Federal Register Vol. 81, No.183,

This proposed rule is issued under Marketing Order No. 923, as amended (7 CFR part 923), regulating the handling of cherries grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order now in effect, Washington cherry handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate, as proposed herein, would be applicable to all assessable Washington cherries beginning April 1, 2016, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposed rule would increase the assessment rate for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries.

The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are growers and handlers of Washington cherries. They are familiar with the Committee's needs, and with the costs for goods and services in their local area, and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2013-2014 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate of $0.15 per ton of Washington cherries that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on May 18, 2016, and unanimously recommended expenditures of $57,150 for the 2016-2017 fiscal period. In comparison, the previous fiscal period's budgeted expenditures were $59,750. The Committee also unanimously recommended an assessment rate of $0.25 per ton of Washington cherries. The recommended assessment rate of $0.25 is $0.10 higher than the rate currently in effect.

The expenditures recommended by the Committee for the 2016-2017 fiscal period include $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $5,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $3,000 for an audit; and $3,150 for miscellaneous other expenses. In comparison, expenditures for the 2015-2016 fiscal period were $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $7,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $4,000 for an audit; and $2,750 for miscellaneous other expenses.

Committee members estimated the 2016 fresh cherry production to be approximately 150,000 tons, which would be less than the 2015 production of 165,358 tons by 15,358 tons. However, cherry production tends to fluctuate due to the effects of weather, pollination, and tree health. The Committee's recommended assessment rate was derived by dividing the 2016-2017 anticipated expenses by the expected shipments of Washington cherries, while also taking into account the Committee's monetary reserve. The recommended assessment rate of $0.25 per ton, when multiplied by the 150,000 tons of estimated 2016 Washington cherry shipments, is expected to generate $37,500 in handler assessments. The projected revenue from handler assessments, together with funds from the Committee's monetary reserve, would be adequate to cover the 2016-2017 budgeted expenses of $57,150. The Committee expects its monetary reserve to decrease from $49,661 at the beginning of the 2016-2017 fiscal period to approximately $30,011 at the end of the 2016-2017 fiscal period. That amount would be within the provisions of the order and would provide the Committee with greater ability to absorb fluctuations in assessment income and expenses into the future.

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of the Committee meetings are available from the Committee and USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2016-2017 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are 53 handlers of Washington sweet cherries subject to regulation under the order and approximately 1,500 growers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,500,000, and small agricultural growers are defined as those having annual receipts of less than $750,000.

National Agricultural Statistics Service has prepared a preliminary report for the 2015 shipping season showing that prices for the 171,600 tons of sweet cherries that entered the fresh market averaged $2,380 per ton. Based on the number of growers in the production area (1,500), the average grower revenue from the sale of sweet cherries in 2015 can therefore be estimated at approximately $272,272 per year. In addition, the Committee reports that most of the industry's 53 handlers reported gross receipts of less than $7,500,000 from the sale of fresh sweet cherries last fiscal period. Thus, the majority of growers and handlers of Washington sweet cherries may be classified as small entities.

This proposal would increase the assessment rate collected from handlers, for the 2016-2017 and subsequent fiscal periods from $0.15 to $0.25 per ton of Washington cherries handled. The Committee unanimously recommended 2016-2017 expenditures of $57,150 and an assessment rate of $0.25 per ton. The proposed assessment rate of $0.25 is $0.10 higher than the rate established for the 2013-2014 fiscal period.

The 2016-2017 Washington cherry crop is estimated at 150,000 tons. At the proposed $0.25 per ton assessment rate, the Committee anticipates that assessment income of approximately $37,500, along with reserve funds, would be adequate to cover budgeted expenses for the 2016-2017 fiscal period. With the proposed assessment rate and budgeted expense level, the Committee anticipates that $19,650 would need to be deducted from the monetary reserve. As such, reserve funds are estimated to be at $30,011 on March 31, 2017. That reserve level is within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 923.42(a)(2)).

The expenditures recommended by the Committee for the 2016-2017 fiscal period include $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $5,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $3,000 for the audit; and $3,150 for miscellaneous other expenses.

In comparison, expenditures for the 2015-2016 fiscal period were $25,000 for the management fee; $7,000 for compliance; $5,000 for the data management fee; $7,000 for accounting administration; $5,000 for research; $4,000 for Committee travel; $4,000 for the audit; and $2,750 for miscellaneous other expenses.

The Committee discussed alternatives to this action, including recommending alternative expenditure levels and assessment rates. Although lower assessment rates were considered, none were selected because they would not have generated sufficient income to administer the order.

A review of historical data and preliminary information pertaining to the upcoming fiscal period indicates that the grower price for the 2016-2017 fiscal period could average $2,380 per ton of sweet cherries. Therefore, the estimated assessment revenue for the 2016-2017 fiscal period, as a percentage of total grower revenue, is approximately 0.01 percent.

This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs would be offset by the benefits derived by the operation of the order.

In addition, the Committee's meeting was widely publicized throughout the Washington cherry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 18, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large Washington cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this action.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2016-2017 fiscal period began on April 1, 2016, and the order requires that the assessment rate for each fiscal period apply to all assessable Washington cherries handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; (3) handlers are already shipping Washington cherries from the 2016 crop; and (4) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

For the reasons set forth in the preamble, 7 CFR part 923 is proposed to be amended as follows:

Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA's mission is to lead the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments in and provides technical assistance to economically distressed communities in order to facilitate job creation for U.S. workers, increase private sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 301 through 315, provide the framework through which the Agency administers its economic development assistance programs.

As part of the COMPETES Act enacted on January 4, 2011, section 26 of the Stevenson-Wydler Act (15 U.S.C. 3721) authorized the Secretary of Commerce “to establish a program to provide loan guarantees for obligations to small- or medium-sized manufacturers for the use or production of innovative technologies.” 15 U.S.C. 3721(a). In general, the Federal loan “guarantee” represents the portion of the loan that the Federal agency will repay to the lender if the borrower defaults on its loan payments. See 15 U.S.C. 3721(s)(4) (definition of “Loan Guarantee”); and 3721(d) (“A loan guarantee shall not exceed an amount equal to 80 percent of the obligation . . .”).

As required by the Stevenson-Wydler Act, a “loan guarantee may be made under the program only for a project that re-equips, expands, or establishes a manufacturing facility in the United States—(1) to use an innovative technology or an innovative process in manufacturing; (2) to manufacture an innovative technology product or an integral component of such a product; or (3) to commercialize an innovative product, process, or idea that was developed by research funded in whole or in part by a grant from the Federal government.” 15 U.S.C. 3721(b). The Stevenson-Wydler Act defines an “innovative technology” as “a technology that is significantly improved as compared to the technology in general use in the commercial marketplace in the United States at the time the loan guarantee is issued.” 15 U.S.C. 3721(s)(3). Similarly, the term “innovative process” is defined as “a process that is significantly improved as compared to the process in general use in the commercial marketplace in the United States at the time the loan guarantee is issued.” 15 U.S.C. 3721(s)(2).

The Secretary of Commerce has delegated the responsibility of implementing and administering the Innovative Technologies in Manufacturing (“ITM”) Program, which includes promulgating regulations as required by the Stevenson-Wydler Act (see 13 U.S.C. 3721(l)), to EDA. EDA was appropriated the following amounts for the ITM Program: In fiscal year 2012, up to $5 million; in both of the fiscal years 2013 and 2014, $5 million; and in fiscal year 2015, $4 million. These amounts are “to remain available until expended,” for section 26 loan guarantees “to subsidize total loan principal, any part of which is to be guaranteed, not to exceed $70,000,000.” See Public Law 112-55 (FY12); Public Law 113-6 (FY13); Public Law 113-76 (FY14); Public Law 113-235 (FY15). Put another way, from FY12-FY15, EDA received a total of $14 million and up to $19 million in no-year, appropriated funds to support a maximum of $280 million in loans that would be subject to EDA's guarantee.

Although EDA administered business loan programs in the past, it has been more than 30 years since the Agency has been actively engaged in the process of loan making. In 1965, Title II of PWEDA (former 42 U.S.C. 3121-3246) authorized EDA to make direct loans and guarantee loans to businesses willing to establish and expand operations in economically distressed areas for the purpose of developing land and facilities for industrial or commercial use. In addition, under the Trade Act of 1974 (former 19 U.S.C. 2341-2374), businesses adversely affected by foreign imports could apply for EDA direct loans and loan guarantees. However, by the mid-1980s EDA had essentially stopped making direct loans and guaranteeing new loans under PWEDA. Similarly, EDA stopped administering loans under the Trade Act when the International Trade Administration's Office of Trade Assistance was created in 1982. Four years later, Congress rescinded the DOC's authority to make Trade Adjustment Assistance loans and loan guarantees in the Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L. 99-272). EDA's authority under PWEDA for making direct loans and loan guarantees was not eliminated until the enactment of the Economic Development Administration and Appalachian Regional Development Act of 1998 (Pub. L. 105-393) which reauthorized EDA's programs for the first time since 1982.

Given the loss of institutional knowledge over the years, the need to leverage existing staff resources and the unique requirements of the ITM Program, EDA adopted a multi-pronged approach to Program implementation. Seeking to gauge market demand and obtain input about how to structure the Program from the public and stakeholders, on April 17, 2013, EDA published a “Request for Comments on Developing a Program To Provide Loan Guarantees to Small- or Medium-Sized Manufacturers” in the Federal Register (78 FR 22801). EDA received four comments, none from lenders. In general, the commenters noted that similar Federal programs already existed that were not being fully utilized and for the ITM Program to succeed, it needed to be easily accessible.

At the same time, EDA sought out the expertise and experience of two Federal agencies with well-established business loan programs—the SBA (e.g., 7(a) loan guarantee program) and the Department of Energy (e.g., 1703 Program). Meeting with representatives of these agencies and closely examining the structure of another loan program (the Department of Agriculture's Business & Industry (B&I) Program), provided EDA with invaluable guidance and insight into best practices for standing up a loan guarantee program, including the development of program elements such as borrower eligibility standards and lender oversight, creation of program documents such as forms and operating manuals as well as administrative components such as staffing and electronic loan processing/servicing.

In 2014, EDA hired a full-time attorney and procured a contractor with extensive Federal loan program expertise to support the Agency's implementation efforts. Equipped with the information gathered from its due diligence and the subsequent analysis, EDA modeled the structure of the ITM Program closely after SBA's 7(a) loan guarantee program (hereinafter, referred to as “SBA's 7(a) program”). Similar to SBA's 7(a) program, the ITM Program is designed to help certain creditworthy businesses—specifically, small and medium-sized manufacturers—acquire financing when they cannot otherwise obtain credit at reasonable terms. EDA, like SBA in the 7(a) context, will not make loans itself. Instead, EDA will guarantee a portion of the loan made by a participating lending institution. Thus, taxpayer funds are only paid out in the event of borrower default. This process reduces the risk to the lender (incentivizing the lender to make the loan), but not to the borrower, who remains obligated for the full debt, even in the event of default. The similarities in the two programs, as well as the significant differences attributable to EDA's own statutory requirements and policy priorities, are reflected in EDA's proposed regulatory framework, which is summarized below. EDA seeks public input through this NPRM on the proposed regulatory framework. In particular EDA seeks comment on:

• The biggest impediments to small or medium-sized manufacturers receiving a loan from a lending institution.

• Whether the EDA's ITM loan program would make it more likely for lenders to lend to manufacturers, especially small or medium-sized manufacturers.

• What lending institutions should require for a borrower to demonstrate that a market exists for an innovative technology product.

• Whether there is an existing market for small to medium-sized business loans in the innovative manufacturing sector that are not currently being met.

• What other requirements in a loan guarantee program would be necessary for a lender to offer such loans.

• The manufacturing size threshold and definition to be considered a medium-sized manufacturer.

• The typical loan size that a small-medium business in innovative manufacturing would apply for.

• Whether securing a loan through the EDA ITM program to support the use or production of innovative technologies would assist manufacturers with access to outside capital.

• Other activities and outcomes from the EDA ITM loan program that would best support innovation in the manufacturing sector.

EDA also seeks comment on the proposed regulatory text, which is summarized below.

Subpart A serves as the foundation of the ITM Program regulations, defining key terms and outlining core programmatic elements. For example, it includes borrower eligibility criteria, types of ineligible businesses, and permissible uses of loan proceeds by borrowers. In addition, lender ethical standards, creditworthiness criteria, additional loan requirements involving personal guarantees, collateral, and bonding are explained. It should be noted that the basic eligibility criteria for both Borrowers and Lenders are similar to SBA's, but have been modified to reflect the statutory requirements and program specific goals of the ITM Program, including the requirement that the applicant borrower be prospectively or currently engaged in an Innovative Technological Project. For the same reasons, eligible uses of ITM Program loan proceeds are different in key respects from SBA's 7(a) program. One notable difference is that unlike SBA, EDA will not permit loan proceeds to be used for working capital. Some of the more significant terms defined in this subpart are highlighted below:

(1) Associate: An associate is a person or entity with a close connection to an ITM Program lender or borrower, with this legal relationship established if specific criteria are met (e.g., an associate of a lender includes an officer, director, or holder of at least a 5 percent interest of the value of the lender's stock or debt instruments, or an agent involved in the loan process). As set forth in these regulations, the existence of an associate will have ramifications for the lender or borrower, such as affecting a borrower's size for eligibility purposes and having an associate's activities imputed to the lender for conflict of interest purposes.

(2) Innovative Technological Project: This term captures the requirement in Stevenson-Wydler that a loan guarantee can only be used to finance certain types of projects, emphasizing that the project must be “innovative,” and “Technological in nature,” produce certain products or processes (e.g., a “significantly improved product or process”) and result in one of four required actions (e.g., “utilizing this innovative technology in the process of manufacturing an existing product”).

(3) Lender: Eligible lenders have been defined as lenders that are in good standing under the SBA Preferred Lenders Program (PLP). Under this program, SBA delegates the final credit decision and most servicing and liquidation authority and responsibility to carefully selected lenders. Lenders are considered for PLP status based on their record with SBA, and must have demonstrated a proficiency in processing and servicing SBA-guaranteed loans. EDA will require lenders to certify that they are in good standing under the PLP at the time a loan application is submitted. Failure by a lender to certify to its status under the PLP will be grounds for denial of its participation in the ITM Program. If it is determined that a lender is not in good standing at the time of certification or at any point after a loan guarantee is approved for that lender, EDA may deny liability on that loan guarantee.

(4) Manufacturing: Manufacturing includes those activities associated with the relevant six-digit manufacturing NAICS codes (311111-333999).

(5) Medium-sized Business: A medium-sized business is defined relative to SBA's definition of a small business; namely, a business that has a maximum size that is twice the maximum size of a small business using the same six-digit NAICS code and same measurement standards as the calculation for a small business.

(6) Small Business: If a business is “small” under SBA's size standards, the business will likewise be considered a small business for purposes of the ITM Program.

Subpart B discusses various laws and orders applicable to borrowers, lenders and the use of ITM Program loan proceeds. Specifically, flood insurance requirements, child support obligation compliance, flood-plain and wetlands management, lead-based paint requirements, earthquake hazard management, and coastal barrier island restrictions are addressed. In addition, this subpart emphasizes that compliance with all other generally applicable laws such as environmental, civil rights and anti-discrimination laws, is required.

Subpart C details the nature of a lender's obligation to comply with the ITM Program requirements. Further, it emphasizes that, because of the status of lenders and borrowers as independent entities, EDA is not liable for any injury suffered as a result of a lender's or borrower's wrong-doing with respect to a loan.

Closely mirroring SBA's 7(a) program regulations and process, subpart D describes the application process for an ITM Program loan, including the required contents of a loan application. In addition, this subpart discusses how lenders and applicants are notified of approval or denial of an application, as well as the procedures involved when a lender is seeking reconsideration of EDA's decision to reject an application.

Subpart E outlines lender reporting requirements. In addition, it affirms the applicant's duty to disclose any fees paid to agents assisting the applicant in obtaining the loan as well as the obligation of lenders, borrowers and EDA employees to notify the DOC Inspector General of any suspected fraud regarding an ITM Program loan.

To prevent a potential loss-shift to EDA from an existing borrower obligation, subpart F prohibits a borrower's use of loan proceeds to refinance unsecured or under-secured loans.

Subpart G delineates the key parameters for loan guarantees made under the ITM Program, including the statutory maximum percentage of a loan eligible for a guarantee, which is 80 percent. The ITM Program regulations impose a loan size limit of $10 million or, if written approval is obtained from EDA, $15 million. This subpart also addresses loan maturities, providing that the term of a loan shall be the lesser of 30 years or 90% of the projected useful life of the financed physical asset. In addition, while covering fixed interest rate loans, this subpart provides that a lender may use a variable rate of interest, upon EDA approval after the lender's satisfaction of certain conditions with respect to the base rate, changes to the rate, amount of fluctuation from the base rate, maximum spreads and amortization.

Subpart H discusses fees that can be properly charged under the ITM Program. These regulatory provisions authorize EDA to charge lenders a guarantee fee as well as a monthly servicing fee. Note that the guarantee fee may be increased if the guaranteed portion of the loan increases. Also discussed in this subpart are the fees that a lender is permitted to charge the borrower, which includes the guarantee fee after the first disbursement as well as service and late payment fees.

Subpart I discusses requirements for a lender's initial and continued eligibility for participation in the ITM Program. At the outset, this subpart makes clear that EDA may enter into an authorization with a lender to make ITM program loans, which may include terms to allow for the patents and technology needed for the Innovative Technological Project to be available to complete and operate the Innovative Technological Project for any borrower, including EDA pursuant to its rights of subrogation. Among other requirements, the lender must be in good standing under the SBA Preferred Lenders Program at all times and must maintain its ability to evaluate, process, close, disburse, service, liquidate, and litigate loans in its portfolio. One notable difference between the ITM Program and SBA's 7(a) program is that EDA does not allow a lender to securitize or otherwise sell or transfer an ITM Program loan without prior approval from EDA and the execution of a separate securitization agreement with EDA.

Subpart J underscores that a lender may defer payments on a loan and can extend the maturity of a loan only with the prior written consent of EDA. With respect to loan modifications, this subpart addresses standards to which lenders must adhere (e.g., commercially reasonable manner consistent with prudent lending standards) when engaging in loan servicing, liquidation, and debt collection litigation activities. In addition, those servicing and liquidation actions that require the prior written consent of EDA (e.g., compromise of the loan principal balance; accelerating the maturity of the note) are listed.

Subpart K applies when a lender requests that EDA honor its guarantee in a default situation. These provisions make clear that as a threshold matter such a demand will be summarily rejected by EDA unless a lender establishes, with sufficient supporting documentation, that the borrower is in uncured default on any installment for more than 60 calendar days, all reasonable workout attempts have failed, and all business personal property securing the defaulted ITM Program loan has been liquidated. With respect to a lender's debt collection efforts, this subpart sets forth the requirements for a lender's liquidation and litigation plans that must be submitted before the lender undertakes such actions, outlines EDA's policies regarding a lender's liquidation of collateral and sale of ITM Program loans, and covers circumstances when EDA will pay its pro rata share of authorized legal fees and expenses. If EDA does purchase the guaranteed portion of an ITM Program loan from the lender, this subpart provides details about accrued interest payments and the applicable interest rate post-EDA purchase. Finally, similar to the SBA 7(a) program's “denial of liability” regulations, these regulations provide that, despite a lender's demand, EDA will be released from liability on a loan guarantee if EDA determines that one or more of ten events have occurred. Such events include a lender's failure to materially comply with any ITM Program requirement, a lender's misrepresentation (or failure to disclose) of a material fact regarding a guaranteed loan, and where a lender's improper action has put EDA at risk.

Subpart L focuses on enforcement actions that EDA can take against lenders. Discussed are proper grounds for an enforcement action (e.g., failure to maintain eligibility requirements for the SBA Preferred Lenders Program), types of enforcement actions that EDA may take (e.g., suspension or revocation from the ITM Program), and general procedures for enforcement actions against lenders (e.g., notice of action, Lender's opportunity to object, final agency decision).

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons: First, the Agency emphasizes that possible participation in the ITM program by small entities, whether from the lending or borrowing side, is entirely voluntary. Second, this rulemaking is not projected to adversely impact small lenders or borrowers since it does not impose any greater burden with respect to forms, fees, due diligence, or servicing than any other Federal loan guarantee program. The application forms closely match those of already existing loan guarantee programs, most notably SBA's 7(a) loan guarantee program, and the fees are similarly commensurate. As evidenced by these proposed regulations and forthcoming ITM program procedure manuals, reporting, due diligence, and other processes will be a stream-lined version of existing programs which will make the ITM program less burdensome for small entities to use than other programs. As such, the Chief Counsel certifies that this proposed rule will not have a significant impact on a substantial number of small entities.

This proposed rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (OMB), which found the proposed rule to be “significant” as that term is defined in Executive Order 12866 and Executive Order 13563. Accordingly, the proposed rule has undergone interagency review.

This proposed rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

It has been determined that this proposed rule does not contain policies with federalism implications as that term is defined in under Executive Order 13132.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number.

The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this proposed rule. These collections of information are necessary for the proper performance and functions of EDA.

For the reasons set forth in the preamble, EDA proposes to amend title 13, chapter III of the Code of Federal Regulations by adding part 311 to read as follows:

Background on Regional Innovation Program History

In recent years, concerns about America's global competitiveness led to calls for the Federal Government to more actively foster innovation and better coordinate Federal support for scientific and technological research and development, technology transfer, and commercialization. In particular, without Federal support, local communities struggled to effectively support the development of regional innovation clusters (defined below), which research has shown to be a significant catalyst of economic development. At the same time, regional innovation was hampered by limited access to the capital necessary to implement the innovative manufacturing technologies required to compete in the twenty-first century global economy.

In response to these concerns and with a desire to maintain America's role as a leader in innovation, Congress enacted section 27 of Stevenson-Wydler (“section 27” or “Regional Innovation Program”) as part of the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science Reauthorization Act of 2010, Public Law 111-358 (Jan. 5, 2010) (“COMPETES Act”). As originally enacted by Congress, section 27 authorized the Secretary of Commerce (“Secretary”) to “establish a regional innovation program to encourage and support the development of regional innovation strategies, including regional innovation clusters and science and research parks.” In 2014, Congress enacted legislation that narrowed the scope of the Regional Innovation Program. See Public Law 113-235 (Dec. 16, 2014). This legislative change is discussed more fully below. The Regional Innovation Program now encompasses two complementary sub-programs: the Regional Innovation Strategies Program (“RIS Program”) set forth in section 27(b) of the Act, and the Regional Innovation Research and Information Program (“RIRI Program”) set forth in section 27(c) of the Act.

Given EDA's leadership in and support of innovation and entrepreneurship as key elements of a robust economy, the Secretary turned to EDA to develop and implement the Regional Innovation Program. Established under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (“PWEDA”), EDA leads the Federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA makes investments to facilitate job creation for U.S. workers, increase private-sector investment, promote American innovation, and accelerate long-term sustainable economic growth. EDA's regulations, codified at 13 CFR parts 300 through 315, provide the framework through which the Agency administers its economic development assistance programs.

Through the RIS Program (section 27(b) of Stevenson-Wydler), the core of the Regional Innovation Program, EDA competitively awards grants to eligible applicants for activities related to the formation and development of regional innovation clusters. 15 U.S.C. 3722(b). Stevenson-Wydler defines a regional innovation cluster as “a geographically bounded network of similar, synergistic, or complementary entities that—(A) are engaged in or with a particular industry sector and its related sectors; (B) have active channels for business transactions and communication; (C) share specialized infrastructure, labor markets, and services; and (D) leverage the region's unique competitive strengths to stimulate innovation and create jobs.” 15 U.S.C. 3722(f)(1). The RIRI Program (section 27(c) of Stevenson-Wydler) is designed to formulate and disseminate best practices for regional innovation strategies, provide technical assistance for the development and implementation of regional innovation strategies, support the development of metrics to evaluate regional innovation strategies, collect and publicize data on regional innovation cluster activity in the United States, and fund competitive research grants to support the goals of the RIRI Program. This NPRM focuses on the RIS Program because EDA has not yet implemented the RIRI Program. However, these proposed regulations—and, in particular, the definition sections—are structured to incorporate the RIRI Program into a future subpart C of part 312 of title 13 of the Code of Federal Regulations once EDA implements the RIRI Program. In addition to awarding grants under the RIS and RIRI Programs, EDA anticipates at a future date conducting COMPETES Act prize competitions that support the goals and objectives of the Regional Innovation Program. See 15 U.S.C. 3719.

EDA's economic development assistance programs under PWEDA and the RIS Program seek to increase economic growth and resilience, enhance prosperity, and improve quality of life, but they approach the goal from different angles, as reflected in the enabling statutes and regulations. For example, the focus of PWEDA's core programs is increasing employment and private investment in economically distressed regions. Funding generally is limited to regions that meet chronic high unemployment or low per capita income criteria, and grant rates increase with the level of economic distress up to a maximum of 100 percent in limited circumstances. Conversely, the RIS Program focuses on encouraging scientific and technological innovation and collaboration; it thus provides funding to a broader range of entities and does not require applicants to demonstrate economic distress. Moreover, it also is capped at a 50 percent grant rate.

EDA publicly launched the RIS Program in September 2014 when it announced the first round of competitions for funding under the Program. The announcement of a Federal Funding Opportunity (“FFO”) identified three separate competitions for a total of $15 million in Federal funding: the i6 Challenge, Science and Research Park Development Grants, and Seed Fund Support (“SFS”) Grants (formerly known as Cluster Grants for Seed Capital Funds). The i6 Challenge, first launched in 2010 as part of the multi-agency Startup America Initiative, is designed to support the creation of programs for innovation and entrepreneurship—specifically, the development, creation, or expansion of proof-of-concept and commercialization programs that increase the development of innovations, ideas, intellectual property, and research into viable companies. Science and Research Park Development Grants supported feasibility and planning studies to create innovation hubs for driving the results of applied research and development to the commercial marketplace by supporting the entire product or process lifecycle from idea generation to business creation.

SFS Grants support activities related to the feasibility, planning, formation, launch, or expansion of cluster-based seed capital funds to assist innovation-based startups with high growth potential. After considering more than 240 applications, in early 2015, EDA awarded 17 i6 Grants, 12 Science and Research Park Development Grants, and 9 SFS Grants to applicants throughout EDA's six regions.

In 2014, Congress amended the Regional Innovation Program in section 705 of the Revitalize American Manufacturing and Innovation Act of 2014, Public Law 113-235 (Dec. 16, 2014) (“RAMI”). Under RAMI, Congress eliminated the provisions authorizing Science and Research Park Development Grants and Loan Guarantees for Science Park Infrastructure but did maintain eligibility for such parks to apply for RIS awards. Accordingly, when EDA announced a second round of RIS Program competitions in August 2015, it included $10 million in Federal funding for i6 Challenge Grants and SFS Grants, and no longer had a separate Science and Research Park Development Grant competition. In addition, consistent with changes made by Congress in RAMI to section 27(b)(7) of the Act, EDA implemented a targeted outreach program to ensure that public and private sector entities in rural communities were aware of the opportunity. After considering 168 applications for funding, EDA awarded 17 i6 Grants and 8 SFS Grants in early 2016.

A third round of competitions for $15 million in funding for i6 Challenge Grants and SFS Grants was announced in April 2016.

With EDA's RIS funding, successful applicants have undertaken transformative projects such as the development of a hardware entrepreneurship ecosystem, expansion of a seed capital fund focused on commercializing water technology, and investigation of the feasibility of constructing a test track for connected and autonomous vehicles. Grant recipients are required to provide semi-annual reports, using EDA-developed metrics that are consistent across grantees, that EDA uses to evaluate the impact of the RIS Program.

Administration and management of the Regional Innovation Program is an EDA-wide responsibility. The Regional Innovation Program (including the RIS Program) is broadly overseen by the Office of Innovation and Entrepreneurship (“OIE”), which was established by the Secretary pursuant to section 25(c) of the Act. Housed within EDA, OIE works to foster a more innovative U.S. economy focused on turning new ideas and inventions into products and technologies that spur job growth and competitiveness while promoting economic development through innovation and entrepreneurship. In addition, EDA's Deputy Assistant Secretary for Regional Affairs has served as the Grants Officer for RIS Program awards, with day-to-day administration of these awards being handled by the Agency's regional offices.

Because of significant differences in EDA's authority under PWEDA and Stevenson-Wydler, EDA is proposing regulations specific to the Regional Innovation Program. This NPRM focuses on the RIS Program, the only portion of the Regional Innovation Program currently being implemented in these proposed regulations. The basic regulatory framework proposed for this program is summarized below.

This section sets forth the general purpose of the Regional Innovation Program and provides a brief description of its two sub-programs (i.e., RIS and RIRI Programs). 15 U.S.C. 3722(b), (c). Section 312.1 also informs the public that the Secretary has delegated to EDA the authority to implement and administer the Regional Innovation Program.

This section establishes that the definitions of § 300.3 of chapter III are not applicable to the Regional Innovation Program. Section 300.3 defines terms related to EDA's administration of grant programs authorized by PWEDA. The Regional Innovation Program was established by Stevenson-Wydler, with distinct programmatic and eligibility criteria. Therefore, EDA proposes to include an umbrella Regional Innovation Program definition section that applies to all of part 312 and a separate definition section that applies only to the RIS Program, as described in §§ 312.3 and 312.5 respectively, below.

This section defines terms applicable to the Regional Innovation Program. The definitions are applicable to the RIS Program as well as the RIRI Program.

Section 312.3 includes terms defined in the Act relevant to the Regional Innovation Program such as Eligible recipient, Federal agency, Federal laboratory, Regional innovation clusters, Secretary, and State.

This section also includes terms that EDA has previously defined and regularly uses in all of its grant programs, such as In-kind contribution(s) and Recipient. Many of these terms have been adopted almost verbatim from the PWEDA definitions at §§ 300.3 and 314.1 of chapter III; however, the terms FFO, Grant, Investment rate, Project, Real property, and Region have been slightly modified to reference Stevenson-Wydler as opposed to PWEDA, or to increase readability.

EDA also proposes to adopt the commonly used definitions for the terms Equipment, Federal interest, and Nonprofit organization from the Federal Uniform Administrative Requirements and Cost Principles as set out in 2 CFR part 200 (“Uniform Guidance”). See 200 CFR 200.33, 200.41, and 200.70.

In addition, EDA establishes new definitions for the terms Economic Development Organization, Public-private partnership, and Science or research park because they are Eligible recipients under the RIS program. See 15 U.S.C. 3722(b)(3). Finally, EDA also establishes new definitions for Regional Innovation Program, RIS Program, and RIRI Program.

This section sets forth the general purpose and scope of the RIS Program as identified in section 27(b) of the Act. 15 U.S.C. 3722(b). Under the RIS Program, EDA will award competitive grants to eligible applicants that build public and private capacity to invent, improve, and commercialize new products and services with the goal of promoting economic growth in the United States.

This section sets forth the definition of Institution of higher education (“IHE”), a term that has a meaning unique to the RIS Program. Under the Act, both for-profit and nonprofit IHEs are eligible recipients under the RIS Program. 15 U.S.C. 3722(b)(3)(D). See analysis of § 312.6, below. This means that the RIS Program cannot use the standard definition of IHE promulgated by the U.S. Department of Education (“ED”) in 20 U.S.C. 1001 and adopted in the Uniform Guidance at 2 CFR 200.55 because that definition includes conditions that the IHE be “public” or “nonprofit.” However, since the ED definition is the standard Government-wide definition, EDA proposes to incorporate as much of the ED definition as possible while omitting language related to “public” or “nonprofit” that conflicts with section 27(b) of the Act. Thus, in EDA's definition of IHE in § 312.5, EDA has duplicated 20 U.S.C. 1001 but with the following deletions: (1) paragraph (4) of 20 U.S.C. 1001(a) that requires an IHE to be “a public or other nonprofit institution”; (2) a cross-reference to paragraph (4) of 20 U.S.C. 1001(a) that appeared in 20 U.S.C. 1001(b)(1); and (3) the reference in 20 U.S.C. 1001(b)(2) to “public or nonprofit private”.

This section identifies those entities eligible to apply for and potentially receive funding under the RIS Program. The list is derived from the definition of “Eligible recipient” in section 27(b)(3) with one proposed clarification. Paragraph (D) of section 27(b)(3) of the Act lists and groups together several types of entities. 15 U.S.C. 3722(b)(3)(D). EDA proposes to separate nonprofit organizations from the other entities to provide needed clarity. Section 27(b)(3)(D)(i) permits grants to for-profit as well as nonprofit institutions of higher education, public-private partnerships, science or research parks, Federal laboratories, and economic development organizations or similar entities. Congress established “nonprofit organizations” as a separate type of entity eligible for an RIS award and did not include the term “nonprofit” as a modifier on the other types of entities that are eligible recipients. Grouping together all of these various types of entities could lead to confusion that “nonprofit” applies to institutions of higher education, public-private partnerships, science or research parks, federal laboratories, and economic development organizations or similar entities, when it does not.

Both nonprofit organizations and the other entities listed in section 27(b)(3)(D) must still meet the additional eligibility requirement in section 27(b)(3)(D)(ii) of demonstrating that a State or a political subdivision of a State supports the application.

Consistent with section 27(b), individuals are not eligible recipients.

This section identifies the project activities that are eligible for potential funding under the RIS Program. The list is derived from section 27(b)(2) with proposed modifications to include three additional eligible activities and four activities that EDA proposes should be ineligible. 15 U.S.C. 3722(b)(2). The list of eligible activities provided by Congress is non-exhaustive because section 27(b)(2) expressly allows discretion for the Secretary to determine appropriate RIS Program activities. EDA therefore has added a catchall to the end of the list of eligible activities that provides “(11) Any other activity determined appropriate by the Assistant Secretary.” To that list, EDA also proposes to add two further activities, “(9) Purchase of equipment, but only to the extent that such equipment is used to support another eligible activity as described in this section (the recipient may be required to secure and record the Federal interest in the equipment)” and “(10) Modifications or renovations of a facility that are necessary to install equipment.”

With respect to (9) above, at times new innovations require the use of technologies, such as a three-dimensional printer, not readily available to an applicant. As such, EDA proposes to permit the purchase of equipment in limited circumstances. However, because EDA does not believe Congress intended for the RIS Program to primarily fund equipment, EDA proposes to confine the purchase of equipment to only those purchases that are otherwise used to support another eligible project activity described in § 312.7. To protect the Federal interest in such equipment, EDA may require eligible recipients that purchase equipment to provide EDA with a security interest in the equipment that is perfected and placed of record consistent with applicable law (for example, through the execution of a Uniform Commercial Code Financing Statement (UCC-1) or other statement acceptable in form and substance to EDA).

As a natural extension of including the purchase of equipment as an eligible project activity in § 312.7(a)(9), there are situations when installing the equipment may require some minor modifications or renovations to a facility and this proposed rule makes those activities eligible as well in § 312.7(a)(10).

On the other hand, EDA proposes to make expenses related to construction (other than minor modifications or renovations of a facility needed to install equipment) and acquisition or improvement of real property ineligible activities. While EDA acknowledges that at times constructing a new facility and/or purchasing real property may support the development of regional innovation clusters, EDA does not believe those specific activities are within the core purposes of the RIS Program as defined by Congress. It is clear that Congress's intent for the RIS Program is to promote actual innovation, not the facilities or places where such activities may take place. There are other grant programs throughout the Federal Government that fund these activities (e.g., PWEDA). Further, as a practical matter, the costs associated with construction and real property acquisition or improvements are more substantial than the other types of eligible activities identified in § 312.7 and consequently, permitting such activities would diminish EDA's ability to award as many grants as possible with its limited appropriations.

EDA also proposes to make ineligible the use of RIS Program or matching share funds for equity investments. RIS Program awards have supported the creation of mechanisms for attracting, gathering, and deploying investment capital within regional innovation clusters that fill regional gaps in funding for early-stage companies, but RIS Program funds cannot be used to make those investments themselves. Further, there are other grant programs throughout the Federal Government that fund these activities such as the Small Business Administration's Small Business Investment Company program.

Finally, EDA proposes that lending programs such as providing direct loans or capitalizing a revolving loan fund be ineligible. Providing loans, or permitting grant funds to support lending programs, requires specific Congressional authorization that is not provided in section 27 of the Act.

This section identifies that the maximum grant rate permitted under section 27(b)(6) of the Act is 50 percent and states that there is no minimum grant rate. 15 U.S.C. 3722(b)(6). The grant rate here represents the percentage of the total Project cost that can be funded with EDA funds.

This section clarifies that an applicant's matching share requirements may be met by either cash or in-kind contribution(s). Matching share is the difference between the amount of the EDA investment permitted by the Act (see § 312.8), and the total eligible costs of a proposed project. Consistent with EDA's regulations for programs authorized by PWEDA at 13 CFR 301.5, this proposed rule requires an applicant to demonstrate, at the time of application, that matching share is committed to the project, will be available as needed, and is not or will not be conditioned in any way that would conflict with the requirements of the RIS Program.

EDA expressly retains discretion to determine whether the matching share is adequately documented to ensure that awards comply with the statutorily-established maximum investment rate. Applicants must comply with their own rules (as established in statutes, ordinances, bylaws, or the like) for appropriating or committing organizational funds; in many cases, these rules authorize the organization's governing body (rather than an individual executive) to approve proposed expenditures of cash but permit executives to commit in-kind personnel time based on their authority to manage employees and their workload. Applicants should consult their governance documents for guidance.

This section sets forth the minimum information that applicants must provide to EDA to be considered for an RIS Program award, as outlined in section 27(b)(4)(B). 15 U.S.C. 3722(b)(4)(B). This includes information necessary for EDA to identify how the proposed activity will support an existing, or further develop an emerging, regional innovation cluster; how much outside support the cluster will receive; the methodology the applicant will use to get other entities to participate in and benefit from the cluster; the extent to which the cluster will stimulate innovation and positively affect the region's economy; the capacity for applicants to access or contribute to a well-trained workforce; the ability of the recipient to attract additional funds; and the sustainability of the activity. To ensure that requirements remain current, EDA will specify application procedures and materials (such as required standard Federal forms) in each FFO for the RIS Program.

This section provides notice that EDA will evaluate and select complete applications based on the priorities and requirements set forth in section 27(b), the evaluation criteria and funding priorities identified in the FFO announcement, available funds, competitiveness of the application, and compliance with any other applicable Federal statutes and regulations. EDA proposes this flexible structure to ensure that the agency complies with required statutory elements such as “special considerations” for certain applicants “from regions that contain communities negatively impacted by trade” or who agree “to collaborate with local workforce investment area boards” and at the same time follows Congressional directives outlined in EDA's annual appropriation and supports Administration priorities. 15 U.S.C. 3722(b)(4)(C), (b)(5); see, e.g., H.R. Rep. 114-130 at 7 (May 27, 2015).

The section also sets forth that EDA will notify applicants as soon as practicable regarding whether their applications are selected for funding and provides notice that there is no appeal process for denied applications.

This section expressly provides that most of the general terms and conditions found in part 302 of title 13 of the Code of Federal Regulations apply to the RIS Program. These terms and conditions either apply Government-wide as mandated by statute or regulation, or are EDA-specific requirements and typically apply to all EDA grant programs, such as those authorized by PWEDA. EDA proposes to exclude those specific paragraphs of part 302 that are irrelevant to the RIS or RIRI Programs, or are unique to PWEDA. The excluded requirements are those related to “Procedures in disaster areas” (§ 302.2); “Project servicing for loans, loan guaranties and Investment Assistance” (§ 302.3); “Inter-governmental review of projects” (§ 302.9); and “Attorneys' and consultants' fees, employment of expediters, and post-employment restriction” (§ 302.10).

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts. 5 U.S.C. 553(a)(2). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

This proposed rule was drafted in accordance with Executive Orders 12866 and 13563. It was reviewed by the Office of Management and Budget (“OMB”), which found that the proposed rule will be a “significant regulatory action” as defined by Executive Orders 12866 and 13563.

This proposed rule is not major under the Congressional Review Act (5 U.S.C. 801 et seq.).

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this proposed rule does not contain policies that have federalism implications.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (“PRA”) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the PRA unless that collection displays a currently valid OMB Control Number. It has been determined that the PRA does not apply to the proposed rule because the rule does not collect any new information requiring OMB approval. The proposed rule will use the previously approved Standard Form 424 family of forms to collect information relevant to the grant applications.

The following table provides a complete list of the collections of information (and corresponding OMB Control Numbers) set forth in this proposed rule. These collections of information are necessary for the proper performance and functions of EDA.

For the reasons set forth in the preamble, EDA proposes to amend title 13, chapter III of the Code of Federal Regulations by adding part 312 to read as follows:

The Commission's regulations have not undergone a thorough review since the last comprehensive rulemaking in 2006. Many of these regulations remain unchanged. However, since initial implementation, the Commission recognizes the need for clarity in some sections and statement of procedure in others. These changes are designed to bring clarity and certainty to the regulated community. This rulemaking reflects the efforts of a comprehensive internal review by the Commission staff and review by the Commission's member jurisdictions. The rulemaking centers on a few key areas of the regulations: Project review, consumptive use mitigation, registration of grandfathered projects, and administrative procedures. The Commission proposed this rulemaking to clarify application requirements and standards for review of projects, amend the rules dealing with the mitigation of consumptive uses, add a subpart to provide for registration of grandfathered projects, and revise requirements dealing with hearings and enforcement actions. Because the concept is a new addition to the regulations, the Commission believes that an explanation for the rationale for the proposed rules relating to the registration of grandfathered projects would be helpful for the public.

The Commission's regulations provide that certain withdrawals and pre-compact consumptive uses that are in excess of the Commission's regulatory thresholds do not require Commission approval under § 806.4(a) if those sources predated regulations, provided there is no environmental harm. This exemption from review and approval is commonly referred to as “grandfathering.” Generally, pre-compact consumptive uses initiated prior to January 23, 1971, groundwater withdrawals initiated prior to July 13, 1978, and surface water withdrawals initiated prior to November 11, 1995, are considered “grandfathered” and do not need to apply for a regulatory approval by the Commission. The Commission's current regulations provide several mechanisms by which a grandfathered project must apply for regulatory approval, including a change in the nature of the use, change of ownership, an increase in the quantity of the withdrawal or use, or adding a new source.

However, in enacting the Compact that created the Commission, Congress and the participating states declared that . . .

As part of this objective, the Commission recently completed a major effort to characterize water use and availability for the Susquehanna River Basin. The Cumulative Water Use and Availability Study (CWUAS) represents the most comprehensive analysis to date regarding water availability. The Commission is increasingly concerned about the availability of water to meet immediate and future needs as water is needed to satisfy the continuing prospect of growing population and increasing demands for drinking water, freshwater inflow to the Chesapeake Bay, power generation, industrial activity, commercial uses, recreation and ecological diversity. Water resources are neither limitless nor equally distributed across the basin, and in some areas the demand for and use of water resources may be approaching or exceeding the sustainable limit.

As part of the CWUAS, the Commission developed a comprehensive water use database by integrating water use records from the Commission, and its member jurisdictions of New York, Pennsylvania, and Maryland in an unprecedented compilation effort. Compiling accurate water use data is a common challenge for water resource agencies, even recognizing advances in accessing data records through electronic reporting for both the Commission and our member states. The study shows water availability in nearly 1 in 10 watersheds is sufficiently compromised to warrant additional analysis and improved knowledge of patterns of withdrawal and use.

The CWUAS also reveals the limitations of the currently available water use data. While these data include records of regulated public water supply withdrawals for all states, withdrawals for the remaining variety of self-supplied uses are commonly lacking with the exception of those projects regulated by the Commission. Coverage for unregulated withdrawals, including grandfathered projects, is provided through state registration programs and varies widely in data quality and completeness among the member jurisdictions. For the most part, data for consumptive use not regulated by the Commission are absent altogether.

At the time of its formation and adoption of its initial regulations, neither the Commission nor its member jurisdictions conducted any inventory of existing water users, their sources or the quantity of existing water use. Grandfathered water withdrawals and use are clearly factors in the determination of sustainable water availability. The Commission's analysis estimates a total of 760 grandfathered projects with an estimated water use of 970 million gallons per day, which is approximately equal to the total existing regulated consumptive use approved by the Commission. With such large water quantities in question, it is obvious that some of the grandfathered projects are among the largest users of basin waters. Therefore, appropriate regulation and comprehensive planning for the use of the water resources are seriously hampered without accurate and reliable data regarding the quantity of the grandfathered uses and withdrawals. This is even more critical for areas identified as potentially stressed, water challenged or otherwise having limited water availability.

While our member jurisdictions have made efforts to collect water withdrawal data, and the Commission uses that data as available, our member jurisdictions do not comprehensively register consumptive water use. In addition, they do not have comprehensive historic data for legacy water users to effectively determine the quantity of water withdrawn prior to 1995 or the water consumptively used prior to 1971. This lack of comprehensive and reliable data hampers the Commission by creating significant gaps in our knowledge and data of water withdrawals and water use in the basin, which in turn hinders our ability to comprehensively manage the water resources of the basin and fulfill our regulatory and planning functions.

It is, therefore, appropriate for the Commission to act to address this knowledge gap as no other jurisdiction is solely capable of insuring the effectuation of the comprehensive plan. In these regulations the Commission is proposing a mechanism for acquiring accurate water use and withdrawal information for grandfathered projects through a required registration program. It is imperative that we have no misrepresentations about the sustainability of our water supply so that sound water resource decisions can be made for the benefit of all the basin's users. Grandfathered uses and withdrawals represent a longstanding gap in knowledge and, as such, have increasingly become a water management issue in the Commission's regulation and planning for water resources development.

Registration of grandfathered uses and withdrawals will definitively answer questions about the number of grandfathered projects, the locations of their sources, how much water they are withdrawing and from which water bodies and aquifers, and how much of that water they are using consumptively. In short, it will allow water resource decisions to be made with more certainty and confidence. The registration requirements proposed do not require review and approval of dockets under § 806.4 and do not add any new pathways for a grandfathered project to be subject to review and approval if it registers in accordance with the proposed regulation.

The Commission expects the registration of grandfathered uses will achieve a number of crucial goals to allow better management of basin resources. The Commission will receive more consistent and complete data than what can be obtained through voluntary registration programs, such as peak quantities, patterns of usage and accurate locational data for withdrawals and uses. The data required for registration is more easily attainable data from the most recent five years, as opposed to historical data. This data will be more recent and based on more accurate and reliable metering and measurement devices. Registration will eliminate legacy issues by closing the knowledge gap about grandfathered withdrawals from and usage of the water resources of the basin. The information obtained through the registration will allow the Commission staff to conduct thorough water availability analyses.

Registration will also provide more direct benefits to the grandfathered projects by providing the Commission with complete, contemporary withdrawal and usage data that can be utilized by the Commission in evaluating new withdrawals or consumptive uses in the watersheds where the grandfathered projects operate and allow the Commission to better prevent impacts and interference to the operations of grandfathered projects by newer projects. Registration will also provide unambiguous determinations concerning pre-regulation quantities of withdrawals and consumptive uses in the basin for both project sponsors and the Commission, providing much more certainty with regards to how a grandfathered project may operate and retain their existing exempt status and avoid the full project review and approval process. As such, project sponsors can plan and anticipate when they might fall under the Commission's jurisdiction and avoid situations where they unknowingly could fall into noncompliance, as currently happens.

Registration also should provide for ongoing information concerning contemporary water withdrawals and uses at grandfathered projects, to meet Commission management goals of the Comprehensive Plan, including:

• Supporting water conservation measures through monitoring and reporting data;

• Making informed regulatory decisions about cumulative effect on other uses/withdrawals, including analyses for low flow protection (passby flows) and consumptive use mitigation;

• Projecting future water availability to support and inform development decisions, including siting of new facilities critical for water supply, energy development and industrial needs; and

• Identifying critical water planning areas where potential shortages due to drought are projected or intense competition among water users exists.

Registration of grandfathered projects allows the Commission to continue to allow those projects to receive the exemption from the Commission's review and approval under § 806.4 but also fulfills the Commission's need to have accurate, current and reliable data on the amount of the water withdrawals and consumptive use of grandfathered projects to use in the Commission's management decisions for the water resources of the basin. Registration is a one-time event that allows a grandfathered project to continue to operate under the exemption from the Commission's regulations for review and approval of projects, and the only ongoing obligation of project registration is to periodically report withdrawal and usage data. Registration is not review and approval of the project and the proposed rulemaking does not eliminate the grandfathering exemption for projects that register. This means a grandfathered project will not need to meet the requirements and standards set forth in part 806, subparts A through D, which include making an application to Commission, conducting an aquifer test for groundwater withdrawals, evaluation for the sustainability of water withdrawals, evaluation of impact on surface water features, wetlands, other water supplies and wells, establishment of passby flows to protect surface waters, imposition of mitigation for withdrawals or consumptive use, or imposition of conditions or limits on the grandfathered withdrawal or consumptive use. In addition, the Commission has designed the registration to be as simple and accessible as possible to greatly minimize costs, and/or eliminate the need for a grandfathered project to engage a consultant to complete the registration process.

New subpart E sets forth the rules related to registration of grandfathered projects.

Section 806.40 defines the grandfathered projects within the scope of the regulations and registration requirement.

Section 806.41 provides that grandfathered projects must register within a two-year window or they become subject to review and approval by the Commission in accordance with the Commission's project review regulations and standards. The proposal also contains corresponding changes in § 806.4(a)(1)(iii) and (a)(2)(iv) to clearly provide when a project with some grandfathered aspect or element is subject to review and approval.

The proposed regulations in §§ 806.40(b) and 806.41(c) do not protect grandfathered projects that can be shown to have clearly lost grandfathered status under the regulations in effect at the time the relevant action took place. For example, a grandfathered project that underwent a change of ownership, but did not seek review and approval as required by the §§ 806.4 and 806.6, is not eligible to register and will be required to submit an application for review and approval of the project.

Other projects that have a grandfathered aspect, but that do not withdraw or use water at a jurisdictional threshold to qualify as a grandfathered project under § 806.40, are not eligible to register and will be subject to review and approval if those projects ever withdraw or consumptively use water above the jurisdictional thresholds, pursuant to §§ 806.4(a)(1)(iii)(B), 806.4(a)(2)(iv)(B), and 806.40(c).

Paragraph 806.41(e) provides that the Commission may establish fees in accordance with § 806.35. The Commission will establish any registration fee simultaneously at the time of the adoption of a final rule. Because the amount of any fee will likely be of interest to the public, the Commission, in conjunction with this proposed rulemaking, is proposing a staggered fee for registration. Section 806.41(a) establishes a two-year window during which grandfathered projects must register. The Commission proposes that project sponsors that submit their registration within the first 6 months of that two-year registration period will pay no fee. During the next 6 months of the registration period, the fee will be $500. During the last year of the registration period, the fee will be $1,000. The registration fee is a one-time fee. By providing a no fee option during the first six months of the registration period, the Commission intends to provide relief for project sponsors that may be concerned about payment of a registration fee and to incentivize project sponsors to register sooner which will lead to an earlier submission of the data that the Commission is seeking through the registration process.

Section 806.42 outlines the primary information needs of the Commission for registration of withdrawals and consumptive uses. Because of the problems frequently encountered with producing reliable historical data, paragraph 806.42(a)(6) requests the most recent five years of quantity data for a project's withdrawals and consumptive use for at least the past five calendar years.

Section 806.43 provides that the Commission shall review the project's current metering and monitoring for its grandfathered withdrawals and consumptive uses. The Commission may require the project to follow a metering and monitoring plan to ensure that withdrawal and use quantities are accurate and reliable. This section also provides for ongoing reporting of quantities for grandfathered withdrawals and consumptive uses. The Commission may accept quantities reported under the requirements of the applicable member jurisdiction in lieu of additional monitoring data. This information is vital to the Commission in its ongoing evaluation of the water resources of the basin and will be used in revising the Commission's Comprehensive Plan, in its ongoing evaluation of cumulative water use in the basin and to provide data to assess and evaluate impacts of new projects seeking review and approval by the Commission.

Sections 806.44 and 806.45 provide a process for the determination of grandfathered quantities for withdrawals and consumptive uses. This determination will be made by the Executive Director taking into account the most reliable data. An increase above this amount would require review and approval under §§ 806.4(a)(1)(iii)(A) and 806.4(a)(2)(iv)(A). A project will be able to appeal this determination to the Commission. Any hearing conducted will be done in accordance with the Commission's appeal procedures in Part 808.

Section 806.11 is revised to include a specific reference to § 801.12(c)(2), noting that preliminary consultations, or pre-application meetings, are encouraged but not mandatory except for electric power generation projects.

Section 806.12 is revised to clarify when project sponsors will perform a constant-rate aquifer test and to clarify that reviews of aquifer test plan submittals are subject to termination of review under § 806.16.

Section 806.14 detailing the contents of applications to the Commission is rewritten. The new section as proposed better aligns to the actual items sought in the Commission's applications, as well as provides required items specific to each type of approval (i.e., groundwater withdrawal, surface water withdrawal, consumptive use). The proposed regulation includes new requirements specific to projects such as mine and construction dewatering, water resources remediation, and gravity-drained acid mine drainage (AMD) remediation facilities to align with the newly proposed standards for these types of projects under § 806.23(b)(5). The proposal also includes specific requirements for renewal applications.

This section as rewritten retains the requirement for an alternatives analysis for new projects, if prompted by a request from the Commission. However, for new surface water withdrawal projects, an alternatives analysis must be performed in settings with a drainage area of 50 miles square or less, or in a waterway with exceptional water quality.

Section 806.15 regarding notice requirements for applications is revised to provide notice to appropriate county agencies, removing the specific reference to county planning agencies. Appropriate county agencies include the county governing body, county planning agencies and county conservation districts. Section 806.15(b)(3) is added to allow the Commission or Executive Director to allow notification of property owners by other means where the property is served by a public water supply.

Section 806.21 is revised to mention that a project must be “feasible” to align it with the standard presently used for projects during review to determine that they are feasible from both a financial and engineering perspective.

Section 806.22 regarding standards for the consumptive use of water is revised. The proposed revisions lower the 90-day standard for consumptive use mitigation to 45 days and require a mitigation plan that can have several elements and encourages blended mitigation options. The purpose of these changes is to reduce the barriers to project sponsors finding their own mitigation and to correspondingly reduce the number of projects paying the consumptive use mitigation fee. Analysis of the past 100 plus years of river flow records show that the overwhelming majority of low flow/drought events in the Basin are adequately covered by a 45-day consumptive use mitigation standard.

Section 806.22(b) is also revised to clarify that when a project is subject to review and approval and also has an element of pre-compact consumptive use, the project sponsor will be required to provide mitigation going forward for this consumptive use if the project is located in a water critical area. The location of a project in a water critical area will also be a factor used by the Commission in determining the manner of acceptable mitigation under paragraph (c). A definition of water critical area is included in § 806.3 that will rely on both the existing member jurisdiction designations and the ongoing efforts by the Commission to identify areas where water resources are limited or the demand for water has exceeded or is close to exceeding the sustainable supply. Any action to identify a water critical area will be taken by a separate action of the Commission and may be subject to a public hearing under the revisions to § 808.1(b)(4).

Paragraph 806.22(e)(1) is amended to allow a project sourced by more than one public water supply to be eligible for an Approval by Rule for consumptive use as long as the public water supplies are the sole source of water for the project. New § 806.22(e)(2) and (3) were added so both the Approvals by Rule in paragraph (e) and (f) had matching procedures. The time frame for making notice was extended to 20 days in § 806.22(f)(3) to match the changes previously made to § 806.15, related to notice, during the last Commission rulemaking.

Section 806.23 related to standards for withdrawals is amended to include elements that presently form the basis of conditions to approvals for withdrawals. The proposal clarifies that the Commission can establish conditions based on the project's effect on groundwater and surface water availability, including cumulative uses and effects on wetlands. This section is clarified to expressly include the Commission's practice of establishing and requiring a total system limit on projects.

A new § 806.23(b)(5) is added to provide special review provisions for projects consisting of mine dewatering, water resources remediation, and gravity-drained AMD facilities. Because the nature of these types of facilities is fundamentally different from the other withdrawal projects that come before the Commission and because they are heavily regulated by our member jurisdictions, the Commission may appropriately limit consideration of adverse impacts of these projects on groundwater availability, causing permanent loss of aquifer storage and lowering of groundwater levels.

Section 808.1 is revised. The revised section in paragraph (a) identifies those actions that must have a public hearing pursuant to the Susquehanna River Basin Compact. Paragraph (b) outlines all other instances when the Commission may hold a hearing. No changes are contemplated to how the Commission currently conducts its hearings. Paragraphs (c) through (h) are revised to both update the regulations and also to reflect the Commission's current public hearing procedures.

Section 808.2 is revised to amend the scope and procedure for administrative appeals to the Commission. The non-mandatory appeal language is removed and paragraph (a) is revised to provide a mandatory appeal to the Commission of a final action or decision made by the Executive Director, including a non-exclusive list of appealable actions. Where the Commission itself takes a final action, including actions or decisions it makes on appeal of Executive Director actions, those decisions c must be appealed to the appropriate federal district court in accordance with the provisions of section 3.10 of the Compact. This section also clarifies that the Commission will determine the manner in which it will hear an appeal, including whether a hearing is granted or whether the issue will be decided through submission of briefs.

Section 808.11 is revised to expressly recognize directives issued from Commission staff.

Section 808.14 is revised to provide the Executive Director broader authority to issue compliance orders. These orders would be appealable to the Commission. Paragraph (e) is added to expressly recognize Consent Orders and Agreements in the regulations. These agreements are vital to the Commission in fulfilling its compliance and enforcement obligations under the Compact and allow for a constructive resolution of most enforcement actions.

Section 808.15 is revised to allow the Executive Director to determine the appropriateness of a civil penalty in the first instance in a show cause proceeding. Any decision of the Executive Director is appealable to the Commission. Paragraph (c) is added to reflect the Commission's intent that any finding regarding the imposition of a civil penalty by the Executive Director shall be based on the relevant policies and guidelines adopted by the Commission, as well as the relevant law and facts and information presented as a part of the show cause proceeding.

Section 808.16 regarding civil penalty criteria is revised to be consistent with other changes in this proposed rulemaking, as well as add a new factor regarding the punitive effect of a civil penalty on a violator.

Section 808.17 is revised to be consistent with other changes in the proposed rulemaking.

Section 808.18 is revised to allow the Executive Director to enter into settlement agreements to resolve enforcement actions. Currently all settlement agreements must be brought to the Commission for approval at the Commission's quarterly meeting with the exception of settlements under $10,000 pursuant to Commission Resolution 2014-15. The revision provides greater authority for the Executive Director to approve settlement agreements, but retains the ability of the Commission to require certain types of settlements to be submitted for the Commission's approval through adoption of a Resolution.

Section 806.1 is revised to include diversions within the scope of Part 806, which was an omission. The address of the Commission is also updated.

Section 806.3 related to definitions is revised. The definition of facility is revised to include consumptive use, which was an omission. The definition of production fluids is revised to include other fluids associated with the development of natural gas resources. The Commission routinely receives questions regarding other fluids, such as stormwater captured and stored in a drilling rig apparatus, and what rules apply to such water. The Commission is electing to treat all such water as a production fluid to ensure it is accounted for. A definition of wetland is added that mirrors the definition used by the U.S. Army Corps of Engineers for its regulatory program.

Section 806.4 related to projects requiring review and approval is revised, in addition to the changes discussed regarding new subpart E. Paragraph (a) is revised to clarify that aquifer testing pursuant to § 806.12 is not a project governed by § 806.4. Paragraph (a)(2), related to the regulation of withdrawals, is revised to clarify that a project includes all of its sources and to include a reference to the general project review standards in § 806.21.

A new paragraph (a)(3)(vii) is added to allow flowback and production fluids into the basin for in-basin treatment or disposal. The Commission does not want its regulations to be a disincentive to treatment of flowback where the activity is conducted in accordance with the environmental standards and requirements of its member jurisdictions.

Section 806.30 related to monitoring is revised and clarified. The revisions provide that measuring, metering or monitoring devices must be installed per the specifications and recommendations of the device's manufacturer. The revisions clarify that the Commission may require measurement of groundwater levels in wells other than production wells and may require other monitoring for environmental impacts.

Section 806.31 related to the term of approvals is revised to provide that if a project sponsor submits an application one month prior to the expiration of an ABR or NOI approval, the project sponsor may continue to operate under the expired approval while the Commission reviews the application. In the Commission's experience, the six month time frame currently in the regulation and still applicable to existing Commission docket approvals is longer than necessary for ABR approvals.

The Commission is contemplating that all changes proposed in this rulemaking will take effect immediately upon publication in the Federal Register, with the exception of the adoption of Subpart E (related to registration of grandfathered projects) and the corresponding changes to § 806.4(a)(1)(iii) and (a)(2)(iv), which would be effective six months after the date of publication in the Federal Register.

Accordingly, for the reasons set forth in the preamble, the Susquehanna River Basin Commission proposes to amend 18 CFR parts 806 and 808 as follows:

The revisions and additions read as follows:

This is a summary of the Commission's document, PS Docket No. 16-269, FCC 16-117, released on August 25, 2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. In the Notice of Proposed Rulemaking (NPRM), the Commission opens a new proceeding relating to the National Public Safety Broadband Network (NPSBN) being implemented by the First Responder Network Authority (FirstNet) pursuant to the provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”). The NPRM seeks comment on proposed procedures for administering the Commission's role in the State opt-out process from the FirstNet radio access network as provided under the Act, as well as on the Commission's implementation of the specific statutory standards by which it is obligated to evaluate State opt-out applications.

2. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in PS Docket No. 16-269 on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

3. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

4. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

5. Commenters who file information that they believe should be withheld from public inspection may request confidential treatment pursuant to § 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. See Examination of Current Policy Concerning the Treatment of Confidential Information Submitted to the Commission, Report and Order, 13 FCC Rcd 24816 (1998), Order on Reconsideration, 14 FCC Rcd 20128 (1999). Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act (FOIA) must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 U.S.C. 552. We note that the Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, we note that the Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption.

6. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with § 1.1206(b). In proceedings governed by § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

7. The Initial Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in appendix C of the NPRM.

8. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be filed by the same dates as listed on the first page of the NPRM and must have a separate and distinct heading designating them as responses to this IRFA. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

9. The NPRM seeks comment on proposals to implement provisions of the Middle Class Tax Relief and Job Creation Act of 2012 (“Public Safety Spectrum Act” or “Act”) governing deployment of the Nationwide Public Safety Broadband Network (NPSBN) in the 700 MHz band.

10. The Public Safety Spectrum Act establishes the First Responder Network Authority (FirstNet) to oversee the construction and operation of the NPSBN as licensee of both the existing public safety broadband spectrum (763-769/793-799 MHz) and the spectrally adjacent D Block spectrum (758-763/788-793 MHz). The Act directs the Federal Communications Commission (FCC or Commission) to reallocate the D Block for public safety services, to license the D Block and the existing public safety broadband spectrum to FirstNet and to take other actions necessary to “facilitate the transition” of such existing spectrum to FirstNet. The Act gives each State the option to opt out of FirstNet's Radio Access Network (RAN) deployment within that State and conduct its own RAN deployment.

11. Proposals in the NPRM are intended to provide States and other interested parties with clarity and an opportunity to comment on the procedures that the Commission will establish for filing and review of State opt-out requests and associated alternative State plans, the content to be included in state opt-out filings with the Commission, and the evaluation process that the Commission will use to approve or disapprove State opt-out requests in accordance with the criteria specified in the Act.

12. The proposed action is authorized under pursuant to sections 1, 4(i), 4(j), 301, 303, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156.

13. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules proposed herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). Below, we further describe and estimate the number of small entity licensees and regulatees that may be affected by the rules changes we propose in this document.

14. As an initial matter, we observe that the Public Safety Spectrum Act does not contemplate that “small governmental jurisdictions” would be directly authorized to serve as operators of their own 700 MHz public safety broadband networks. Rather, the Act charges a single entity, FirstNet, with constructing, operating, and maintaining the NPSBN on a nationwide basis. Accordingly, the requirements the NPRM proposes or considers for the combined 700 MHz public safety broadband spectrum—in which FirstNet will operate on a nationwide basis—will not directly affect a substantial number of small entities. The absence of a direct effect on a substantial number of small entities suggests that it is not necessary to prepare a regulatory flexibility analysis in connection with these proposed requirements.

15. The NPRM seeks comment on when State Governors will be required to notify FirstNet, NTIA, and the Commission if they wish to opt out of the NPSBN. Specifically the NPRM proposes to require States electing to opt out of the NPSBN to file a notification with the Commission no later than 90 days after the date they receive electronic notice of FirstNet's final proposed plan for the State. The NPRM also seeks comment how notice should be provided and on whether an entity other than a State Governor, such as the Governor's designee should be permitted to complete this filing requirement.

16. The NPRM seeks comment on the Act's provision that States choosing to opt out have 180 days to “develop and complete” requests for proposals (RFPs). In particular, the NPRM seeks comment on what showing is sufficient to demonstrate that a State has “completed” its RFP within the 180-day period. The NPRM further proposes that, if a State notifies the Commission of its intention to opt out of the NPSBN, the State will have 180 days from the date it provides such notification to submit its alternative plan to the Commission. The NPRM proposes to treat a State's failure to submit an alternative plan within the 180-day period as discontinuing that State's opt out process and forfeiting its right to further consideration of its opt-out request. The NPRM seeks comment on what an opt-out State should be required to include in its alternative plan for the plan to be considered complete for purposes of the Commission's review.

17. The NPRM seeks comment on whether States should be required to file their alternative plans in PS Docket No. 16-269, and the scope and types of information that must be included in the submission. The NPRM also seeks comment on whether States should be allowed to file amendments or provide supplemental information to the plan once it is filed with the Commission and prior to the Commission's decision. Should Commission staff be permitted to discuss or seek clarification of the alternative plan contents with the filer? If a plan is deemed sufficient for our purposes before a State awards a contract pursuant to its RFP, should the Commission condition approval on substantial compliance with the approved plan under the awarded contract, or should this be addressed by NTIA under its “ongoing” interoperability evaluation?

18. The NPRM also seeks comment on who should have access to and the ability to comment on State alternative plans. In this regard, the NPRM seeks comment on the extent to which State alternative plans may contain confidential, competitive, or sensitive information or information that implicates national security. Should State plans be treated as confidential, with public notice limited to identifying which States have elected to opt out and filed an alternative plan? If so, should the Commission require such filing, and should the public be given an opportunity to comment on them? If State plans were filed publicly, would the Commission's existing rules allowing parties to request confidential treatment for their filings provide adequate protection of sensitive information? Alternatively, given the likelihood of sensitive information and the limited scope of the Commission's review of State plans under section 6302(e)(3)(C)(i) of the Act, should the Commission limit the parties that are entitled to review and comment on such plans? Should comment be limited to specific issues?

19. The NPRM also seeks comment on whether FirstNet and/or NTIA should be allowed access and the ability to comment to the Commission on State plans within a defined comment period. Assuming that FirstNet and NTIA are afforded a right to comment on State plans, should States have the right to respond to such comments? What rights, if any, should States have to review or comment on alternative plans submitted by other States? What other procedures are appropriate for the Commission's review of such plans? How can the Commission most appropriately ensure that it has heard all “evidence pertinent and material to the decision”?

20. The NPRM proposes that each alternative plan submitted to the Commission should receive expeditious review. The NPRM proposes to establish a “shot clock” for Commission action on alternative plans to provide a measure of certainty and expedience to the process. The NPRM seeks comment on what an appropriate shot clock period would be.

21. The NPRM seeks comment on the standard against which alternative State plans will be evaluated, specifically with respect to the Act's requirements that alternative plans demonstrate: (1) that the State will be in compliance with the minimum technical interoperability requirements developed under section 6203, and (2) interoperability with the nationwide public safety broadband network.

22. Under the first prong, the NPRM seeks comment on the utilization of RAN-related requirements specified in the minimum technical interoperability requirements. Specifically, the NPRM proposes that review under this prong would include requirements (1)-(3), (7)-(10), (20)-(25), (29), (39), (41)-(42) from the Board Report, as documented in Appendix B of the NPRM.

23. Under the second prong, the NPRM proposes a broader view than the first prong in demonstrating “interoperability” with the NPSBN, but still limited to the RAN. In particular, the NPRM seeks comment on the role of the Commission to independently and impartially evaluate whether alternative plans comply with the interoperability-related requirements established by FirstNet, and suggests that the Commission does not have the ability to impose network policies or interoperability requirements on FirstNet.

24. The NPRM seeks comment on the view that if the Commission disapproves a plan, the opportunity for a State to conduct its own RAN deployment will be forfeited and FirstNet “shall proceed in accordance with its proposed plan for that State.”

25. The NPRM seeks comment on the view that the Commission's approval of a State opt-out plan as meeting the interoperability criteria in ection 6302(e)(3)(C) of the Act would not create a presumption that the State plan meets any of the criteria that NTIA is responsible for evaluating under section 6302(e)(3)(D) of the Act.

26. The NPRM seeks comment on how the Commission should document its decisions to approve or disapprove State opt-out requests under the statutory criteria. Should it issue a written decision or order explaining the basis for each decision, or would it be sufficient to provide more limited notice of approval or disapproval in each case without a detailed explanation?

27. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof for small entities.

28. The proposed rules will not affect any small entities.

29. None.

30. This NPRM seeks comment on potential new information collection requirements. If the Commission adopts any new information collection requirements, the Commission will publish a document in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

31. Accordingly, it is ordered that, pursuant to sections 1, 4(i), 4(j), 301, 303, and 316 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, 316, as well as title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, 126 Stat. 156, the Notice of Proposed Rulemaking is hereby adopted.

32. It is further ordered that pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the NPRM on or before October 21, 2016 and reply comments on or before November 21, 2016.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 90 as follows:

In the Federal Register of September 14, 2016 (81 FR 63160), in FR Doc. 2016-22071, on page 63162, in the second column, correct the State under Species and Range from “Arizona” to “Arkansas”.

Executive Summary

Why we need to publish a rule. Under the Act, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule. We will be providing a proposal to designate critical habitat for the Sonoyta mud turtle under the Act in the near future.

Our proposed determination. This document proposes the listing of the Sonoyta mud turtle (Kinosternon sonoriense longifemorale) as an endangered species. The Sonoyta mud turtle is currently a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding status of and threats to the Sonoyta mud turtle.

The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors after taking into account those efforts to protect such species: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. We have determined that Factors A (reduction or loss of water availability; reduction or loss of riparian habitat components; reduction or loss of invertebrate prey), C (nonnative predators), and E (climate change) are and will continue to affect the populations of Sonoyta mud turtle. The Act defines the term “species” to include any subspecies of fish or wildlife or plants.

We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal. Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

To provide the necessary and most up-to-date information and background on which to base our determination, we completed a Species Status Assessment Report for the Sonoyta mud turtle (SSA Report; Service 2016, entire), which is available online at http://www.regulations.gov, Docket No. FWS-R2-ES-2016-0103. The SSA Report documents the results of the comprehensive biological status review for the Sonoyta mud turtle and provides an account of the subspecies' overall viability through the forecasting of the condition of surviving populations into the future (Service 2016, entire). In the SSA Report, we summarized the relevant biological data, described the past, present, and likely future risk factors (causes and effects), and conducted an analysis of the viability of the subspecies. The SSA Report provides the scientific basis that informs our regulatory decision regarding whether this subspecies should be listed under the Act. This decision involves the application of standards within the Act, its implementing regulations, and Service policies (see Finding). The SSA Report contains the risk analysis on which this finding is based, and the following discussion is a summary of the results and conclusions from the SSA Report. Species experts and appropriate agencies provided input into the development of the SSA Report. Additionally, we will invite peer reviewers to provide a review of the SSA Report.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The Sonoyta mud turtle's biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

(5) Information related to climate change within the range the Sonoyta mud turtle and how it may affect the species' habitat.

(6) The reasons why areas should or should not be designated as critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq.).

(7) The following specific information on:

(a) The amount and distribution of habitat for the Sonoyta mud turtle.

(b) What areas, that are currently occupied and that contain the physical and biological features essential to the conservation of the Sonoyta mud turtle, should be included in a critical habitat designation and why.

(c) Special management considerations or protection that may be needed for the essential features in potential critical habitat areas, including managing for the potential effects of climate change.

(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Also please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we have sought the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the Sonoyta mud turtle's biology, habitat, physical or biological factors, or threats. We are inviting comment from the peer reviewers during this public comment period.

We identified the Sonoyta mud turtle as a candidate species with a listing priority number (LPN) of 3 in the annual Candidate Notice of Review (CNOR) on September 19, 1997 (62 FR 49398). Candidates are those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. We reaffirmed the Sonoyta mud turtle's candidate status in subsequent annual CNORs (64 FR 57534, October 25, 1999; 66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69033, December 6, 2007; 73 FR 75175, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; and 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80585, December 24, 2015). In 2012, based on a change in the timing of the threat from the reduction of surface water to non-imminent, we changed the Sonoyta mud turtle LPN from 3 to 6, which reflects a subspecies with threats that are non-imminent and high in magnitude. We retained an LPN of 6 through the latest CNOR.

On May 4, 2004, we received a petition from the Center for Biological Diversity and others (petitioners) requesting the Service to list 225 plants and animals as endangered under the Endangered Species Act, as amended (16 U.S.C. 1531 et seq.), including the Sonoyta mud turtle and to designate critical habitat. On September 9, 2011, the Service entered into two settlement agreements regarding species on the candidate list at that time (Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)). This proposed rule fulfills that requirement of those settlement agreements for the Sonoyta mud turtle. We will also be providing a proposal to designate critical habitat for the Sonoyta mud turtle under the Act in the near future.

The Act directs us to determine whether any species is an endangered species or a threatened species because of any of the five enumerated factors, and taking into account the effect of conservation measures. The Act defines the term “species” to include any subspecies of fish or wildlife or plants. We completed a comprehensive evaluation of the taxonomy, life history, ecology, and biological status of the Sonoyta mud turtle (Kinosternon sonoriense longifemorale), and we provide a thorough assessment of the species' overall viability in the SSA Report (Service 2016, pp. 4-5; available at http://www.regulations.gov and the Arizona Ecological Services Office https://www.fws.gov/southwest/es/arizona/).

The Sonoyta mud turtle is one of two recognized subspecies of Sonora mud turtle (Kinosternon sonoriense) and has been differentiated from the other subspecies based on morphometric (shape or form of organism) analysis of shell measurements and mitochondrial DNA analysis (Iverson 1981, p. 62; Rosen 2003, entire; Rosen et al. 2006, entire). The other subspecies, K. s. sonoriense, is commonly referred to as Sonora mud turtle. Figure 1 below depicts the location of each subspecies. The Sonoyta mud turtle is a dark, medium-sized freshwater turtle with a mottled pattern on the head, neck, and limbs. The Sonoyta mud turtle is an isolated, native endemic (found in certain areas) of southern Arizona and northern Sonora, Mexico. At Quitobaquito, annual survivorship of adults (7-12 years old) and juveniles (<7 years old) has been estimated by Rosen and Lowe (1996, p. 23) and Riedle et al. (2012, p. 187) with similar results. Male survivorship ranged from 0.83-0.95, female survivorship ranged from 0.85-0.95, and juvenile survivorship was lower than adult survivorship with a gradual transition to higher survivorship as turtles moved towards adulthood (Riedle et al. 2012, p. 187; Rosen and Lowe 1996, p. 23).

Sonoyta mud turtles occur in areas of an arid environment that commonly experience drought and extreme heat (ambient temperatures can exceed 45 degrees Celsius (°C) (113 degrees Fahrenheit (°F))) and in order to survive and complete life-history functions need both perennial sources of water with aquatic vegetation and riparian areas with moist soil. Sonoyta mud turtles spend most of their time in water because water is essential to survival of individuals, as it provides food and prevents desiccation. Water is also needed to provide moisture for soil in riparian areas needed for nesting and estivation (spending time in a prolonged state of torpor or dormancy) during drought. Lastly, water with aquatic vegetation is needed to support invertebrate prey and provide shelter from predators. Sonoyta mud turtles are primarily opportunistic carnivores feeding on a variety of invertebrates that are on the bottom of ponds and streams or attached to submerged vegetation. In habitat with poor invertebrate fauna they will also feed on small vertebrates, carrion, and plants (Hulse 1974, pp. 197-198; Lovich et al. 2010, pp. 135-136; Rosen 1986, pp. 14 & 31; Rosen and Lowe 1996a, pp. 32-35; Stanila et al. 2008, p. 345).

Sonoyta mud turtles are found in stream channels, and natural and manmade ponds. Water in ponds is supplied by either springs or human waste-water effluent. Aquatic habitat in ponds and stream channels is usually shallow (to 2 meters (m) (7 feet (ft)), with a rocky or sandy bottom and aquatic, emergent vegetation. Hatchlings, juveniles, and subadults prefer shallow water with dense aquatic vegetation and overhanging vegetation along the stream channel or pond margin that provides foraging opportunities as well as protection from predators. Adults prefer water with complex structure including overhanging vegetation along the stream channel or pond margin but also deeper sections of ponds where they forage for benthic invertebrates along the bottom.

Terrestrial habitat of Sonoyta mud turtles is characterized by riparian vegetation with moist soil that surrounds a pond or lines a stream channel, and occurs along the banks of ponds and streams, as well as in intermittently dry sections of the stream channel itself. Sonoyta mud turtles in dry or low surface water reaches will either travel along intermittent dry sections of a stream channel to find water or they will estivate. Riparian vegetation provides some level of protection from predators while turtles are out of the water, and it also creates a microclimate that supports moist soil. Moist soil is needed to prevent desiccation of adults and juveniles while traveling between wetted sites or during estivation. Terrestrial estivation sites consist of depressions under vegetation, soil, or organic matter; in rock crevices; or in soil burrows under overhanging banks of streams or ponds. Sonoyta mud turtles can endure lack of surface water for a short time by estivating, but prolonged and recurrent estivation will reduce fitness and increase mortality over the long term. Riparian vegetation and corresponding moist soil are also needed for nest sites. In mid to late July through September, females leave the water briefly to lay eggs in terrestrial nests that maintain some level of moisture such as vegetation litter, soil burrows, or possibly even in rock crevices. The SSA Report has more detailed discussion of our evaluation of the biological status of the Sonoyta mud turtle and the influences that may affect its continued existence.

The Sonoyta mud turtle was historically found only in the Rio Sonoyta basin in Arizona and Sonora, Mexico (Figure 3.1.1.a. in the SSA Report). There were likely four populations of the Sonoyta mud turtle distributed throughout the Rio Sonoyta basin in Arizona and Sonora (SSA Report Figure 3.1.1.b.). One population was located at Quitobaquito in southern Arizona in an area that is now within the Organ Pipe Cactus National Monument. This population is north of the Rio Sonoyta, but fossil spring deposits to the west of Quitobaquito Springs indicate that, during floods or in times of greater natural flow, water filled an adjacent wash and likely established a connection to the Rio Sonoyta (Miller and Fuiman 1987, p. 603). The other three populations occurred in distinct perennial reaches of the Rio Sonoyta in Sonora, Mexico, just south of the U.S.-Mexico border. These included the Papalote reach, Santo Domingo reach, and Sonoyta reach of Rio Sonoyta. The Rio Sonoyta probably flowed continuously for short periods during the wet season providing connectivity for mud turtles allowing for immigration and emigration and then retracted during the dry season. This assumption is based on our understanding of the historical literature of hydrological conditions in the period 1854-1936 (Rosen et al. 2010, p. 146). These three distinct perennial reaches of the Rio Sonoyta (Papalote reach, Santo Domingo reach, and Sonoyta reach) together likely provided 19-27 km (11.8-16.8 mi) of stream habitat for the Sonoyta mud turtle (Table 1.). This amount is estimated from measuring maps in the historical literature of hydrological conditions in the period 1854-1936 (Rosen et al. 2010, p. 146). The best available commercial and scientific data does not indicate any additional populations.

Currently, there are five extant populations. The Quitobaquito Springs population in Organ Pipe Cactus National Monument, Arizona, is extant (National Park Service (NPS) 2015, p. 1). Populations in the Papalote reach and Sonoyta reach (now Xochimilco reach) of Rio Sonoyta are extant, but perennial water flow in their reaches are reduced. The historical population in the Santo Domingo reach of the Rio Sonoyta is now likely extirpated due to loss of perennial surface water (P. Rosen, pers. comm., 2016; Rosen 3004, pp. 4-5). The Sonoyta sewage lagoon and Quitovac populations in Mexico were historically unknown and recently found by Knowles et al. 2002 (p. 74) investigating potential new turtle habitats in and around the Rio Sonoyta basin. Turtles were reported in the Sonoyta sewage lagoon in October 2001 (Knowles et al. 2002, p. 4); turtles either dispersed there from the upstream Xochimilco reach or were released by humans soon after the sewage lagoon came into operation in 1994. The Sonoyta sewage lagoon population is in the town of Sonoyta adjacent to the Rio Sonoyta. The Sonoyta sewage lagoon is a settling pond for raw wastewater from the town of Sonoyta. Sonoyta mud turtles were also discovered in spring runs and ponds at Quitovac in March 2002 (Knowles et al. 2002, p. 72). Quitovac is located about 40 km (25 mi) southwest of the town of Sonoyta and outside of the Rio Sonoyta basin, in the Rio Guadalupe basin. It is unclear when this population was established, and geography suggests that the turtle population may have resulted from human introduction of turtles.

The perennial water supporting all five turtle populations has been reduced, and all populations are small and isolated. Discharge from Quitobaquito springs has diminished by 42 percent over the past 35 years with 5,500 cubic feet (cf)/day average discharge measured in the period 1981-1992 down to 3,157 cf/day measured from 2005-present (Carruth 1996, pp. 13, 21; Peter Holm, pers. comm., 2016). Thus far, declining spring flow has been associated with < 30 centimeters (cm) (12 inches (in)) of surface water level decline at the pond, the depth of which ranges from 81 to 94 cm (32 to 37 inches). Today, the five Sonoyta mud turtle populations are isolated from one another even more than they used to be historically because the lengths of the distinct perennial reaches in the Rio Sonoyta have contracted. The perennial waters in these reaches have decreased by 80 to 92 percent from 19-27 km (11.8-16.8 mi) historically to approximately 1.5-5.5 km (0.9-3.4 mi) currently (Table 1. Historical and Current Population Data below, and Figure 3.1.1 of the SSA Report). Periodic movement between populations in the Rio Sonoyta basin may occur during periods of high rainfall, but the extent of immigration and emigration of turtles is unknown. However, we assume that movement among populations is rare to limited due to distances between populations coupled with limited hydrological connection. The Quitovac population is outside of the Rio Sonoyta watershed, in the Rio Guadalupe basin, and has no present-day hydrological connection to the Rio Sonoyta.

Table 1 lists the status and condition of each population. We believe that the historical locations of the Sonoyta mud turtle occurred in the areas of the Rio Sonoyta basin that maintained perennial surface water via springs fed by ground water and that these locations may no longer have reliable water to support mud turtles (Paredes-Aguilar and Rosen 2003, p. 2; Rosen et al. 2010, p. 155).

For the Sonoyta mud turtle to maintain viability, its populations, or some portion of its populations, must be resilient enough to withstand stochastic events such as fluctuations in water levels, habitat modification, and introduction of nonnative predators. In a highly resilient Sonoyta mud turtle population, turtles are able to complete their life functions and breeding is successful enough to maintain a population that is able to withstand stochastic events. Influencing these population factors are elements of Sonoyta mud turtle habitat (surface water availability, amount of riparian habitat and benthic invertebrates, and lack of nonnative predators) that determine whether survivorship among age classes is achieved in Sonoyta mud turtle populations, thereby increasing the resiliency of populations. Population resiliency categories for the Sonoyta mud turtle are described in Table 3.3.1. of the SSA Report, and habitat factors used to develop these resiliency levels are discussed below and outlined in Table 3.4.2. of the SSA Report. As discussed below, water is the primary limiting factor, and, therefore, water drives the condition of each population.

Representation in the form of genetic or ecological diversity is important to maintain the Sonoyta mud turtle's capacity to adapt to future environmental changes. Genetic investigations (Rosen 2003, pp. 8-13; Rosen et al. 2006, p. 10) indicate the subspecies exhibits some level of genetic diversity among populations at Quitobaquito, in the Papalote reach and the Xochimilco reach of the Rio Sonoyta, and at Quitovac. The population in the Sonoyta sewage lagoon was not sampled, so we have no information on genetics of this population. Exchange of genetic material between Quitobaquito and populations along the Rio Sonoyta is unlikely due to lack of hydrological connection. Exchange of genetic material among populations of the Rio Sonoyta is likely a rare event limited to instances when a mud turtle may move during the wet season if there are prolonged periods of precipitation that cause a high flow event along the Rio Sonoyta or connects these populations by providing stepping stones of wetted habitat through which mud turtles could move or disperse.

The Sonoyta mud turtle historically occupied habitat in two ecological settings including cienegas (a spring that is usually a wet, marshy area at the foot of a mountain, in a canyon, or on the edge of a grassland where ground water bubbles to the surface) and streams, both supported by ground water via springs. Currently, there are still populations within stream habitat but all the cienegas have either dried completely or been modified from their natural state. There are also two manmade impoundments that were created to capture spring flow that now support Sonoyta mud turtles. Currently, the Sonoyta mud turtle exhibits genetic and ecological diversity. Maintaining representation in the form of genetic or ecological diversity is important to maintain the Sonoyta mud turtle's capacity to adapt to future environmental changes. The loss of Quitobaquito, Quitovac, and either Rio Sonoyta Papalote or Rio Sonoyta Xochimilco populations would reduce the representation for the species.

Redundancy describes the ability of a species to withstand catastrophic events. Measured by the number of populations, their resiliency, and their distribution (and connectivity), redundancy gauges the probability that the species has a margin of safety to withstand or can bounce back from catastrophic events (such as a rare destructive natural event or episode involving one or more populations). The Sonoyta mud turtle needs multiple resilient populations spread over their range distributed in such a way that a catastrophic event will not result in the loss of all populations. Currently four of the populations are spread throughout a small area of the Rio Sonoyta basin, and one population is in the northern part of the Rio Guadalupe basin. It is possible that a catastrophic event such as severe drought could impact three of the five populations—Papalote reach, Xochimilco reach, and Quitobaquito. Conversely, catastrophic events such as disease would not likely impact multiple populations since the hydrological connection among populations is limited or nonexistent. While there could be rare or limited movement of individuals between populations, all populations are isolated in terms of one population being able to repopulate another should one be lost due to a catastrophic event.

The Service evaluated the stressors affecting the conservation status of the Sonoyta mud turtle, which include water loss, loss of riparian habitat, amount of invertebrate prey, presence of nonnative species, and land management activities incompatible with maintaining needed habitat (such as dredging). Of these stressors, water loss caused by drought and ground water pumping, both of which are exacerbated by climate change, and changes to wastewater infrastructure are the primary activities impacting the Sonoyta mud turtle. The other stressors to the Sonoyta mud turtle include the loss of invertebrate prey and presence of nonnative species. These stressors can be additive in terms of effects to populations that are already stressed by water loss. The following is a summary of these stressors affecting the Sonoyta mud turtle. These stressors are described in detail in Appendix A of the SSA Report.

Ground water pumping impacts the amount of surface water in habitats used by Sonoyta mud turtles because the perennial sections of the Rio Sonoyta as well as the pond at Quitobaquito and Quitovac are supplied by ground water. As with all streams, the Rio Sonoyta exists in an area where runoff has concentrated into a definable channel. In most of the Rio Sonoyta, the channel cuts into dry soils, so that flow is ephemeral and only in response to precipitation. In the Papalote and Xochimilco reaches of the Rio Sonoyta where Sonoyta mud turtles live, the defined channel intersects regional ground water held in storage, the ground water saturates streamside channel bottom soils, and water is discharged to the stream. In a hypothetical, unaffected system, equilibrium exists so that recharge and discharge volumes of water are equal. When pumping occurs in such a ground water system, it alters this equilibrium so that less water is available for discharge to the stream and springs and reduces the amount of surface water available to the Sonoyta mud turtle.

Ground water can also reach the ground surface outside of a stream channel via springs like those that supply water to habitats of the Sonoyta mud turtle at Quitobaquito and Quitovac. Quitobaquito Springs is likely supplied by ground water but is considered somewhat isolated from the regional aquifer in the Sonoyta Valley (Carruth 1996, pp. 14, 18). It is possible that there is a connection between the two systems so that Quitobaquito Springs could experience a delayed effect by an increase in ground water drawdown occurring in Mexico (Carruth 1996, p. 21). Discharge from Quitobaquito Springs has diminished by 42 percent over the past 35 years with 5,500 cf/day average discharge measured from 1981-1992 down to 3,157 cf/day measured from 2005-present (Carruth 1996, pp. 13, 21; Peter Holm, pers. comm., 2016). Reasons for this decrease are unknown.

Human demands on ground water in the Rio Sonoyta basin include agriculture and municipal use to support a growing population, both of which are almost wholly dependent on ground water. Irrigated agriculture is widespread in the Rio Sonoyta Valley, and continued development in the towns of Sonoyta and Lukeville is placing increased demands on limited ground water availability. Potential ground water use in the Rio Sonoyta watershed is greater than the estimated recharge rate. Based on total number of wells installed along the Rio Sonoyta, existing capacity for wells to withdraw water is six times the ground water recharge (Pearson and Connor 2000, p. 388). Although we do not have any recent observations of actual ground water use, we can assume that ground water pumping currently exceeds recharge based on negative trends of depth to ground water measured from 1992 to 2010 at Organ Pipe Cactus National Monument in wells that are close to the agricultural zone of Sonoyta, Sonora (OPCNM 2011, p. 8).

At Quitovac, there are five springs that provide water to the impounded pond. The pond at Quitovac is used for watering small numbers of livestock and irrigating fruit trees (Aguirre and Rosen 2003, p. 11; USFWS files). One of the five springs at Quitovac was not flowing into the pond during a visit to the site in 2015 (D. Duncan, pers. obs., 2015). There has also been gold mining in the area surrounding Quitovac, and mine exploration and development continue, all of which require water. In addition, surface water diversion for agriculture has occurred in the past and is likely to continue into the future. The Quitovac population is in the Rio Guadalupe basin and, therefore, not likely affected by ground water pumping in the Rio Sonoyta. While ground water pumping could occur in this basin in the future, we currently have no information indicating the likelihood. Land management actions, such as dredging, also impact the Quitovac population. Partial dredging of the pond has occurred at least twice (Nabhan et al. 1982, p. 130; Nabhan 2008, p. 252; USFWS files). During a visit to the site on June 3, 2015, after the pond and spring heads had been completely excavated by dredging, only a single turtle with a damaged shell was found at the spring head (D. Duncan, pers. obs., 2015).

The surface water necessary for habitat of the subspecies generally is fed by ground water recharge. This recharge comes from infiltration of precipitation along mountain fronts and in ephemeral channels. However, drought conditions that have persisted for the past 20 years have likely contributed to decreased ground water recharge in the Rio Sonoyta basin and Rio Guadalupe basin. Decreased precipitation and increased evaporation related to increased duration of drought conditions have contributed to reduced surface water available to support the subspecies at all population sites. Climate model projections predict a shift to increasing dryness in the Southwest as early as 2021-2040 (Seager et al. 2007, p. 1181). Streamflow is predicted to decrease in the Southwest even if precipitation were to increase moderately (Nash and Gleick 1993, State of New Mexico 2005, Hoerling and Eischeid 2007) because warmer surface air temperatures lead to increased evaporation, increased evapotranspiration, and decreased soil moisture. These three factors would lead to decreased streamflow even if precipitation increased moderately (Garfin 2005, Seager et al. 2007). The effect of decreased streamflow is that streams become smaller, intermittent, or dry, and thereby reduce the amount of habitat available for Sonoyta mud turtles. A smaller stream is affected more by air temperature than a larger one, exacerbating the effects of both warm and cold air temperatures (Smith and Lavis 1975). Although Sonoyta mud turtles evolved in an extremely arid climate and have survived drought in the past, it is anticipated that a prolonged, intense drought would affect all populations, in particular those occupying the Rio Sonoyta, which is likely to become entirely ephemeral.

Habitat for the subspecies requires riparian vegetation, which is also dependent on surface water and ground water recharge. When ground water discharge is of sufficient volume to saturate streamside areas, riparian vegetation develops. This occurrence also extends to manmade ponds created to capture ground water discharge. The extent and persistence of this vegetation depends on the depth to ground water. In the case of the perennial sections of the Rio Sonoyta as well as the ponds at Quitobaquito and Quitovac, riparian vegetation has established where its root systems can reach the alluvial ground water. The use of water by the riparian vegetation (evapotranspiration) is itself a discharge of ground water, and can even affect surface flow in the adjacent stream or surface level in a pond. Because ground water extraction in the Rio Sonoyta basin continues to reduce depth to ground water, riparian vegetation has likely been reduced in the Rio Sonoyta, and streamside areas are now occupied by drought-tolerant plants, which generally lack the same ecological value of riparian vegetation.

Riparian vegetation is associated with increased ecological site conditions; organic matter produced by plants is a major contributor to soil development, structure, and moisture. The below-ground component of riparian vegetation further enhances floodplain and bank water storage because root growth, and subsequent root decay, creates conditions that increase rates of infiltration of rainwater and floodwater, thereby enhancing ground water recharge and base-flow replenishment. Riparian vegetation, despite its own water use, also moderates the direct evaporation of water from a stream or pond. Open water in Sonoyta mud turtle habitats likely exhibits relatively high evaporation compared to areas shaded by riparian overstory (Goodrich et al. 2000, pp. 292-293). Riparian vegetation surrounding water features provides essential habitat for all life stages of turtles. As riparian vegetation dies due to declining ground water, the physical and biological processes are reversed and a cascade of interconnected impacts begins. Dead trees decompose and no longer stabilize floodplain soils, which are then readily eroded away. The loss of floodplain soils and their ability to store flood waters reduces the gradual release of post-flood infiltrated water back to the stream, further reducing surface flows. Reductions in riparian habitat will also decrease subsurface moisture needed for nesting sites; drought refuge for hatchlings, juvenile and adult turtles; and shelter from large flooding events for juvenile and adult turtles. Decreased riparian vegetation will lead to deterioration of the microclimate that provides soil moisture to nest sites and burrows. (See Section 4.2 and Appendix A of the SSA Report).

In addition to loss of habitat associated with ground water pumping and drought in the Rio Sonoyta basin, changes to wastewater infrastructure in the town of Sonoyta have reduced surface water available in the Xochimilco reach of the Rio Sonoyta, but increased habitat for the subspecies in the Sonoyta sewage lagoon. Most of the wastewater that used to be discharged directly into the Xochimilco reach and provided a constant source of surface water that maintained perennial flow in this reach is now redirected to the Sonoyta sewage lagoon. Wastewater runoff is now likely limited to individual homesteads. Consequently, surface water available for Sonoyta mud turtles is greatly reduced in the Xochimilco reach of the Rio Sonoyta. It is likely that there is always a small pool of water in or near the dam site at Xochimilco, either from springs or urban wastewater from individual homesteads atop the arroyo wall. When wastewater that used to contribute surface water to the Xochimilco reach was redirected to the Sonoyta sewage lagoon, the amount of perennial water for Sonoyta mud turtles increased at the lagoon.

Sonoyta mud turtles continue to persist at the Sonoyta sewage lagoon, and this site is not subject to effects of ground water withdrawal and drought due to a consistent inflow of wastewater. The Sonoyta sewage lagoon is within the floodplain of the Rio Sonoyta, and might contribute some level of recharge to the Rio Sonoyta basin through seepage and outflow. There is a high likelihood that the sewage lagoon in the town of Sonoyta will be replaced by a new wastewater treatment plant about 2.4 km (1.5 mi) northwest of the existing sewage lagoon in the next few years. Efforts will be made to translocate as many Sonoyta mud turtles as possible to the new wastewater facility from the sewage lagoon; however, it is unknown what amount this will be. The new wastewater treatment plant will serve an additional 35 percent of the town of Sonoyta's residences and will, therefore, be larger overall. However, the habitat available to Sonoyta mud turtles will be reduced by more than 75 percent. There will be a greater number of lagoons at the new wastewater treatment plant, but only one will be unlined and provide habitat for the Sonoyta mud turtle. Lining precludes the development of habitat for Sonoyta mud turtles including aquatic and riparian vegetation (See Figure 3.2.1 of the SSA Report). This unlined pond will provide less than 25 percent of the habitat that is currently present at the Sonoyta sewage lagoon.

Effluent flowing through the new wastewater treatment facility will be discharged into the Rio Sonoyta. This activity could improve recharge of ground water and create perennial flow in the river immediately downstream of the new wastewater treatment plant, which in turn would provide additional habitat to the subspecies, although the extent is unknown. Based on the persistence of turtles at the Sonoyta sewage lagoon and increased wastewater volume to the new wastewater treatment plant, we would expect that turtles at the new wastewater treatment plant would also persist. Overall, wastewater from the town of Sonoyta will continue to provide a perennial water source that should continue to support one population of the Sonoyta mud turtle; however, since the available habitat is reduced by more than 75 percent, the population size will likely be reduced.

Reduced surface water and associated decrease in riparian vegetation, regardless of the cause, shrinks overall habitat amount and quality causing crowding and increased competition for limited resources (Stanila 2009 p. 45). Lack of surface water for a short time outside the typical dry season may be endured by individual Sonoyta mud turtles periodically, but multiple years without sufficient perennial water will reduce fitness and increase mortality. Sonoyta mud turtles in drying pond habitats or low surface water reaches will burrow in banks to escape desiccation for a short period of time. After time, burrows themselves may become too dry, turtles will lose fat reserves due to lack of foraging opportunity, females may not have viable eggs due to lack of nutrition and fat reserves, and eventually turtles will die from either starvation or desiccation. Potential population level impacts from reduced surface water and drought include lower reproductive rates, reduced recruitment, reduced population growth rate, or changes in distribution.

Decreasing availability of prey is another factor tied to surface water availability and corresponding loss of habitat that may impact the subspecies. We have very limited information on prey availability for the known populations of mud turtles. However, a reduction in surface water will impact the amount of aquatic invertebrate prey available and result in increased competition for prey. Aquatic invertebrates, the primary food source for Sonoyta mud turtles, need surface water and emergent vegetation to survive and complete their life-history functions. Water permanence will affect the diversity of invertebrate prey available for mud turtles, with ephemeral habitats having lower invertebrate diversity than intermittent or perennial habitats (Stanila 2009, p. 38). A reduction in water and emergent vegetation due to ground water pumping will reduce the amount of aquatic invertebrate prey for Sonoyta mud turtles. Adequate prey allows juvenile turtles to grow rapidly before becoming adults and allows adults to have sufficient lipid content to support reproduction. Poor body condition (i.e., low lipids) may be associated with lower clutch size (total number of eggs produced) and, therefore, lower population growth (Rosen and Lowe 1996, pp. 40-43).

There are also native fish at Quitobaquito that may compete with turtles for invertebrate prey. Stomach analysis of turtles at Quitobaquito revealed animals were primarily consuming young shoots of bulrush even though benthic invertebrates were present in the aquatic system. Rosen and Lowe (1996, pp. 32, 41) thought that turtles may not be consuming invertebrates due to competition with native subspecies of desert pupfish (Cyprinodon macularius eremus) found at Quitobaquito. Desert pupfish are well known to feed on many of the same invertebrates that Sonoran mud turtles consume (Rosen and Lowe 1996, p. 41). Pupfish densities at Quitobaquito are similar or greater than the density used in an experimental pond study that demonstrated strong effects of desert pupfish on aquatic invertebrate abundance, so that competition between Sonoyta mud turtles and desert pupfish is plausible (Rosen and Lowe, p. 41).

Similarly, like competition with desert pupfish, the establishment of nonnative aquatic vertebrate species may also affect future persistence of the Sonoyta mud turtle. Currently two of the five populations of Sonoyta mud turtles exist with some nonnative species present. Black bullheads and western mosquitofish were introduced to the Rio Sonoyta Papalote reach, and blue tilapia were introduced at Quitovac. These species are now established at these two sites (Rosen et al. 2010, pp. 153-154; Minkley et al. 2013, p. 289). All of these fish species likely compete with Sonoyta mud turtles for benthic invertebrates or alter the invertebrate community so that benthic invertebrates are reduced. Other nonnative aquatic species including American bullfrogs (Lithobates catesbeianus), crayfish (Orconectes spp. and Cherax spp.), large sunfish (centrarchids), and exotic turtles such as red-eared sliders (Trachemys scripta elegans) are not currently present in areas occupied by the Sonoyta mud turtle, but could be released and become established, as they have been in many Sonoran mud turtle populations in the United States (Fernandez and Rosen 1996, pp. 39-41; Hensley et al. 2010, pp. 175-176; Drost et al. 2011, p. 33).

Bullfrogs, crayfish, large sunfish and catfish (ictalurids) are known to prey upon hatchling and juvenile Sonoran mud turtles. Crayfish, in particular, could decimate a population if introduced (Fernandez and Rosen 1996, pp. 41-43; Hensley et al. 2010, pp. 186-187). In addition, crayfish, African cichlid fishes including tilapia, western mosquitofish, and exotic turtles may also disrupt the food chain, which could alter the invertebrate community (Taylor et al. 1984, pp. 330-331; Fernandez and Rosen 1996, pp. 39-40; Duncan 2013, p. 1). This, in turn, could decrease type and amount of benthic invertebrate prey available to Sonoyta mud turtles (Fernandez and Rosen 1996, pp. 39-40) (See Section 4.4 and Appendix A of the SSA Report). In addition, turtles isolated in pools as a result of decreased surface water availability may be subject to increased predation from nonnative aquatic predators. Although we cannot specifically quantify effects to Sonoyta mud turtle populations now or in the immediate future we are highly confident that nonnatives are impacting the Papalote and Quitovac populations as described above. In addition, it is possible that in the near future the remaining three populations could become infested with the nonnative species listed above.

In summary, ground water withdrawal and changes to wastewater infrastructure are highly likely to continue into the immediate future and to negatively affect base flow that supports three populations of the Sonoyta mud turtle basin. There is also the potential that Quitovac may be impacted by ground water losses in the future, although we are highly uncertain of this outcome. The sewage lagoon and new wastewater treatment plant are not likely to be impacted by ground water pumping, and may actually contribute to ground water recharge of the Rio Sonoyta. Ongoing and future drought periods are likely to continue and will affect the availability of water in both the United States and Mexico (See Section 4.1 and Appendix A of the SSA Report). In addition, drought is likely to be exacerbated by future climate change, decreasing water availability and increasing evapotranspiration losses.

Effects from climate change are expected to impact all but one population of Sonoyta mud turtles (the sewage lagoon). Although we cannot specifically quantify effects to available surface water, we are highly confident that there will be a reduction in surface water due to ground water pumping and changes to wastewater infrastructure in addition to impacts from climate change. This reduction in surface water reduces or in some populations could eliminate habitat Sonoyta mud turtles need to survive desiccation or complete life-history functions as described above. Our assessment of water reduction in the SSA Report indicates that water loss is an immediate and high-magnitude threat to the species. Quitovac is likely to undergo partial dredging again (and possibly complete dredging), and nonnatives are likely to be introduced again. Nonnatives are still present in the Papalote reach, and it is likely, based on the spread of nonnatives, that all sites could receive nonnative species in the immediate future.

Management actions undertaken by the National Park Service and Quitobaquito Rio Sonoyta Working Group have ameliorated many of the risks to the single Sonoyta mud turtle population in the United States at Organ Pipe Cactus National Monument, and, as explained below, these actions are expected to continue. The Quitobaquito Rio Sonoyta Working Group consists of biologists and managers from the National Park Service (NPS), Arizona Game and Fish Department, FWS, University of Arizona, Arizona Sonora Desert Museum, the National Commission of Natural Protected Areas in Mexico, and private citizens interested in conservation of aquatic native species in the Rio Sonoyta basin of Arizona and Sonora. Organ Pipe Cactus National Monument has already implemented numerous conservation measures recommended for the Sonoyta mud turtle by the Quitobaquito Rio Sonoyta Working Group. Since the 1970's the NPS has implemented conservation measures including trucking water, spring renovation, strengthening the dike that keeps water in the pond, re-lining parts of the pond, and removing bulrush, that have benefited the Quitobaquito population. Efforts by Organ Pipe Cactus National Monument eventually resulted in water levels in the pond stabilizing near historical norms.

One risk that cannot be addressed at Organ Pipe Cactus National Monument is diminishing spring flow that supplies water to Quitobaquito Pond, as the cause is still unknown. (See Section 4.5 of the SSA Report). Per the National Park Service Organic Act (16 U.S.C. 1-4), the Organ Pipe Cactus National Monument will survey for, protect, and strive to recover all species native to national park system units. Based on their past conservation efforts at Quitobaquito, the NPS will continue conservation efforts to maintain water at Quitobaquito pond, to the extent within their power, as they have done since the 1950s and protect the Sonoyta mud turtle as they have since the late 1980s as this is a native species. Further, the endangered desert pupfish and designated critical habitat co-occurs with the Sonoyta mud turtle within the Quitobaquito pond. Some conservation actions to protect the desert pupfish and critical habitat will also protect the Sonoyta mud turtle and its aquatic habitat, as well as some of the riparian habitat surrounding Quitobaquito Springs.

Quitobaquito Rio Sonoyta Working Group management actions in Mexico have included defining the ecological status and distribution of the Sonoyta mud turtle in Sonora, creating new habitat to replace lost habitat, removing nonnative aquatic species, and outreach. Primary actions included nonnative removal and fencing to prevent livestock. However, the fencing has been removed and nonnatives have been reintroduced by the locals. These management actions have not addressed most of the risks to the four populations of the Sonoyta mud turtle in Mexico (See Section 4.5, Management Actions, of the SSA Report). The Quitobaquito and Rio Sonoyta Working Group has been developing a conservation assessment and conservation agreement for five aquatic species for a number of years. This agreement is meant to promote the conservation of a number of species dependent on the aquatic and riparian habitats of the Rio Sonoyta watershed. The agreement would take the form of a Candidate Conservation Agreement. The Sonoyta mud turtle is a species listed in the conservation agreement; it would benefit from the conservation actions proposed. It is unclear when this agreement will be finalized.

In the SSA, we described the viability of the species in a way that characterizes the needs of the species in terms of resiliency, redundancy, and representation. Resiliency is having sufficiently large populations for the species to withstand stochastic events. Stochastic events are those events arising from random factors such as fluctuations in water levels, habitat modification, or introduction of nonnative predators. Redundancy is having a sufficient number of populations for the species to withstand catastrophic events. A catastrophic event is a rare destructive event or episode involving one or more populations and occurring suddenly. Representation is having the breadth of genetic and ecological diversity for the species to adapt to changing environmental conditions. In the SSA Report, populations of the Sonoyta mud turtle having a low level of resiliency are not considered to contribute to the redundancy and representation of the subspecies due to low probability that the populations will persist.

Currently, we consider the Quitobaquito and Sonoyta sewage lagoon populations of the Sonoyta mud turtle to have high resiliency, the Papalote reach population to have moderate resiliency, and the Xochimilco reach and Quitovac populations to have low resiliency. The Quitobaquito population occurs in an area of relatively good habitat and exhibits high survivorship among all age classes with increasing recruitment of juveniles. Resiliency of the four populations in Mexico is less certain as habitat has been greatly reduced in the Papalote and Xochimilco reaches, survivorship among age classes is unknown at the Sonoyta sewage lagoon due to lack of any surveys, and survivorship among age classes is unknown at Quitovac due to recent dredging of all of the aquatic habitat available for mud turtles. Current abundance of mud turtle populations in Mexico is unknown, and we have low confidence that numbers have remained stable.

The viability of the Sonoyta mud turtle depends on maintaining multiple resilient populations over time. The resiliency of Sonoyta mud turtle populations depends on surface water availability, amount of riparian habitat and benthic invertebrates, and absence of nonnative competitors and predators. We expect the five extant Sonoyta mud turtle populations to experience changes to all of these aspects of their habitat, although it may be in different ways under the different conditions. Given our uncertainty regarding when habitats of the Sonoyta mud turtle will experience a reduction or elimination of surface water and corresponding loss of riparian habitat in the future, we forecasted future conditions of the Sonoyta mud turtle under three future plausible scenarios over three time periods (Chapter 5 of the SSA Report). These scenarios focus on surface water availability because this is the driving factor for the other variables impacting Sonoyta mud turtle populations—riparian habitat and prey. For example, if there is a somewhat reduced amount of surface water there would be a reduced amount or reduced quality of riparian area and prey. These factors in turn impact reproduction and recruitment, which drive the population growth. The three scenarios were:

(1) Best Case—All habitats occupied by Sonoyta mud turtle experience no measurable drop in surface water and nonnatives are absent.

(2) Moderate Case—Surface water in habitats occupied by Sonoyta mud turtle is somewhat reduced but not eliminated, and nonnatives remain at status quo.

(3) Worst Case—All surface water at sites occupied by Sonoyta mud turtle is extremely reduced or eliminated, and nonnatives are present in all populations.

We selected three useful timeframes for our forecasting: 7 years, 35 years, and 70 years. We chose 7 years based on the area's drought cycle, 35 years because it incorporates both the maximum lifespan of the species and the mid-century climate projections for the southwestern United States, and 70 years because it is within the range of the available drought and climate change model forecasts and is about twice the maximum lifespan of the species (Lenart 2008, entire; Stritthold et al. 2012, entire; Garfin et al. 2013, entire; P. Holms, 2016, pers. comm.). Within these timeframes, we considered the three different scenarios that spanned a range of potential conditions that we believe are important influences on the status of the species, and our results describe this range of possible conditions in terms of our projections of how many and where Sonoyta mud turtle populations will persist into the near term.

We assessed the moderate-case scenario as the most likely to occur because this scenario is based on the threats identified above continuing at their current intensity and scale through the various time steps. This scenario projected the current level of stressors associated with the status quo conditions. The moderate-case scenario was the most likely to occur, as explained in the SSA. While full analyses of all scenarios are available in the SSA report, we are only presenting the full results of the moderate-case scenario here because it gives the most realistic projection of the future condition of the subspecies. The worst-case scenario was not found to be very likely because, as explained in the SSA, it is unlikely that all populations will lose all or most of their surface water. Conversely, the best-case scenario of improving conditions was found not to be very likely to occur because this scenario projected no reduction in surface water, which is an unlikely and unrealistic scenario given current climate change projections. Please refer to the SSA report (Service 2016, Chapter 5) for the full analysis of future scenarios.

Under the moderate-case scenario within the 7-year timeframe, we expect the Sonoyta mud turtle's viability to be characterized by lower levels of resiliency, representation, and redundancy than it has currently, which is already reduced as described above. We expect populations at Xochimilco reach and Quitovac to have low population resiliency. In addition, we expect the Sonoyta sewage lagoon to have low population resiliency and its possible extirpation within 7 years. This possible outcome is dependent on exactly when the new wastewater treatment plant begins operating, which will replace the Sonoyta sewage lagoon. The new population at the new wastewater treatment plant will be stocked with animals from the Sonoyta sewage lagoon population. However, aquatic habitat at the new wastewater treatment plant is smaller than the sewage lagoon, and riparian habitat will essentially be nonexistent at first, so the population resiliency at the wastewater treatment plant is expected to be only moderate at the 7-year time step, whereas, the Sonoyta sewage lagoon currently has high population resiliency.

We anticipate the population at Quitobaquito will be highly resilient and the Papalote reach will be moderately resilient at this time step. We expect the three populations with low resiliency, Sonoyta sewage lagoon, Xochimilco reach, and Quitovac, will have only some or few individuals that can complete life functions and breed successfully, and the populations are decreasing and not able to withstand stochastic events. Further, it is possible that one of the low-resiliency populations, Sonoyta sewage lagoon, will be extirpated by this time. Two of the three remaining populations are projected to be moderately resilient and will occur in highly managed habitats—the Quitobaquito population with a spring-fed pond and the wastewater treatment plant that is maintained by wastewater effluent. The Santo Domingo population is considered extirpated. We expect representation and redundancy will also be substantially reduced due to the three populations of low resiliency being functionally extirpated. This leaves three populations with only one being highly resilient and two being moderately resilient, including the wastewater treatment plant, which will be reduced in size from the sewage lagoon it is replacing.

Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(b)(1)(a), the Secretary is to make endangered or threatened determinations required by section 4(a)(1) solely on the basis of the best scientific and commercial data available to her after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Per section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definition of endangered or of threatened, we determine whether any species is an endangered species or a threatened species because of 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; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

The fundamental question before the Service is whether the subspecies warrants protection as an endangered or threatened species under the Act. To make this determination, we evaluated extinction risk, described in terms of the current condition of populations and their distribution (taking into account the risk factors (i.e., threats, stressors) and their effects on those populations). For any species, as population conditions decline and distribution shrinks, the species' overall viability declines and extinction risk increases.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Sonoyta mud turtle. Currently, there are five extant populations, and all are significantly isolated from one another such that recolonization of areas previously extirpated or areas that may be extirpated is extremely unlikely. Expert input provided during the development of the SSA Report indicated that, under the current situation for the five currently occupied sites, connectivity or movement among the populations is a rare occurrence. The species' range has been reduced by 80 to 92 percent in the Rio Sonoyta (Factor A) in Mexico, and current distribution is limited to five populations in three ponds totaling <7 ha (<15.5 ac) and two perennial sections of the Rio Sonoyta totaling 1.5 to 5.5 km (0.9 to 3.4 mi). Two historical populations are extirpated due to loss of perennial water. There are two newly discovered extant populations in addition to the three historical populations that remain. Only three of these populations are of sufficient resiliency to withstand stochastic events.

Habitat loss from anthropogenic ground water withdrawals and long-term drought is occurring rangewide and is likely to continue and increase in the near term (Factor A; Factor E). This reduction in water restricts the limited available habitat and decreases the resiliency of the Sonoyta mud turtle within those habitats. We find that ongoing drought is likely to continue and be exacerbated by climate change, decreasing water availability and increasing evapotranspiration losses (Factor A). This threat is ongoing, rangewide, and expected to increase in the future. Predation by nonnative aquatic species has occurred at two sites in Mexico, although there is uncertainty with regard to the population effects (Factor C). Predation by nonnative aquatic species has been shown to reduce recruitment and population size of other populations of Sonora mud turtle and it is likely to occur in Sonoyta mud turtle populations in the future. The Quitovac population's current habitat was just recently completely dredged, and the status of Sonoyta mud turtles is unknown. Partial dredging in the near term is likely based on past dredging activity. It is reasonably likely that a catastrophic event could occur anytime within the initial 7-year time step analyzed in the SSA Report and that current population resiliency and redundancy are inadequate to maintain population viability.

The implementation of the conservation measures by the National Park Service and the Quitobaquito Rio Sonoyta Working Group has resulted in maintaining the only Sonoyta mud turtle population in the United States and reduces the risk of loss of at least one population in Mexico. However, the conservation measures do not alleviate the threats that are influencing the resiliency, redundancy, and representation of the Sonoyta mud turtle across its range (as described above).

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” Based on the information presented in the SSA Report for the Sonoyta mud turtle, and the discussion above, we find that the best available scientific and commercial information indicates that the Sonoyta mud turtle is presently in danger of extinction throughout its entire range based on the severity and immediacy of threats currently impacting the species. The overall range has been significantly reduced; the limited remaining habitat and populations are currently threatened by an increase in ground water pumping, which results in reduced spring flows and, therefore, reduced surface water. Reduced surface water results in reduced aquatic habitat for the subspecies where they spend the majority of their time and is needed to avoid desiccation. Further, the reduction in surface water impacts aquatic vegetation used by the Sonoyta mud turtle for cover and by their prey species. Lastly, the reduction in ground water reduces the soil moisture of the riparian area resulting in habitat that is too dry for Sonoyta mud turtles to use for estivation and nesting.

These factors acting in combination reduce the overall viability of the species. The risk of extinction is high because the five remaining populations are small, isolated, and have limited, if any, potential for recolonization. The estimated current and near-term future conditions of the known Sonoyta mud turtle populations as described in the SSA Report lead us to find that the condition and distribution of populations do not provide sufficient resiliency, redundancy, and representation for this subspecies; therefore, we find that the subspecies meets the definition of an endangered species under the Act. Accordingly, on the basis of the best available scientific and commercial information, we propose listing the Sonoyta mud turtle as endangered in accordance with sections 3(6) and 4(a)(1) of the Act.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Sonoyta mud turtle is endangered throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014).

We find that a threatened species status is not appropriate for the Sonoyta mud turtle because of the existing contracted range (loss of 80-92 percent of its historic range in Mexico) compared to the historical range, the primary threats are occurring rangewide and are not localized, and the threats are impacting the species now and are ongoing. We find the Sonoyta mud turtle to be in danger of extinction now.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Arizona Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of water availability and associated native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands, and, in the case of the Sonoyta mud turtle, cooperation with our counterparts in Mexico. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Arizona would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Sonoyta mud turtle. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the Sonoyta mud turtle is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the National Park Service (Organ Pipe Cactus National Monument); issuance of section 404 Clean Water Act permits by the Army Corps of Engineers; and construction and maintenance of roads or highways by the U.S. Customs and Border Protection of the Department of Homeland Security.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. At this time, we are unable to identify specific activities that would not be considered to result in a violation of section 9 of the Act because the Sonoyta mud turtle sites where the species currently occurs are subject to a variety of potential activities, and it is likely that site-specific conservation measures may be needed for activities that may directly or indirectly affect the species. Additionally, most activities subject to consultation include direct effects to the species and/or the aquatic and riparian habitats to which it is inextricably tied. It is difficult to predict an activity already subject to consultation that would not result in anticipated take of individual Sonoyta mud turtles.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized handling or collecting of the species.

(2) Destruction/alteration of the species' habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, removal or destruction of emergent aquatic vegetation; or diversion or alteration of surface or ground water flow into or out of the wetland (i.e., due to roads, impoundments, discharge pipes, stormwater detention basins, etc.) or in any body of water in which the Sonoyta mud turtle is known to occur.

(3) Direct or indirect destruction of riparian habitat.

(4) Introduction of nonnative species that compete with or prey upon the Sonoyta mud turtle, such as the introduction of nonnative fish and crayfish species.

(5) Release of biological control agents that attack any life stage of this species.

(6) Discharge of chemicals or fill material into any waters in which the Sonoyta mud turtle is known to occur.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.

Based on cultural claims maps and reservation boundaries we have on file, the distribution of the Sonoyta mud turtle overlaps areas that may be of interest to the following tribes: Tohono O'odham Nation, Quechan Tribe, Hopi Tribe, Colorado River Indian Tribes, and Cocopah Indian Tribe. On November 20, 2015, we notified these tribes via letter of our intent to conduct a status assessment for the purpose of determining whether the subspecies warrants protection under the Act. In our letter we offered to meet with the tribe to discuss the process, potential impacts to the tribes, and how tribal information may be used in our assessment. In addition, we requested any information they have regarding the subspecies. To date we have not received a response from these any of these tribes. Upon publication of this proposed rule we will send notification letters to these tribes and again extend an invitation to meet and discuss.

A complete list of references cited in this rulemaking is available in the SSA Report (U.S. Fish and Fish and Wildlife Service. 2016. Species status assessment report for the Sonoyta mud turtle (Kinosternon sonoriense longifemorale), Version 1.0. Albuquerque, NM) that is available on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2016-0103, at https://www.fws.gov/southwest/es/arizona/, and upon request from the Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this proposed rule are the staff members of the Arizona Ecological Services Field Office.

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

Background

Section 4(b)(3)(B) of the Act (16 U.S.C. 1533) requires that, within 12 months after receiving 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 (“12-month finding”). In this finding, we determine whether listing the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii (northern wormwood), Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel 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 (16 U.S.C. 1532(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 (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered 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 to determine whether the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii, Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel meet the definition of an endangered 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, above).

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 to the species and its habitat, either singly or in combination, to the point that the species meets the definition of an endangered or a threatened species under the Act.

In making our 12-month findings, we considered and evaluated the best available scientific and commercial information regarding the past, present, and future stressors and threats. We reviewed the petition, information available in our files, other available published and unpublished information. This evaluation may include information from recognized experts, Federal, State, tribal, academic, foreign governments, private entities, and the public.

On April 20, 2010, we received a petition dated April 20, 2010, from the Center for Biological Diversity, The Alabama Rivers Alliance, The Clinch Coalition, Dogwood Alliance, The Gulf Restoration Network, Tennessee Forests Council, and The West Virginia Highlands Conservancy requesting that we list 404 species, including the angular dwarf crayfish (Cambarellus (Pandicambarus) lesliei) as an endangered or threatened species under the Act and designate critical habitat for the species. The petition included supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and potential causes of decline. On September 27, 2011 (76 FR 59836), we published a partial 90-day finding on the petition. In that document, we announced our finding that the petition presented substantial scientific or commercial information indicating that listing the angular dwarf crayfish may be warranted, and we initiated a status review for the species.

The angular dwarf crayfish is one of the smallest crayfish in the northern hemisphere, with adults usually less than 25 millimeters (mm) (1.0 inches (in)) long. The species was described from a slow-moving stream “0.5 mi S of Alabama Port, Mobile County, Alabama” by J. F. Fitzpatrick, Jr. and B. A. Laning in 1976. The angular dwarf crayfish is considered a valid species and meets the Act's definition of a species.

This species has been collected from heavily vegetated ponds, slow-moving streams, and backwater areas, and the principal habitat feature appears to be the presence of dense, submerged aquatic vegetation. Little is known about the life history of the angular dwarf crayfish. Fitzpatrick and Laning (1976) observed egg-bearing females in February, April, and June, and females-with-young in both April and June, and they concluded that the species was a year-round breeder. However, they also believed that females did not produce eggs annually. Form I males have been found in February, April, June, August, October, and November.

There is no information on the historical distribution of the angular dwarf crayfish. The known range of the species has expanded with limited collection efforts since the species was described in 1976 using specimens collected in Alabama. It is currently known from 4 localities within, or relatively close to, the Pascagoula River in George County, Mississippi, and 27 localities in the lower Alabama and lower Tombigbee River systems, the Mobile-Tensaw Delta, and Mobile Bay tributaries in Baldwin, Mobile, and Washington Counties, Alabama. The population in Mississippi appears to be disjunct from the Alabama population, but this is possibly an artifact of inadequate collecting effort. The angular dwarf crayfish is difficult to collect and is likely often overlooked. There are limited population and demographic data available for the angular dwarf crayfish.

Potential stressors for the angular dwarf crayfish were identified in the petition as direct alterations of waterways such as impoundment, diversion, dredging and channelization, and draining of wetlands; and land-use activities such as development, agriculture, logging, and mining. A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) for the angular dwarf crayfish provides a summary of the literature and information regarding distribution, habitat requirements, life history, and stressors, as well as an analysis of the stressors to the species. We were unable to find any direct link between landscape-level stressors and the conservation status of the angular dwarf crayfish. Information acquired during our status review indicated that the angular dwarf crayfish continues to persist throughout its limited historical range, and that its known range has expanded due to recent survey efforts. In addition, the species is difficult to collect and identify, and additional populations are likely to be present within the currently known range.

Our review of the best available scientific and commercial information revealed that the angular dwarf crayfish is poorly understood and additional research is needed to more thoroughly define range, abundance, and population trends. However, during our status review, we did not identify any specific stressors that registered as threats to the species or its habitat throughout its currently known range, or within a significant portion of that range. We found no evidence that the species has experienced curtailment of range or habitat, or is affected by disease or predation, commercial or recreational harvest, the inadequacy of existing regulations, or any other natural or manmade factor.

Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors potentially acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the angular dwarf crayfish is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range. Because the distribution of the species is narrow and stressors are similar throughout the entire species' range, we found no concentration of stressors that suggests the angular dwarf crayfish may be in danger of extinction in any portion of its range. This finding is based on the continued presence of the species within its historical range, the expansion of the species' known range with limited survey efforts, and the absence of any direct link between the landscape-level stressors identified in the petition and the conservation status of the angular dwarf crayfish throughout its currently known range, or within a significant portion of that range.

Therefore, we find that listing the angular dwarf crayfish as an endangered or threatened species is not warranted throughout all or a significant portion of its range at this time. This document constitutes the Service's 12-month finding on the April 20, 2010, petition to list the angular dwarf crayfish as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the angular dwarf crayfish's species-specific assessment form and other supporting documents (see ADDRESSES, above).

On April 16, 2002, we received a petition dated April 8, 2002, from the Pacific Seabird Group to list the Xantus's murrelet (Synthliboramphus hypoleucus) as a threatened species. In our 2004 annual review of species that are candidates for listing under the Act (also called a candidate notice of review or CNOR) published in the Federal Register on May 4, 2004 (69 FR 24876), we added the Xantus's murrelet to our list of candidate species and assigned it a listing priority of 5 (high magnitude of nonimminent threats), and determined that listing the Xantus's murrelet was warranted but precluded by higher priority listing actions. We published subsequent warranted-but-precluded findings in later CNORs (70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015).

At the time of the petition, the Xantus's murrelet (Synthliboramphus hypoleucus) was recognized as having two subspecies, S. h. hypoleucus and S. h. scrippsi. However, information received since the petition suggested the two subspecies should be recognized as distinct species, the Guadalupe murrelet (S. hypoleucus) and the Scripps's murrelet (S. scrippsi). In 2012, the American Ornithologists Union (AOU) approved the elevation of the two subspecies to full species status. Incorporating this taxonomic change into the petitioner's request, we evaluated the two (newly recognized) species separately.

The Guadalupe murrelet is a small diving seabird, approximately 23-25 centimeters (9-10 inches) in length and weighing 148-187 grams (5-7 ounces). The at-sea distribution of the species occurs up to 600 kilometers (373 miles) off the coast of southern British Columbia, Canada, south to Baja California Sur, Mexico. Guadalupe murrelets are confirmed to nest on Guadalupe Island and on the San Benito Islands (comprised of San Benito Oeste, San Benito Medio, and San Benito Este) off the west coast of Baja California, Mexico. A historical breeding site with limited birds was observed on Santa Barbara Island, California, but is no longer in use.

In our current assessment of the status of the species, we developed a Species Status Assessment report (SSA report) outlining the stressors potentially impacting Guadalupe murrelets and their habitat (Species Report—Scripps's Murrelet (Synthliboramphus scrippsi) and Guadalupe Murrelet (Synthliboramphus hypoleucus)). We consider the SSA report to be the compilation of the best available scientific and commercial information on the status of the Guadalupe murrelet and its habitat. The stressors we evaluated in the species report include: (1) Native predators; (2) nonnative predators; (3) introduced mammals (sheep, goats, cattle, pigs, rabbits, and hares); (4) guano mining; (5) human disturbance; (6) artificial lighting; (7) fishing activity; (8) prey availability; (9) off-shore natural gas exploration and extraction activities; (10) oil pollution; (11) the effects of climate change; and (12) the effects of small population size.

In our assessment, we acknowledge that the Guadalupe murrelet probably underwent steep declines as a result of predation and habitat destruction in the early to mid-1900s, as evidenced by anecdotal and observed accounts. However, no extirpations or steep declines have been observed within the last 40 years, and population numbers remain stable based on the limited survey information. Residual effects from habitat modification and displacement from potential breeding habitat may still be occurring. However, we anticipate that these residual effects will decrease in the future as vegetation recovers naturally and birds slowly move back into previously used breeding habitat. All nonnative predators have been removed from the San Benito Islands. Cats do still occur on the main Guadalupe Island, but only impact a small population of Guadalupe murrelets as the majority nest on off-shore rocks and islets. Some eradication efforts have been conducted, and fencing has been installed around known seabird nesting areas on Guadalupe Island since 2003. Additional conservation efforts include designation of Guadalupe Island as a Biosphere Reserve in June 2005, by the Government of Mexico. Since 2011, there has been a management plan in place on Guadalupe Island, implementing measures to restrict access, limit existing human activity, and provide measures for restoration and conservation of endemic species and their habitats.

Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors impacting the species have either been eliminated or reduced to the point where they are not of sufficient imminence, intensity, or magnitude, either singularly or cumulatively, to indicate that the Guadalupe murrelet is currently in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species) throughout all or a significant portion of its range. This is based on the relatively stable population and distribution of the species and the fact that conservation management is occurring throughout the species' range to minimize impacts to both the habitat and individuals.

In considering any significant portion of the range of this species, we evaluated whether the stressors facing Guadalupe murrelet might be geographically concentrated in any one portion of its range and whether these stressors manifest as threats to Guadalupe murrelet such that it would be presently in danger of extinction throughout all of the species' range. We found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. As a result, we find that factors affecting Guadalupe murrelet are essentially uniform throughout its range, indicating no portion of the range warrants further consideration of possible endangered or threatened status under the Act.

Therefore, we find that listing the Guadalupe murrelet as an endangered or threatened species or maintaining the species as a candidate under the Act is not warranted at this time, and consequently we are removing it from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Guadalupe murrelet, and constitutes the Service's 12-month finding on the April 8, 2002, petition to list the Guadalupe murrelet as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Guadalupe murrelet's species-specific assessment form, the SSA report, and other supporting documents (see ADDRESSES, above).

On April 16, 2002, we received a petition dated April 8, 2002, from the Pacific Seabird Group to list the Xantus's murrelet (Synthliboramphus hypoleucus) as a threatened species. In our 2004 CNOR, published in the Federal Register on May 4, 2004 (69 FR 24876), we added the Xantus's murrelet to our list of candidate species and assigned it a listing priority of 5 (high magnitude of nonimminent threats), and determined that listing the Xantus's murrelet was warranted but precluded by higher priority listing actions. We published subsequent warranted-but-precluded findings in later CNORs (70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015).

At the time of the petition, the Xantus's murrelet (Synthliboramphus hypoleucus) was recognized as having two subspecies, S. h. hypoleucus and S. h. scrippsi. However, information since the petition suggested the two subspecies should be recognized as distinct species, the Guadalupe murrelet (S. hypoleucus) and the Scripps's murrelet (S. scrippsi). Incorporating this taxonomic change into the petitioner's request, we evaluated the two (newly recognized) species separately.

The Scripps's murrelet is a small diving seabird, approximately 23-25 centimeters (9-10 inches) in length and weighing 148-187 grams (5-7 ounces). The at-sea distribution of the species occurs up to 600 kilometers (373 miles) off the coast of southern British Columbia, Canada, south to Baja California, Mexico. Scripps's murrelets are confirmed to nest on the Channel Islands (San Miguel, Santa Cruz, Anacapa, Santa Barbara, Santa Catalina, and San Clemente Islands) off the California coast and on several islands off the coast of Baja California, Mexico (Coronado, Todos Santos, San Jeronimo, and San Benito Islands). The species is present on the island of San Martin, Mexico, but there is no confirmed breeding.

In our current assessment of the status of the species, we developed a SSA report outlining the stressors potentially impacting Scripps's murrelets and their habitat (Species Report—Scripps's Murrelet (Synthliboramphus scrippsi) and Guadalupe Murrelet (Synthliboramphus hypoleucus). We consider the SSA report to be the compilation of the best available scientific and commercial information on the status of the Scripps's murrelet and its habitat. The stressors we evaluated in the species report include: (1) Native predators; (2) nonnative predators; (3) introduced mammals (sheep, goats, cattle, pigs, rabbits, and hares); (4) guano mining; (5) human disturbance; (6) artificial lighting; (7) fishing activity; (8) prey availability; (9) off-shore natural gas exploration and extraction activities; (10) oil pollution; (11) the effects of climate change; and (12) the effects of small population size.

In our assessment, we acknowledge that the Scripps's murrelet probably underwent steep declines as a result of predation and habitat destruction in the early to mid-1900s as evidenced by anecdotal and observed accounts; however, no extirpations or steep declines have been observed within the last 40 years and populations numbers remain stable, based on the limited survey information. Population numbers of Scripps's murrelet have rebounded on Santa Barbara Island and Anacapa Island after the removal of nonnative predators and habitat restoration (both natural and prescripted), and now make up over 40 percent of the breeding population for the species. Residual effects from habitat modification and displacement from potential breeding habitat may still be occurring. However, we anticipate that these residual effects will decrease in the future as vegetation recovers naturally and birds slowly move back into previously used breeding habitat. All nonnative predators have been removed from all breeding and nonbreeding islands. Additional conservation efforts include restrictions of human activity near breeding areas on the Channel Islands and designation of several of the islands off the coast of Baja California as natural reserves by the Government of Mexico. These measures restrict access and limit human activity and provide measures for restoration and conservation of endemic species.

Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors impacting the species have either been eliminated or reduced to the point where they are not of sufficient imminence, intensity, or magnitude to indicate that the Scripps's murrelet is currently in danger of extinction (endangered), or likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range. This is based on stable or increasing populations and distribution of the species and the fact that conservation management is occurring throughout the species' range for both impacts to habitat and individuals.

In considering any significant portion of the range of this species, we evaluated whether the stressors facing Scripps's murrelet might be geographically concentrated in any one portion of its range and whether these stressors in a portion of its range manifest as threats to Scripps's murrelet such that it would be presently in danger of extinction throughout all of the species' range. We found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. As a result, we find that factors affecting Scripps's murrelet are essentially uniform throughout its range, indicating no portion of the range warrants further consideration of possible endangered or threatened status under the Act.

Therefore, we find that listing the Scripps's murrelet as an endangered or threatened species or maintaining the species as a candidate under the Act is not warranted at this time, and consequently we are removing this species from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Scripps's murrelet, and constitutes the Service's 12-month finding on the 2002 petition to list the Scripps's murrelet as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Scripps's murrelet's species-specific assessment form, the SSA report, and other supporting documents (see ADDRESSES, above).

We designated the Huachuca springsnail as a Category 2 candidate in the Animal Notice of Review published in the Federal Register on January 6, 1989 (54 FR 554). Category 2 candidate species were those species for which listing as an endangered species or a threatened species was possibly appropriate, but for which biological information sufficient to support a proposed rule was lacking. The February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories and in that document we designated the Huachuca springsnail a candidate species as currently defined. On May 11, 2004, we received a petition dated May 4, 2004, from the Center for Biological Diversity, requesting that we list 225 plants and animals, including the Huachuca springsnail, as endangered species under the Act and designate critical habitat. In response to the May 4, 2004, petition to list the Huachuca springsnail as an endangered species, we published a warranted-but-precluded 12-month finding in the Federal Register on May 11, 2005 (70 FR 24870). We published subsequent warranted-but-precluded 12-month findings in later CNORs (71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015).

The Huachuca springsnail is a small (1.7 to 3.2 millimeters (0.07 to 0.13 inches)) aquatic snail (class Gastropoda; subclass Rissooidea; family Hydrobiidae) endemic to Santa Cruz and Cochise Counties in southeastern Arizona and adjacent portions of northern Sonora, Mexico. There are an estimated 29 historical spring ecosystem sites (23 on Federal land, 4 on private land, 2 in Mexico), of which 23 are confirmed as occupied sites. The Huachuca springsnail is most commonly found in rheocrene ecosystems (water emerging from the ground as a flowing stream) where proximity to spring vents plays a key role in their life history. Most information regarding Huachuca springsnail life history is derived from closely related congeners or other members of the Hydrobiidae family. Springsnails are gill-breathing and have an entirely benthic life cycle with a typical lifespan of about one year. Female springsnails are noticeably larger than males and are oviparous (egg-laying), and reproduction occurs throughout the year in warm water and seasonally in colder environments. Springsnails are known to feed primarily on periphyton, which is a complex mixture of algae, detritus, bacteria, and other microbes that live upon submerged surfaces in aquatic environments. Due to their small size, springsnail mobility is limited and significant dispersal events are unlikely to occur. Suitable habitat for springsnails includes spring ecosystems that produce running water with firm substrates characterized by cobble, gravel, woody debris, and aquatic vegetation.

The SSA report for the Huachuca springsnail provides a summary of the information assembled and reviewed by the Service and incorporates the best available scientific and commercial information for this species. In the SSA report, we evaluated the potential stressors that could be affecting Huachuca springsnail populations. Those stressors that could meaningfully impact the status of the species include: (1) Reduction of spring discharge; (2) springhead modification; (3) conversion from lotic (flowing water) to lentic (standing water) systems; (4) aquatic vegetation management; (5) water contamination; (6) predation; and (7) competition. We evaluated each of these factors for their potential to have population- and species-level effects to the Huachuca springsnail (for further information, please refer to the Huachuca springsnail SSA report). Many of these stressors are ameliorated by ongoing conservation efforts. The majority of springs that are occupied by the Huachuca springsnail are on Federal lands where there are some existing protections in place related to general land use plans (Department of Defense and U.S. Forest Service). In addition, a candidate conservation agreement (CCA) is under development that could potentially enhance existing conservation measures and protections.

The Huachuca springsnail continues to occupy a very large portion of its estimated historical range (found in 23 of 29 spring sites surveyed since 2004), and a substantial portion of the spring habitat throughout the species' current range is relatively intact (25 of 29 sites assessed as either high- or medium-quality habitat). Current Huachuca springsnail occupancy, and the amount and distribution of high- and medium-quality habitat, supports sufficient resiliency to sustain the Huachuca springsnail into the near future. These levels are commensurate with historical information, and there is no information to suggest that the species will not continue to occur at these levels.

In considering the foreseeable future as it relates to the status of the Huachuca springsnail, we considered the stressors acting on the species and looked to see if reliable predictions about the status of the species in response to those factors could be drawn. We considered whether we could reliably predict any future effects that might affect the status of the species, recognizing that our ability to make reliable predictions into the future is limited by the variable quantity and quality of available data about impacts to the Huachuca springsnail and the species' response to those impacts.

For the Huachuca springsnail, the most significant stressor looking into the future is climate change, resulting in both springhead modification and spring discharge decline. When evaluated under plausible future scenarios, however (see Huachuca springsnail SSA report), the best available scientific and commercial information does not show that these stressors to the Huachuca springsnail are likely to result in meaningful population declines in the foreseeable future.

Based on our review of the best available scientific and commercial information pertaining to the five listing factors, we find that the stressors acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the Huachuca springsnail is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range. This is based on the relatively stable population and distribution of the species and the fact that conservation management is occurring throughout the species' range to minimize impacts to both the habitat and individuals.

We also evaluated the current range of the Huachuca springsnail to determine if there are any apparent geographic concentrations of potential threats to the species. Generally speaking, the risk factors affecting the Huachuca springsnail occur throughout the range of the species; however, portions of the range that are outside of areas currently afforded protection from future spring modifications (i.e., springs located on private land and in Mexico) may be subject to impacts not found throughout the range of the species, which is mostly located on Federal lands. If we assume that all areas on unprotected land had springhead modification that resulted in the habitat being made entirely unusable to the Huachuca springsnail, that conversion would represent a loss of 21 percent of available habitat. At this scale, we have no information to suggest that the remaining 79 percent of available habitat on Federal lands would not continue to support sufficient Huachuca springsnail resiliency and redundancy. Additionally, there is no genetic information available for the populations on private land and in Mexico to suggest there are unique genetic values for these areas that would need to be maintained to support representation. Based on this analysis, we conclude that the portion of the range of the Huachuca springsnail on Federal lands (79 percent of available habitat) contains sufficient redundancy, resiliency, and representation that ensure that the Huachuca springsnail would not be in danger of extinction in a significant portion of its range if the available habitat on non-Federal lands (21 percent of available habitat) were to become unusable for the species.

Based on the above evaluations, we find that listing the Huachuca springsnail as an endangered or threatened species or maintaining the species as a candidate is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing it from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Huachuca springsnail, and constitutes the Service's 12-month finding on the May 4, 2004, petition to list the Huachuca springsnail as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Huachuca springsnail's species-specific assessment form, SSA report, and other supporting documents (see ADDRESSES, above).

The Icebox Cave beetle was added to the Federal list of candidate species in the 1989 CNOR (54 FR 554; January 6, 1989) as a Category 2 candidate species. The Clifton Cave beetle was added to the Federal list of candidate species in the 1994 CNOR (59 FR 58982; November 15, 1994) as a Category 2 candidate species. When the 1996 CNOR (61 FR 7596) discontinued recognition of categories, the Icebox Cave beetle and Clifton Cave beetle were no longer considered candidate species.

On October 30, 2001, the Service added both the Icebox Cave beetle and the Clifton Cave beetle to the candidate list through the Service's own internal process (66 FR 54808). However, the Service received a petition from the Center for Biological Diversity and others, dated May 11, 2004, to list eight cave beetles, including the Clifton Cave beetle and Icebox Cave beetle. In the May 11, 2005, CNOR (70 FR 24870), the Service determined that listing the Clifton Cave beetle and Icebox Cave beetle was warranted but precluded by higher priority listing decisions. Further, we have included both species addressed in this finding in every CNOR since 2001 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015).

The species are small (about 4 millimeters in length), predatory cave beetles that occupy moist habitats containing organic matter transported from sources outside the cave environment. Members of the Pseudanophthalmus genus vary in abundance from fairly widespread species that are found in many caves to species that are extremely rare and often restricted to only one or two caves. The two beetles addressed by this finding are examples of the latter group as they are restricted to one or two cave habitats in Kentucky. The Clifton Cave Beetle is known from two caves (Clifton Cave and Richardson's Spring Cave) in Woodford County, while the Icebox Cave beetle is known from one cave (Icebox Cave) in Bell County.

When the Clifton Cave beetle and Icebox Cave beetle were first identified as candidates for protection under the Act (66 FR 54808; October 30, 2001), the Service considered both species to be vulnerable to habitat destruction or modification caused by a disruption of the natural inflow of energy into the cave environment; we considered both species to be vulnerable to habitat disturbance within the cave environment resulting from vandalism, pollution, or sedimentation; and we noted the inadequacy of existing regulatory mechanisms to ameliorate those threats. In the 2005 CNOR (70 FR 24879; May 11, 2005), we also considered the species' restricted distribution and perceived small population sizes to increase their vulnerability to these effects, and we recognized the potential of these characteristics to limit the species' natural exchange of genetic material, leading to lower genetic diversity and reduced fitness. Both species were assigned a listing priority number (LPN) of 5, which reflects threats of a high magnitude that are not considered imminent.

Over the last year, new field surveys and monitoring efforts for the Clifton Cave beetle and Icebox Cave beetle have improved our understanding of the species' distribution and threats. A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) for each of the two cave beetle species provides a summary of the literature and information regarding distribution, habitat requirements, life history, and stressors, as well as a detailed analysis of the stressors to the species. Based on these findings, we have re-examined each species' status and re-evaluated the magnitude and imminence of their threats. We acknowledge that the species have narrow ranges and are sometimes difficult to locate within known habitats; however, based on these new field surveys we have determined that each species' overall status is more secure than previously believed.

With respect to the Clifton Cave beetle, we have no evidence suggesting that the closure of Clifton Cave has harmed the species. Closure of the cave likely benefited the species, as the cave did not appear to be accessible to humans prior to its original disturbance in the early 1960s. Land use surrounding Clifton Cave has not changed dramatically since the 1960s, so we do not expect that habitats within the cave have been disturbed, nor do we expect a future rise in any habitat-related stressors. Due to the consistent land use and low disturbance within the watershed, we also expect that energy inputs via sinkholes, rock fissures, or other karst windows have been maintained, and have provided the energy needed to maintain the cave ecosystem.

Agricultural land use is even more prevalent in areas surrounding the species' other known cave, Richardson's Spring Cave; however, recent surveys demonstrate that the Clifton Cave beetle has persisted within the cave for over 20 years and continues to be present at levels similar to (or perhaps higher than) those observed in 1994. The species' persistence and high relative abundance over the past two decades indicate that any potential habitat stressors related to agriculture or small population size have not been sufficient to adversely affect the species. The species' persistence also suggests that physical disturbance and vandalism caused by human entry is not a threat (Service 2016, entire). The cave's low ceiling and narrow passage are not favorable for human visitors, and Lewis and Lewis observed no evidence of recent human entry during surveys in 2015.

With respect to the Icebox Cave beetle, ground disturbance associated with development, agriculture, or resource extraction does not appear to pose a current threat to the species. There is visible evidence of past logging (e.g., abandoned, unpaved roads) near the cave's entrance and some residential development in nearby Pineville, Kentucky, but areas surrounding the cave entrance are forested and remain relatively undisturbed. Land use surrounding the cave has changed little since the beetle's discovery in 1963, and we do not expect this to change. Because of these conditions, we also expect that energy inputs via sinkholes or other karst windows have likely been maintained and will continue to provide energy needed to support the cave ecosystem. Our review of current land use and the species' persistence within Icebox Cave for over 50 years indicates that stressors associated with ground disturbance are not occurring at levels that would cause negative population trends for the Icebox Cave beetle.

Icebox Cave has a long history of human visitation, and the cave has been heavily disturbed as evidenced by extensive graffiti on cave walls and several altered (broken) formations. Despite this disturbance, recent surveys by Lewis and Lewis demonstrate the Icebox Cave beetle continues to occur in Icebox Cave, the species has persisted within the cave for over 50 years, and it continues to be present at levels similar to (or perhaps greater than) those observed previously (1963 and 1979). The species' persistence over the past five decades suggests that the level of physical disturbance and vandalism observed within the cave has not risen to the level that would threaten the species' continued existence or alter its population levels within the cave. There is also recent evidence that human disturbance within Icebox Cave has all but ceased. Lewis and Lewis observed no evidence of recent human visitation or entry, no fresh garbage, and no recent graffiti.

We also have no evidence that small population size represents a threat to the Icebox Cave beetle. Only a total of four individuals have been observed in Icebox Cave since 1963, but recent observations by Lewis and Lewis demonstrate the species continues to occur in Icebox Cave and in numbers similar to those reported by previous investigators. The small number of beetles reported from Icebox Cave is not unusual; other Pseudanophthalmus species have been reported in low densities. We believe it is reasonable to assume that some Pseudanophthalmus species have always occurred in low but stable numbers and this is a normal aspect of their life history.

Based on our review of the best available scientific and commercial information pertaining to the five threat factors, we find that the stressors acting on these species and their habitats, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate the Clifton Cave beetle or Icebox Cave beetle are in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of their respective ranges.

We evaluated the current ranges of the Clifton Cave beetle and Icebox Cave beetle to determine if there is any apparent geographic concentration of potential threats for these species. Both species have a relatively small range that is limited to one or two cave systems. We examined potential stressors including human visitation, agricultural activities (livestock grazing, row crops), commercial and residential development, resource extraction (logging), disease, predation, sources of water quality impairment, and small population size. We found no concentration of stressors that suggests that either of these cave beetles may be in danger of extinction in a portion of their respective ranges. Therefore, we find that listing the Clifton Cave beetle and Icebox Cave beetle as an endangered or threatened species under the Act throughout all or a significant portion of their respective ranges is not warranted at this time, and consequently we are removing both species from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Clifton Cave beetle and Icebox Cave beetle, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list the Clifton Cave beetle and Icebox Cave beetle as endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Clifton Cave beetle's and Icebox Cave beetle's species-specific assessment forms and other supporting documents (see ADDRESSES, above).

In this and previous Federal actions we refer to northern wormwood as Artemisia borealis var. wormskioldii. However, northern wormwood is currently recognized by regional botanical authorities as Artemisia campestris L. var. wormskioldii (Besser) Cronquist.

Artemisia campestris var. wormskioldii was first recognized as a Category 2 candidate species in the September 27, 1985, review of plant taxa for listing as endangered or threatened species (50 FR 39526). In the February 21, 1990, CNOR, we changed A. campestris var. wormskioldii 's candidate status to Category 1, a species for which substantial information on biological vulnerability and threat(s) was available to support proposals for listing as endangered or threatened species, but issuance of the proposed rule was precluded by other higher priority listing actions (55 FR 6184). In the February 28, 1996, CNOR, we discontinued the use of categories and removed A. campestris var. wormskioldii from candidate status (61 FR 7596).

In the October 25, 1999, CNOR, we added Artemisia campestris var. wormskioldii back to the candidate list (64 FR 57534). At that time, this species was assigned a listing priority number of 3 (threat facing the subspecies was of high magnitude and imminent) as outlined in our Listing and Recovery Priority Guidelines (48 FR 43098; September 21, 1983). We were petitioned to list this species by the Center for Biological Diversity and others on May 11, 2004. A. campestris var. wormskioldii retained the same status in our CNORs published since 2001 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015).

Artemisia campestris var. wormskioldii is a perennial plant in the family Asteraceae (asters or sunflowers). It is generally low-growing, reaching 15 to 30 centimeters (6 to 12 inches) average height, and has a taproot. Historically, northern wormwood was found on exposed basalt, cobbly-sandy terraces, and sandy habitat in riparian areas along the banks of the Columbia River at elevations above mean sea level ranging from 50 to 150 meters (160 to 500 feet).

The available information indicates that Artemisia campestris var. wormskioldii is a narrow endemic that may always have existed in only a few, small populations at any one time. Currently, A. campestris var. wormskioldii is known to exist naturally at two sites, Beverly and Miller Island, located respectively in Grant and Klickitat Counties, Washington. Northern wormwood has been planted at five additional locations with the aim of creating new populations within its historical range. Introduction sites in Oregon include Squally Point and Rock Creek Park in Wasco County, and Rufus Island in Sherman County. Introduction sites in Washington include Johnson Island in Benton County and Island 18 in Franklin County. With the exception of Rock Creek Park (owned by the City of Mosier, Oregon), and Squally Point (part of Mayer State Park, Oregon), all of the locations where northern wormwood is found are located on Federal land.

A supporting document entitled “Species Assessment and Listing Priority Assignment Form” (assessment form) provides a summary of the literature and information regarding Artemisia campestris var. wormskioldii's distribution, habitat requirements, life history, and stressors, as well as a detailed analysis of the stressors to the species. This evaluation includes information from all sources, including Federal, State, tribal, academic, and private entities and the public. We consider this supporting document the best available scientific and commercial information.

We previously identified potential stressors (natural or human-induced negative pressures affecting individuals or subpopulations of a species) on Artemisia campestris var. wormskioldi, to include: (1) Altered hydrology; (2) erosion; (3) trampling; (4) nonnative, invasive plants; (5) herbivory; (6) climate change; (7) fire; and (8) genetic and other small-population issues. Dam construction, associated changes in flow and sediment regimes, deep pool formation behind the dams, and related shoreline development (such as roads, railroads, and riprap) likely caused the loss of historical habitat of northern wormwood, and as a result of these changes, little suitable habitat may remain within the plant's documented historical range. The habitat within the known historical range, as well as some other areas of suitable habitat, have been surveyed by knowledgeable biologists for additional populations of A. campestris var. wormskioldii since 2002, and the likelihood is low that undiscovered populations exist in these areas. The current hydrology in the Columbia River may have some effect on individual A. campestris var. wormskioldii plants and on their habitat; high flows in some years have caused mortality of recently transplanted individuals) and also have been correlated with large flushes of seedlings. However, the best available scientific and commercial information does not indicate that current flow regimes or past development have current or ongoing population-level effects on the abundance and distribution of A. campestris var. wormskioldii.

Natural erosion by wind and water of the sandy substrate has been observed at Miller Island and Squally Point and has caused mortality of individual Artemisia campestris var. wormskioldii plants and decreased seedling survival. Deposition of sand has buried plants on Miller Island, and an inverse relationship evidently exists between sand deposition and the number of A. campestris var. wormskioldii plants on the island in a given year. Since 2010, the number of mature plants has increased annually on Miller Island, and percent sand cover in A. campestris var. wormskioldii monitoring plots varied and decreased overall over the same period. This phenomenon has not been observed at the Beverly site or the other introduced sites.

In the past, both natural populations of Artemisia campestris var. wormskioldii suffered from trampling by people (Beverly and Miller Island) and trampling and herbivory by grazing cattle (Miller Island only). People using these sites for recreation inadvertently trampled plants, and on Miller Island, cattle reportedly uprooted individual plants growing in loose, sandy substrate and may also have acted as a vector for nonnative plant species. However, grazing was eliminated from Miller Island in 1988, and cattle are not present there today or at any other site occupied by A. campestris var. wormskioldii. Foot traffic and boat launching were curtailed at Beverly with the construction of a fence to protect the A. campestris var. wormskioldii population. Trampling by people and cattle and herbivory by cattle, therefore, are unlikely to be population-level stressors to A. campestris var. wormskioldii today or in the foreseeable future. The extent of herbivory by native animals is largely unknown, but based on available information, it is likely to be minor and have no population-level impacts on A. campestris var. wormskioldii.

Nonnative, invasive plants occur at most of the sites where Artemisia campestris var. wormskioldii occurs. Dalmatian toadflax (Linaria dalmatica) and diffuse knapweed (Centaurea diffusa) are present in the A. campestris var. wormskioldii population at Beverly, where monitoring and regular treatment keep them under control. At Miller Island, diffuse knapweed and cheatgrass (Bromus tectorum) are present but in low density. Among the sites where A. campestris var. wormskioldii has been introduced, indigo bush (Amorpha fruticosa) occurs on Rufus Island, and indigo bush, diffuse knapweed, and rush skeletonweed (Chondrilla juncea) plants occur at Squally Point. Although initial treatment of nonnative plants occurred at both of these sites, follow up treatments have not yet occurred. Without regular intervention, these nonnative plants can spread into new areas, including into patches of A. campestris var. wormskioldii, and they are likely to compete with A. campestris var. wormskioldii for resources. Although the impacts of nonnative, invasive plant species on ecosystems generally are well known, there is no prior documentation or current, direct evidence of a negative response in A. campestris var. wormskioldii to the presence of nonnative, invasive plant species. Thus, we can only speculate about potential effects on A. campestris var. wormskioldii and about the imminence and severity of those effects if they occur. The species of nonnative, invasive plants and efforts to control them (current and anticipated) are not uniformly distributed across the sites where A. campestris var. wormskioldii occurs. Therefore, if invasive plants have negative impacts to A. campestris var. wormskioldii, those potential impacts, and whether and when they might be expressed, are likely to be different at different sites. We do anticipate, however, that ongoing treatment of nonnative, invasive plants will occur as needed at A. campestris var. wormskioldii sites, especially given the current investment in establishing new populations of A. campestris var. wormskioldii and the long-term, ongoing interest and involvement of our State and other partners in the conservation of this rare plant.

With only two known naturally occurring populations and two of five introduction sites with documented natural recruitment, A. campestris var. wormskioldii has a limited capacity to withstand stochastic events such as harsh winter conditions, prolonged droughts, and fire. For example, a steep decline in the number of adult A. campestris var. wormskioldii plants at the Beverly site in 2009 may have been caused in part by the previous winter having been unusually cold and long. However, whether the harsher than average winter was related to climate change is not known.

Climate model projections for the Pacific Northwest Region indicate a continued increase in temperature, with changes in annual mean maximum temperature projected to be largest in the summer months). Precipitation in this region is projected to remain close to current levels, but mean runoff is expected to peak earlier in the year. The projected effects of climate change in the Pacific Northwest, including effects on water management in the Columbia River basin, may exacerbate the effects of drought, invasive species, and fire on Artemisia campestris var. wormskioldii and its habitat. Although A. campestris var. wormskioldii populations may experience reduced reproduction and increased mortality as a result of climate fluctuations today and the effects of climate change in the future, the available information does not point to current impacts of these stressors on the species or allow us to reasonably predict the imminence or severity of the cumulative effects of climate change on A. campestris var. wormskioldii or its habitat.

To date, fire has not been a limiting factor for Artemisia campestris var. wormskioldii at Beverly or Miller Island. Because bio-fuel accumulation (from native and nonnative plants) is generally low in the sand, gravel, and cobble bars where this species occurs, fire has not influenced the status of northern wormwood individuals or populations. Although A. campestris var. wormskioldii may be top-killed by fire, the likelihood of an entire population succumbing to or being able to recover from a fire is unknown). Related subspecies have been shown to persist on repeatedly burned sites.

The two naturally occurring populations of Artemisia campestris var. wormskioldii are separated by a large distance, more than 200 miles (320 kilometers), likely negating the possibility of gene exchange. Loss of genetic variability can affect disease resistance, adaptive capacity, and reproductively compatible gene combinations (genotypes) in the affected species. Small populations are more susceptible to inbreeding, which can reduce the fitness of offspring. However, the historical rate of genetic exchange among A. campestris var. wormskioldii populations is unknown, and the best available scientific and commercial information does not indicate that A. campestris var. wormskioldii has lost, or is losing, genetic variability or experiencing inbreeding depression as a result. In addition, plantings to augment natural populations and establish new populations were begun in 2006 and are ongoing.

To date, Artemisia campestris var. wormskioldii has been introduced to five sites within the historical range to expand the number of populations, increase distribution and abundance, decrease isolation, and buffer potential risks faced by small populations. Seeds collected from the two natural populations were used to propagate plants for these introductions, and plantings have been done experimentally to determine microsite conditions where plants are most likely to survive and become established. Modest natural recruitment has been documented at the two oldest sites, initially planted in 2008 and 2011. We anticipate that the genetic diversity in the two natural populations of A. campestris var. wormskioldii will continue to be represented at existing and future introduction sites.

Regulatory mechanisms, such as designation by Bureau of Land Management and U.S. Forest Service as a sensitive species through the Interagency Special Status/Sensitive Species Program, the species conservation plan under the Federal Energy Regulatory Commission licensing agreement for the Priest Rapids Hydroelectric Project, and current State-level protections in Oregon and Washington, have resulted in some increased protection of the natural populations of Artemisia campestris var. wormskioldii, some control of invasive plant species in some sites where A. campestris var. wormskioldii occurs, and amelioration of stressors such as trampling by livestock and by people (e.g., at the Beverly and Miller Island sites). Conservation measures undertaken for the species have shown variable results at the five introduction sites, including two nascent populations that improve A. campestris var. wormskioldii's abundance and distribution.

Our review of the best available scientific and commercial information does not indicate that the potential stressors currently have, or are anticipated to have, population-level effects on Artemisia campestris var. wormskioldii. Some stressors cause or could cause individual mortality, including erosion, inundation, and possibly herbivory by native animals, but the available information does not indicate that any of, or the cumulative impact of all, these stressors has a population- or species-level impact now or that they are likely to have such impacts in the foreseeable future. Although numbers of mature, flowering individuals at some populations have decreased in recent years, numbers have increased at others. While questions remain regarding limiting factors, demography, age structure, and population trends, the plant's ability to persist appears greater than previously understood.

Future impacts of climate change may exacerbate stressors to A. campestris var. wormskioldii and its habitat, but we cannot reasonably project the timing, imminence, or severity of the effects of climate change into the foreseeable future. Further, the uncertainty about how A. campestris var. wormskioldii will respond to climate change, combined with the uncertainty about how potential changes in plant species composition would affect site suitability, make projecting possible synergistic effects of climate change highly speculative at this time.

A species may occur in very low numbers without being at risk of extinction. Such species, merely by virtue of their rarity, do not merit listing under the Act. Although Artemisia campestris var. wormskioldii has persisted at low numbers and with a narrowly limited distribution, rarity in itself does not automatically imply that the species is at risk of extinction. Moreover, a species may be exposed to stress factors and lose individuals, without expressing a negative response at the population or species level such that the species meets the definition of endangered or threatened under the Act. We must evaluate the exposure of the species to stressors to determine whether the species responds to the stressors in a way that causes impacts now or is likely to cause impacts in the future. We also must determine whether impacts are or will be of an intensity or magnitude to place the species at risk. In our analysis of potential stressors to A. campestris var. wormskioldii, we have not found evidence of such responses or negative impacts.

Based on our evaluation of the best available scientific and commercial information, we find that no stressors are of sufficient imminence, intensity, or magnitude to indicate that A. campestris var. wormskioldii is in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened) throughout all of its range. This is because we have determined that threats we identified in past CNORs are not affecting the species as we previously understood. Further, the distribution of Artemisia campestris var. wormskioldii is relatively stable across its range (and the number of populations, including sites where the plant was recently introduced, has increased since 2006) and stressors are similar throughout the species' range. Thus, we did not find any concentration of stressors that suggests that this plant may be in danger of extinction in any portion of its range. Therefore, we find that listing A. campestris var. wormskioldii as an endangered or a threatened species is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing this species from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for Artemisia campestris var. wormskioldii, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list A. campestris var. wormskioldii as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the A. campestris var. wormskioldii 's species-specific assessment form and other supporting documents (see ADDRESSES, above).

On October 6, 2011, the Service received a petition dated September 28, 2011, from WildEarth Guardians, requesting that we list the Virgin Islands coquí (VI coquí), a frog species, under the Act. On January 22, 2014, we published a 90-day finding (79 FR 3559) in which we found that the petition presented substantial scientific and commercial information indicating that listing may be warranted for the VI coquí.

The VI coquí is a small frog species, of the family Eleutherodactylidae. The VI coquí was first described as Eleutherodactylus schwartzi based on specimens obtained on the islands of Tortola and Virgin Gorda. While similar to the Puerto Rican coquí (Eleutherodactylus coquí), a species native to neighboring Puerto Rico, E. schwartzi is distinguished by its smaller size and coloration.

The VI coquí's breeding season begins in May and lasts until August. Although members of the Eleutherodactylus genus do not require an aquatic environment for reproduction, they do require cool, moist habitat for rehydration and to prevent the desiccation of egg clutches. This species is a “direct development” species, meaning that it skips the tadpole stage and fully formed froglets hatch from the eggs.

The VI coquí is a tree-dwelling, terrestrial species, occurring in temperate woodlands and forests, in elevations up to 227 meters (744.7 feet). The species is typically not found outside of forested areas. However, there have been reports of the VI coquí in residential gardens, pastures, and gullies in and around Great Harbour on the island of Jost Van Dyke and in residential gardens on Frenchman's Cay. The VI coquí prefers to hide under rocks, leaf litter, and bromeliad leaves during the day to stay out of the hot sun. The species is strongly associated with the presence of terrestrial bromeliads, such as the false pineapple (Bromelia pinguin) and species from the genus Tillandsia. The males use bromeliads for perching when calling, and females lay their eggs on the leaves of the plants.

The VI coquí has a broad diet that includes small vertebrates and invertebrates. Although there is a lack of information on the diet of this species, members of the genus Eleutherodactylus are known to be “nocturnal, sit-and-wait predators that prey on members of the order Hymenoptera (which includes ants, wasps, bees), Collembolan (springtails), Pseudoscorpionida (false scorpions) and Dipteran (true flies)”.

The VI coquí has a relatively limited range, with its historical population occurring in the U.S. Virgin Islands (USVI) and the British Virgin Islands (BVI) in the Caribbean. Specifically, the species was found on the island of Saint John in the USVI and the islands of Tortola, Virgin Gorda, Jost Van Dyke, Great Dog, Beef Island, Frenchman's Cay, and Little Thatch in the BVI. The species has since experienced alteration of its range within the past 40 years. Surveys conducted in the 1970s found no presence of the species on St. John in the USVI, suggesting the species is extirpated there. Although some ambiguity exists in the survey due to similarity in calls between the VI coquí and the related Puerto Rican coquí, subsequent acoustic surveys confirmed the presence of the VI coquí on the other islands: Tortola, Virgin Gorda, Jost Van Dyke, Great Dog, Beef Island, and Frenchman's Cay.

A supporting document entitled “12-Month Finding on a Petition to List the Virgin Islands Coquí as an Endangered or Threatened Species” provides a summary of the current literature and information regarding the VI coquí's distribution, habitat requirements, life history, and stressors (see ADDRESSES, above). We reviewed the petition, information available in our files, and other available published and unpublished information, and we consulted with recognized species and habitat experts and representatives of the range countries.

We evaluated whether each of the potential stressors impact, presently or in the future, individuals or portions of suitable habitat. The potential stressors that we assessed are: (1) Habitat loss and fragmentation from urban development; (2) trade and collection; (3) predation from the small Indian mongoose and Cuban tree frog (CTF); (4) chytridiomycosis; (5) inadequacy of existing regulatory mechanism; (6) competition from CTF and Puerto Rican coquí; (7) climate change; and (8) small population size.

The Virgin Islands coquí is found on six islands in the BVI. Although we do not have survey data on the population, the species continued to persist on these islands. Continued persistence of the species on the island is due to past and present management efforts by the BVI territory government. Rate of deforestation has declined from historical high in the 20th century due to the transition in the BVI's economy from cash crop to tourism as well as the establishment of protected areas. These protected areas helped maintain and protect remaining forest habitats. Additionally, these areas have allowed deforested habitat to recover, promoting new secondary deciduous and dry forests.

To support the BVI tourism industry, development projects are being proposed or are currently in progress across the BVI with Tortola containing most of the major projects. However, most of the development projects occur in areas that already contain little to no coquí habitat; therefore we have no reason to believe that these projects would adversely affect the VI coquí. We also found no indications of trade or collection occurring with this species.

The impact of invasive species such as the small Indian mongoose and the CTF is mitigated both by ongoing management effort as well as differences in the ecology of these species. A mongoose eradication program is currently in place on Jost Van Dyke. The small Indian mongoose's preference for drier climate gives the coquí some protection from predation, as it prefers wetter habitat. More importantly, mongoose cannot climb trees, which offers protection for arboreal species like the coquí. These factors together limit the impact the mongoose has on the VI coquí.

The impact of CTF on the VI coquí is ameliorated by differences in reproductive method and ongoing management program. CTF require freshwater habitat to lay their eggs. Meanwhile, as a direct-developing species, VI coquí can give birth to live young in bromeliads. Additionally, predation of VI coquí by CTF is limited due to CTF's preference for smaller invertebrates, with frogs making up only 3 percent of CTF's diet. CTFs may compete with VI coquís for prey, as the species' diet is similar to the coquí's. However, we have found no information indicating competition for invertebrates is affecting the coquí.

The impact of chytrid fungus on the VI coquí is limited by local conditions in the BVI. The current temperature range in the BVI is outside the optimal range of the fungus. Additionally, while cases of infection can still occur in sub-optimal area, infection may not be fatal due to unfavorable growing conditions of the fungus.

We reviewed all international and local laws, regulations, and other regulator mechanisms that may impact the VI coquí and its habitat. Despite shortages in staff and personnel, a recent survey of protected areas found many areas to be stable or experiencing light development. The stability in these protected areas seems to indicate that although these organizations are facing shortages in funds and staff, they are still able to protect fragile habitat in the BVI.

Surveys conducted on Jost Van Dyke found the Puerto Rican coquí may also compete with the VI coquí. Although the potential exists that the Puerto Rican coquí could compete with the VI coquí, sightings of the species have only recently occurred on Jost Van Dyke in 2015. The Puerto Rican coquí has not been documented on the other six islands where the VI coquí is known to occur. Thus, it is too soon to tell what impacts, if any, the Puerto Rican coquí might have on the VI coquí.

The effects of climate change on the VI coquí are unclear. While the impact from an increase in stochastic event is limited by the steep hills and mountains on the islands, the impact of climate change on plant biomes and the species' reproductive season remains unknown. As we do not have information to reasonably predict whether climate change may affect the species' breeding season or result in changes in plant composition, we cannot draw conclusions on how the VI coquí may respond to potential changes.

While we do not have information on population trends for the VI coquí, we nonetheless considered whether small population size and limited distribution in combination with other stressors might impact the species. The species has been described as rare. However, species that naturally occur in low densities are not necessarily in danger of extinction, and therefore do not necessarily warrant listing, merely by virtue of their rarity. In the absence of information identifying stressors to the species and linking those stressors to the rarity of the species or a declining status, we do not consider rarity alone to be a threat. Further, a species that has always had small population sizes or has always been rare, yet continues to survive, could be well-equipped to continue to exist into the future.

Finally, we found that the VI coquí has sufficient resiliency, redundancy and representation to recover from periodic disturbance such as hurricanes, droughts, and other stochastic events. The VI coquí population is distributed across six of nine islands in the BVI, which contributes to the redundancy of the species. While we lack detailed information on the genetic diversity of the species, male VI coquís on different islands are characterized by variation in sizes. Additionally, the Great Dog population of VI coquí has been described as somewhat distinct. These factors suggest that there exist genetic diversity (representation) among the populations of coquí across the six islands.

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 species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the VI coquí is in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened), throughout all or a significant portion of its range.

We found no portions 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 species are essentially uniform throughout its range, indicating no portion of the range of the VI coquí is likely to be in danger of extinction or likely to become so within the foreseeable future. Therefore, we found that no portion warranted further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

Therefore, we find that listing the VI coquí as an endangered or threatened species under the Act is not warranted at this time. This document constitutes the 12-month finding on the September 28, 2011, petition to list the VI coquí as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the supporting document entitled “12-Month Finding on a Petition to List the Virgin Islands Coquí as an Endangered or Threatened Species” (see ADDRESSES, above).

The Washington ground squirrel was recognized as a Category 2 candidate species (as Spermophilus washingtoni) in 1994 (59 FR 58982; November 15, 1994). When the February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories, the Washington ground squirrel was no longer considered a candidate species. We again identified the Washington ground squirrel as a candidate for listing in 1999 (64 FR 57534; October 25, 1999) and assigned a listing priority number of 5, which reflects threats of a high magnitude that are not considered imminent.

On March 2, 2000, we received a petition from the Northwest Environmental Defense Center, Defenders of Wildlife, and the Oregon Natural Desert Association to emergency list the Oregon population of this species as a distinct population segment, or list the species over its entire range as an endangered or threatened species under the Act. Included in the petition was information regarding the species' taxonomy and ecology, historical and current distribution, present status, and actual and potential causes of decline. In 2001, based on new information, including information contained in the 2000 petition, we determined that the Washington ground squirrel faced imminent threats of a high magnitude and reassigned it an LPN of 2 (66 FR 54808; October 30, 2001). The Washington ground squirrel remained on the candidate list with an LPN of 2 from 2002 to 2004 (67 FR 40657, June 13, 2002; and 69 FR 24876, May 4, 2004). In the 2005 CNOR (70 FR 24870, May 11, 2005), we changed the LPN to 5, and since that date, the species has remained on the candidate list with an LPN of 5 (71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; and 80 FR 80584, December 24, 2015). In our November 22, 2013, CNOR (78 FR 70104), we recognized Urocitellus washingtoni as the scientific name for the Washington ground squirrel.

The Washington ground squirrel was formerly part of the genus Spermophilus (as Spermophilus washingtoni), but is now determined to be one of 12 species in the genus Urocitellus (Holarctic ground squirrels. The Washington ground squirrel is diurnal (active during the day) and semi-fossorial (e.g., partly adapted to digging and life underground). Their active, above-ground period spans anywhere between the months of January and July, with the specific timing depending on elevation and microhabitat conditions as well as availability of food sources. Washington ground squirrels typically live fewer than 5 years and produce one litter annually, with an average of five to eight pups. They eat a wide variety of foods including succulent forbs and grass stems, buds, leaves, flowers, roots, bulbs, and seeds.

The Washington ground squirrel occurs in shrub-steppe and grassland habitat in eastern Washington and north-central Oregon. In Washington, the species occurs in Adams, Douglas, Franklin, Grant, Lincoln, and Walla Walla Counties. In Oregon, it is found in Gilliam, Morrow, and Umatilla Counties, but is centered largely on the Naval Weapon Systems Training Facility Boardman (NWSTF Boardman) and the adjacent Boardman Conservation Area (BCA). Washington ground squirrel habitat is characterized by deep, loamy soils deposited by the Missoula Floods and shrub-steppe vegetation. Historically, the species was primarily associated with sagebrush (Artemisia sp.) and bunchgrass habitats, but cheatgrass (Bromus tectorum) and rabbitbrush (Chrysothamnus sp.) have replaced much of the original flora on nonagricultural land. The species can be found in all these habitat types where there is sufficient forage and suitable soils, regardless of vegetation type.

Historically, the Washington ground squirrel was a little-studied species. A 1990 survey of 179 of the 189 potential historical Washington ground squirrel locations found 80 confirmed and 7 probable colonies. In a repeat survey in 1998 of the confirmed and probable sites, clear evidence of squirrels was found at only 46 of the locations. The Washington ground squirrel received more attention and funding after it became a Federal candidate species in 1999, and the increased survey effort led to a notable expansion of the number of documented locations and distribution of the species from what was known in 1999.

As part of our assessment of the best available scientific and commercial information, we evaluated the number of Washington ground squirrel records included in the Oregon and Washington Natural Heritage Program databases. In Oregon, 2012 data showed 705 known records (any of which could constitute a single individual or a small, medium, or large colony). As of April 2013, Oregon records of Washington ground squirrels had increased to 1,318, an 87 percent increase from the 2012 data. In Washington, 2012 data showed 567 mapped polygons (estimated areas containing squirrels) and 65 known squirrel records outside of the polygons. As of April 2013, Washington polygons had increased to 602 and records had increased to 579.

These updated Washington ground squirrel records, along with new information on dispersal distances and habitat quality, led us to evaluate potential connectivity between squirrel detections. We analyzed new data regarding linkages between areas of high-quality habitat, and dispersal distances from known sites to potential habitat, and found that there is some connectivity between these areas of high-quality habitat, and connectivity between known sites and potential habitat. The majority of known Washington ground squirrel sites are on public lands, within the BCA, or are newer sites documented from increased survey efforts on private lands. The analysis indicated that many squirrel sites are within dispersal distance of one another, and potential squirrel habitat exists within the interstitial space between clusters providing connectivity between the sites. This indicates that Washington ground squirrel populations are not as isolated from one another as we had previously thought, and potential opportunities for genetic exchange exist in most of the range, as many sites are likely functioning within a metapopulation framework.

Furthermore, based on the Washington Wildlife Habitat Connectivity Working Group habitat quality layer for Washington ground squirrel and recent squirrel surveys in Oregon and Washington, we estimated that there are at least 0.74 million hectares (ha) (1.84 million acres (ac)) of potential occupied habitat within the current range. Although our finding does not rely on the presumed presence of squirrels in potential habitat, this estimate of potential habitat, along with the fact that new sites are consistently documented when suitable habitat is surveyed, supports the assumption that additional Washington ground squirrels are likely to be found with further survey effort in large areas of at least moderate-quality potential habitat. This adds confidence to our independent conclusion that, based on the best scientific data currently available to us, the Washington ground squirrel is more widespread and numerous than we had previously understood.

Candidate status was based on habitat loss, fragmentation, or modification due to fire and invasive plants, agriculture, intensive grazing, proposed and ongoing military activities, energy development and transmission, and urban development; predation; recreational shooting; disease; potential effects of pesticides; and potential effects of drought on forage quality and quantity. Habitat loss was considered the main reason the squirrel's range is smaller than it was historically, particularly through agricultural conversion of shrub-steppe habitat, and more recently the invasion of nonnative annual grasses and forbs, especially cheatgrass.

There are current management actions, policies, and protections in place that have substantially reduced or eliminated stressors to the Washington ground squirrel and will continue to do so in the future. The 25-year Threemile Canyon Farms Multi-Species Candidate Conservation Agreement with Assurances (MSCCAA), signed in 2004, included the implementation of habitat management, operational modifications, and conservation measures for four unlisted species, including the Washington ground squirrel, on approximately 37,636 ha (93,000 ac) of habitat. This dramatically reduced agricultural development in Washington ground squirrel habitat and was part of an overall decline in the conversion of shrub-steppe to agricultural use in recent years; harvested cropland accounted for only 1 percent of all land available to the squirrel within its range during the 1978 to 2007 time period. There are no known large-scale agricultural projects planned that are likely to impact Washington ground squirrels by conversion to agricultural uses, and we are unaware of any planned U.S. Department of Agriculture programs that could significantly change the current rate of conversion in counties containing Washington ground squirrels in the future. Furthermore, as a State-endangered species in Oregon, activities detrimental to squirrels are prohibited on State-owned or leased land and easements in Oregon. The Oregon Energy Facility Siting Council and Gilliam, Morrow, and Umatilla Counties have adopted the State's guidelines on 100 percent of wind projects sited in Oregon, and these guidelines include conservation measures for Washington ground squirrels. Urban development, while it continues, is mostly concentrated in urban growth areas, which represent a very small portion of the range. Finally, the Service and Foster Creek Conservation District (FCCD) signed the Douglas County Multiple Species General Conservation Plan (MSGCP) on September 17, 2015. The MSGCP is a programmatic habitat conservation plan that private landowners in Douglas County, Washington, can voluntarily opt into; the plan includes best management practices (BMPs) specific to supporting the conservation of Washington ground squirrels. Though this habitat conservation plan is anticipated to provide conservation benefits to Washington ground squirrel, it is a voluntary program and we do not know how many landowners will enroll, so we cannot rely on the certainty of these benefits in our finding determination.

We also evaluated a future conservation effort in connection with military readiness activities at NWSTF Boardman following the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE); 68 FR 15100, March 28, 2003). The final environmental impact statement (FEIS) completed in December 2015, and record of decision (ROD) signed on March 31, 2016, confirm the Navy's commitment to implement conservation efforts that eliminate or reduce threats to Washington ground squirrels from military readiness activities on the 19,020 ha (47,000 ac) of NWSTF Boardman through a combination of BMPs, mitigation, monitoring, and adaptive management. In order to determine whether we should consider these conservation measures in this decision, we completed an analysis of the certainty of implementation and effectiveness of these future actions pursuant to PECE (68 FR 15100; March 28, 2003). Based on the history of the Navy's collaboration with us; the combined application of BMPs, mitigation, monitoring, and adaptive management; and their formal commitment to fully implement the actions they agreed to, we have a high level of certainty that the conservation efforts will be implemented and effective, and therefore considered them in this determination for the Washington ground squirrel. Military readiness activities at NWSTF Boardman will negatively impact only a small percentage (less than 1 percent) of the Washington ground squirrel habitat on the facility. Additionally, the majority of impacts associated with projectiles striking the ground, potential training-caused wildfires, and spread of invasive plants would occur in a small area (less than 324 ha (800 ac)). The Navy has committed to implementing all of the BMPs, mitigation measures, and the adaptive management strategy outlined in their FEIS in order to ameliorate any impacts to the species due to current and future military readiness activities. Therefore, we consider the former threat posed to Washington ground squirrels from military readiness activities to have been ameliorated.

Fire and conversion of sagebrush habitat to invasive plant species are, and will continue to be, rangewide issues. However, fire and invasive species have not prevented squirrels from persisting and remaining broadly distributed in these habitats, even in areas that burn frequently (e.g., the NWSTF), and we anticipate squirrels will continue to persist in these areas. These stressors are being addressed at varying levels by landowners, local governments, organizations, and agencies. Grazing can be a compatible land use with this species, and we have no information indicating that intensive grazing is currently widespread, or anticipated to be in the future, in areas occupied by the species. Other factors such as shooting, disease, and effects from pesticide use occur on a small enough scale that they are not considered significant stressors to the species now, nor are they likely to be in the future.

Some isolated populations of the Washington ground squirrel may be vulnerable to genetic effects associated with small populations; however squirrel occurrence sites are likely not as isolated as we previously thought. The rate of habitat conversion that contributes to habitat fragmentation has dropped significantly, and there are no strong and predictive trends toward development or agricultural conversion of occupied and potential habitat. Furthermore, we have documentation that squirrels are more widely distributed than previously thought; it is very likely that additional undocumented sites exist and connectivity provides potential opportunities for genetic exchange in most of the range. We therefore conclude that small population size is not currently a stressor to the Washington ground squirrel as a whole, nor is it likely to become one in the future.

Washington ground squirrel habitat is likely to be influenced by the climate change effects of increased temperatures, changes in precipitation, increased frequency and intensity of fire, and an increase in invasive vegetation (due to fire, drought, and increased carbon dioxide concentrations). We have some information about climate-change projections for temperature and precipitation in the range of the squirrel, but we have no information to suggest that temperature will increase or precipitation decrease to levels that would affect the viability of Washington ground squirrels rangewide. Increased winter and spring precipitation could have a positive effect on squirrels by providing adequate forage during the breeding season. Although hotter and drier summers may reduce the quality and abundance of native forage available to Washington ground squirrels, the species is distributed across a range of elevations, has a diverse diet, and is able to persist in disturbed grassland. Thus, the best available scientific and commercial information at this time does not lead us to conclude that the current or future effects of climate change will impact the viability of Washington ground squirrels rangewide.

Based on our review of the best available scientific and commercial information pertaining to the five factors, and when considering all of the factors in combination with each other and the existing conservation measures that benefit the species and its habitat, we conclude that the impacts on the species and its habitat are not of such imminence, intensity, or magnitude to indicate that the Washington ground squirrel is in danger of extinction (an endangered species), or likely to become so within the foreseeable future (a threatened species), throughout all of its range. Although the types of stressors vary across the range, we found no portion of its range where the stressors are significantly concentrated or substantially greater than in any other portion of its range. Therefore, we find that listing the Washington ground squirrel as an endangered or threatened species or maintaining the species as a candidate is not warranted throughout all or a significant portion of its range at this time, and consequently we are removing it from candidate status.

As a result of the Service's 2011 multidistrict litigation settlement with the Center for Biological Diversity and WildEarth Guardians, the Service is required to submit a proposed listing rule or a not-warranted 12-month finding to the Federal Register by September 30, 2016 (In re: Endangered Species Act Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)), for all 251 species that were included as candidate species in the Service's November 10, 2010, CNOR. This document satisfies the requirements of that settlement agreement for the Washington ground squirrel and constitutes the Service's 12-month finding on the March 2, 2000, petition to list the Washington ground squirrel as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Washington ground squirrel's species-specific assessment form and other supporting documents (see ADDRESSES, above).

We request that you submit any new information concerning the taxonomy, biology, ecology, status of, or stressors to the angular dwarf crayfish, Guadalupe murrelet, Huachuca springsnail, two Kentucky cave beetles (Clifton Cave and Icebox Cave beetles), Artemisia campestris var. wormskioldii, Scripps's murrelet, Virgin Islands coquí, and Washington ground squirrel 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. We encourage local agencies and stakeholders to continue cooperative monitoring and conservation efforts for these species. If an emergency situation develops for 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.).

Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within one year. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

What this document does. This document proposes the listing of the Pearl darter (Percina aurora) as a threatened species. The Pearl darter is a candidate species for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which until now development of a listing regulation has been precluded by other higher priority listing activities. This proposed rule reassesses all available information regarding status of and threats to the Pearl darter.

This document does not propose critical habitat for the Pearl darter. We have determined that critical habitat is prudent, but not determinable at this time.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that water quality decline from point and nonpoint source pollution continues to impact portions of this species' habitat. In addition, geomorphology changes attributed to past sand and gravel mining operations within the drainage are considered an ongoing threat. This species has been extirpated from the Pearl River watershed and is confined today to the Pascagoula River Basin where this species' small population size and apparent low genetic diversity increases its vulnerability to extirpation from catastrophic events.

We will seek peer review. We will seek comments from independent specialists to ensure that our designation is based on scientifically sound data, assumptions, and analyses. We will invite these peer reviewers to comment on our listing proposal.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:

(1) The Pearl darter's biology, range, and population trends, including:

(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.

(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.

(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Because we will consider all comments and information received during the comment period, our final determinations may differ from this proposal.

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we have sought the expert opinions of three appropriate and independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers have expertise in the Pearl darter's biology, habitat, and physical or biological factors that will inform our determination.

We identified the Pearl darter (Pearl channel darter, Percina sp.) as a Category 2 Candidate in the November 21, 1991, Animal Candidate Review for Listing as Endangered or Threatened Species; Notice of Review (56 FR 58804). Category 2 Candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in the subsequent November 15, 1994, annual Candidate Notice of Review (CNOR) (59 FR 58982). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Pearl darter was no longer a candidate species.

Subsequently, in 1999, the Pearl darter was once again added to the candidate list (64 FR 57534, October 25, 1999). Candidates are now defined as those fish, wildlife, and plants for which we have on file sufficient information on biological vulnerability and threats to support preparation of a listing proposal, but for which development of a listing regulation is precluded by other higher priority listing activities. The Pearl darter was included in all of our subsequent annual CNORs: 66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009; 75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 77 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015.

On May 11, 2004, we were sent a petition to list the Pearl darter by the Center for Biological Diversity. Because no new information was provided in the petition, and we had already determined the species warranted listing, no further action was taken on the petition.

On May 10, 2011, the Service announced a work plan to restore biological priorities and certainty to the Service's listing process. As part of an agreement with one of the agency's most frequent plaintiffs, the Service filed a work plan with the U.S. District Court for the District of Columbia. The work plan enables the agency to, over a period of 6 years, systematically review and address the needs of more than 250 species listed within the 2010 CNOR, including the Pearl darter, to determine if these species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. This work plan enables the Service to again prioritize its workload based on the needs of candidate species, while also providing State wildlife agencies, stakeholders, and other partners clarity and certainty about when listing determinations will be made. On July 12, 2011, the Service reached an agreement with another frequent plaintiff group and further strengthened the work plan, which allows us to focus our resources on the species most in need of protection under the Act. These agreements were approved by the court on September 9, 2011. The timing of this proposed listing is, in part, an outcome of the work plan.

The Pearl darter (Percina aurora) is a small fish with a blunt snout, horizontal mouth, large eyes located high on the head, and a medial black spot at the base of the caudal (tail) fin (Ross 2001, p. 498). Described in 1994 (Suttkus et al. 1994, pp. 13-17) from the Strong River in Simpson County, MS (Ross 2001, p. 500), the Pearl darter is one of three members of the subgenus Cottogaster. The Pearl darter is closely allied to the channel darter (P. copelandi) (Ross et al. 1989, p. 25). It is distinguished from the channel darter by its larger body size, lack of tubercles (small, raised, skin structures) and heavy pigmentation of breeding males, high number of marginal spines on the belly scales of breeding males, and fully scaled cheeks. Breeding males have two dark bands across the spinous dorsal (back) fin, a broad, diffuse, dusky marginal band, and a pronounced dark band across the fin near its base. Breeding females lack pigmentation on their ventral body surface. The Pearl darter reaches a maximum standard length (SL) of 57 millimeters (mm) (2.2 inches (in.)) in females and 64 mm (2.5 in.) in males (Suttkus et al. 1994, p. 16).

The Pearl darter is historically known from localized sites within the Pearl and Pascagoula River drainages of Mississippi and Louisiana, based on collection records from 16 counties/parishes of Mississippi and Louisiana. The quantified range of the Pearl darter, expressed in river miles, has not been well-defined by researchers (Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 5-8; Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4, Suttkus et al. 1994, pp. 15-18). However, a recent reanalysis of collection records compiled from the Mississippi Museum of Natural Science (MMNS) (2016, unpublished data) estimates the species' historical range to be approximately 708 kilometers (km) (440 miles (mi)) in the Pearl River and 539 km (335 mi) in the Pascagoula River system, for a total historical range of 1,247 km (775 mi).

Pearl River Watershed—Examination of site records of museum fish collections from the Pearl River drainage (compiled from Suttkus et al. 1994, pp. 15-18) suggest that the darter once inhabited the large tributaries and main channel habitats from St. Tammany Parish, LA, to Simpson County, MS. This area included approximately 364 km (226 mi) of the lower Pearl River, 21 km (13 mi) of the Strong River, and 322 km (200 mi) of Bogue Chitto River for a total of approximately 708 km (440 mi), all of which is below the Ross Barnett Reservoir (compiled from MMNS 2016, unpublished data; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 2-5, Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4; Suttkus et al. 1994, pp. 15-18).

Despite annual collection efforts by Suttkus from 1958 to 1973 (Bart and Suttkus 1996, pp. 3-4; Bart and Suttkus 1995, pp. 13-14; Suttkus et al. 1994, pp. 15-18), the Pearl darter was collected from only 14 percent of 716 fish collections from site-specific locations within the Pearl River drainage. There have been no records of Pearl darters from the Pearl River drainage since 1973, despite Suttkus' 64 fish collections from this time through the middle 1990s from the Pearl River (Bart and Piller 1997, p. 1) and other various collection efforts in the lower Pearl River system (Roberts 2015, pers. comm.; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499). There are no records of Pearl darters in the upper Pearl River system (upstream of the Ross Barnett Dam), and collection efforts by Schaefer and Mickel in 2011 (p. 10) confirmed its absence from this part of the Pearl River. A recent survey at the type locality in the Strong River verified its absence from that area also (Roberts 2015, pers. comm.). There have been no verifiable records of the Pearl darter from the Pearl River drainage in over 40 years, thus, this species is considered extirpated from that system, representing a 57 percent loss of its historical range.

Pascagoula River Watershed—Site records from museum fish collections before 2005 suggested that the Pearl darter inhabited the main channels of large Pascagoula drainage tributaries from Jackson to Lauderdale Counties (Ross 2001, pp. 499-500). Although collection data from Ross (2001, p. 500), Bart and Piller (1997, p. 4), Bart and Suttkus (1996, p. 4), and Suttkus et al. (1994, p. 19) suggested that the Pearl darter was very rare in the Pascagoula River system. Bart and Piller (1997, p. 4) examined Suttkus' work before 1974 and found that only 19 Pearl darters were collected out of 19,300 total fish in 10 Tulane University Museum of Natural History collections. Additionally, from the Mississippi Freshwater Fishes Database, Ross (in Bart and Piller 1997, p. 4) estimated the rarity of the Pearl darter within the Pascagoula drainage from 379 collections (81,514 fish specimens) since 1973 and found that only one Pearl darter was collected for every 4,795 specimens. This species' historical range within the Pascagoula River system totaled approximately 539 km (335 mi), which included 48 km (30 mi) of the Pascagoula River, 11 km (7 mi) of Black Creek, 131 km (82 mi) of the Leaf River, 34 km (21 mi) of Okatoma Creek, 262 km (163 mi) of the Chickasawhay River, 39 km (24 mi) of the Bouie River, and 13 km (8 mi) of Chunky Creek (compiled from MMNS 2016 unpublished data; Slack et al. 2005, pp. 5-10; Ross 2001, p. 499; Ross et al. 2000, pp. 1-28; Bart and Piller 1997, pp. 3-10; Bart and Suttkus 1996, pp. 3-4; Suttkus et al. 1994, p. 19; Ross et al. 1992, pp. 2-10).

Today, Pearl darters are thought to occur only in scattered sites within approximately 449 km (279 mi) of the Pascagoula drainage, including the Pascagoula, Chickasawhay, Chunky, Leaf, and Bouie Rivers, and Okatoma and Black Creeks. In recent years, the species has been found sporadically within the Pascagoula, Chickasawhay, and Leaf Rivers. There have been no collecting attempts within the Bouie and Chunky Rivers, nor Okatoma and Black Creeks, in the last 15 years; thus, the status of populations in those systems is unknown.

Collections of Pearl darters over the last 20 years in the Pascagoula River drainage have included: 10 Pearl darters from 4 sites out of 27 fish collections in 1996 and 1997 from the Pascagoula River (Bart and Piller 1997, p. 3); 3 specimens from the Leaf River in 1998; and 7 collections (total of 45 Pearl darters) in the Pascagoula River at the confluence with Big Black Creek (Dead Lake) and downstream of Dead Lake for 22 km (14 mi) (Slack et al. 2002, p. 15). Slack et al. (2005, p. 5) sampled for Pearl darters within the Leaf and Chickasawhay rivers beginning near the confluence with the Pascagoula River and extending through portions of the Chickasaway and Leaf Rivers. The species was present in 78 localities among the 2 systems but were typically in low abundance when present. These survey efforts by Slack et al. (2005, pp. 1-15) indicated range of the Pearl darter within the Pascagoula drainage system was further upstream than previously known.

Over the last 15 years, Pearl darters have been found from late summer through fall in the upper Pascagoula River drainage (Leaf and Chickasawhay Rivers) and in the lower Pascagoula River proper in spring and summer (Clark and Schaeffer 2015, pp. 3, 9-10, 19, 23; Slack et al. 2002, p. 8). Young of Year (YOY) (fish from the current breeding season) were collected in both 2013 and 2014 in the Chickasawhay and Leaf Rivers, indicating the existence of reproducing populations and recruitment in both of those systems (Clark and Schaeffer 2015, pp. 10, 19, 23). Schaefer and Mickle (2011, pp. 1-3) highlighted similarities in numbers of Pearl darters collected historically from the Pascagoula River Basin museum collections from 2000 to 2009 and found them to trend closely with the CPUE (Catch per Unit Effort) of 1980 to 1999 collections. Clark and Schaefer (2015, pp. 5, 9) recently resampled collection sites of Slack et al. (2005, pp. 1-13) in the Leaf and Chickasawhay Rivers, within the upper Pascagoula River, and found CPUE similar between the 2004 and 2014 surveys. Together, Clark and Schaefer (2015, pp. 5, 9), Schaefer and Mickle (2011, pp. 1-3) and Slack et al. (2005, pp. 1-13) suggest a stable population of Pearl darters has existed within these rivers in the upper Pascagoula River Basin over the last decade and speculate that populations may exist in small numbers within the other systems not recently sampled (e.g., Chunky and Bouie Rivers, Okatoma and Black creeks).

The Pearl darter occurs in low-gradient, coastal plain rivers (Suttkus et al. 1994, p. 13). The species is considered rare and is infrequently collected; however, its preference for deep water, main channels, and its association with woody debris accumulations can make sampling difficult (Bart and Piller 1997, p. 1). Pearl darters have been collected from gravel riffles and rock outcrops; deep runs over gravel and sand pools below shallow riffles; swift (90 cm per sec (35 in. per sec)), shallow water over firm gravel and cobble in mid-river channels; and swift water near brush piles. Slack et al. (2002, p. 10) found Pearl darters associated with scour holes on the inside bend of the river downstream from point bars and in substrata of coarse sand with detritus in troughs perpendicular to the shore line. Other collectors (Clark and Schaefer, 2015, pp. 11, 12, 19; Slack et al. 2005, p. 9; Bart and Piller 1997, p. 10) have found Pearl darters in areas with finer substrate (i.e., loose sand, mud, silt), including a collection in loose detritus formed from a large scouring flood event (Clark and Schaefer 2015, p. 19). Very little aquatic vegetation was found in the areas where Slack et al. (2005, p. 9) collected the species.

Very little is known about the reproductive biology and general ecology of the Pearl darter (Ross 2001, p. 499). Most Pearl darters mature in 1 year. Female Pearl darters are sexually mature at 39 mm (1.5 in) SL, while males are mature at 42 mm (1.7 in.) SL (Suttkus et al. 1994, pp. 19-20). Breeding males have been observed during May in shallow water (15 cm (5.9 in.)) over firm gravel and cobble in mid channel in water temperatures from 17 to 21 degrees Celsius (°C) (62.6 to 69.8 degrees Fahrenheit (°F)) (Bart and Piller 1997, p. 9; Suttkus et al. 1994, p. 19). It is thought that subadult Pearl darters migrate upstream during the fall and winter to spawn in gravel reaches (Bart et al. 2001, p. 14). Spawning of Pearl darters in the Pearl and Strong Rivers (Mississippi) has been documented during March through May in the upper reaches of the Bogue Chitto River (Mississippi and Louisiana) (Suttkus et al. 1994, pp. 19-20). YOY Pearl darters were collected in June from the Pearl River (Suttkus et al. 1994, p. 19). Bart and Pillar (1997, pp. 6-7) described the Strong River rapids area, near the geological outcroppings, as an important historical spawning habitat for the species in the Pearl River system.

Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal Regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on: (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. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below:

All members of Cottogaster are undergoing range contractions and are of potential conservation concern throughout their respective distributions (Dugo et al. 2008, p. 3; Warren et al. 2000, pp. 7-8; Goodchild 1994, pp. 433-435). The Pearl darter has been extirpated from the Pearl River drainage, representing an approximately 57 percent loss of its historical range. Suttkus et al. (1994, p. 19) attributed the loss of the Pearl darter in the Pearl River to increasing sedimentation from habitat modification caused by the removal of riparian vegetation and extensive cultivation near the river's edge. In addition, the decline of the species in the Pearl River was likely exacerbated by the construction of low sill dams by the West Pearl Navigation Waterway, which blocked fish passage and is thought to have led to the extirpation of the Alabama shad (Alosa alabamae) from the system (Mickel et al. 2010, p. 158).

Similar to the Pearl River system, the Pascagoula River system suffers from acute and localized water quality degradation by nonpoint source pollution in association with land surface, stormwater, and effluent runoffs from urbanization and municipal areas (Mississippi Department of Environmental Quality (MDEQ) 2005c, p. 23; 2005d, p. 16). TMDLs (Total Maximum Daily Loads; regulatory term in the U.S. Clean Water Act describing a benchmark set for a certain pollutant to bring water quality up to the applicable standard) have been established for 89 segments of the Pascagoula River Basin, many of which include portions of the Pearl darter's range (MDEQ 2014a, pp. 18-21). For sediment, one of the most pervasive pollutants, the State of Mississippi has TMDLs for various tributaries and main stems of the Leaf and Chickasawhay Rivers. To date, efforts by the State of Mississippi to improve water quality in the Pascagoula River basin to meet these TMDL benchmarks have been inadequate (MDEQ 2014a, pp. 18-21). Thirty-nine percent of the Pascagoula River Basin tributaries are rated fair or poor due to pollution impacts (MDEQ 2014a, pp. 18-21; MDEQ 2008a, p. 17).

Nonpoint source pollution is a localized threat to the Pearl darter within the drainage, and is more prevalent in areas outside those lands protected by The Nature Conservancy and other areas managed by the State of Mississippi where Best Management Practices (BMPs) are utilized. Most water quality threats outside of protected lands are due to increased sediment loads and variations in pH (MDEQ 2014a, pp. 1-51; 2008a, pp. 13-15). Sediment in stormwater runoff increases water turbidity and temperature and originates locally from poorly maintained construction sites, timber harvest tracts, agricultural fields, clearing of riparian vegetation, and gravel extraction in the river floodplain. Excessive sediments disrupt feeding and spawning of fish and aquatic insects, abrade and suffocate periphyton (mixture of algae, bacteria, microbes, and detritus that is attached to submerged surfaces), and impact fish growth, survival, and reproduction (Waters 1995, pp. 55-62). A localized portion of the Chickasawhay River is on the State Section 303(d) List of Water Bodies as impaired due to sediment (MDEQ 2005b, p. 17).

Additionally, some contaminants may bind with one another within the Pascagoula River drainage (i.e., heavy metals bind with sediments or other contaminants in the water column). These bound chemical contaminants have not been addressed in TMDLs. Only seven TMDLs for metals have been completed (MDEQ 2008a, pp. 1-55). The Davis Dead River, a tributary at the most downstream site of the Pearl darter's range, is considered critically impaired by mercury (MDEQ 2011, pp. 1-29), and fish consumption advisories continue for mercury in certain gamefish species in the Pascagoula River main stem (MDEQ 2008a, p. 43).

There are 15 permitted point source discharge sites within the Bouie River system (MDEQ 2005a, p. 6) and an unknown amount of nonpoint runoff sites. Municipal and industrial discharges during periods of low flow (i.e., no or few rain events) intensify water quality degradation by increasing water temperatures, lowering dissolved oxygen, and changing pH. Within the Pascagoula River basin, pollutants causing specific channel or river reach impairment, (i.e., those pollutants preventing the water body from reaching its applicable water quality standard (Environmental Protection Agency (EPA) 2012, pp. 1-9), include sedimentation (117 km (73 mi)); chemicals and nutrients in the water column (50 km (31 mi)); and various toxins, such as heavy metals like lead or cadmium (137 km (85 mi)). TMDLs were completed for pesticides such as DDT, toxaphene, dioxin, and pentachlorophenol, although much of the data and results are not finalized and remain unavailable for the designated reaches (EPA 2012, pp. 1-7; MDEQ 2003, pp. 5-10; Justus et al. 1999, p. 1; MDEQ 1994, pp. 1-13). No Pearl darters have been collected in the Bouie River (Bart et al. 2001, pp. 6-7) since 1997 (Ross et al. 2000, p. 3), though there is no specific data correlating the species' decline to the presence of these toxins.

Localized wastewater effluent into the Leaf River from the City of Hattiesburg is negatively impacting water quality (Hattiesburg American 2015, pp. 1-2; Mississippi River Collaboration 2014, p. 1; The Student Printz 2014, pp. 1-2). Existing housing, recreational cabins, and trailers along the banks of the Leaf River between I-59 to the town of Estabutchie add nutrient loading through sewage and septic water effluent (Mississippi River Collaboration 2014, p. 1). In 1997, Bart and Piller (p. 12) noted extensive algal growth during warmer months in the Leaf and Bouie Rivers, indicating nutrient and organic enrichment and decreases in dissolved oxygen and pH changes. Today, at specific locations, the water quality of the Bouie and Leaf Rivers continues to be negatively impacted by organic enrichment, low dissolved oxygen, fecal coliform and elevated nutrients (MDEQ 2005a, pp. 1-26; 2004, pp. 1-29).

Nonpoint and point source pollution from oil and gas exploration, including drill field construction, active drilling, and pipeline easements, may add localized pollutants into the Pascagoula River Basin during stormwater runoff events if BMPs are not used. There is one major oil refinery within the basin along with 6 oil pumping stations, 10 major crude pipelines, 4 major product oil pipelines, and 5 major gas and more than 25 lesser gas lines stretching hundreds of miles and crisscrossing the main stem Pascagoula, Bouie, Leaf, and Chickasawhay Rivers and tributaries; in addition, there are more than 100 active oil producing wells within the Pearl darters' watersheds (compiled from Oil and Gas map of Mississippi in Phillips 2013, pp. 10, 23). All have the potential to rupture and/or leak and cause environmental and organismal damage as evidenced by the Genesis Oil Co. and Leaf River oil spill of 2000 (Environmental Science Services, Inc. 2000, pp. 1-50; Kemp Associates, PA, 2000, pp. 4-5; The Clarion-Ledger, December 23, 1999, p. 1B) and Genesis Oil spill in Okatoma Creek in February 2016 (Drennen pers. observ. 2016). In addition to gas pipelines, there are numerous railways that cross Pearl darter habitat that are subject to accidental and catastrophic spilling of toxins such as fuel oil, methanol, resin, and fertilizer (MDEQ 2014b, pp. 1-23).

Alternative oil and gas collection methods (i.e., hydraulic fracturing (“fracking”) and horizontal drilling and injection) have allowed for the expansion of oil and gas drilling into deposits that were previously inaccessible (Phillips 2013, p. 21), which has led to increased activity within southern Mississippi, including portions of the Pascagoula River Basin. There are more than 100 water injection disposal wells and enhanced oil recovery wells within the Basin (compiled from Active Injection Well Map of Mississippi in Phillips 2013, p. 49). A variety of chemicals (e.g., hydrochloric acid, surfactants, potassium chloride) are used during the drilling and fracking process (Colborn et al. 2011, pp. 1040-1042), and their wastes are stored in open pits (retention basins) or storage facilities. Spills during transport or releases due to retention basin failure or overflow pose a risk for surface and groundwater contamination, which can cause significant adverse effects to water quality and aquatic organisms that inhabit these watersheds (Osborn et al. 2011, pp. 8172-8176; Kargbo et al. 2010, pp. 5680-5681; Wiseman 2009, pp. 127-142). There is currently no routine water quality monitoring in areas where the Pearl darter currently occurs, so it is unlikely that the effects of a leak or spill would be detected quickly to allow for a timely response.

Pearl darters are not found in impounded waters and are intolerant of lentic (standing water) habitats that may be formed by gravel mining or other landscape-altering practices. The results of historical sand and gravel dredging impacts have been a concern for the Bouie and Leaf Rivers (MDEQ 2000, pp. 1-98). Historically, the American Sand and Gravel Company (ASGC) (1995, p. B4) has mined sand and gravel using a hydraulic suction dredge, operating within the banks or adjacent to the Bouie and Leaf Rivers. Large gravel bars of the river and its floodplain have been removed over the past 50 years, creating open-water areas that function as deep lake systems (ASGC 1995, pp. B4-B8). The creation of these large, open-water areas has accelerated geomorphic processes, specifically headcutting (erosional feature causing an abrupt drop in the streambed), that has adversely affected the flora and fauna of many coastal plain streams (Patrick et al. 1993, p. 90). Mining in active river channels typically results in incision upstream of the mine by knickpoints (break in the slope of a river or stream profile caused by renewed erosion attributed to a bottom disturbance that may retreat upstream), sediment deposition downstream, and an alteration in channel morphology that can have impacts for years (Mossa and Coley 2004, pp. 1-20). The upstream migration of knickpoints, or headcutting, may cause undermining of structures, lowering of alluvial water tables (aquifer comprising unconsolidated materials deposited by water and typically adjacent to rivers), channel destabilization and widening, and loss of aquatic and riparian habitat. This geomorphic change may cause the extirpation of riparian and lotic (flowing water) species (Patrick et al. 1993, p. 96). Lyttle (1993, p. 70) and Brown and Lyttle (1992, pp. 2, 46) found that instream gravel mining reduces overall fish species diversity in Ozark streams and favors a large number of a few small fish species, such as the Central stoneroller (Campostoma anomalum) and most darters (Etheostoma sp.).

The decline of the Pearl darter in the Bouie River and Black Creek may be from sedimentation caused by unstable banks and loose and unconsolidated streambeds (Bart and Piller 1997, p. 12). Mossa and Coley (2004, p. 17) determined that, of the major tributaries in the Pascagoula basin, the Bouie River was the least stable. Channel enlargement of the Bouie River showed higher than background values associated with avulsions (the rapid abandonment of a river channel and the formation of a new river channel) into floodplain pits and increased sedimentation. In addition, channel enlargement of 400 to 500 percent in the Bouie River has occurred at specific sites due to instream gravel mining (Mossa et al. 2006, entire; Mossa and Coley 2004, p. 17). Ayers (2014, pp. 43-45) also found significant and lengthy instream channel form changes in the Chickasawhay River floodplain. Clark and Schaefer (2015, pp. 13-14) noted a slight decrease in fish species richness in the upper Pascagoula River basin from their 2004 sampling, which they attributed to past anthropogenic influences such as gravel mining, bankside practices, and construction.

In the Bogue Chitto River of the Pearl River basin, Stewart et al. (2005, pp. 268-270) found that the assemblages of fishes had shifted over 27 years. In this time period, the sedimentation rates within the system had increased dramatically and caused the decrease in the relative abundance of all fish in the family Percidae (Stewart et al. 2005, pp. 268-270) from 35 percent to 9 percent, including the extirpation of Pearl darters. Ross et al. (1992, pp. 8-9) studied threats to the Okatoma Creek (Pascagoula Basin) fish diversity and predicted that geomorphic changes to the stream would reduce the fish habitat diversity resulting in a decline of the fish assemblages, including the rare Pearl darter.

The proposed damming of Little and Big Cedar Creeks, tributaries to the Pascagoula River, for establishment of two recreational lakes (George County Lakes) (U.S. Army Corps of Engineers 2015, pp. 1-13) has prompted the American Rivers organization to recently list the Pascagoula River as the 10th most endangered river in the country (American Rivers 2016, pp. 20-21). Though the proposed project is not directly within known Pearl darter habitat, the lakes will decrease water quantity entering the lower Pascagoula Basin, and will likely concentrate pollutants, reduce water flow, and alter downstream food webs and aquatic productivity (Poff and Hart 2002, p. 660).

Habitat modification and resultant water quality degradation are occurring within the Pearl darter's current range. Increased sedimentation from the removal of riparian vegetation and extensive cultivation is thought to have led to the extirpation of the Pearl darter from the Pearl River drainage. Water quality degradation occurs locally from point and nonpoint source pollution in association with land surface, stormwater, and effluent runoff from urbanization and municipal areas. Increased sediment from a variety of sources, including geomorphological changes and bank instability from past habitat modification, appears to be the major contributor to water quality declines in this species' habitat. Localized sewage and waste water effluent also pose a threat to this species and its habitat. The Pearl darter's vulnerability to catastrophic events, particularly the release of pollutants in its habitat from oil spills, train derailments, and hydraulic fracturing, is also a concern due to the abundance of oil wells, pumping stations, gas lines, and railways throughout its habitat, and the increased interest in alternative oil and gas collection methods in the area. The proposed damming of Big and Little Cypress creeks may decrease water flow and increase nutrients and sedimentation into the Pascagoula River. These threats continue to impact water quality and habitat conditions through much of this species' current range. Therefore, we conclude that habitat degradation is presently a moderate threat to the Pearl darter that is expected to continue and possibly increase into the future.

In general, Pearl darters are unknown to the public and are not used for either sport or bait purposes. Therefore, collection of this species by the public is not currently identified as a threat. Scientific collecting is controlled by the State through permits; thus, scientific collecting and take by private and institutional collectors are not presently identified as threats. Therefore, overutilization for commercial, recreational, scientific, or educational purposes does not pose a threat to the Pearl darter now or in the future.

Predation on the Pearl darter by other fish, reptiles, and other organisms undoubtedly occurs; however, there is no evidence to suggest that any predators threaten this species. There is also no evidence that disease is a threat. Therefore, neither disease nor predation poses a threat to the Pearl darter now or in the future.

The State of Mississippi classifies the Pearl darter as endangered in the State (Mississippi Natural Heritage Program 2015, p. 2), and prohibits the collection of the Pearl darter for scientific purposes without a State-issued collecting permit. However, as discussed under Factor B, we have no evidence to suggest that scientific collection poses a threat to this species. This State endangered designation conveys no legal protection for the Pearl darter's habitat nor prohibits habitat degradation, which is the primary threat to the species. The Pearl darter receives no protection in Louisiana, where it is considered historic in the State (Louisiana Department of Wildlife and Fisheries 2016, p. 5).

The Pearl darter and its habitats are afforded some protection from water quality and habitat degradation under the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.) and the Mississippi Water Pollution Control Law, as amended, 1993 (Code of Mississippi, §§ 49-17-1, et seq.) and regulations promulgated thereunder by the Mississippi Commission on Environmental Quality. Although these laws have resulted in some temporary enhancement in water quality and habitat for aquatic life, they have been inadequate in fully protecting the Pearl darter from sedimentation and other nonpoint source pollutants.

The State of Mississippi maintains water-use classifications through issuance of National Pollutant Discharge Elimination System permits to industries, municipalities, and others that set maximum limits on certain pollutants or pollutant parameters. For water bodies on the Clean Water Act section 303(d) list, the State is required to establish a TMDL for the pollutants of concern that will improve water quality to the applicable standard. The establishment of TMDLs for 89 river or stream segments and ratings of fair to poor for 39 percent of the tributaries within the Pascagoula basin are indicative of pollution impacts within the Pearl darter's habitat (MDEQ 2008a, p. 17). TMDLs are not an enforced regulation, and only reflect benchmarks for improving water quality; they have not been successful in reducing water quality degradation within this species' habitat.

Mississippi Surface Mining and Reclamation Law, Miss. Code Ann. § 53-7-1 et seq., and Federal laws regarding oil and gas drilling (42 U.S.C. 6921) are generally designed to protect freshwater resources like the Pearl darter, but these regulatory mechanisms do not contain specific provisions requiring an analysis of project impacts to fish and wildlife resources. They also do not contain or provide for any formal mechanism requiring coordination with, or input from, the Service or the Mississippi Department of Wildlife, Fisheries and Parks regarding the presence of federally endangered, threatened, or candidate species, or other rare and sensitive species. In the case of surface mining, penalties may be assessed if damage is serious, but there is no immediate response for remediation of habitats or species. As demonstrated under Factor A, periodic declines in water quality and degradation of habitat for this species are ongoing despite these protective regulations. These mechanisms have been inadequate to protect the species from sediment runoff and turbidity within its habitat associated with land surface runoff and municipal/industrial discharges, as described under Factor A. There are currently no requirements within the scope of other statewide environmental laws to specifically consider the Pearl darter or ensure that a project will not significantly impact the species.

The Pearl darter likely receives ancillary protection (i.e., water quality improvements, protection from geomorphological changes) where it co-occurs with two other federally listed species, the Gulf sturgeon (Acipenser oxyrhynchus desotoi) and yellow blotched map turtle (Graptemys flavimaculata), during the course of consultation on these species under section 7 of the Act. However, protective measures through section 7 of the Act would only be triggered for those projects having a Federal nexus, which would not address many of the water quality disturbances caused by industry, municipalities, agriculture, or private landowners.

Additional ancillary protection of 53,520 hectares (ha) (132,128 acres (ac)) within the Pascagoula basin watershed occurs due to the Mississippi Wildlife, Fisheries and Parks' management of six Wildlife Management Areas (WMAs) within the drainage for recreational hunting and fishing. Point and nonpoint sediment sources are decreased or reduced by using and monitoring BMP's during silviculture, road maintenance, and other landscape-altering methods. Four of the six WMAs (Chickasawhay and Leaf Rivers, Mason and Red Creeks) do not directly border the river system, but they do contain and protect parcels of upland buffer, wetland, and tributaries to the basin. The Pascagoula River and Ward Bayou WMAs include 20,329 ha (50,234 ac) consisting of mainly wetland buffer and river/stream reach of the basin within the current range of the Pearl darter, protecting approximately 106 km (66 mi) of the Pascagoula River main stem (Stowe, pers. comm., 2015). The Nature Conservancy (TNC) protects 14,164 ha (35,000 ac) within the Pascagoula River watershed and approximately 10 km (6 mi) of the Pascagoula River shoreline in Jackson County, Mississippi. Of that amount, the Charles M. Deaton Nature Preserve (1,336 ha, 3,300 ac) protects the headwaters of the Pascagoula River, where the Leaf and Chickasawhay Rivers converge, and is part of a 19,020-ha (47,000-ac) swath of public lands surrounding the Pascagoula River, which includes approximately 8 km (5 mi) of the Chickasawhay River and approximately 7 km (4 mi) of the Leaf River shorelines (Becky Stowe 2015, pers. comm.).

These State-managed WMAs and TNC preserves provide a measure of protection for approximately 134 km (84 mi) or 30 percent of the river reaches within this species' current range. Even though 116 of these 134 km (72 of 84 mi) are located within the Pascagoula River mainstem, only short segments of shoreline are protected in the Chickasawhay and Leaf Rivers. The remaining segments, not within WMA's and TNC preserves, are vulnerable to farming and timbering to the bankside edge, and construction of structures such as houses, septic facilities, dams, and ponds. Each land management action increases stormwater runoff laden with sediment and agricultural and wastewater chemicals.

Outside of the areas protected or managed by the State and TNC, and despite existing authorities, such as the Clean Water Act, pollutants continue to impair the water quality throughout much of the current range of the Pearl darter. State and Federal regulatory mechanisms have helped reduce the negative effects of point source and nonpoint source discharges, yet there is inconsistency in the implementation of these regulations and BMPs, which are not mandatory for all activities. Thus, we conclude that existing regulatory mechanisms do not adequately protect the Pearl darter from the impact of other threats.

The Pearl darter is included on the Southeastern Fishes Council list of the 12 most imperiled species (Kuhajda et al. 2009, pp. 17-18). This species has always been considered rare (Deacon et al. 1979, p. 42) and is currently restricted to localized sites within the Pascagoula River drainage. Genetic diversity has likely declined due to fragmentation and separation of reproducing Pearl darter populations. Kreiser et al. (2012, p. 12) found that disjunct populations of Pearl darters within the Leaf and Chickasawhay Rivers showed some distinct alleles suggesting that gene flow between the two rivers was restricted and perhaps that the total gene pool diversity was declining.

Species that are restricted in range and population size are more likely to suffer loss of genetic diversity due to genetic drift, potentially increasing their susceptibility to inbreeding depression, decreasing their ability to adapt to environmental changes, and reducing the fitness of individuals (Allendorf and Luikart 2007, pp. 117-146; Soulé 1980, pp. 157-158). It is likely that some of the Pearl darter populations are below the effective population size required to maintain long-term genetic and population viability (Soulé 1980, pp. 162-164). Collecting data (Ross 2001, p. 500; Bart and Piller 1997, p. 4; Bart and Suttkus 1996, p. 4; Suttkus et al. 1994, p. 19) indicate that the Pearl darter is rare in the Pascagoula River system, as when this species is collected it is typically in low numbers and a disproportionately low percentage of the total fish collected.

In addition, preliminary information indicates that there may be low genetic diversity within the Pearl darter populations, especially among populations within the Leaf and Chickasawhay Rivers where it appears gene flow between the two rivers may be restricted (Kreiser et al. 2013, pp. 14-17). The long-term viability of a species is founded on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). The presence of viable, separate populations is essential for a species to recover and adapt to environmental change (Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). Inbreeding and loss of neutral genetic variation associated with small population size reduce the fitness of the population (Reed and Frankham 2003, pp. 230-237) and accelerate population decline (Fagan and Holmes 2006, pp. 51-60). The species' small numbers within scattered locations coupled with its lack of genetic variability may decrease the species' ability to adapt or recover from major hydrological events that impact potential spawning habitat (Clark and Schaeffer 2015, pp. 18-22).

Fish and aquatic communities and habitat, including that of the Pearl darter, may be changed by hurricane influences (Schaefer et al. 2006, pp. 62-68). In 2005, Hurricane Katrina destroyed much of the urban and industrial areas along the lower Pascagoula River basin and also impacted the ecology upriver to the confluence with the Leaf and Chickasawhay Rivers. Many toxic chemicals that leaked from grounded and displaced boats and ships, storage facilities, vehicles, septic systems, business sites, and other sources were reported in the rivers, along with saltwater intrusion from the Gulf of Mexico. Initial assessment identified several fish kills and increased surge of organic material into the waters, which lowered dissolved oxygen levels (Schaefer et al. 2006, pp. 62-68).

The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2014, p. 3). Numerous long-term climate changes have been observed including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns, and aspects of extreme weather including droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones (IPCC 2014, p. 4). Species that are dependent on specialized habitat types, limited in distribution, or at the extreme periphery of their range may be most susceptible to the impacts of climate change (see 75 FR 48911, August 12, 2010); however, while continued change is certain, the magnitude and rate of change is unknown in many cases.

Climate change has the potential to increase the vulnerability of the Pearl darter to random catastrophic events (Thomas et al. 2004, pp. 145-148; McLaughlin et al. 2002, pp. 6060-6074). An increase in both severity and variation in climate patterns is expected, with extreme floods, strong storms, and droughts becoming more common (IPCC 2014, pp. 58-83). Thomas et al. (2004, pp. 145-148) report that frequency, duration, and intensity of droughts are likely to increase in the Southeast as a result of global climate change. Kaushal et al. (2010, p. 465) reported that stream temperatures in the Southeast have increased roughly 0.2-0.4 °C (0.3-0.7 °F) per decade over the past 30 years, and as air temperature is a strong predictor of water temperature, stream temperatures are expected to continue to rise. Predicted impacts of climate change on fishes, related to drought, include disruption to their physiology (e.g., temperature tolerance, dissolved oxygen needs, and metabolic rates), life history (e.g., timing of reproduction, growth rate), and distribution (e.g., range shifts, migration of new predators) (Comte et al. 2013, pp. 627-636; Strayer and Dudgeon 2010, pp. 350-351; Heino et al. 2009, pp. 41-51; Jackson and Mandrak 2002, pp. 89-98). However, estimates of the effects of climate change using available climate models typically lack the geographic precision needed to predict the magnitude of effects at a scale small enough to discretely apply to the range of a given species. Therefore, there is uncertainty about the specific effects of climate change (and their magnitude) on the Pearl darter; however, climate change is almost certain to affect aquatic habitats in the Pascagoula River basin through increased water temperatures and more frequent droughts (Alder and Hostetler 2013, pp. 1-12), and species with limited ranges, fragmented distributions, and small population size are thought to be especially vulnerable to the effects of climate change (Byers and Norris 2011, p. 18). Thus, we consider climate change to be a threat to the Pearl darter.

Because the Pearl darter has a limited geographic range, small population numbers, and low genetic diversity, it is vulnerable to several other ongoing natural and manmade threats. These threats include the loss of genetic fitness, susceptibility to spills and other catastrophic events, and impacts from climate change. These threats are current and are likely to continue or increase in the future.

The threats that affect the Pearl darter are important on a threat-by-threat basis but are even more significant in combination. Due to the loss of the species from the Pearl River system, the Pearl darter is now confined to a single drainage system. The species is continuing to experience water quality degradation from point and nonpoint source pollution in association with land-altering activities, discharges from municipalities, and geomorphological changes from past gravel mining. The laws and regulations directed at preventing water quality degradation have been ineffective at providing for the conservation of the Pearl darter. Furthermore, these threats and their effect on this species are exacerbated due to the Pearl darter's small population numbers and low genetic diversity, which reduce its genetic fitness and resilience to possible catastrophic events. Though projecting possible synergistic effects of climate change on the Pearl darter is somewhat speculative, climate change and its effects of increased water temperatures and more frequent droughts will have a greater negative impact on species with limited ranges and small population sizes, such as the Pearl darter. While these threats or stressors may act in isolation, it is more probable that many stressors are acting simultaneously (or in combination) on the Pearl darter.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Pearl darter. As described in detail above, the Pearl darter has been extirpated from about 57 percent of its historical range and it is now confined to the Pascagoula River watershed. The species occurs in low numbers within its current range, and continues to be at risk throughout all of its range due to the immediacy, severity, and scope of threats from habitat degradation and range curtailment (Factor A) and other natural or manmade factors affecting its continued existence (Factor E). Existing regulatory mechanisms have been inadequate in ameliorating these threats (Factor D).

Anthropogenic activities such as land development, agriculture, silviculture, oil and gas development, inadequate sewage treatment, stormwater runoff, past gravel mining and resultant geomorphological changes, and construction of dams or sills, have all contributed to the degradation of stream habitats and particularly water quality within this species' range (Factor A). These land use activities have led to chemical and physical changes in the mainstem rivers and tributaries that continue to affect the species through negative impacts to its habitat. Specific threats include inputs of sediments, siltation of stream substrates, turbidity, and inputs of dissolved solids. These threats, especially the inputs of dissolved solids and sedimentation, have had profound negative effects on Pearl darter populations and have been the primary factor in the species' decline. Existing regulatory mechanisms (e.g., the Clean Water Act) have provided for some improvements in water quality and habitat conditions across the species' range, but these laws and regulations have been inadequate in protecting the species' habitat (Factor D), as evidenced by the extirpation of the species within the Pearl River basin and the number of section 303(d) listed streams within the species' historical range. The Pearl darter's vulnerability to these threats is even greater due to its reduced range, fragmented populations, small population sizes, and low genetic diversity (Factor E). The effects of certain threats, particularly habitat degradation and loss, increase in magnitude when population size is small (Primack 2012, pp. 150-152).

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the Pearl darter is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, based on the immediacy, severity, and scope of the threats currently impacting the species. The overall range has been reduced substantially and the remaining habitat and populations are threatened by a variety of factors acting in combination to reduce the overall viability of the species over time. The risk of becoming endangered is high because populations are confined to a single watershed, most are small in size, and numerous threats are impacting them. However, we find that endangered species status is not appropriate. Despite low population numbers and numerous threats, populations in the Chickasawhay and Leaf Rivers, which are the largest, appear to be stable and reproducing. In addition, the magnitude of threats is considered to be moderate overall, since the threats are having a localized impact on the species and its habitat. For example, water quality degradation, the most prevalent threat, is not as pervasive within areas protected with BMPs, and geomorphic changes, caused by past sand and gravel mining, are also sporadic within its habitat. Therefore, on the basis of the best available scientific and commercial information, we propose listing the Pearl darter as threatened in accordance with sections 3(6) and 4(a)(1) of the Act.

Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that Pearl darter is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577, July 1, 2014).

Section 3(5)(A) of the Act defines critical habitat as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) Essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.”

Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum extent prudent and determinable. Our regulations (50 CFR 424.12(a)(1)) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other activity and the identification of critical habitat can be expected to increase the degree of threat to the species; or (2) such designation of critical habitat would not be beneficial to the species. There is currently no imminent threat of take attributed to collection or vandalism under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, a finding that designation is prudent is warranted. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for action in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing inadvertent harm to the species. Accordingly, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we determine that designation of critical habitat is prudent for the Pearl darter.

Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the species is determinable. Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat.

As discussed above, we have reviewed the available information pertaining to the biological needs of the species and habitat characteristics where the species is located. On the basis of a review of available information, we find that critical habitat for the Pearl darter is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking, such as information on areas to be proposed for designation and the potential economic impacts associated with designation of these areas. We are in the process of obtaining this information. We will make a determination on critical habitat no later than 1 year following any final listing determination.

Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If the species is listed, the recovery outline, draft recovery plan, and the final recovery plan would be available on our Web site (http://www.fws.gov/endangered), or from our Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Mississippi would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Pearl darter. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

Although the Pearl darter is only proposed for listing under the Act at this time, please let us know if you are interested in participating in conservation efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Forest Service; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of gas and oil pipelines and power line rights-of-way by the Federal Energy Regulatory Commission; Environmental Protection Agency pesticide registration; and construction and maintenance of roads or highways by the Federal Highway Administration.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

(1) Normal agricultural and silvicultural practices, including herbicide and pesticide use, which are carried out in accordance with existing regulations, permit and label requirements, and best management practices.

(2) Normal residential and urban landscape activities, such as mowing, edging, fertilizing, etc.

(3) Normal pipeline/transmission line easement maintenance.

(4) Normal bridge, culvert, and roadside maintenance consistent with appropriate best management practices for these activities.

Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

(1) Unauthorized handling or collecting of the species.

(2) Introduction of nonnative fish that compete with or prey upon the Pearl darter.

(3) Discharge or dumping of toxic chemicals, contaminants, sediments, waste water effluent, or other pollutants into waters supporting the Pearl darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as spawning, feeding, or sheltering.

(4) Destruction or alteration of the species' habitat (e.g., unpermitted instream dredging, impoundment, water diversion or withdrawal, channelization, discharge of fill material, modification of tributaries, channels, or banks) that impairs essential behaviors such as spawning, feeding, or sheltering, or results in killing or injuring a Pearl darter.

(5) Mining, oil and gas processes, silviculture, and agricultural processes that result in direct or indirect destruction of riparian bankside habitat or in channel habitat in waters supporting the Pearl darter that kills or injures individuals, or otherwise impairs essential life-sustaining behaviors such as spawning, feeding, or sheltering.

Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal lands located within the range of this species.

A complete list of references cited in this proposed rulemaking is available on the Internet at http://www.regulations.gov and upon request from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this proposed rule are the staff members of the Mississippi Ecological Services Field Office.

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