even though this is a proposed rule, we have chosen to include these insightful comments and replies, which can be used as FAQs to further clarify this document. The mailers' comments and corresponding USPS responses are outlined as follows:

If mailings are not in compliance with Move Update standards, why is it necessary to levy an additional charge or assessment?

As outlined in the DMM, commercial mailings must comply with the Move Update standard. Regardless of whether the Postal Service measures Move Update compliance through Mail Evaluation Readability Lookup INstrument (MERLIN®) verification or using the Address Quality Census Measurement and Assessment Process, failure to meet the Move Update standard may result in an additional postage assessment.

How does this proposed rule support the UAA objective?

The ability to observe UAA performance at the individual mailer or service provider level will benefit both the Postal Service and the mailing industry. This data will provide more information regarding the actual mailing performance. This data will provide mailers with viable information to assist with reducing UAA, improve their return on investment, and better understand anomalies that impact Move Update performance.

Since the Move Update verification process was implemented in 2008, has data shown a decrease in UAA mail volume?

Yes; since the implementation of Move Update in 2008, UAA volumes have declined:

In 2008, there was an 11.2 percent decline in UAA volume. This reduction was nearly twice the overall decline in FCM volume of 6.4 percent.

From 2008 through 2015, there was a decline of 37 percent in UAA volume, which resulted in a reduction for all mail classes of 2.8 billion UAA pieces.

From 2008 through 2015, there was an overall decline of 43.8 percent in FCM forwarding volume from 1.6 billion pieces in 2008 to 0.9 billion pieces in 2015.

Currently, when mailing Periodicals, there is a requirement to pay for manual address corrections. Will this payment cease in conjunction with this proposal?

In this proposed rule, with regard to Full-Service Periodicals mailings, there will no longer be a requirement to receive or pay for manual address corrections, except when manual address correction notifications are specifically requested by the mailer or the mailpiece does not contain a Full-Service ACS STID.

For each STID, will the data for both COA errors and the total number of pieces be all-inclusive or be limited by services such as ACS?

The data will be inclusive of both ACS- and non-ACS-requested STIDs.

When mailers enter Periodicals, will there still be a requirement for address correction service?

Yes, mailers who enter Periodicals will still be required to meet the requirement for address correction service.

Does the Address Quality Census Measurement and Assessment Process apply to mailpieces that meet the criteria for single-piece prices, Legal Restraint, and the 99 Percent Accurate Method?

The Address Quality Census Measurement and Assessment Process will exclude mailpieces that are paid at the single-piece price and mailpieces that meet the requirements for the Legal Restraint alternative method, which will be based upon the CRID or MID of the mail owner who is approved for the exemption. In contrast, mailpieces entered under the 99 Percent Accurate Method were factored into the newly proposed Address Quality Census Measurement and Assessment Process error threshold, and these mailpieces will not be excluded from the new measurement process.

In addition to this proposed rule, the Postal Service intends to publish an additional proposed rule to provide further guidance on the Move Update standard. This document will propose that mailers who are authorized for the Legal Restraint Move Update alternative method be required to use an exclusive MID or multiple exclusive MIDs on their mailpieces for Legal Restraint mailings. This would allow the Postal Service to properly identify these types of mailpieces and, when appropriate, exclude the mailpieces from the Address Quality Census Measurement and Assessment Process. The mailer will not be able to use these MIDs for other types of mailpieces that do not fall under the Legal Restraint authorization. The Postal Service is working with the Legal Restraint mailers to identify these MIDs. All current Legal Restraint authorized mailers would be allowed a one-year transition period to begin use of the exclusive MIDs. The one-year transition period would be calculated starting from the date of their next annual Legal Restraint reauthorization.

If a mailer temporarily falls below the qualifying 75 percent Full-Service threshold for 30 days, what are the consequences?

There will no longer be a qualifying Full-Service percentage; the mailer need only submit one qualifying Full-Service mailing.

If a mailer does not enter mailings meeting the 75 percent Full-Service threshold, how will address quality be measured?

To be measured under the Address Quality Census Measurement and Assessment Process, there will no longer be a 75 percent Full-Service threshold. For mailers whose CRID does not present any Full-Service mailings, the address quality will be measured through the traditional MERLIN verification process, and the mailer must declare that an approved Postal Service Move Update method was used. An eDoc submitter will be eligible for the Address Quality Census Measurement and Assessment Process when at least one of its mailings qualifies for Full-Service in a calendar month. Thereafter, all mailings of letter- and flat-size pieces of FCM and Standard Mail that meet the requirements for Basic or Full-Service mailings entered in a subsequent calendar month will use the Address Quality Census Measurement and Assessment Process, if the postage statements and supporting documentation are submitted electronically and unique IMbs are included in the eDoc.

When MSPs prepare a combined mailing (multiple Mail Owners), will a fee be assessed if the COA percentage measured for one of the Mail Owners exceeds the error threshold, but the COA percentage measured for the submitter of the eDoc does not exceed the threshold?

If a combined mailing (with multiple Mail Owners) is entered and the COA percentage does not exceed the Address Quality Census Measurement and Assessment Process error threshold, no fee would be assessed, because the fee is assessed at the eDoc submitter level.

When there is a combined mailing (with multiple Mail Owners), what is the process for ensuring that the correct mailer is assessed for exceeding the error threshold?

For a combined mailing, the Mailer Scorecard and the Mail Entry Assessment Report allow the Postal Service to provide detailed piece-level information and identify Mail Owners who exceed the established Address Quality Census Measurement and Assessment Process error threshold. While the eDoc submitter will pay the assessment to the Postal Service, there will be adequate information for the eDoc submitter to seek reimbursement from the applicable Mail Owner.

Can the Postal Service clearly outline the appeal process for postage assessments?

To appeal postage assessments, the dispute process is available on PostalProTM at http://beta.postalpro.usps.com/node/847 and steps are outlined within the Guide to Postage Assessment as follows:

Mailings are evaluated based on an entire calendar month.

If thresholds are exceeded, an invoice is generated and a Mail Entry Assessment Notification is sent on the 10th of the month (for the previous month's mailing activity).

Notifications for all assessments will be sent to the eDoc submitter.

An assessment notification is sent by email to the individual designated by the mailer for each CRID in BCG as the Verification Assessment Evaluator (VAE). Mailers can also review assessment information through the Mailer Scorecard.

VAE accesses BCG and pays invoice.

If a VAE is not in agreement with the charges, the VAE may dispute charges by requesting a review and providing supporting documentation within 10 days of assessment notification.

Business Mail Entry (BME) reviews the documentation and contacts the mailer with results.

Will there be changes to the National Change of Address Linkage System (NCOALink®)?

Currently, there are no changes to the database for NCOALink which would affect a mailer's ability to use the product or comply with Move Update requirements. If such changes are anticipated, the Postal Service is always willing to work with mailers to mitigate impacts.

Is it the intent of the Postal Service to make ACS the default source for Move Update changes and eliminate the other methods (NCOALink Mail Processing Equipment (MPE), Ancillary Service Endorsement (ASE), and NCOALink)?

The Postal Service has no intention of making ACS the default source for Move Update or eliminating any of the other USPS-approved Move Update methods.

Will the traditional ACS be free and postage statements be modified to reflect these new changes?

In general, the traditional ACS fees will not be waived. The postage statements will be modified to incorporate all new changes.

What mechanisms are in place to correct erroneous information in the Mailer Scorecard?

The Postal Service is working internally to validate the Mailer Scorecard. All known systemic issues are currently being addressed. In addition, a task team consisting of both Postal Service and Mailing Industry representatives is validating the reliability and stability of the Mailer Scorecard and all corresponding reports. After the assessment period begins, if new issues are identified, the Postal Service will remove all applicable charges resulting from USPS systemic issues.

Under the new measurement process, what is the actual assessment fee for mailpieces that exceed the established error threshold?

The address quality assessment fee has not been determined and is subject to USPS management and regulatory approval.

Will the address quality assessment fee vary based on the disposition activity (forwarded, returned, or destroyed) of the mailpieces in question?

No; the address quality assessment fee will be the same for all mailpieces that exceed the established Address Quality Census Measurement and Assessment Process error threshold, regardless of whether they are forwarded, returned, or destroyed.

What happens if mail is mistakenly run through MERLIN? Is there a risk of double jeopardy?

If mail is mistakenly processed on MERLIN, there will be no risk of double jeopardy. Once mailers qualify for the Address Quality Census Measurement and Assessment Process, they will be removed from the MERLIN Move Update verification process. Prior to the implementation of the Address Quality Census Measurement and Assessment Process, all Postal Service acceptance employees will be trained. However, if a mailing is mistakenly processed on MERLIN and additional postage under that method is assessed, the associated assessment fee will be removed.

Will MERLIN be used for evaluating mail in the future?

MERLIN will still be used to measure Move Update compliance for those mailers who enter mailings that do not meet the requirements to be evaluated under the newly proposed Address Quality Census Measurement and Assessment Process.

Will the error threshold for the newly proposed process be applied at the Mail Owner or CRID level?

The error threshold for the new proposed Address Quality Census Measurement and Assessment Process will apply to the eDoc submitter at the CRID level.

Regarding assessments, it is recommended that the Postal Service focus on the individual Mail Owner, which will allow the MSP to be free from the onerous task of determining who should pay an assessment fee.

The Postal Service is providing specific data to assist the MSP with identifying the Mail Owners who are exceeding the established Address Quality Census Measurement and Assessment Process error threshold and contributing to the assessment fee.

When the Mail Preparer performs the Move Update functions, will the Postal Service negotiate the credit between the Mail Owner and MSP?

All assessments will be remitted to the eDoc submitter for payment; negotiations between the Mail Owner and MSP will not be managed by the Postal Service.

How will the Postal Service ensure that the data from the MicroStrategy Report within the Mailer Scorecard is reliable?

An internal Postal Service team as well as a task team consisting of both Postal Service and Mail Industry representatives will validate the data integrity of the MicroStrategy Reports and Mailer Scorecard. These reports outline detailed mailpiece data for errors that are captured.

Will there still be two different databases relative to address changes, i.e. Postal Automated Redirection System (PARS) vs. NCOALink?

Yes, two separate databases will continue to exist as follows:

PARS: This database has 18 months of COA data for processing UAA mail.

NCOALink: This database holds up to 48 months of COA data for updating mailing lists.

Does the United States Postal Inspection Service (USPIS) agree with the newly proposed measurement process, and how will investigations be determined?

Yes, USPIS agrees with the decision to utilize the newly proposed Address Quality Census Measurement and Assessment Process, which allows the Postal Service to leverage technology. Also, USPIS will continue to collaborate with the Postal Service on all matters, including the determination of whether investigations are warranted.

The Postal Service requires mailers to update address-related changes through the Move Update requirements process. Currently, Move Update compliance is measured at the mailing level using MERLIN as follows:

At the point of acceptance, mailings are randomly selected for address quality assessment, and samples of the selected mailings are processed through MERLIN.

PostalOne!® sends an electronic version of the mailer's Postage Statement Message (PSM) to the MERLIN Maintenance and Operations Database (MMOD).

MMOD routes the PSM to the appropriate site and MERLIN machine.

Postal Service personnel generate a verification report, and the report produces a set of results that are routed back to the MMOD system.

MERLIN generates a report that provides the details on mail quality.

MMOD sends an Address Quality Validation System (AQVS) message-stream of addresses, names, and ZIP Codes to the National Customer Support Center (NCSC) for Move Update processing.

MERLIN captures the address information from the mailpiece and electronically sends each record to the NCSC to see if there is a COA on file.

The piece is identified as an error if the mailer did not use the updated address indicated in the COA on file, and the COA “filing date” is between 95 days and 18 months of the postage statement finalization date.

MMOD sends mail verification results (whether the mailer passed) to the PostalOne! System.

NCSC processes the AQVS data stream and sends the results to PostalOne!, which addresses the Move Update failures.

PostalOne! uses the mail verification and NCSC Move Update results to formulate the final charges.

In 2013, the Postal Service introduced the concept of measuring and assessing mail quality for mailings over a calendar month for Full-Service Intelligent Mail, eInduction, and Seamless Acceptance. Since August 2014, Postal Service technology has further evolved so that, when mailers use an IMb and submit their postage statements and supporting documentation electronically, data collection scans from mail processing equipment (MPE) can be used to evaluate the address and move-related quality of mail being processed. Accordingly, the Postal Service is using this technology as an alternative to measure and evaluate the quality of mailings.

The Postal Service is proposing to add a Move Update compliance verification process named the Address Quality Census Measurement and Assessment Process for letter- and flat-size pieces of FCM and Standard Mail that meet the requirements for Basic or Full-Service mailings.

Mailers of Periodicals will be provided with address quality data; however, Periodicals will not fall under the Address Quality Census Measurement and Assessment Process. This newly proposed process will result in several benefits including enhanced mailing visibility and improved mail quality metrics over all mailings within a calendar month, rather than sampled mailings.

This process is a much more robust method to assess Move Update compliance, which would be measured across all mailings within a calendar month according to the following process:

Mailpieces are scanned on MPE.

Data from mailpieces identified as UAA is captured and evaluated to determine if COA information is on file.

The address information for mailpieces matching an active COA is captured from the piece and sent electronically to NCSC.

NCSC forwards COA information to the Address Quality Census Measurement and Assessment Process for evaluation.

Move Update validations are performed by comparing the MID + Serial Number of the IMb from the COA-related mailpiece data. If the COA is between 95 days and 18 months old, and the address has not been updated, then a COA error for the associated IMb is logged and allocated under the CRID of the eDoc submitter.

The proposed Address Quality Census Measurement and Assessment Process error threshold that is under consideration is 0.5 percent. This threshold, which is subject to review at the PRC, would be applied to all pieces submitted by an eDoc submitter in a calendar month.

The Postal Service would assess the relevant eDoc submitter CRID for each non-compliant mailpiece beyond the threshold.

The data would be collected and reported on the Mailer Scorecard under the eDoc submitter CRID.

The address quality assessment fee will be applied to mailpieces in qualifying mailings that contain COA errors in excess of the established Address Quality Census Measurement and Assessment Process error threshold. This address quality assessment fee is currently pending management and regulatory approval.

Once the Address Quality Census Measurement and Assessment Process is in place, qualifying mailings will no longer be required to document Move Update compliance methods on the postage statement, mail.dat, or mail.xml. However, documents demonstrating the method used should be available upon request by the Postal Service, and mailers must continue to use a Move Update method in order to remain below the Address Quality Census Measurement and Assessment Process error threshold, expedite the delivery of mail by avoiding mail forwarding, and increase the security and privacy of sensitive customer information.

The Mailer Scorecard is currently available to mailers. This report provides data that allow mailers to gauge address quality on their mailpieces. After the final rule is implemented and the PRC review is completed, mailings with errors that exceed the newly proposed Address Quality Census Measurement and Assessment Process error threshold will incur an address quality assessment fee.

The Address Quality Census Measurement and Assessment Process will apply to mailings when mailers:

Submit any mailpieces during a calendar month as Full-Service.

Use a unique Basic or Full-Service IMb on mailings of letter- and flat-size pieces for FCM and Standard Mail.

Use eDoc to submit mailing information.

After the test period commences, address quality will be measured as follows:

Analysis will be performed on all pieces in the mailing, rather than on a sample.

The assessment will be determined by the number of COA errors, in a calendar month, divided by the total number of pieces mailed that were subject to analysis. The resulting percentage will be compared to the established Address Quality Census Measurement and Assessment Process error threshold.

There are a number of exclusions to the measurement and assessment process. Generally, mailpieces with addresses that have the following COA characteristics will not be included in the assessment: Temporary moves, MLNA, BCNO, and COA data for foreign addresses.

Mailpieces authorized for the Legal Restraint alternate Move Update method (See Guide to Move Update) will be excluded at the CRID level of the Mail Owner, during a short transition period. After the transition period, an established MID will be identified for use on mailpieces that fall under the Legal Restraint method.

Once qualifying mailings are processed on MPE, the data from mailpieces are reconciled with eDoc. These results are available on the BCG and displayed on the Electronic Verification tab of the Mailer Scorecard, which can be easily accessed at https://gateway.usps.com/eAdmin/view/signin. Mailers are able to review the Mailer Scorecard and corresponding detailed reports to identify any anomalies or issues.

To resolve Mailer Scorecard irregularities, mailers should contact the PostalOne! ® Help Desk at 800-522-9085 or their local Business Mail Entry Unit (BMEU).

In order to further encourage the adoption of Full-Service, the Postal Service is proposing to extend free Full-Service ACS to qualifying Basic automation and non-automation mailpieces for mailers who enter at least 95 percent of their mail as Full-Service in a calendar month. The Basic mailpieces must be prepared as follows:

Bear a unique IMb printed on the mailpiece.

Include a Full-Service ACS or OneCode ACS® STID in the IMb.

Include the unique IMb in eDoc.

Provide accurate mail owner identification in eDoc.

Address change information will be provided to the Mail Owner identified in eDoc. Address change information which does not qualify for free ACS will continue to be provided through SingleSource at the appropriate charge.

As part of this proposed rule, mailers who enter mailings of Full-Service Periodicals would no longer be required to receive and pay for manual address corrections when a Full-Service ACS STID is used. However, these mailers may elect to receive and pay for manual address correction notifications by including the appropriate STID within the IMb.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. Accordingly, 39 CFR part 111 is proposed to be amended as follows:

On April 1, 2014, the U.S. Department of Energy (DOE) published a rule proposing to amend the Department of Energy Acquisition Regulation (DEAR) to define contractor business system as an accounting system, estimating system, purchasing system, earned value management system (EVMS), and property management system (79 FR 18415). In the proposed rulemaking, DOE proposed to implement compliance enforcement mechanisms in the form of a contractor business system clause and related clauses that included a provision that would allow contracting officers to withhold a percentage of payments, under certain conditions, when a contractor's business system contained significant deficiencies. However, the Department has determined that it will not proceed with the rulemaking and, as such, is withdrawing the proposed rule.

Background

Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information indicating that listing an animal or plant species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month finding”). In this finding, we determine whether listing the Eagle Lake rainbow trout and the Ichetucknee siltsnail is: (1) Not warranted; (2) warranted; or (3) warranted, but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened species, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants (warranted but precluded). Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range, section 3(6), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, section 3(20). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species based on any of the following five factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

We summarize below the information on which we based our evaluation of the five factors provided in section 4(a)(1) of the Act in determining whether the Eagle Lake rainbow trout and the Ichetucknee siltsnail meet the definition of an endangered species or threatened species. More detailed information about these species is presented in the species-specific assessment forms found on http://www.regulations.gov under the appropriate docket number (see ADDRESSES). In considering what stressors under the five factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat. In that case, we determine if that stressor rises to the level of a threat, meaning that it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. The mere identification of stressors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these stressors are operative threats that act on the species to the point that the species meets the definition of an endangered species or a threatened species under the Act.

In making our 12-month findings, we considered and evaluated the best available scientific and commercial information.

The Service has been petitioned three times to add the Eagle Lake rainbow trout (Oncorhynchus mykiss aquilarum) (ELRT) to the List of Endangered and Threatened Wildlife under the authority of the Act. On April 28, 1994, we received a petition from John F. Bosta, of Susanville, California, requesting that we list the ELRT as an endangered or threatened species, designate critical habitat, and develop a recovery plan for the species. On August 7, 1995, we published our 90-day finding in the Federal Register (60 FR 40149) stating that the petition did not present substantial information to indicate that listing the ELRT as an endangered or threatened species under the Act may be warranted.

On August 15, 2003, we received a second petition from Mr. John Bosta, requesting that we list the ELRT as an endangered or threatened species under the Act. On October 6, 2003, we received a similar petition from Mr. Chuck Sanford, of Loomis, California, dated September 28, 2003. Mr. Sanford's petition repeated the same information provided earlier in the Bosta 2003 petition and was therefore treated as a comment on the first petition received. In our February 24, 2004, response letter to Mr. Bosta, we explained that we had reviewed the petition and determined that an emergency listing was not warranted, and that because of other court-ordered listing and critical habitat actions and settlements, we would not be able to otherwise address the petition to list the ELRT at that time, but would complete the action when workload and funding allowed.

In a settlement agreement with WildEarth Guardians dated May 10, 2011 [WildEarth Guardians v. Salazar, No. 10-377 (EGS) MDL Docket No. 2165], we agreed to complete our 90-day finding on the 2003 petition to list the ELRT on or before September 30, 2012. On September 5, 2012, we published our 90-day finding in the Federal Register (77 FR 54548), in which we determined that the petition presented substantial information indicating that the ELRT may be warranted for listing as an endangered or threatened species, and initiated a status review and solicited information on the stressors potentially affecting the ELRT. Specifically, we found that the petition and information in our files indicated that the habitat in Pine Creek, a tributary to Eagle Lake and the major stream spawning habitat for ELRT, was degraded and that access to the stream was blocked by a weir used for collecting fish for hatchery purposes. We also found that the ELRT population in Pine Creek was subject to predation pressure from introduced nonnative brook trout (Salvelinus fontinalis).

On May 13, 2014, Western Watersheds Project (WWP) submitted a notice of intent to sue the Service for failure to complete a 12-month finding on the 2003 petition and determine the listing status of the ELRT under the Act. On September 23, 2014, WWP filed a complaint (Western Watersheds Project v. Jewell et al.; Case 2:14-CV-02205-MCE-KJN) to compel the Service to issue the 12-month finding.

On March 17, 2015, the Service entered into a stipulated settlement agreement with WWP agreeing that no later than June 30, 2016, the Service would submit to the Federal Register a 12-month finding as to whether listing the ELRT under the Act is warranted, not warranted, or warranted but precluded.

The ELRT is a subspecies of rainbow trout endemic to the highly alkaline Eagle Lake and its main tributary, Pine Creek. Its range is restricted to Eagle Lake, Pine and Bogard Spring Creeks within the Pine Creek watershed, and, on occasion, other small tributaries to Eagle Lake, such as Merrill and Papoose Creeks. Past cumulative impacts from improper land management, introduction of nonnative fishes, overharvesting, and lowering lake levels during the late 1800s and the early 1900s resulted in the degradation of habitat within the Pine Creek watershed and a sharply declining ELRT population. To ensure the persistence of the subspecies and to sustain a trophy fishery in Eagle Lake, a hatchery program for the ELRT was created by the California Department of Fish and Wildlife (CDFW) in 1950. In 1959, the Pine Creek Fish Trap and barrier weir (Trap) was constructed at the mouth of Pine Creek to assist in the collection of adult spawners for the hatchery program. The barrier weir blocked all fish passage except during high flow events; then, in 1995, the weir was modified further to block all fish passage, even in high flow events. In addition to the barrier weir, past land use practices had degraded stream conditions in the Pine Creek watershed. While the hatchery program substantially increased the ELRT population from historic lows observed in the 1930s-1940s, the blockage of natural stream spawning opportunities, in combination with the degraded watershed conditions, prevented natural lake-to-stream spawning and resulted in an increased dependence on hatchery propagation.

Stream-resident ELRT have been observed spawning in the intermittent and perennial sections of Pine Creek, which may be contributing to the natural reproductive population. There was an observation of spawning within the intermittent portions of Pine Creek and the subsequent downstream migration of fry in 2011. There were also observations of spawning within the perennial portions of Pine Creek in 2009, and fry were observed the following spring in Pine Creek. Some spawning activity has also been observed along the gravelly shores of Eagle Lake, but it is unknown if spawning was successful or if it contributed to recruitment of the population. There has been recent successful spawning of ELRT in an aquarium at the Turtle Bay Museum in Redding, California, which suggests that spawning outside of the stream habitat is possible.

At the time of our 90-day finding in 2012, we found that the petition presented substantial information that the ELRT may warrant listing due to the present or threatened destruction, modification, or curtailment of its habitat or range based on the presence of a hatchery weir on Pine Creek impeding fish passage, predation from introduced nonnative brook trout on the remnant ELRT population in the headwaters of Pine Creek, and because of the ongoing hatchery program and hatchery practices potentially causing genotypic and phenotypic genetic shift in ELRT populations. Since our 90-day finding was issued on September 5, 2012, numerous conservation efforts have been implemented or are ongoing, and these conservation efforts have reduced the level of impact on the ELRT from identified stressors.

Stressors Impacting ELRT: In completing our status review for the ELRT, we reviewed the best scientific and commercial data available and compiled this information in the 2016 Species Report for the Eagle Lake Rainbow Trout (Oncorhynchus mykiss aquilarum) (Service, 2016). For our finding, we evaluated potential stressors related to the ELRT and its habitat. The different levels of impact of each stressor or combination of stressors are defined as follows: (1) Low-level impacts are those that result in a minor loss of individuals and/or habitat currently or expected in the future; (2) moderate-level impacts are those that result in more than a minor loss, but not a widespread loss, of individuals and/or habitat currently or expected in the future; and (3) high-level impacts are those that result in a widespread loss of individuals and/or habitat currently or expected in the future.

The stressors we analyzed were grazing, roads and railroads, water impoundments, fish passage barriers, recreational fishing, predation from and competition with brook trout, disease, effects from artificial propagation, and effects from climate change. The full analysis for all of these stressors can be found in the ELRT 12-Month Petition Finding's Supporting Document at http://www.regulations.gov (see ADDRESSES, above). As discussed in greater detail in that document, we have concluded, based on the best information available at this time, that the effects from grazing, roads and railroads, water impoundments, fish passage barriers, recreational fishing, disease, and effects from artificial propagation (all of the stressors analyzed, other than predation from and competition with brook trout and climate change, which, as discussed further below, have moderate-level impacts) are currently low-level impacts to ELRT and will continue at a low level into the future. With respect to fish passage barriers, the fact that this stressor—which historically had severe, high-level impacts—currently has only low-level impacts on the ELRT reflects a significant change in conditions that has reduced the stressors on the ELRT and improved its status.

As noted above, beginning in 1959 the Pine Creek Fish Trap and barrier weir prevented any migrations between Eagle Lake and suitable spawning habitat in the upper Pine Creek watershed. However, a fishway was installed in the Trap in 2012, which now fully allows upstream spawning migration runs. A few other fish passage barriers still currently exist, higher up in the watershed upstream of the Trap, but these are only barriers under extreme low flow conditions and only have the potential to be minor impediments to habitat access by stream-resident fish in some locations. Currently, the only significant barrier to spawning migration is the lack of consistent annual flow within the lower, intermittent portions of the Pine Creek watershed. Past land use management practices, which have now been discontinued, likely exacerbated the effects of inconsistent flows by degrading habitat conditions, which in turn would have reduced the amount of suitable migration opportunities. However, this inconsistent flow barrier appears to be a natural condition of the system in which the ELRT has evolved. With the removal of the Trap as a barrier and discontinuation of harmful land use management practices that occurred in the past, the ELRT are now returned to the natural condition, including the inconsistency of adequate annual flows. As a result of this natural condition of inconsistent annual flows, there remains a potential that ELRT individuals during the spring attempting to migrate into the Pine Creek watershed to spawn may be either completely precluded from making spawning runs in any given year, or get stranded before reaching spawning habitat. There is no information to indicate these conditions will change (e.g., more frequent adequate annual flows) in the future, and therefore we believe this condition will continue to result in a minor loss of both individuals and habitat. However, while remaining barriers may result in reduced habitat opportunities in some locations, and inconsistent annual flows may result in reduced spawning opportunities or stranded individuals, conservation efforts (including installation of the fishway in the Pine Creek fish trap) have significantly improved the overall condition relative to passage barriers and have greatly improved the outlook for the ELRT, since it went from no ability at all for natural spawning from Eagle Lake to significantly increased opportunities throughout the watershed.

Two of the stressors—predation from and competition with brook trout, and the potential effects from climate change—may result in moderate-level effects. The populations of nonnative brook trout that occur within the Pine Creek watershed have impeded the ability of the ELRT to establish a large stream population within the perennial portions of Pine and Bogard Spring Creeks. The large brook trout population not only competes with the ELRT for resources, but also preys on ELRT eggs and juveniles. The presence of brook trout likely precludes a robust population of stream-dwelling ELRT, both those resident now and those expected to migrate there now that passage barriers have been removed. However, there have been observations of individual ELRT and ELRT-spawning in the perennial sections of the watershed with brook trout present, demonstrating an ability to withstand some level of co-occurrence. During a 3-year electrofishing study in Bogard Spring Creek from 2007-2009, ELRT made up 3 percent of the fish caught, and brook trout made up 92 percent (Carmona-Catot et al. 2011, p. 331). Competition with and predation from nonnative brook trout will continue to be a source of loss of individuals within the Pine Creek watershed into the future, for as long as brook trout are present. However, this stressor does not rise to the level of a threat for the subspecies for several reasons: (1) Brook trout only affect a small portion of the overall ELRT population, since brook trout only occur in the perennial portions of the Pine Creek Watershed and not in the lake, where the main population of ELRT are found; (2) there is some evidence that ELRT may successfully spawn apart from the upper watershed streams; (3) ELRT are able to co-occur at low levels in streams where brook trout are present; and (4) the sustainable hatchery operations are continuing to provide robust, healthy populations of ELRT throughout the entire watershed.

The effects of climate change will result in low- to moderate-level impacts into the foreseeable future, depending on various projected climate conditions. Future climate trends and projected climate models show a range of conditions that may occur in the future. Therefore, the degree to which climate change acts on the subspecies may vary (within the low to moderate range) under each projected modeled scenario.

Climate change may change the flow regime of the Pine Creek watershed, which may in turn influence the ELRT's ability to reach spawning habitat during the typical spawning migration timeframe. Climate change models predict that winter temperatures would increase, and that winter precipitation would shift from snow to rain. Under the lower emission scenario, April snowpack would be reduced 65 to 87 percent in the 5,740-foot (1,750-meter) elevation range of Pine Creek, and under the higher emission scenario, the reduction would be from 95 to 97 percent. In either scenario, Pine Creek would be likely to flow more during the winter, due to winter rain events, but flows from snowmelt during the spring season would be lower. This has the potential to “shift” the flow regime that is suitable for migration backwards in the year toward the winter months. Such a change would be likely to affect ELRT's spawning timing into upper Pine Creek. However, historically (before climate change was a factor) runoff timing and stream flow duration have always been a limiting environmental factor in successful spawning migrations of ELRT, and observations have shown that ELRT has a large variability in spawning timing. ELRT have been observed entering streams during spawning migrations from early February through late May. The earliest spawning migration is recorded as February 9 through 12, 2015, when adult ELRT were seen entering Papoose Creek. The latest recorded spawning migration is within Pine Creek, where adults were observed spawning on May 23, 1975, and on May 22, 1995. Because of ELRT's ability historically to withstand stressful, varying conditions, and their plasticity in spawning timing, the potential change in Pine Creek's flow regime is not likely to impede their spawning migrations significantly. However, one possible consequence of an earlier spawning migration may be a reduction in the duration of the spawning season. Since spawning migrations are triggered by increasing water temperatures, earlier runoff will narrow the amount of time when there is adequate runoff at the appropriate temperature for the spawning migration. This may result in fewer individuals migrating and, ultimately, fewer individuals contributing to the reproductive population. It is important to note that this discussion about potential effects to spawning timing is in the context of a newly re-established migratory connection between Eagle Lake and Pine Creek. For many years prior, ELRT has been unable to migrate from Eagle Lake to Pine Creek at all. This effectively means that, even if there is some slight impact from a shift in the flow regime resulting from climate change, there will be a net increase in natural stream spawning, now and into the future. For a more in-depth discussion of the potential effects from climate change relative to ELRT spawning, please see the ELRT 12-Month Petition Finding's Supporting Document (see ADDRESSES). In addition, while we have determined that the potential effects from various climate change scenarios are not likely to rise to the level of impact on the ELRT such that it is in danger of extinction or likely to become so in the foreseeable future, based solely on projected conditions and conservation efforts that have already been implemented and/or are already ongoing and likely to continue into the future. Planned conservation (see below), including restoration of stream habitat, channel function, and hydrology, will further improve the watershed's hydrologic function and help make the watershed more resilient to the effects of drought, potentially improving flow duration and volume. Increasing the robustness of the stream population will ensure natural production will take place at times when successful spawning migration is not possible, as the stream resident population will be capable of spawning and rearing within Pine Creek, and then migrate to Eagle Lake in subsequent years when conditions allow. Finally, any improvements to the artificial spawning program as a result of genetic studies will potentially improve the genetic variability of the subspecies, making it more likely the ELRT will be able to withstand environmental changes into the future.

In addition to evaluating the effect of individual stressors, we also looked to see whether multiple stressors may act concurrently on the species, and whether any synergistic effects were likely. Multiple stressors may act on the same individuals of a species or their habitat at the same time, which can result in impacts that are not accounted for when stressors are analyzed separately. Stressors that appear minor when considered alone may have greater impacts on individuals or habitat when analyzed cumulatively with other stressors. Furthermore, some stressors may act synergistically to cause impacts that are greater than the cumulative sum of the individual stressors. Cumulative effects can be described as additive, with the effects from each individual stressor being added to the effect from each subsequent stressor, and all effects are combined in an overall impact on the species. Synergistic effects go beyond a straightforward additive approach; instead a synergistic approach describes when multiple stressors, interacting on a species or its habitat at the same time, actually increase the intensity of one or more of those stressors.

Past cumulative effects to habitat within the Pine Creek watershed reduced the quality and quantity of spawning and rearing habitat within the Pine Creek watershed, and in conjunction with overharvesting, introduction of nonnative fish, and lowering of the lake level, the population of ELRT declined. The population decline prompted the construction of the Trap and barrier weir to prevent the loss of adult individuals trying to migrate upstream and to collect adult spawners for hatchery purposes. As a result of that construction, the past cumulative impacts have been greatly reduced.

Under the current conditions, we found that it would be reasonable to anticipate cumulative effects on the ELRT from climate change altering the flow regime and the presence of brook trout. These stressors combined may result in additional individuals being lost; however, this loss would still be considered a moderate-level impact: More than a minor, but not widespread loss of individuals, particularly when the installation of the fishway is likely to significantly improve the ability of ELRT to spawn. We found no information indicating a potential for synergistic effects between any of the stressors. Moreover, any such moderate-level impacts—even when combined with low-level impacts from other stressors—would not cause the ELRT to be in danger of extinction or likely to become so in the foreseeable future.

Conservation Efforts: In addition to evaluating the stressors, we also considered and evaluated conservation efforts that have been implemented and shown to be effective in ameliorating the effects of stressors on the ELRT. We describe below the sources of these completed conservation efforts (including some future conservation efforts yet to be implemented, although we did not rely on those future conservation efforts for the determination in this finding). To view the complete suite of all conservation efforts, please see Tables 2 and 3 of the ELRT Species Report (Service, 2016, pp. 50-54, 57-60).

CRMP Group: In 1987, the Coordinated Resource Management Planning (CRMP) group was formed to identify goals and implement a course of action for habitat and ecosystem restoration for Pine Creek. The CRMP group includes membership by the U.S. Forest Service (USFS), the University of California Cooperative Extension for Lassen County, the California Department of Fish and Wildlife (CDFW), and local landowners and interested parties. The initial goals for restoring Pine Creek included: (1) Improve streambank stability; (2) improve vegetation cover in the watershed; (3) raise the streambed and water table in the drainage, and spread out peak flows of Pine Creek; (4) restore the natural ELRT fishery in Pine Creek; (5) improve wildlife habitat along Pine Creek; (6) reduce nutrient and sediment loading into Eagle Lake from Pine Creek; (7) maintain grazing and timber management; and (8) meet goals in a coordinated effort with all affected parties. The Service has been occasionally involved in the planning efforts of the CRMP group since 1995.

The CRMP group has completed numerous successful restoration actions since 1989 to improve habitat conditions and re-establish natural populations and spawning runs of ELRT within the Pine Creek watershed. Restoration actions have included, among other things, replacing culverts to increase fish passage and improving grazing practices. A summary of the restoration actions, both completed and planned, is shown in Table 2 of the Service's ELRT Species Report (Service 2016, pp. 49-54). As stated above, our determination in this finding only relied on those conservation efforts that have been implemented and shown effective at reducing or removing stressor impacts. 2015 ELRT Conservation Agreement and Conservation Strategy: A 2015 conservation agreement for ELRT and the associated conservation strategy were developed to expedite the implementation of conservation measures for the ELRT as a collaborative and cooperative effort among the CDFW, the USFS, and the Service. The conservation strategy was created to serve as a framework for the conservation and protection of the ELRT and to contribute to the species' persistence into the future. Conservation actions described in the conservation strategy are currently being implemented by CDFW and USFS, or are being planned for future implementation. As stated above, our determination in this finding only relied on those conservation efforts that have been implemented and shown effective at reducing or removing stressor impacts. These conservation efforts included:

Role of CDFW Fish Hatcheries: Since the 1950s, CDFW has been raising ELRT for fish stocking in Eagle Lake and Pine Creek. In addition to other hatcheries that raise ELRT for fish stocking throughout the nation, there are currently two CDFW fish hatcheries (Darrah Springs and Crystal Lake State Fish Hatcheries) that raise ELRT for stocking into Eagle Lake and Pine Creek. Both of these hatcheries have completed conservation efforts recommended by the CRMP group and are currently participating in conservation efforts in support of the 2015 conservation agreement and conservation strategy. The CDFW has been an active member in planning and implementing ELRT restoration actions since 1989 as part of the CRMP group. CDFW assisted in the development of the conservation strategy and is a signatory agency on the conservation agreement.

The two CDFW fish hatcheries are being operated in a manner to provide conservation benefits to the subspecies by: (1) Producing a large number of stocked ELRT annually, with no indication or reason to stop doing so in the future; (2) monitoring naturally produced fish; (3) managing for genetic diversity and disease outbreak control; (4) providing access to upstream creek reaches for spawning by installation of the fishway at the Trap; and (5) planning to remove predatory nonnative brook trout. In evaluating the conservation benefits from hatchery operations, we did not rely on the potential for brook trout removal. Instead, we focused on those actions already undertaken (removal of the Trap as a passage barrier) and operations that are already in place (propagation, genetic practices, disease control), have already provided conservation benefits, and will continue to do so into the future.

The CRMP group has completed numerous successful restoration actions to improve habitat conditions and reestablish natural populations and spawning runs of ELRT within the Pine Creek watershed since 1989. Restoration actions include, but are not limited to: Improving grazing practices, replacing culverts to increase fish passage, and attempting to remove nonnative brook trout from Bogard Spring Creek. A summary of the restoration actions is shown in Table 2 of the Services ELRT Species Report (Service 2016, pp. 45-54). Through the conservation strategy, CDFW has successfully implemented ELRT health monitoring for disease control at the hatcheries, and adjusted hatchery operations, propagation efforts, fish stocking practices, and fish passage strategies to benefit natural populations and spawning runs of ELRT in Pine Creek. Based on the successful track record of numerous parties implementing these conservation actions together, we conclude that ongoing implementation of those actions is removing or reducing identified stressors to the subspecies or its habitat.

Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors acting on the subspecies and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that ELRT (Oncorhynchus mykiss aquilarum) is in danger of extinction throughout all of its range (an endangered species), or likely to become endangered within the foreseeable future (a threatened species). Populations of ELRT are improving due to past conservation actions and ongoing efforts to re-establish and increase naturally occurring populations. Current and ongoing habitat management and restoration activities for ELRT have made substantial progress since their inception and are continuing into the future.

We also considered whether the ELRT is threatened or endangered throughout a significant portion of its range. We evaluated the current range of the ELRT to determine if there is any apparent geographic concentration of potential threats for the ELRT. The ranges for naturally occurring populations of ELRT are relatively small and limited to the watershed for where they are found, unless they are stocked by CDFW in Eagle Lake and other areas due to artificial propagation. We also examined potential stressors throughout the range of the ELRT. Because the distribution of the subspecies is generally limited to Eagle Lake and the Pine Creek watershed, and the stressors are similar and essentially uniform throughout the range, we found no portion of the range that could qualify as a significant portion of the ELRT's range and no concentration of stressors that suggests that the ELRT may be in danger of extinction, or likely to become in danger of extinction, in any portion of its range. Therefore, we find that listing the ELRT as an endangered or a threatened species throughout all of or a significant portion of its range is not warranted at this time.

This document constitutes the Service's 12-month finding on the petition to list the ELRT as an endangered or threatened species and fulfills our settlement obligation. A detailed discussion of the basis for this finding can be found in the ELRT Petition Finding's Supporting Document (see ADDRESSES, above).

On April 20, 2010, we received a petition from the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, West Virginia Highlands Conservancy, Tierra Curry, and Noah Greenwald (referred to as the “CBD petition”) requesting that the Service consider for listing as either endangered or threatened 404 species in the southeastern United States, including the Ichetucknee siltsnail, that were ranked as G1 or G2 by the organization NatureServe; as near threatened or worse by the International Union for Conservation of Nature; or as a species of concern, threatened, or endangered by the American Fisheries Society. The Service issued 90-day findings on September 27, 2011 (76 FR 59836), in response to the petition and concluded that the petition presented substantial information indicating that the listing of 374 species (including the Ichetucknee siltsnail) under the Act “may be warranted.” On June 17, 2014, CBD filed a complaint against the Service to compel the Service to issue a 12-month finding as to whether the listing of the Ichetucknee siltsnail is warranted, not warranted, or warranted but precluded. The complaint was resolved on September 22, 2014, when the U.S. District Court approved a settlement agreement between the Service and CBD, including a commitment for the Service to submit a 12-month finding for the Ichetucknee siltsnail to the Federal Register by June 30, 2016.

The Ichetucknee siltsnail (Floridobia mica) is a freshwater snail in the phylum Mollusca, order Littorinimorpha, and family Hydrobiidae and is a distinct species. This snail is small with a shell that is between 2.0 and 2.3 millimeters (0.08 to 0.09 inches) in length. The Ichetucknee siltsnail is known in only one locality; it is endemic to Coffee Springs, a small spring located within Ichetucknee Springs State Park along the west bank of the Ichetucknee River about 1.6 kilometers (1.0 mile) northeast of U.S. Highway 27 in Suwannee County, Florida. Coffee Springs is a third magnitude spring with a flow of 2.83 cubic feet per second (cfs) and a pool area between 364 square meters (m2; 3,918 square feet (ft2)) and 19 m2 (205 ft2). The spring is open and continuous with the Ichetucknee River. The siltsnail exists throughout the entire spring in varying densities, and they are found in nearly all habitat types within the spring. Little is known about the Ichetucknee siltsnail's biology and behavior, as there has not been a comprehensive study of the species. However, some of the life history of the genus Floridobia has been described. Most Floridobia snails have a lifespan of 1 to 2 years, and the sexes are dioecious (separate). Reproduction is sexual and occurs throughout the year, and females may be either oviparous (egg-laying) or ovoviviparous (live birth after eggs hatch inside the body). The females are larger than the males, and the ratio of females to males tends to be greater. Floridobia are found in greater abundance closer to spring heads, where the water temperature and flow are steady and where dissolved oxygen levels are low. Abundance decreases farther from the spring head, and population size seems to be influenced by the substrates available in the springs as well as by spring velocity, presence of macrophytes and algae mats, and flood frequency. Abundance is positively associated with the amount of available shading. Floridobia are prey to some small fishes; however, the role of predators on the population size is unknown. Floridobia graze on detritus and periphyton/biofilm. While a toxicity test has not been performed on the Ichetucknee siltsnail, it is likely it would be sensitive to contaminants, as studies on other Hydrobiidae snails have shown low tolerance to contaminants.

The CBD petition identified recreation as the primary threat to the Ichetucknee siltsnail and also identified aquifer withdrawal (groundwater depletion), saltwater intrusion within karst habitats, groundwater contamination and water pollution, small population size effects, and lack of regulatory mechanisms in place to protect this snail as potential stressors to the species. The Service examined these potential stressors indicated by CBD, as well as the potential for contaminant spills, development and land use, nonnative species, and the effects of climate change as potential stressors to this species. After examining these potential stressors under a five-factor analysis, we found that they are not actual stressors to the Ichetucknee siltsnail at this time.

CBD indicated that recreation was the biggest threat, as recreational activities on the adjacent Ichetucknee River will cause habitat degradation and destruction. However, the Ichetucknee State Park (Park) has fenced off Coffee Springs from the Ichetucknee River to prevent any such disturbance to snail habitat. The Park also is implementing a management plan that includes monitoring and protecting this species. Under this plan, Coffee Springs is periodically monitored and inspected to ensure that no damage to the habitat occurs and that there have been no changes to the habitat of the siltsnail or the surrounding areas. Protective fencing and signage in the area of Coffee Springs is also being maintained.

Groundwater depletion was identified by CBD as a threat; however, it is not expected to affect the population of siltsnails despite a flow deficit on the Ichetucknee River. In addition, minimum flows and levels (MFLs) for the Lower Santa Fe and Ichetucknee Rivers and priority springs areas, including Coffee Springs, have been established by the Suwannee River Water Management District (SRWMD) and an MFL recovery or prevention strategy has been put into place that is expected to raise the flows and levels so that they will not fall below the established minimums and, therefore, we do not anticipate future negative effects on the species that would rise to the population level. Although identified by CBD, there is no evidence of saltwater intrusion occurring in Coffee Springs or on the Ichetucknee River that would affect the Ichetucknee siltsnail. There is a concern for groundwater contamination and water pollution through increasing nitrate levels in the Ichetucknee spring system based on samples taken within the springs since the 1940s. However, these changes have been very gradual, and any future changes are also expected to occur very slowly. Currently, exposure to increased nitrate levels does not appear to be having a negative effect on the Ichetucknee siltsnail. Additionally, Florida Department of Environmental Protection (FDEP) has been implementing a basin management action plan (BMAP) since February of 2012, for the management of total maximum daily load (TMDL) for nitrates in the water systems of the Ichetucknee River and Santa Fe River basins, which includes the Ichetucknee River and spring system, and water quality is expected to improve over time. There is a buffer of State park land ranging from 500 to 1,700 m (5,381.96 to 18,298.65 ft) wide surrounding both sides of the river at and upstream of Coffee Springs. Therefore, contaminant spills are unlikely to occur on the protected State park property and are therefore not considered a likely stressor to the Ichetucknee siltsnail or its habitat. Development and land use are also not stressors, because Coffee Springs is located entirely within a protected zone in the State park land where development and other uses are excluded.

While nonnative species can sometimes result in the loss and decline of a native species, and two nonnative species were identified in the Ichetucknee River, neither of the nonnative species was identified within Coffee Springs, nor were they shown to be colonizing the adjacent Ichetucknee River in high numbers. The best available information indicates that nonnative species are not affecting the Ichetucknee siltsnail at the species level now, nor do we have indication that they will in the future. While climate change has the potential to affect habitat used by this species, much uncertainty remains regarding which habitat attributes may be affected, and the timing, magnitude, and rate of change. Based on this variability and uncertainty of the effects of climate change on the Ichetucknee siltsnail within its range, we cannot reasonably determine that the effects of climate change are likely to be a threat to the species now or in the foreseeable future. Small population size effects are one of the reasons the Ichetucknee siltsnail was identified under the CBD petition as a species at risk for extinction. However, the known distribution of the species has always been limited and small, and the population within the spring appears to be healthy and abundant, has persisted in this location, and does not appear to be negatively affected at the population level by the potential stressors identified in the CBD petition or by the potential stressors we identified. In addition, measures are in place to protect or monitor both the habitat and the population. The CBD petition did not identify overutilization, disease, or predation as threats to the species, and the best available scientific and commercial information does not indicate that these stressors are negatively affecting the Ichetucknee siltsnail, or that they are likely to do so in the foreseeable future.

The existing regulatory mechanisms we examined are reducing, and likely to continue reducing, the stressors. There are a number of laws that set standards for clean water generally such as the Clean Water Act of 1972 (CWA; 33 U.S.C. 1251 et seq.) and the Safe Drinking Water Act of 1974 (SDWA; 42 U.S.C. 300f et seq.). The CWA and SDWA are in place to protect water quality such that it will be supportive of aquatic wildlife. State regulatory mechanisms in place include protections of the Ichetucknee River and springs under designation as class III waters and as Outstanding Florida Waters. Both of these designations ensure protection of water quality in the groundwater, springs, and surface waters of the Ichetucknee River and spring system and are therefore also protective of the habitat used by the Ichetucknee siltsnail. The SRWMD has included consideration of the Ichetucknee siltsnail within its established MFLs, and the Park has included the management and protection of snail habitat within its park management plan. FDEP has enacted a BMAP for the management of TMDLs for nitrates in the water systems of the Ichetucknee River and Santa Fe River basins. While this is not specifically designed to alleviate stressors on the Ichetucknee siltsnail, its purpose is to ensure that TMDLs within the Ichetucknee River and spring system are monitored and managed.

In making our 12-month finding on the petition, we consider and evaluate the best available scientific and commercial information. This evaluation includes information from all sources, including State, Federal, tribal, academic, and private entities and the public. After evaluating the best available scientific and commercial information on all potential stressors acting individually or in combination, we found no information to indicate that the combined effects are causing a population-level decline or currently degrading habitat of the species or that they are likely to do so in the foreseeable future.

We examined potential threats to the Ichetucknee siltsnail from development, recreation, groundwater withdrawal, nonnative species, environmental contaminants, overutilization, disease or predation, the inadequacy of existing regulatory mechanisms, small population size, and the effects of climate change. The population is now the largest it has ever been and appears to have been stable since 1968. After evaluating the best available scientific and commercial information, we found no evidence that these potential stressors are acting on, or having a negative impact on, the Ichetucknee siltsnail. In addition, the State continues to manage the site to protect both the habitat and the species.

Because the Ichetucknee siltsnail is only known from one location (Coffee Springs), there is no portion of the species' range where potential threats are significantly concentrated or substantially greater than in other portions of its range. Therefore, we find that factors affecting the Ichetucknee siltsnail are essentially uniform throughout its range, indicating no portion of the range is likely to be in danger of extinction or likely to become so. Therefore, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors, even when considered cumulatively, are not of sufficient imminence, intensity, or magnitude to indicate that the Ichetucknee siltsnail is in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened), throughout all of its range or any significant portion of its range. Therefore, we find that listing the Ichetucknee siltsnail as an endangered or threatened species under the Act is not warranted at this time.

This document constitutes the Service's 12-month finding on the April 20, 2010, petition to list the Ichetucknee siltsnail as an endangered or threatened species and fulfills our settlement obligation. A detailed discussion of the basis for this finding can be found in the Ichetucknee Siltsnail Petition Finding's Supporting Document (see ADDRESSES, above).

We request that you submit any new information concerning the status of, or stressors to, the Eagle Lake rainbow trout or the Ichetucknee siltsnail to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT, whenever it becomes available. New information will help us monitor these species and encourage their conservation. If an emergency situation develops for either of these species, we will act to provide immediate protection.

Lists of the references cited in the petition findings are available on the Internet at http://www.regulations.gov and upon request from the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT.

The primary authors of this document are the staff members of the Unified Listing Team, Ecological Services Program.

The authority for this section is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Background

We have been petitioned several times to list various “DPSs” of rockfish in the Puget Sound region. In response to a petition in 1999, we conducted a status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al. 2001). During this status review, the Biological Review Team (BRT) that we established determined that the available genetic information for each species demonstrated population structure and supported a determination of discreteness as defined by the joint NMFS and U.S. Fish and Wildlife Service (USFWS) 1996 DPS Policy (61 FR 4722; February 7, 1996). Based on this examination, the BRT identified a DPS for each of the three rockfish species in Puget Sound proper that can be considered a species under the ESA, and concluded that none of the identified DPSs were at risk of extinction (Stout et al. 2001).

On April 9, 2007, we received a petition from Mr. Sam Wright (Olympia, Washington) to list DPSs of five rockfish species (yelloweye, canary, bocaccio, greenstriped and redstripe) in Puget Sound, as endangered or threatened species under the ESA and to designate critical habitat. We found that this petition did not present substantial scientific or commercial information to suggest that the petitioned actions may be warranted (72 FR 56986; October 5, 2007). On October 29, 2007, we received a letter from Mr. Wright presenting information that was not included in the April 2007 petition, and requesting reconsideration of the decision not to initiate a review of the species' status. We considered the supplemental information as a new petition and concluded that there was enough information in this new petition to warrant conducting status reviews of these five rockfish species. The status review was initiated on March 17, 2008 (73 FR 14195) and completed in 2010 (Drake et al. 2010).

In the 2010 status review, the BRT used the best scientific and commercial data available at that time, including environmental and ecological features of the Puget Sound/Georgia Basin, but noted that the limited genetic and demographic data for the five petitioned rockfish species populations created some uncertainty in the DPS determinations (Drake et al. 2010). The BRT assessed genetic data from the Strait of Georgia (inside waters of eastern Vancouver Island) for yelloweye rockfish (Yamanaka et al. 2006), that indicated a distinct genetic cluster that differed consistently from coastal samples of yelloweye rockfish, but also observed that genetic data from Puget Sound were not available for this species. The BRT also noted there was genetic information for canary rockfish (Wishard et al. 1980) and bocaccio (Matala et al. 2004, Field et al. 2009) in coastal waters, but no genetic data for either species from inland Puget Sound waters. The BRT found that in spite of these data limitations there was other evidence to conclude that each noted population of rockfish within inland waters of the Puget Sound/Georgia Basin was discrete from its coastal counterpart. Specifically, the BRT noted similar life histories of rockfish and based their determinations, in part, on the status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al. 2001) and the genetic information for those species that supported separate DPSs for inland compared to coastal populations (Drake et al. 2010). Thus, based on information related to rockfish life history, genetic variation among populations, and the environmental and ecological features of Puget Sound and the Georgia Basin, the BRT identified Puget Sound/Georgia Basin DPSs for yelloweye rockfish, canary rockfish, and bocaccio, and a Puget Sound proper DPS for greenstriped rockfish and redstripe rockfish (Drake et al. 2010).

Informed by the BRT recommendations and our interpretation of best available scientific and commercial data, on April 28, 2010, we listed the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary rockfish as threatened under the ESA, and the Puget Sound/Georgia Basin DPS of bocaccio as endangered (75 FR 22276). The final critical habitat rule for the listed DPSs of rockfishes was published in the Federal Register on November 1, 2014 (79 FR 68041). We determined that greenstriped rockfish (S. elongatus) and redstripe rockfish (S. proriger) within Puget Sound proper each qualified as a DPS, but these DPSs were not at risk of extinction throughout all or a significant portion of their ranges (Drake et al. 2010).

In 2013, we appointed a recovery team and initiated recovery planning for the listed rockfish species. Through the process of recovery planning, priority research and recovery actions emerged. One such action was to seek specific genetic data for each of these rockfish species to better evaluate and determine whether differences exist in the genetic structure of the listed species' populations between inland basins where the DPSs occur and the outer coast.

In 2014 and 2015, we partnered with the Washington Department of Fish and Wildlife, several local fishing guides, and Puget Sound Anglers to collect samples and compare the genetic structure of the species' populations between the different basins of the Puget Sound/Georgia Basin DPSs area and the outer coast.

In 2015, we announced a five-year review (80 FR 6695; February 6, 2015) for the three rockfish DPSs. The five-year review was completed on May 5, 2016 (NMFS 2016), and is available at: http://www.westcoast.fisheries.noaa.gov/publications/protected_species/other/rockfish/5.5.2016_5yr_review_report_rockfish.pdf. To complete the review, we collected, evaluated, and incorporated all information on the species that has become available since April 2010, the date of the listing, including the 2014 final critical habitat designation and the newly obtained genetic information. This newly obtained genetic information and the five-year review inform the conclusions in this proposed rule.

Under the ESA, the term “species” means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-USFWS policy clarifies the Services' interpretation of the phrase “Distinct Population Segment,” or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: (1) Discreteness of the population segment in relation to the remainder of the species/taxon; and, if discrete, (2) the significance of the population segment to the species/taxon to which it belongs. Thus, under the DPS policy a population segment is considered a DPS if it is both discrete from other populations within its taxon and significant to its taxon.

A population may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722; February 7, 1996). According to the policy, quantitative measures of genetic or morphological discontinuity can be used to provide evidence for item (1) below.

A population may be considered significant if it satisfies any one of the following conditions: (1) Persistence of the discrete segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or 4) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics.

The ESA gives us clear authority to make listing determinations and to revise the Federal list of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether “any species,” which is defined to include species, subspecies, and DPSs, is an endangered species or a threatened species based on certain factors. Review of a species' status may be commenced at any time, either on the Services' own initiative—through a status review or in connection with a five-year review under Section 4(c)(2)—or in response to a petition. Because a DPS is not a scientifically recognized entity, but rather one created under the language of the ESA and effectuated through our DPS Policy (61 FR 4722; February 7, 1996), we have some discretion to determine whether populations of a species should be identified as DPSs and, based upon their range and propensity for movement, what boundaries should be recognized for a DPS. Section 4(c)(1) of the ESA gives us authority to update the Federal list of threatened and endangered species to reflect these determinations. This can include revising the list to remove a species or reclassify the listed entity.

Under sections 4(c)(1) and 4(a)(1) of the ESA, the Secretary shall undertake a five-year review of a listed species and consider, among other things, whether a species' listing status should be continued. Pursuant to implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:

(1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.

(2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.

(3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).

Analysis of the geographical distribution of genetic variation is a powerful method of identifying discrete populations (Drake et al. 2010); thus, genetic analysis provides useful information to address the uncertainties associated with the limited information that informed our initial discreteness determinations for yelloweye rockfish, canary rockfish and bocaccio.

To address the need for specific genetic data from yelloweye rockfish, canary rockfish and bocaccio within the inland Puget Sound/Georgia Basin area to compare to genetic data from rockfish in coastal areas as defined during recovery planning, we collected biological samples for genetic analysis several ways. Over the course of 74 fishing trips, biological samples were gathered from listed rockfishes using hook-and-line recreational fishing methods in Puget Sound and the Strait of Juan de Fuca. Additional samples were gathered from archived sources from Fisheries and Oceans Canada, the NMFS Southwest Fisheries Science Center's Fisheries Resource Division, and the NMFS Northwest Fisheries Science Center's West Coast groundfish bottom trawl survey. Samples collected from these sources were used to examine the population structure for each species. Population structure was examined using three methods: principal components analysis, calculation of FST (fixation index; measure of population differentiation) among geographic groups, and a population genetics based model clustering analysis (termed STRUCTURE) (NMFS 2016).

NMFS' Puget Sound/Georgia Basin rockfish BRT reviewed the results from the new genetic information. Their recommendations (Ford 2015) informed and were further evaluated during the five-year review. The results are summarized below.

Several different analytical methods indicated significant genetic differentiation between the inland and coastal samples of yelloweye rockfish at a level consistent with the limited genetic data for this species (Yamanaka et al. 2006) that were available at the time of the 2010 status review. The BRT concluded that these new data represent the best available science and commercial data and are consistent with and confirm the existence of an inland population of Puget Sound/Georgia Basin yelloweye rockfish that is discrete from coastal yelloweye rockfish (Ford 2015). In addition, yelloweye rockfish from Hood Canal were genetically differentiated from other Puget Sound/Georgia Basin fish, indicating a previously unknown degree of population differentiation within the DPS.

The BRT also found that new genetic information from Canada demonstrates that yelloweye rockfish occurring in the northern Johnstone Strait and Queen Charlotte Channel clustered genetically with yelloweye rockfish occurring in the northern Strait of Georgia, the San Juan Islands, and Puget Sound. This is consistent with additional genetic analysis identifying a population of yelloweye rockfish inside the waters of eastern Vancouver Island (Yamanaka et. al. 2006, COSEWIC 2008, Yamanaka et al. 2012, Seigle et al. 2013). Based on this information and the five-year review, this proposed rule would correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS to include this area. This proposed rule would also update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada). We propose this change because this description better aligns with yelloweye rockfish life-history and their sedentary behavior as adults, rather than the current description of fish originating from the Puget Sound/Georgia Basin.

These same analytical methods were used to analyze population structure in canary rockfish. These current analyses indicate a lack of genetic differentiation of canary rockfish between coastal and inland Puget Sound/Georgia Basin samples. FST values, a metric of population differentiation, among groups were not significantly different from zero among geographic regions, and STRUCTURE analysis did not provide evidence supporting population structure in the data. None of these analyses provided any evidence of genetic differentiation between canary rockfish along the coast from the canary rockfish within the boundaries of the Puget Sound/Georgia Basin DPS (NMFS 2016).

The BRT noted that the very large number of loci provided considerable power to detect differentiation among sample groups and concluded that the lack of such differentiation indicated that it is unlikely that the inland Puget Sound/Georgia Basin samples are discrete from coastal areas (Ford 2015). In the context of this newly obtained genetic information, the BRT considered whether other factors that supported the original discreteness determination, such as oceanography and ecological differences among locations, continue to support a finding of discreteness for this population. In considering this newly obtained genetic data in the context of the other evidence, the BRT found that their original interpretation of the scientific data informing discreteness is no longer supported. Rather, they concluded that the lack of genetic differentiation indicates sufficient dispersal to render a discreteness determination based on environmental factors implausible. The BRT found that current genetic data evaluated and interpreted in the context of all available scientific information now provides strong evidence that canary rockfish of the Puget Sound/Georgia Basin are not discrete from coastal area canary rockfish. Based on the BRT findings, the five-year review, and best available science and commercial information, and in accordance with the DPS policy, we have determined that the canary rockfish of the Puget Sound/Georgia Basin do not meet the criteria to be considered a DPS. The new genetic data reveal that canary rockfish of the Puget Sound/Georgia Basin are part of the larger population occupying the Pacific Coast. Canary rockfish of the Pacific Coast was declared overfished in 2000 and a rebuilding plan under the Magnuson-Stevens Fishery Conservation and Management Act was put in place in 2001. NMFS determined the stock to be “rebuilt” in 2015 (Thorson and Wetzel 2015, NMFS 2016).

Based on the discussion above and the recommendation of the five-year review, we are proposing to remove Puget Sound/Georgia Basin canary rockfish from the Federal List of Threatened and Endangered Species because the new genetic data evaluated and interpreted in the context of all best available science indicate they are not a discrete population. Under section 4(c)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d)(3), we may propose to delist canary rockfish if, among other things, subsequent investigation demonstrates that our interpretation of best scientific or commercial information was in error. After considering this newly obtained genetic data in the context of the other evidence supporting discreteness, we determined that our original interpretation of discreteness for Puget Sound/Georgia Basin canary rockfish is no longer supported and was in error. Based on this reasoning, there is no need for a post-delisting monitoring plan.

Bocaccio are rare within the DPS area and we were able to obtain only a few samples of them in the genetic study. Because of their rarity, the genetic analysis for bocaccio included only two samples from within the DPS area, and this is not sufficient information to change our prior status review determination that Puget Sound/Georgia Basin bocaccio are discrete from coastal fish (Ford, 2015).

The BRT noted that bocaccio have a propensity for greater adult movement than more benthic rockfish species, similar to the case for canary rockfish. The BRT considered that the lack of genetic differentiation between coastal and Puget Sound/Georgia Basin canary rockfish might suggest a similar lack of genetic differentiation for bocaccio because of similarities in the life history of the two species. However, the BRT concluded that the new information was not sufficient to change the conclusions of the previous BRT documented in Drake et al. (2010). This is consistent with the five-year review recommendation (NMFS 2016) and is based upon best available scientific data and commercial information.

Similar to yelloweye rockfish, we propose to update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/Georgia Basin.

Based on the new information and the BRT's determination, we propose that Puget Sound/Georgia Basin canary rockfish be removed from the Federal List of Threatened and Endangered Species. The Puget Sound/Georgia Basin yelloweye rockfish DPS shall remain threatened under the ESA, and the Puget Sound/Georgia Basin bocaccio DPS shall remain endangered.

We also propose to remove designated critical habitat for canary rockfish. The critical habitat designation for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs will remain in place. The area removed as designated critical habitat for canary rockfish will continue to be designated critical habitat for bocaccio and, thus, there will be no change to the spatial area that was originally designated. Maps of critical habitat can be found on our Web site at http://www.westcoast.fisheries.noaa.gov and in the final critical habitat rule (79 FR 68041; November 13, 2014).

Additionally, we propose to update and amend the listing description of the yelloweye rockfish DPS to define geographical boundaries including an area farther north of the Johnstone Strait in Canada (Figure 1). This boundary would not have an effect on critical habitat, because we do not designate critical habitat outside U.S. territory.

If the Puget Sound/Georgia Basin canary rockfish DPS is delisted, then the requirements under section 7 of the ESA would no longer apply. Federal agencies would be relieved of the need to consult with us on their actions that may affect Puget Sound/Georgia Basin canary rockfish and their designated critical habitat and to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of canary rockfish or adversely modify their critical habitat. ESA section 7 consultation requirements will remain in place for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs. Recovery planning efforts will continue for these listed DPSs as well.

The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov.

In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. Peer review under the OMB Peer Review Bulletin ensures that our listing determinations are based on the best available scientific and commercial information. Prior to a final rule, and during the public comment period, NMFS will solicit the expert opinions of three qualified specialists selected from the academic and scientific community, Federal and state agencies, or the private sector to review our five-year review and underlying science supporting this action, to ensure the best biological and commercial information is being used in the decision-making process.

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216-6.)

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be shared with the relevant state agencies in Washington state.

For the reasons set out in the preamble, 50 CFR parts 223 and 224 are proposed to be amended as follows: