Federal Register Vol. 81, No.194,

Federal Register Volume 81, Issue 194 (October 6, 2016)

Page Range69369-69658
FR Document

81_FR_194
Current View
Page and SubjectPDF
81 FR 69553 - Sunshine Act Meeting NoticePDF
81 FR 69383 - National Community Policing Week, 2016PDF
81 FR 69379 - National Youth Justice Awareness Month, 2016PDF
81 FR 69377 - National Energy Action Month, 2016PDF
81 FR 69375 - National Domestic Violence Awareness Month, 2016PDF
81 FR 69373 - National Disability Employment Awareness Month, 2016PDF
81 FR 69371 - National Cybersecurity Awareness Month, 2016PDF
81 FR 69369 - National Breast Cancer Awareness Month, 2016PDF
81 FR 69521 - Farm Credit Administration Board; Sunshine Act; Regular MeetingPDF
81 FR 69527 - Deletion of Items From Sunshine Act MeetingPDF
81 FR 69556 - Temporary Emergency Committee of the Board of Governors; Sunshine Act MeetingPDF
81 FR 69514 - Renewable Energy and Energy Efficiency Advisory CommitteePDF
81 FR 69538 - Meeting of the Secretary's Advisory Committee on Human Research ProtectionsPDF
81 FR 69539 - Announcement of Solicitation of Written Comments on Modifications of Healthy People 2020 ObjectivesPDF
81 FR 69513 - Certain Cased Pencils From the People's Republic of China: Final Results of Expedited Sunset Review of the Antidumping Duty OrderPDF
81 FR 69512 - Certain Paper Clips From the People's Republic of China: Final Results of Expedited Fourth Sunset Review of Antidumping Duty OrderPDF
81 FR 69509 - Meeting Notice of the National Agricultural Research, Extension, Education, and Economics Advisory BoardPDF
81 FR 69532 - Public Meeting on Pre-Market Evaluation of Abuse-Deterrent Properties of Opioid Drug ProductsPDF
81 FR 69535 - Head Lice Infestation: Developing Drugs for Topical Treatment; Guidance for Industry; AvailabilityPDF
81 FR 69537 - Tropical Disease Priority Review Vouchers; Guidance for Industry; AvailabilityPDF
81 FR 69571 - Submission for OMB Review; Comment RequestPDF
81 FR 69551 - NASA Advisory Council; Institutional Committee; MeetingPDF
81 FR 69572 - Research Advisory Committee on Gulf War Veterans' Illnesses; Notice of MeetingPDF
81 FR 69571 - Proposed Collection; Comment RequestPDF
81 FR 69545 - Announcement of Scientific Earthquake Studies Advisory Committee MeetingPDF
81 FR 69546 - Notice of Intent To Prepare an Environmental Impact Statement and Resource Management Plan Amendment for the Verde Transmission Project in New MexicoPDF
81 FR 69551 - Submission for OMB Review; Comment RequestPDF
81 FR 69529 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 69529 - Formations of, Acquisitions by, and Mergers of Savings and Loan Holding CompaniesPDF
81 FR 69555 - New Postal ProductsPDF
81 FR 69529 - Notice of Termination, 10118 Brickwell Community Bank, Woodbury, MinnesotaPDF
81 FR 69528 - Notice of Termination, 10386 Bank of Shorewood, Shorewood, IllinoisPDF
81 FR 69568 - Limitation on Claims Against Proposed Public Transportation ProjectsPDF
81 FR 69401 - Dichlormid; Pesticide TolerancesPDF
81 FR 69568 - Advisory Committee on International Economic Policy; Notice of Open MeetingPDF
81 FR 69567 - U.S. Department of State Advisory Committee on Private International Law (ACPIL): Public Meeting on the Judgments ProjectPDF
81 FR 69567 - International Security Advisory Board (ISAB) Meeting NoticePDF
81 FR 69514 - Submission for OMB Review; Comment RequestPDF
81 FR 69519 - Combined Notice of Filings #2PDF
81 FR 69520 - Combined Notice of Filings #1PDF
81 FR 69518 - Submission for OMB Review; Comment RequestPDF
81 FR 69554 - Strata Energy, Inc.; Ross Uranium In-Situ Recovery Facility; Source and Byproduct Materials LicensePDF
81 FR 69517 - Proposed Information Collection; Comment Request; Southeast Region Gulf of Mexico Electronic Logbook ProgramPDF
81 FR 69515 - Proposed Information Collection; Comment Request; Southeast Region Gulf of Mexico Mandatory Shrimp Vessel and Gear Characterization SurveyPDF
81 FR 69517 - Proposed Information Collection; Comment Request; Statement of Financial Interests, Regional Fishery Management CouncilsPDF
81 FR 69553 - Vogtle Electric Generating Plant, Units 3 and 4PDF
81 FR 69509 - Sabine-Angelina Resource Advisory CommitteePDF
81 FR 69446 - Risk-Informed Changes to Loss-of-Coolant Accident Technical RequirementsPDF
81 FR 69519 - Proposed Collection; Comment RequestPDF
81 FR 69568 - CSX Transportation, Inc.-Trackage Rights Exemption-Grand Trunk Western Railroad CompanyPDF
81 FR 69569 - Unblocking of Specially Designated Nationals and Blocked Persons, Executive Order 12978PDF
81 FR 69442 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 69570 - Unblocking of Specially Designated Nationals and Blocked Persons, Foreign Narcotics Kingpin Designation ActPDF
81 FR 69545 - Renewal of Agency Information Collection for Grazing PermitsPDF
81 FR 69443 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Atka Mackerel in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 69528 - Notice of Termination; 10477, Parkway Bank, Lenoir, North CarolinaPDF
81 FR 69529 - Notice to all Interested Parties of the Termination of the Receivership of 10206-Key West Bank, Key West, FloridaPDF
81 FR 69528 - Notice of Termination; 10006 First Integrity Bank, National Association, Staples, MinnesotaPDF
81 FR 69528 - Notice to All Interested Parties of the Termination of the Receivership of 10065-Cooperative Bank; Wilmington, NCPDF
81 FR 69552 - Advisory Committee for Mathematical and Physical Sciences; Notice of MeetingPDF
81 FR 69510 - In the Matter of: Russell Henderson Marshall, Currently Incarcerated at: Inmate Number-96646-004, McCrae, Correctional Institution, P.O. Drawer 55030, McCrae Helena, GA 31055, and With an Address at: 14883 64th CT, North Loxahatchee, FL 33470; Order Denying Export Privileges.PDF
81 FR 69409 - Radio Broadcasting Services; Sells, Willcox, and Davis-Monthan Air Force Base, ArizonaPDF
81 FR 69516 - New England Fishery Management Council; Public MeetingPDF
81 FR 69516 - North Pacific Fishery Management Council; Public MeetingPDF
81 FR 69550 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: Leadership Engagement SurveyPDF
81 FR 69538 - Council on Graduate Medical EducationPDF
81 FR 69549 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Previously Approved Collection; National Center for the Analysis of Violent Crime (NCAVC)PDF
81 FR 69577 - Agency Information Collection: Application for Reinstatement-Insurance Lapsed More Than 6 Months (29-352) and Application for Reinstatement-Non Medical Comparative Health Statement (29-353)PDF
81 FR 69573 - Agency Information Collection (Availability of Educational Licensing, and Certification Records) Activity Under OMB ReviewPDF
81 FR 69575 - Proposed Information Collection (Request for Disinterment) Activity: Comment RequestPDF
81 FR 69575 - Proposed Information Collection (Submission of School Catalog to the State Approving Agency) Activity: Comment RequestPDF
81 FR 69574 - Proposed Information Collection (Beneficiary Travel Mileage Reimbursement Application Form, VA Form 10-3542) Activity: OMB ReviewPDF
81 FR 69573 - Agency Information Collection: VA Loan Electronic Reporting Interface (VALERI) System; Activity Under OMB ReviewPDF
81 FR 69571 - Proposed Information Collection (Agent Orange Registry Code Sheet; VA Form 10-9009) Activity: Comment RequestPDF
81 FR 69574 - Agency Information Collection (Dependent's Educational Assistance (DEA)) OMB ReviewPDF
81 FR 69576 - Agency Information Collection (Application for Educational Assistance to Supplement Tuition Assistance) OMB ReviewPDF
81 FR 69574 - Agency Information Collection: (Reconsideration of Denied Claims) Activity: Comment RequestPDF
81 FR 69547 - Renewal of Approved Information Collection; OMB Control No. 1004-0019PDF
81 FR 69510 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 69558 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
81 FR 69565 - Self-Regulatory Organizations; ISE Mercury, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule 209PDF
81 FR 69556 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule 209PDF
81 FR 69560 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule 213PDF
81 FR 69562 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Partial Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Partial Amendment No. 1, Amending Rule 7.46 Relating to the Exchange's Order Types To Implement the Tick Size Pilot ProgramPDF
81 FR 69556 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 69556 - Product Change-Priority Mail and First-Class Package Service Negotiated Service AgreementPDF
81 FR 69425 - Endangered and Threatened Wildlife and Plants; 12-Month Findings on Petitions To List 10 Species as Endangered or Threatened SpeciesPDF
81 FR 69417 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Suwannee MoccasinshellPDF
81 FR 69522 - Notice of Request for Comment on the Exposure Draft Titled Federal Financial ReportingPDF
81 FR 69522 - Notice of Request for Comment on the Exposure Draft Titled Leases: An Amendment of SFFAS 5, Accounting for Liabilities of the Federal Government and SFFAS 6, Accounting for Property, Plant, and EquipmentPDF
81 FR 69541 - Government-Owned Inventions; Availability for LicensingPDF
81 FR 69544 - Prospective Grant of Exclusive Patent License: Development of a NANOG-Based Therapeutic for CancerPDF
81 FR 69530 - Proposed Data Collections Submitted for Public Comment and RecommendationsPDF
81 FR 69543 - National Institute of General Medical Sciences: Notice of Closed MeetingPDF
81 FR 69541 - National Institute of Allergy and Infectious Diseases: Notice of Closed MeetingPDF
81 FR 69542 - National Institute on Aging: Notice of Closed MeetingPDF
81 FR 69542 - National Cancer Institute; Notice of Closed MeetingsPDF
81 FR 69540 - Center for Scientific Review: Notice of Closed MeetingsPDF
81 FR 69540 - Center for Scientific Review; Notice of Closed MeetingPDF
81 FR 69543 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 69500 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Black Warrior WaterdogPDF
81 FR 69475 - Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Black Warrior WaterdogPDF
81 FR 69445 - Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management AreaPDF
81 FR 69454 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for Louisiana PinesnakePDF
81 FR 69448 - Findings of Failure To Attain the 1997 PM2.5PDF
81 FR 69396 - Denial of Request for Extension of Attainment Date for 1997 PM2.5PDF
81 FR 69393 - Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control DistrictPDF
81 FR 69522 - Privacy Act System of Records.PDF
81 FR 69410 - Revisions to Arbitration ProceduresPDF
81 FR 69548 - Stainless Steel Sheet and Strip From China; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
81 FR 69385 - Approval and Promulgation of Implementation Plans; Washington: Updates to Incorporation by Reference and Miscellaneous RevisionsPDF
81 FR 69390 - Approval and Limited Approval and Limited Disapproval of Air Quality Implementation Plans; California; Northern Sonoma County Air Pollution Control District; Stationary Source PermitsPDF
81 FR 69407 - Final Determination To Approve Site-Specific Flexibility for Closure and Monitoring of the Picacho LandfillPDF
81 FR 69580 - Abbreviated New Drug Applications and 505(b)(2) ApplicationsPDF

Issue

81 194 Thursday, October 6, 2016 Contents Agriculture Agriculture Department See

Forest Service

NOTICES Meetings: National Agricultural Research, Extension, Education, and Economics Advisory Board, 69509 2016-24235
Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69530-69532 2016-24132 Commerce Commerce Department See

Economic Development Administration

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Defense Department Defense Department See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69518-69519 2016-24199
Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 69510 2016-24151 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Northern Sonoma County Air Pollution Control District; Stationary Source Permits, 69390-69392 2016-23851 California; San Joaquin Valley Serious Nonattainment Area; Denial of Request for Extension of Attainment Date for 1997 PM2.5 National Ambient Air Quality Standards, 69396-69401 2016-24082 California; San Joaquin Valley Unified Air Pollution Control District, 69393-69396 2016-24081 Washington; Updates to Incorporation by Reference and Miscellaneous Revisions, 69385-69390 2016-23862 Pesticide Tolerances: Dichlormid, 69401-69407 2016-24214 Site-Specific Flexibility for Closure and Monitoring of Picacho Landfill: Final Determination to Approve, 69407-69409 2016-23839 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; San Joaquin Valley; Findings of Failure to Attain 1997 PM2.5 Standards, 69448-69454 2016-24084 Farm Credit Farm Credit Administration NOTICES Meetings; Sunshine Act, 69521-69522 2016-24296 Federal Accounting Federal Accounting Standards Advisory Board NOTICES Exposure Drafts: Leases: Amendment of SFFAS 5, Accounting for Liabilities of the Federal Government and SFFAS 6, Accounting for Property, Plant, and Equipment, 69522 2016-24135 Federal Financial Reporting, 69522 2016-24137 Federal Communications Federal Communications Commission RULES Radio Broadcasting Services: Sells, Willcox, and Davis-Monthan Air Force Base, AZ, 69409-69410 2016-24174 NOTICES Meetings; Sunshine Act, 69527-69528 2016-24276 Privacy Act; Systems of Records, 69522-69527 2016-24068 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: 10006 First Integrity Bank N.A., Staples, MN, 69528 2016-24179 10065 Cooperative Bank Wilmington, NC, 69528 2016-24178 10118 Brickwell Community Bank Woodbury, MN, 69529 2016-24218 10206 Key West Bank, Key West, FL, 69529 2016-24180 10386 Bank of Shorewood, Shorewood, IL, 69528 2016-24217 10477 Parkway Bank Lenoir, NC, 69528-69529 2016-24181 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 69519-69521 2016-24203 2016-24204 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 69529 2016-24222 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 69529-69530 2016-24221 Federal Transit Federal Transit Administration NOTICES Limitations on Claims Against Proposed Public Transportation Projects, 69568-69569 2016-24216 Fish Fish and Wildlife Service RULES Endangered and Threatened Wildlife and Plants: 12-Month Findings on Petitions to List 10 Species as Endangered or Threatened, 69425-69442 2016-24142 Suwannee Moccasinshell, 69417-69425 2016-24138 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat for Black Warrior Waterdog, 69475-69500 2016-24118 Endangered Species Status for Black Warrior Waterdog, 69500-69508 2016-24119 Threatened Species Status for Louisiana Pinesnake, 69454-69475 2016-24113 Food and Drug Food and Drug Administration RULES Abbreviated New Drug Applications and 505(b)(2) Applications, 69580-69658 2016-22690 NOTICES Guidance: Head Lice Infestation: Developing Drugs for Topical Treatment, 69535-69537 2016-24233 Tropical Disease Priority Review Vouchers, 69537-69538 2016-24232 Meetings: Pre-Market Evaluation of Abuse-Deterrent Properties of Opioid Drug Products, 69532-69535 2016-24234 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 69569-69571 2016-24184 2016-24186 Forest Forest Service NOTICES Meetings: Sabine-Angelina Resource Advisory Committee, 69509-69510 2016-24190 Geological Geological Survey NOTICES Meetings: Scientific Earthquake Studies Advisory Committee, 69545 2016-24226 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Meetings: Secretary's Advisory Committee on Human Research Protections, 69538-69539 2016-24251 Modifications of Healthy People 2020 Objectives, 69539-69540 2016-24250
Health Resources Health Resources and Services Administration NOTICES Meetings: Council on Graduate Medical Education, 69538 2016-24167 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Grazing Permits, 69545-69546 2016-24183 Industry Industry and Security Bureau NOTICES Orders Denying Export Privileges: Russell Henderson Marshall, McCrae Helena, GA, 69510-69511 2016-24175 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Indian Affairs Bureau

See

Land Management Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cased Pencils from People's Republic of China, 69513-69514 2016-24248 Certain Paper Clips from People's Republic of China, 69512 2016-24245 Meetings: Renewable Energy and Energy Efficiency Advisory Committee, 69514 2016-24252 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Stainless Steel Sheet and Strip from China, 69548-69549 2016-24060 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Leadership Engagement Survey, 69550-69551 2016-24169 National Center for Analysis of Violent Crime, 69549-69550 2016-24166 Land Land Management Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69547-69548 2016-24152 Environmental Impact Statements; Availability, etc.: Resource Management Plan Amendment for Verde Transmission Project in New Mexico, 69546-69547 2016-24224 NASA National Aeronautics and Space Administration NOTICES Meetings: Institutional Committee of NASA Advisory Council, 69551 2016-24229 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69551-69552 2016-24223 National Institute National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 69541-69542 2016-24134 Meetings: Center for Scientific Review, 69540-69541, 69543-69544 2016-24124 2016-24125 2016-24126 National Cancer Institute, 69542 2016-24127 National Institute of Allergy and Infectious Diseases, 2016-24129 69541 2016-24130 National Institute of General Medical Sciences, 69543 2016-24131 National Institute on Aging, 69542 2016-24128 Proposed Exclusive Patent Licenses: Development of NANOG-Based Therapeutic for Cancer, 69544-69545 2016-24133 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Atka mackerel in Bering Sea and Aleutian Islands Management Area; Reallocation, 69443-69444 2016-24182 Exchange of Flatfish in Bering Sea and Aleutian Islands Management Area, 69442-69443 2016-24185 Reallocation of Pacific Cod in Bering Sea and Aleutian Islands Management Area, 69445 2016-24116 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69514-69515 2016-24207 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Southeast Region Gulf of Mexico Electronic Logbook Program, 69517 2016-24195 Southeast Region Gulf of Mexico Mandatory Shrimp Vessel and Gear Characterization Survey, 69515-69516 2016-24194 Statement of Financial Interests, Regional Fishery Management Councils, 69517-69518 2016-24193 Meetings: New England Fishery Management Council, 69516 2016-24172 North Pacific Fishery Management Council, 69516-69517 2016-24170 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Mathematical and Physical Sciences, 69552-69553 2016-24176 Navy Navy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69519 2016-24188 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements, 69446-69448 2016-24189 NOTICES Determinations of Successful Completions of Inspections, Tests, and Analyses: Vogtle Electric Generating Plant, Units 3 and 4, 69553-69554 2016-24192 Meetings; Sunshine Act, 69553 2016-24389 Source and Byproduct Materials Licenses: Strata Energy, Inc.; Ross Uranium In-Situ Recovery Facility, 69554-69555 2016-24196 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 69555-69556 2016-24219 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 69556 2016-24261 Product Changes: Priority Mail and First-Class Package Service Negotiated Service Agreement, 69556 2016-24144 Priority Mail Negotiated Service Agreement, 69556 2016-24145 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Breast Cancer Awareness Month (Proc. 9507), 69369-69370 2016-24342 National Community Policing Week (Proc. 9513), 69383-69384 2016-24374 National Cybersecurity Awareness Month (Proc. 9508), 69371-69372 2016-24346 National Disability Employment Awareness Month (Proc. 9509), 69373-69374 2016-24356 National Domestic Violence Awareness Month (Proc. 9510), 69375-69376 2016-24360 National Energy Action Month (Proc. 9511), 69377-69378 2016-24367 National Youth Justice Awareness Month (Proc. 9512), 69379-69381 2016-24368 Securities Securities and Exchange Commission NOTICES Applications for Deregistrations, 69558-69560 2016-24150 Self-Regulatory Organizations; Proposed Rule Changes: International Securities Exchange, LLC, 69560-69562 2016-24147 ISE Gemini, LLC, 69556-69558 2016-24148 ISE Mercury, LLC, 69565-69567 2016-24149 NYSE Arca, Inc., 69562-69565 2016-24146 State Department State Department NOTICES Meetings: Advisory Committee on International Economic Policy, 69568 2016-24212 Advisory Committee on Private International Law; Judgments Project, 69567-69568 2016-24211 International Security Advisory Board, 69567 2016-24210 Surface Transportation Surface Transportation Board RULES Revisions to Arbitration Procedures, 69410-69417 2016-24065 NOTICES Trackage Rights Exemptions: CSX Transportation, Inc. from Grand Trunk Western Railroad Co., 69568 2016-24187 Transportation Department Transportation Department See

Federal Transit Administration

Treasury Treasury Department See

Foreign Assets Control Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 69571 2016-24227 2016-24230
Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Agent Orange Registry Code Sheet, 69571-69572 2016-24156 Application for Educational Assistance to Supplement Tuition Assistance, 69576 2016-24154 Application for Reinstatement—Insurance Lapsed More Than 6 Months and Application for Reinstatement—Non Medical Comparative Health Statement, 69577 2016-24164 Availability of Educational Licensing, and Certification Records, 69573 2016-24162 Beneficiary Travel Mileage Reimbursement Application Form, 69574 2016-24159 Dependent's Educational Assistance, 69574 2016-24155 Reconsideration of Denied Claims, 69574-69575 2016-24153 Request for Disinterment, 69575 2016-24161 Submission of School Catalog to State Approving Agency, 69575-69576 2016-24160 VA Loan Electronic Reporting Interface System, 69573 2016-24158 Meetings: Research Advisory Committee on Gulf War Veterans' Illnesses, 69572 2016-24228 Separate Parts In This Issue Part II Health and Human Services Department, Food and Drug Administration, 69580-69658 2016-22690 Reader Aids

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81 194 Thursday, October 6, 2016 Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0394; FRL-9953-50-Region 10] Approval and Promulgation of Implementation Plans; Washington: Updates to Incorporation by Reference and Miscellaneous Revisions AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving State Implementation Plan revisions submitted by the Washington State Department of Ecology (Ecology) on July 11, 2016. The revisions update the incorporation by reference of federal provisions cited in Ecology's general air quality regulations. The revisions also reflect changes to the primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone, promulgated since Ecology's last update. Ecology also made minor corrections to typographical errors and non-substantive edits for clarity, such as standardizing the citation format.

DATES:

This final rule is effective November 7, 2016.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2016-0394. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave., Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

SUPPLEMENTARY INFORMATION: Table of Contents I. Background Information II. Final Action III. Incorporation by Reference IV. Statutory and Executive Orders Review I. Background Information

On August 12, 2016, the EPA proposed to approve revisions to Ecology's general air quality regulations contained in Chapter 173-400 Washington Administrative Code (WAC) and the State ambient air quality standards contained in Chapter 173-476 WAC (81 FR 53362). An explanation of the Clean Air Act requirements, a detailed analysis of the revisions, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for this proposed rule ended on September 12, 2016. The EPA received no comments on the proposal.

II. Final Action

The EPA is approving, and incorporating by reference, the submitted revisions to Chapters 173-400 and 173-476 WAC set forth below as amendments to 40 CFR part 52. We are also approving, but not incorporating by reference, the revised version of WAC 173-400-260 Conflict of Interest, state effective July 1, 2016. Consistent with prior actions on the Washington SIP, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are typically not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities.

III. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference as described in the amendments to 40 CFR part 52 set forth below. These materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

1 62 FR 27968 (May 22, 1997).

IV. Statutory and Executive Orders Review

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land in Washington, except as specifically noted below, and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated July 13, 2016.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated: September 19, 2016. Dennis J. McLerran, Regional Administrator, Region 10.

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

42 U.S.C. 7401 et seq.

Subpart WW—Washington 2. In § 52.2470: a. Amend paragraph (c): i. “Table 1—Regulations Approved Statewide”, by revising entries 173-476-020, 173-476-150, and 173-476-900. ii. “Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction”, by adding entry 173-400-025 in numerical order, and revising entries 173-400-040, 173-400-050, 173-400-060, 173-400-070, 173-400-105, 173-400-111, 173-400-116, 173-400-171, 173-400-710, 173-400-720, 173-400-730, 173-400-740, 173-400-810, 173-400-830, 173-400-840, and 173-400-850. iii. “Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction”, by adding entry 173-400-025 in numerical order, and revising entries 173-400-040, 173-400-050, 173-400-060, 173-400-070, 173-400-105, 173-400-111, 173-400-171, 173-400-810, 173-400-830, 173-400-840, and 173-400-850. b. Amend paragraph (e), “Table 1—Approved but Not Incorporated by Reference Regulations”, by revising entry 173-400-260.

The additions and revisions read as follows:

§ 52.2470 Identification of plan.

(c) * * *

Table 1—Regulations Approved Statewide [Not applicable in Indian reservations (excluding non-trust land within the exterior boundaries of the Puyallup Indian Reservation) and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction] State citation Title/Subject State effective date EPA Approval date Explanations *         *         *         *         *         *         * Washington Administrative Code, Chapter 173-476—Ambient Air Quality Standards *         *         *         *         *         *         * 173-476-020 Applicability 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-476-150 Ambient Air Quality Standard for Ozone 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-476-900 Table of Standards 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * Table 2—Additional Regulations Approved for Washington Department of Ecology (ECOLOGY) Direct Jurisdiction [Applicable in Adams, Asotin, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, San Juan, Stevens, Walla Walla, and Whitman counties, excluding facilities subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction, Indian reservations (excluding non-trust land within the exterior boundaries of the Puyallup Indian Reservation), and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. These regulations also apply statewide for facilities subject to the applicability sections of WAC 173-400-700, 173-405-012, 173-410-012, and 173-415-012] State citation Title/Subject State effective date EPA Approval date Explanations Washington Administrative Code, Chapter 173-400—General Regulations for Air Pollution Sources *         *         *         *         *         *         * 173-400-025 Adoption of Federal Rules 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-040 General Standards for Maximum Emissions 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-040(2)(c);
  • 173-400-040(2)(d);
  • 173-400-040(3);
  • 173-400-040(5);
  • 173-400-040(7), second paragraph.
  • 173-400-050 Emission Standards for Combustion and Incineration Units 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-050(2);
  • 173-400-050(4);
  • 173-400-050(5);
  • 173-400-050(6).
  • 173-400-060 Emission Standards for General Process Units 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-070 Emission Standards for Certain Source Categories 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-070(7);
  • 173-400-070(8).
  • *         *         *         *         *         *         * 173-400-105 Records, Monitoring, and Reporting 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-111 Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-111(3)(h); The part of 173-400-111(8)(a)(v) that says, • “and 173-460-040,”; 173-400-111(9). *         *         *         *         *         *         * 173-400-116 Increment Protection 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-171 Public Notice and Opportunity for Public Comment 07/01/16 10/06/16, [Insert Federal Register citation] Except: The part of 173-400-171(3)(b) that says, • “or any increase in emissions of a toxic air pollutant above the acceptable source impact level for that toxic air pollutant as regulated under chapter 173-460 WAC”; 173-400-171(12). *         *         *         *         *         *         * 173-400-710 Definitions 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-720 Prevention of Significant Deterioration (PSD) 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-720(4)(a)(i through iv) and 173-400-720(4)(b)(iii)(C). 173-400-730 Prevention of Significant Deterioration
  • Application Processing Procedures
  • 07/01/16 10/06/16, [Insert Federal Register citation]
    173-400-740 PSD Permitting Public Involvement
  • Requirements
  • 07/01/16 10/06/16, [Insert Federal Register citation]
    *         *         *         *         *         *         * 173-400-810 Major Stationary Source and Major Modification Definitions 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-830 Permitting Requirements 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-840 Emission Offset Requirements 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-850 Actual Emissions Plantwide Applicability
  • Limitation (PAL)
  • 07/01/16 10/06/16, [Insert Federal Register citation]
    *         *         *         *         *         *         *
    Table 4—Additional Regulations Approved For The Benton Clean Air Agency (BCAA) Jurisdiction [Applicable in Benton County, excluding facilities subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction, Indian reservations and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and facilities subject to the applicability sections of WAC 173-400-700, 173-405-012, 173-410-012, and 173-415-012] State/local
  • citation
  • Title/Subject State/local
  • effective date
  • EPA Approval date Explanations
    *         *         *         *         *         *         * Washington Department of Ecology Regulations Washington Administrative Code, Chapter 173-400—General Regulations for Air Pollution Sources 173-400-025 Adoption of Federal Rules 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-040 General Standards for Maximum Emissions 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-040(2)(c);
  • 173-400-040(2)(d);
  • 173-400-040(3);
  • 173-400-040(4);
  • 173-400-040(5);
  • 173-400-040(7), second paragraph;
  • 173-400-040(9)(a);
  • 173-400-040(9)(b).
  • 173-400-050 Emission Standards for Combustion and Incineration Units 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-050(2);
  • 173-400-050(4);
  • 173-400-050(5);
  • 173-400-050(6).
  • 173-400-060 Emission Standards for General Process Units 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-070 Emission Standards for Certain Source Categories 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-070(7);
  • 173-400-070(8).
  • *         *         *         *         *         *         * 173-400-105 Records, Monitoring and Reporting 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-111 Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources 07/01/16 10/06/16, [Insert Federal Register citation] Except: 173-400-111(3)(h);— The part of 173-400-111(8)(a)(v) that says, “and 173-460-040,”; 173-400-111(9). *         *         *         *         *         *         * 173-400-171 Public Notice and Opportunity for Public Comment 07/01/16 10/06/16, [Insert Federal Register citation] Except:— The part of 173-400-171(3)(b) that says, “or any increase in emissions of a toxic air pollutant above the acceptable source impact level for that toxic air pollutant as regulated under chapter 173-460 WAC”; 173-400-171(12). *         *         *         *         *         *         * 173-400-810 Major Stationary Source and Major Modification Definitions 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         * 173-400-830 Permitting Requirements 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-840 Emission Offset Requirements 07/01/16 10/06/16, [Insert Federal Register citation] 173-400-850 Actual Emissions Plantwide Applicability Limitation (PAL) 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         *

    (e) * * *

    Table 1—Approved But Not Incorporated by Reference Regulations State/local citation Title/Subject State/local
  • effective date
  • EPA Approval date Explanations
    Washington Department of Ecology Regulations *         *         *         *         *         *         * 173-400-260 Conflict of Interest 07/01/16 10/06/16, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2016-23862 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0240; FRL-9950-74-Region 9] Approval and Limited Approval and Limited Disapproval of Air Quality Implementation Plans; California; Northern Sonoma County Air Pollution Control District; Stationary Source Permits AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing action on five permitting rules submitted as a revision to the Northern Sonoma County Air Pollution Control District (NSCAPCD or District) portion of the applicable state implementation plan (SIP) for the State of California pursuant to requirements under the Clean Air Act (CAA or Act). We are finalizing a limited approval and limited disapproval of two rules; we are finalizing approval of the remaining three permitting rules; and we are deleting three rules. The amended rules govern the issuance of permits for stationary sources, including review and permitting of minor sources, major sources and major modifications under part C of title I of the Act. The limited disapproval actions trigger an obligation for EPA to promulgate a Federal Implementation Plan (FIP) for the specific New Source Review (NSR) program deficiencies unless California submits and we approve SIP revisions that correct the deficiencies within two years of the final action.

    DATES:

    This rule will be effective on November 7, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket No. EPA-R09-OAR-2016-0240. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Laura Yannayon, by phone: (415) 972-3534 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

    Table of Contents I. Proposed Action II. EPA Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. Proposed Action

    On May 19, 2016 (81 FR 31567), the EPA proposed a limited approval and limited disapproval (LA/LD) or a full approval (as noted in the table) of the following rules that were submitted for incorporation into the Northern Sonoma County portion of the California SIP.

    Table 1—Submitted NSR Rules Rule No. Rule title Amended Submitted Proposed action 130 Definitions 11/14/14 12/11/14 LA/LD. 200 Permit Requirements 11/14/14 12/11/14 Full Approval. 220 New Source Review 11/14/14 12/11/14 LA/LD. 230 Action on Applications 11/14/14 12/11/14 Full Approval. 240 Permit to Operate 2/22/84 10/16/85 Full Approval.

    We proposed a full approval of Rules 200, 230 and 240 because we determined that these rules improve the SIP and are consistent with the relevant CAA requirements. We proposed a limited approval of Rules 130 and 220 because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval of Rules 130 and 220 because some rule provisions conflict with section 110 and part C of the Act. These provisions include the following:

    A. The definition of Significant in Rule 130 does not include lead as a pollutant or provide a significant emission rate. The rule also does not provide a public notice threshold for lead.

    B. Rule 220 does not contain any provisions specifying that required air quality modeling shall be based on the applicable models, databases, and other requirements specified in Part 51 Appendix W; therefore, the requirements of 40 CFR 51.160(f) and 51.166(l) have not been meet.

    C. The text in Rule 220, Subsection (b)(3) contains a significant typographical error (the word “not” is missing) concerning the requirements pertaining to stack height.

    D. The requirements of 40 CFR 51.166(r)(1) and (2), regarding sources obligations, have not been met because the rule does not include the specific language required by these provisions.

    We also proposed to remove existing Rules 10, 12 and 18 from the SIP, as the submitted rules replaced the content of these rules. Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

    II. EPA Action

    No comments were submitted. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval of Rules 130 and 220 and a full approval of Rules 200, 230 and 240. We are also deleting Rules 10, 12 and 18 from the Northern Sonoma County portion of the California SIP. This action incorporates the submitted rules into the Northern Sonoma County portion of the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3) and 301(a), the EPA is simultaneously finalizing a limited disapproval of Rules 130 and 220.

    As a result, the EPA must promulgate a federal implementation plan under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months.

    In addition, because we are finalizing our proposed action, the California Infrastructure SIP deficiencies identified in our April 2016 (81 FR 18766) rulemaking with respect to Northern Sonoma County APCD for the 1997 and 2006 PM2.5 NAAQS are remedied. Therefore we are updating the Northern Sonoma County portion of the California SIP accordingly.

    III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the NSCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and in hard copy at the U.S. Environmental Protection Agency, Region IX (Air-3), 75 Hawthorne Street, San Francisco, CA 94105-3901.

    IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not 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.

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Carbon monoxide, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 5, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(6)(xvi)(D), (c)(35)(xvi)(D), (c)(42)(xxi)(B), (c)(50)(v)(C), (c)(124)(ix)(D), (c)(156)(vi)(B), (c)(162)(i)(B), (c)(164)(i)(B)(4) and (5), (c)(165)(i)(A)(2), (c)(254)(i)(B)(2), (c)(385)(i)(B)(2), and (c)(480)(i)(A) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (6) * * *

    (xvi) * * *

    (D) Previously approved on September 22, 1972 in paragraph (c)(6) of this section and now deleted without replacement, Rules 10, 12 and 18.

    (35) * * *

    (xvi) * * *

    (D) Previously approved on August 16, 1978 in paragraph (c)(35)(xvi)(B) of this section and now deleted without replacement, Rule 130.

    (42) * * *

    (xxi) * * *

    (B) Previously approved on December 21, 1978 in paragraph (c)(42)(xxi)(A) of this section and now deleted with replacement in paragraph (c)(164)(i)(B)(4) of this section, Rule 240(e).

    (50) * * *

    (v) * * *

    (C) Previously approved on October 31, 1980 in paragraph (c)(50)(v)(A) of this section and now deleted with replacement in paragraph (c)(164)(i)(B)(4) of this section, Rule 240.

    (124) * * *

    (ix) * * *

    (D) Previously approved on July 31, 1985 in paragraph (c)(124)(ix)(B) of this section and now deleted without replacement, Rule 130 (introductory text, b1, n1, p5, and s2), and now deleted with replacement in paragraphs (c)(481)(i)(A)(3) and (4) of this section, Rules 220(c) and 230.

    (156) * * *

    (vi) * * *

    (B) Previously approved on July 31, 1985 in paragraph (c)(156)(vi)(A) of this section and now deleted without replacement, Rule 130 (b2, m1, p3, p3a, and s7), and now deleted with replacement in paragraph (c)(481)(i)(A)(3) of this section, Chapter II, 220(B).

    (162) * * *

    (i) * * *

    (B) Previously approved on July 31, 1985 in paragraph (c)(162)(i)(A) of this section and now deleted with replacement in paragraph (c)(481)(i)(A)(3) of this section, Rule 220(a).

    (164) * * *

    (i) * * *

    (B) * * *

    (4) Rule 240, “Permit to Operate,” adopted on February 22, 1984.

    (5) Previously approved on April 17, 1987 in paragraph (c)(164)(i)(B)(1) of this section and now deleted without replacement, Rule 130 (d1 and s5), and now deleted with replacement in paragraph (c)(481)(i)(A)(2) of this section, Rule 200(a).

    (165) * * *

    (i) * * *

    (A) * * *

    (2) Previously approved on April 17, 1987 in paragraph (c)(165)(i)(A)(1) of this section and now deleted without replacement, Rule 130 (s4).

    (254) * * *

    (i) * * *

    (B) * * *

    (2) Previously approved on February 9, 1999 in paragraph (c)(254)(i)(B)(1) of this section and now deleted without replacement, Rule 130.

    (385) * * *

    (i) * * *

    (B) * * *

    (2) Previously approved on May 6, 2011 in paragraph (c)(385)(i)(B)(1) of this section and now deleted with replacement in paragraph (c)(481)(i)(A)(1) of this section, Rule 130, “Definitions,” amended December 14, 2010.

    (480) New and amended regulations for the following AQMD was submitted on December 11, 2014 by the Governor's Designee.

    (i) Incorporation by Reference.

    (A) Northern Sonoma County Air Pollution Control District.

    (1) Rule 130, “Definitions,” adopted on November 14, 2014.

    (2) Rule 200, “Permit Requirements,” adopted on November 14, 2014.

    (3) Rule 220, “New Source Review,” adopted on November 14, 2014.

    (4) Rule 230, “Action on Applications,” adopted on November 14, 2014.

    § 52.223 [Amended]
    3. Section 52.223 is amended by removing and reserving paragraphs (i)(4), (j)(3), (k)(3), (l)(4), (m)(3), (n)(3), and (o)(3).
    § 52.233 [Amended]
    4. Section 52.233 is amended by removing and reserving paragraph (d)(17). 5. Section 52.270 is amended by revising the first sentence in paragraph (b)(4) to read as follows:
    § 52.270 Significant deterioration of air quality.

    (b) * * *

    (4) The PSD program for Northern Sonoma County Air Pollution Control District, as incorporated by reference in § 52.220(c)(481) is approved under Part C, Subpart 1, of the Clean Air Act. * * *

    § 52.283 [Amended]
    6. Section 52.283 is amended by removing and reserving paragraphs (c)(1)(iii), (d)(1)(iii), (e)(2)(iii), (f)(2)(iii), and (g)(1)(iii).
    [FR Doc. 2016-23851 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0570; FRL-9951-67-Region 9] Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs), oxides of nitrogen (NOX), and particulate matter (PM) from wood burning devices. We are approving a local rule that regulates these emission sources under the Clean Air Act (CAA or the Act).

    DATES:

    This rule will be effective on November 7, 2016.

    ADDRESSES:

    The EPA has established docket number EPA-R09-OAR-2015-0570 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Rynda Kay, EPA Region IX, (415) 947-4118, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Action

    On September 30, 2015 in 80 FR 58637, the EPA proposed to approve the following rule into the California SIP.

    Local agency Rule No. Rule title Amended Submitted SJVUAPCD 4901 Wood Burning Fireplaces and Wood Burning Heaters 09/18/14 11/06/14

    We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

    II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. During this period, which ended on October 30, 2015, we received comments from Adenike Adeyeye, Earthjustice.1 Summaries of the comments are provided below, along with our responses to those comments.

    1 Letter and email from Adenike Adeyeye, Earthjustice, dated and received October 30, 2015.

    Comment #1: Earthjustice commented that, “[t]he previous iteration of Rule 4901, amended in 2008, banned the use of [all] wood burning devices when the forecasted PM2.5 concentration exceeded 30 [micrograms per cubic meter (µg/m3)]”, while the submitted rule allows use of registered devices 2 until forecasted PM2.5 concentrations reach 65 µg/m3. Earthjustice argued that this revision, which allows registered devices to burn and emit PM equal to or less than 2.5 microns in diameter (PM2.5) while the San Joaquin Valley Air Basin is violating the 2006 24-hour PM2.5 standard, constitutes a relaxation of restrictions on burning for registered wood burning devices that violates CAA section 110(l). Earthjustice noted that SJVUAPCD justified this relaxation by predicting drastic emission reductions from replacement of existing wood burning devices, but asserted that SJVUAPCD's claim that the relaxation is irrelevant because the associated emissions are low is incorrect.

    2 Submitted Rule 4901, Paragraph 5.7.1 sets eligibility requirements for District registration of wood burning heaters that may be used during a Level One Episodic Wood Burning Curtailment. The heaters must be either exempt from EPA certification requirements or EPA-certified as specified under the New Source Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR part 60, subpart AAA) in effect at the time of purchase or installation.

    Response #1: We disagree with the commenter's claim that the rule revisions are a relaxation that violates CAA section 110(l). As an initial matter, section 110(l) does not prohibit all relaxations of individual SIP-approved rule provisions. Rather, section 110(l) prohibits the EPA from approving a SIP revision that “would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [CAA section 171]), or any other applicable requirement of [the CAA].” The EPA's conclusion that Rule 4901 will not interfere with attainment is not based on low emissions associated with the revision of the SIP to allow registered devices to be used when forecasted concentrations are between 30 and 65 µg/m3, as the commenter asserts. The commenter focuses only on this provision of Rule 4901 and ignores the associated requirement that unregistered devices can no longer be used when forecasted concentrations are above 20 µg/m3. Contrary to the commenter's suggestion, the EPA is not required under section 110(l) to evaluate each individual revision to Rule 4901 separately from all other revisions to Rule 4901. Accordingly, the EPA's analysis of Rule 4901 considers both provisions in conjunction.

    As discussed in the EPA's Technical Support Document supporting our proposed approval of Rule 4901 (“Rule 4901 TSD”),3 SJVUAPCD estimates that reducing the PM2.5 forecast level at which unregistered devices are banned from 30 to 20 µg/m3 decreases average wood burning season emissions by 3.33 tons per day (tpd) PM2.5, while allowing registered devices to burn when forecasted concentrations are between 30-65 µg/m3 increases emissions by 0.065 tpd PM2.5. Combining these changes yields an overall estimated emission reduction of 3.27 tpd PM2.5 when compared to the SIP-approved rule.4 Therefore, projected increases in emissions from registered devices are more than offset by the emission reductions achieved by the enhanced curtailment criteria for unregistered stoves. Contrary to the commenter's assertion, this evaluation does not rely on expected additional change-outs to cleaner burning devices, which would lead to additional emission reductions beyond 3.27 tpd PM2.5. Thus, the revisions to Rule 4901 are expected to result in significant emission reductions overall compared to the current SIP-approved version of the rule, which will help to expedite attainment of the PM2.5 NAAQS in the San Joaquin Valley (SJV). Accordingly, we find that the revisions to Rule 4901 are consistent with the development of an overall plan for attaining the NAAQS in the SJV.

    3See Technical Support Document for the EPA's Proposed Rulemaking for the California State Implementation Plan, San Joaquin Valley Unified Air Pollution Control District Rule 4901, Wood Burning Fireplaces and Wood Burning Heaters, August 2015, (“Rule 4901 TSD”) page 8.

    4 As noted in the Rule 4901 TSD, the SIP-approved version of Rule 4901 contains a contingency provision which would have come into effect if the EPA had found that the SJV had failed to attain the 1997 PM2.5 National Ambient Air Quality Standards (NAAQS or “standards”) by the applicable deadline. That provision would have reduced the mandatory curtailment PM2.5 forecast threshold from 30 to 20 μg/m3 for all wood burning devices. However, we have not made a finding that the SJV failed to attain the 1997 PM2.5 NAAQS by the applicable deadline, so the contingency provision has not been triggered. Moreover, we have withdrawn our approval of and disapproved the State's 2013 Contingency Measure Submittal, which relied, among other things on the contingency provision in Rule 4901. 81 FR 29498 (May 12, 2016). Accordingly, we believe the appropriate point of comparison for purposes of 110(l) is the SIP-approved rule without the contingency measure (i.e., a mandatory curtailment PM2.5 forecast threshold of 30 μg/m3 for all wood burning devices).

    With regard to other applicable requirements of the CAA, for the reasons explained in our proposal, TSD and in response to comments below, we also find that Rule 4901 implements reasonably available control measures (RACM) and best available control measures (BACM) for PM2.5 emissions from wood burning devices in the SJV. Therefore, we conclude that the revisions to Rule 4901 will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA.

    Comment #2: Earthjustice commented that the Bay Area Air Quality Management District (BAAQMD), South Coast Air Quality Management District (SCAQMD), and Sacramento Metropolitan Air Quality Management District (SMAQMD) include more stringent curtailment requirements as they apply to registered devices. In particular, Earthjustice noted that SCAQMD and BAAQMD ban the use of all wood burning devices when the forecasted PM2.5 concentration exceeds 30 µg/m3 and 35 µg/m3, respectively. SMAQMD limits burning using a tiered system, banning the use of registered devices when the forecasted PM2.5 concentration exceeds 35 µg/m3. As a result, Earthjustice argued that “[t]he changes to rule 4901 do not meet the requirements for reasonably available control measures (RACM) or BACM for registered wood burning devices.”

    Response #2: The commenter appears to assume that we must evaluate RACM and BACM for registered (clean burning) devices separately from RACM and BACM for unregistered devices. We do not agree with this premise. Nothing in the CAA or EPA's implementing regulations requires us to consider the stringency of requirements for registered devices separately from the stringency of requirements for unregistered devices. Furthermore, the purpose of the two-tiered curtailment system is to encourage replacement of unregistered devices with registered devices, so it is reasonable to consider the requirements applicable to registered and unregistered devices together.5 As explained above, SJVUAPCD estimates that the emissions from registered clean burning devices when concentrations are above 30 µg/m3 will be overwhelmingly compensated for by decreased emissions from unregistered devices when concentrations are between 20-30 µg/m3, making the Rule 4901 curtailment program at least as stringent as or more stringent than these and other analogous curtailment programs.6 The commenter has not provided information that contradicts the District's assessment in this regard.

    5 For example, on page 45 of Final Staff Report for Amendments to the District's Residential Wood Burning Program, SJVUAPCD, dated September 18, 2014, SJVUAPCD explains that 29% of survey respondents indicated that they would replace their current wood burning fireplace or wood burning heater with a cleaner device if allowed to burn more often.

    6See Rule 4901 TSD, page 11.

    Comment #3: Earthjustice asserted that the controls on the installation of wood burning devices in new developments are less stringent than those used by SCAQMD and BAAQMD. In particular, the commenter noted that SCAQMD Rule 445 prohibits the installation of any wood burning device in new development, except where there is no existing infrastructure for natural gas within 150 feet of the property line or those 3,000 feet above sea level.7 In addition, the commenter stated that “BAAQMD recently became the first air district in the nation to ban the installation of wood burning devices in any new development.”

    7 SCAQMD, Rule 445: Wood Burning Devices, Section f(2) (amended 5/3/13).

    Response #3: Rule 4901, Paragraph 5.3 limits the number of wood burning devices that can be installed in new residential developments. In residential developments with a density greater than two dwellings per acre, no wood burning fireplaces are allowed and a maximum of two certified wood burning heaters per acre are allowed. In developments with a density less than or equal to two dwellings per acre, one wood burning fireplace or certified wood burning heater is allowed per dwelling. As discussed in Rule 4901 TSD at page 12, “SJVUAPCD states that Rule 4901 is more stringent than SCAQMD Rule 445 as it does not exempt any homes at any elevation.8 Given the lack of any exemptions in Rule 4901, it is reasonable to conclude that Rule 4901 is at least as stringent as SCAQMD Rule 445.” The commenters have not provided new information to contradict this conclusion.

    8See Rule 4901 Staff Report, p. 30.

    The ban on wood burning devices in new construction in BAAQMD Regulation 6-3 was enacted on October 21, 2015, more than a year after SJVUAPCD had amended Rule 4901 on September 18, 2014, and does not become effective until November 1, 2016.9 Given that no other State or district had enacted a complete ban at the time that SJVUAPCD was revising Rule 4901 and conducting its BACM analysis and no such ban has yet become effective in any State or district, we do not believe it is reasonable to disapprove Rule 4901 for failing to include such a ban. However, we recommend that SJVUAPCD evaluate the feasibility of such a ban in the SJV and revise Rule 4901 to include such a ban, if it is found to be feasible.

    9 BAAQMD, Regulation 6: Particulate Matter and Visible Emissions, Rule 3: Wood Burning Devices, Section 6‐3‐306 (amended 10/21/15).

    Comment #4: Earthjustice commented that Rule 4901's incentive of fewer no-burn days for registered devices is inappropriate and unnecessarily adds air pollution. Earthjustice argued that SJVUAPCD's well-funded financial incentives program is sufficient to motivate a switch to registered wood burning devices and allowing these devices to burn additional days is an unnecessary additional incentive. Further, Earthjustice suggested, if the District offers an additional “incentive of fewer no burn days, the limit for registered devices should be 30 µg/m3, not 65 µg/m3.”

    Response #4: The survey conducted for SJVUAPCD found that 24 percent (%) of residents with non-EPA certified wood burning heaters and wood burning fireplaces would transition to cleaner burning devices if provided a discount of up to 50% toward the cost of a new wood burning device and 29% of residents stated they would transition to cleaner devices if allowed to burn more often.10 It seems reasonable to conclude that using both strategies in combination should encourage at least some additional change-outs over just providing incentive funding. In reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet minimum criteria set by the CAA and any applicable EPA regulations and are reasonable. We conclude that allowing clean burning devices to burn when the PM2.5 concentration is forecasted to be between 20-65 μg/m3 is reasonable and, as described in Response #1 and #2 above, complies with relevant CAA requirements.

    10See Staff Report, Appendix B, p. B-13.

    Comment #5: Earthjustice argued that the District should be required to incorporate the EPA's recommendations into Rule 4901. In particular, Earthjustice asserted that the District should: (1) Not subsidize the transition to wood burning heaters, which are generally used more frequently than gas fireplaces; (2) require retrofit of existing wood burning fireplaces during major renovations; and (3) require homes where wood burning devices are the sole source of heat to meet current EPA certification requirements. Earthjustice noted that requirements similar to (2) and (3) were recently added to the BAAQMD rule.

    Response #5: While we agree that SJVUAPCD should consider eliminating subsidies for transition from fireplaces to wood burning heaters, details regarding the implementation of SJVUAPCD's monetary incentive program have not been submitted into the SIP and are outside of the scope of this rulemaking. Regarding retrofits of wood burning fireplaces during major renovations, at the time of Rule 4901 adoption and proposal, Laguna Beach, California was the only area we were aware of that required fireplace retrofits upon major home renovation. While we recommended SJVUAPCD examine the feasibility of including this provision, its existence in one small southern California city is not a sufficient basis for determining that it is feasible in the much larger and more diverse SJV. As noted by the commenter, on October 21, 2015, BAAQMD adopted a requirement that a gas-fueled, electric, or EPA-certified device be installed upon remodel of a fireplace or chimney where total costs exceed $15,000 and a local building permit is required. Given that no other State or district had adopted a similar provision at the time that Rule 4901 was revised, we do not believe it is reasonable to disapprove Rule 4901 for failing to include such a provision. However, we continue to recommend that SJVUAPCD consider the feasibility of implementing such a provision in the SJV, particularly in light of the newly-enacted BAAQMD provision. Similarly, we do not believe it is reasonable to disapprove Rule 4901 for failing to require sole-source households to meet EPA certification requirements, as no other State or district had adopted a similar provision at the time that Rule 4901 was amended.

    In the Rule 4901 TSD, Attachment 1,11 we compared Rule 4901 to analogous district rules, and found SJVUAPCD implements a collection of measures as stringent as or more stringent than these rules. We agree that SJVUAPCD should consider our recommendations for future rule revisions, but they do not affect our conclusion that Rule 4901, as amended, strengthens the SIP, decreases PM2.5 emissions, and currently implements BACM/Best Available Control Technology (BACT) for wood burning devices. Additionally, the rule fulfills the relevant CAA section 110 and Title I Part D requirements. Therefore, we conclude that our recommendations for rule revisions do not provide a basis for rule disapproval.

    11See Rule 4901 TSD, Attachment 1. Major Components of Various Residential Wood Burning Rules.xlsx.

    III. EPA Action

    No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving this rule into the California SIP.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SJVUAPCD rule described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX (AIR-4), 75 Hawthorne Street, San Francisco, CA, 94105-3901.

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

    • does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 15, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for Part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(364)(i)(A)(4) and (c)(457)(i)(H) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (364) * * *

    (i) * * *

    (A) * * *

    (4) Previously approved on October 11, 2009 in paragraph (c)(364)(i)(A)(2) of this section and now deleted with replacement in paragraph (c)(457)(i)(H)(1), Rule 4901, “Wood Burning Fireplaces and Wood Burning Heaters,” amended on October 16, 2008.

    (457) * * *

    (i) * * *

    (H) San Joaquin Valley Unified Air Pollution Control District.

    (1) Rule 4901, “Wood Burning Fireplaces and Wood Burning Heaters,” amended on September 18, 2014.

    [FR Doc. 2016-24081 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0432; FRL-9953-66-Region 9] Denial of Request for Extension of Attainment Date for 1997 PM2.5 NAAQS; California; San Joaquin Valley Serious Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is denying a request submitted by California for extension of the attainment date for the 1997 24-hour and annual fine particulate matter (PM2.5) national ambient air quality standards in the San Joaquin Valley Serious PM2.5 nonattainment area.

    DATES:

    This rule is effective on November 7, 2016.

    ADDRESSES:

    The EPA has established docket number EPA-R09-OAR-2015-0432 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Rory Mays, Air Planning Office (AIR-2), EPA Region 9, (415) 972-3227, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Background II. Final Action on Section 188(e) Extension Request III. Statutory and Executive Order Reviews I. Background

    On February 9, 2016, the EPA proposed to approve, conditionally approve, and disapprove state implementation plan (SIP) revisions submitted by California (the “State” or California Air Resources Board (CARB)) to address Clean Air Act (CAA or “Act”) requirements for the 1997 24-hour and annual PM2.5 national ambient air quality standards (NAAQS) in the San Joaquin Valley (SJV) Serious PM2.5 nonattainment area.1 The SIP revisions on which we proposed action are the “2015 Plan for the 1997 PM2.5 Standard,” which the State submitted on June 25, 2015, and the “2018 Transportation Conformity Budgets for the San Joaquin Valley PM2.5 SIP, Plan Supplement,” submitted on August 13, 2015. We refer to these SIP submissions collectively as the “2015 PM2.5 Plan” or “the Plan.” The 2015 PM2.5 Plan is a PM2.5 Serious area attainment plan for the SJV and includes a request to extend the applicable attainment date for the 24-hour and annual PM2.5 standards by three and five years, respectively, on the basis that attainment by December 31, 2015 is impracticable, in accordance with CAA section 188(e).

    1 81 FR 6936 (February 9, 2016).

    The EPA proposed to approve the following elements of the Plan as satisfying applicable CAA requirements: (1) The 2012 base year emissions inventories; (2) the best available control measures (BACM)/best available control technology demonstration; (3) the attainment demonstration; (4) the reasonable further progress demonstration; (5) the State's application for an extension of the Serious area attainment date to December 31, 2018 for the 1997 24-hour PM2.5 NAAQS and to December 31, 2020 for the 1997 annual PM2.5 NAAQS; (6) the San Joaquin Valley Unified Air Pollution Control District (the “District” or SJVUAPCD) commitment to amend and implement revisions to SJVUAPCD Rule 4692 (“Commercial Charbroiling”) for under-fired charbroilers on a specific schedule; and (7) the motor vehicle emissions budgets for 2014, 2017, 2018, and 2020. Additionally, the EPA proposed to approve the Plan's inter-pollutant trading mechanism for use in transportation conformity analyses, with the condition that trades are limited to substituting excess reductions in emissions of nitrogen oxides (NOX) for direct PM2.5 emission reductions.

    The EPA proposed to conditionally approve the Plan's quantitative milestones based on a commitment by the State to adopt specific enforceable measures by a date certain but not later than one year after the date of the Plan approval, consistent with CAA section 110(k)(4). Finally, the EPA proposed to disapprove the Plan's contingency measures for failure to satisfy the requirements of CAA section 172(c)(9).

    Section 188(e) of the CAA provides the Administrator with discretionary authority to grant a state's request for an extension of a Serious area attainment date where certain conditions are met. Before the EPA may extend the attainment date for a Serious area under section 188(e), the State must: (1) Apply for an extension of the attainment date beyond the statutory attainment date; (2) demonstrate that attainment by the statutory attainment date is impracticable; (3) have complied with all requirements and commitments pertaining to the area in the implementation plan; (4) demonstrate to the satisfaction of the Administrator that the plan for the area includes the “most stringent measures” that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area; and (5) submit a demonstration of attainment by the most expeditious alternative date practicable.2 The EPA's determination of whether such a plan provides for attainment by the most expeditious date practicable depends on whether the plan provides for implementation of BACM no later than the statutory implementation deadline, the most stringent measures (MSM) as expeditiously as practicable, and any other technologically and economically feasible measures that will result in attainment as expeditiously as practicable.

    2Id. at 6940.

    Given the strategy in the nonattainment provisions of the Act to offset longer attainment time frames with more stringent control requirements, the EPA interprets the MSM provision to assure that additional controls that can feasibly be implemented in the area beyond the set of measures adopted as BACM are implemented. Two ways to do this are (1) to require that more sources and source categories be subject to MSM analysis than to BACM analysis and controlled as necessary—i.e., by expanding the applicability provisions in the MSM control requirements to cover more sources, and (2) to require reanalysis of any measures adopted in other areas that were rejected during the BACM analysis because they could not be implemented by the BACM implementation deadline to see if they are now feasible for the area given the longer attainment timeframe.3

    3Id. at 6941.

    The EPA provided a 30-day period for public comment on the proposed rule and received comment letters from Mr. Paul Cort, on behalf of Earthjustice, and from Mr. Shawn Dolan. The comments from Earthjustice primarily argued that the control measure analysis in the Plan for several sources categories, including ammonia emission sources, glass melting furnaces, and internal combustion engines used in agricultural operations, fail to satisfy CAA requirements. The comments from Mr. Shawn Dolan argued that EPA Method 9 should be phased out in favor of other methods for evaluating visible emissions such as the Digital Camera Opacity Technique (DCOT).

    II. Final Action on Section 188(e) Extension Request

    Based on our reevaluation of the 2015 PM2.5 Plan and related control measures and consideration of the comments we received, the EPA is denying CARB's request for extension of the December 31, 2015 Serious area attainment date for the 1997 PM2.5 NAAQS in the SJV. As explained in our proposed rule, one of the minimum criteria for extension of an attainment date under CAA section 188(e) is that the state demonstrate to the satisfaction of the Administrator that the plan for the area includes the most stringent measures that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area. For a number of source categories, CARB and the SJVUAPCD have demonstrated that the SIP includes the most stringent measures required or achieved in practice in other areas. For the following reasons, however, we find that CARB and the SJVUAPCD have not demonstrated to the EPA's satisfaction that the plan for the SJV area includes all MSM that can feasibly be implemented in the area.

    First, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for sources of ammonia emissions in the SJV.4 As explained in our proposed rule, three source categories collectively emitted 95% of all ammonia emissions in the 2012 annual average base year inventory for the SJV area: Confined animal facilities (CAFs), composting operations, and fertilizer application.5 The 2015 PM2.5 Plan states that three SIP-approved rules designed to limit volatile organic compound (VOC) emissions also control ammonia emissions from two of these source categories (i.e., CAFs and composting operations) but does not substantiate these conclusions. For example, according to the 2015 PM2.5 Plan, many of the VOC control measures in SJVUAPCD Rule 4570 (“Confined Animal Facilities”), as amended October 21, 2010, have an ammonia “co-benefit,” and these measures have reduced ammonia emissions in the SJV by over 100 tons per day (tpd).6 The 2015 PM2.5 Plan does not, however, specifically identify any enforceable requirement in SJVUAPCD Rule 4570 that reduces ammonia emissions from CAF operations, nor does it substantiate its calculation of ammonia emission reductions attributed to SJVUAPCD Rule 4570 other than by reference to an outdated analysis from 2006.7 Moreover, a number of provisions in SJVUAPCD Rule 4570 allow CAF owners/operators to implement “alternative mitigation measures” 8 in lieu of the mitigation measures listed in the rule, without any requirement to ensure that such alternative mitigation measures achieve any particular level of ammonia emission reductions.9 We find these analyses in the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes MSM for ammonia emissions from CAFs in the SJV. Because emissions from CAFs account for more than half of all ammonia emissions in the SJV,10 a more robust analysis of potential ammonia emission reduction measures for this source category is necessary to satisfy the MSM requirement.

    4 As we explained in our proposed rule, the EPA does not agree at this time with the State's and District's conclusion in the Plan that ammonia emissions do not contribute significantly to PM2.5 levels exceeding the PM2.5 standards in the SJV. 81 FR 6936, 6948 (February 9, 2016). Accordingly, consistent with the regulatory presumption under subpart 4 of part D, title I of the Act, ammonia emission sources are subject to control evaluation for purposes of implementing the 1997 PM2.5 NAAQS in the SJV.

    5 81 FR 6936, 6978 (February 9, 2016); see also 2015 PM2.5 Plan, Appendix C, p. C-239.

    6 2015 PM2.5 Plan, Appendix C, pp. C-239 to C-240.

    7 2015 PM2.5 Plan, Appendix C, pp. C-239 to C-275 and SJVUAPCD, “Final Draft Staff Report, Proposed Re-Adoption of Rule 4570 (Confined Animal Facilities),” June 18, 2009, at Appendix F, “Ammonia Reductions Analysis for Proposed Rule 4570 (Confined Animal Facilities),” June 15, 2006 (discussing various assumptions underlying the District's calculation of ammonia emission factors without identifying relevant emissions inventories). We note that CARB has provided the EPA with significantly lower estimates of ammonia emission reductions achieved by SJVUAPCD Rule 4570 based on more recent calculations of reductions from a 2012 baseline emissions inventory. Email dated September 3, 2015, from Gabe Ruiz (CARB) to Larry Biland and Andrew Steckel (EPA), regarding “SJV Livestock Ammonia Emissions with and without Rule 4570.”

    8 “Alternative Mitigation Measure” is defined in SJVUAPCD Rule 4570 as “a mitigation measure that is determined by the APCO, ARB, and EPA to achieve reductions that are equal to or exceed the reductions that would be achieved by other mitigation measures listed in this rule that owners/operators could choose to comply with rule requirements.” SJVUAPCD Rule 4570 (amended October 21, 2010), section 3.4. Because SJVUAPCD Rule 4570 explicitly applies only to VOC emissions, the requirement for equivalent “reductions” in section 3.4 applies only to VOC emission reductions and does not apply to ammonia emission reductions.

    9See, e.g., SJVUAPCD Rule 4570 (amended October 21, 2010) at section 5.6, Table 4.1.F.

    10 2015 PM2.5 Plan, Appendix B, pp. B-17 and B-19.

    Similarly, the 2015 PM2.5 Plan states that SJVUAPCD Rule 4565 (“Biosolids, Animal Manure, and Poultry Litter Operations”), as adopted March 15, 2007, and SJVUAPCD Rule 4566 (“Organic Material Composting Operations”), as adopted August 18, 2011, limit ammonia emissions from composting operations but does not specifically identify any enforceable requirement in either of these rules that reduces ammonia emissions, nor does it identify a basis for the District's statement that “the [ammonia] control efficiencies are assumed to be the same as the VOC control efficiencies . . . since the same control measures will reduce both VOC and [ammonia] from these operations.” 11 By contrast, South Coast Air Quality Management District (SCAQMD) Rule 1133.2 (“Emission Reductions from Co-Composting Operations”), as adopted January 10, 2003, and SCAQMD Rule 1133.3 (“Emission Reductions from Greenwaste Composting Operations”), as adopted July 8, 2011, both contain specific requirements to reduce ammonia emissions and, in some cases, to achieve an overall ammonia emission reduction of at least 80% by weight from specified baseline levels.12

    11 2015 PM2.5 Plan, Appendix C, pp. C-271 to C-278.

    12 SCAQMD Rule 1133.2 (adopted January 10, 2003), section (d) and SCAQMD Rule 1133.3 (adopted July 8, 2011), section (d).

    With respect to fertilizer application, the 2015 PM2.5 Plan discusses ongoing research on improved methods of fertilizer application to maximize nitrogen use efficiency and minimize air and water quality impacts and states that “the weight of evidence suggests that managing nutrient applications to fields . . . has significantly reduced losses of nitrogen compounds to the environment, including leaching of nitrogen compounds to groundwater and air emissions such as ammonia and nitrous oxide.” 13 The 2015 PM2.5 Plan does not, however, provide any specific analysis of potential control measures to reduce ammonia emissions from fertilizer application or identify any enforceable SIP requirement that reduces ammonia emissions from this source category.

    13 2015 PM2.5 Plan, Appendix C, pp. C-268 to C-271.

    In sum, the 2015 PM2.5 Plan fails to identify any specific, enforceable requirement to reduce ammonia emissions in the SIP for the area and does not demonstrate that the State or District adequately considered potential control measures to expand or strengthen the reasonably available control measure (RACM) strategy for ammonia emission sources.14 We therefore find the District's analyses in the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes MSM for ammonia emission sources in the SJV.

    14 The SJVUAPCD's Moderate area plan for the 2006 PM2.5 NAAQS, adopted in 2012, relies upon the same SIP-approved VOC control measures to satisfy RACM requirements for these NAAQS. See EPA, Final Rule, “Approval and Promulgation of Air Quality State Implementation Plans; California; San Joaquin Valley; Moderate Area Plan for the 2006 PM2.5 NAAQS,” August 16, 2016 (pre-publication notice).

    Second, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for NOX emissions from internal combustion engines used in agricultural operations in the SJV. SJVUAPCD Rule 4702, as amended November 14, 2013, regulates NOX emissions from two types of agricultural internal combustion (IC) engines rated at 25 brake horsepower (bhp) or greater: Spark-ignited (SI) engines and compression-ignited (CI) engines.15 For SI engines used in agricultural operations, the rule establishes NOX emission limits of 90 parts per million by volume (ppmv) for rich-burn engines and 150 ppmv for lean-burn engines.16 For CI engines used in agricultural operations, Rule 4702 requires compliance by specified dates with EPA Tier 3 or Tier 4 NOX emission standards for non-road CI engines in 40 CFR part 89 or part 1039, as applicable, or an 80 ppmv NOX emission limit, depending on engine type.17

    15 SJVUAPCD Rule 4702 (amended November 14, 2013), sections 2.0 and 5.2.

    16Id. at section 5.2.3 and Table 3.

    17Id. at section 5.2.4 and Table 4 and section 3.37 (defining Tier 1, Tier 2, Tier 3, and Tier 4 engines).

    SCAQMD Rule 1110.2, by contrast, establishes an 11 ppmv NOX emission limit for all stationary SI and CI engines rated over 50 bhp, effective July 1, 2011, with limited exceptions for agricultural engines that meet certain conditions.18 According to the SCAQMD, three natural gas-fired SI engines used in agricultural operations are currently subject to the 11 ppmv NOX emission limit in Rule 1110.2 and use nonselective catalytic reduction (NSCR, also called “three-way catalysts”) control technology to comply with this emission limit.19 The Feather River Air Quality Management District (FRAQMD) Rule 3.22, as amended October 6, 2014, establishes NOX emission limits of 25 parts per million (ppm) and 65 ppm for rich-burn and lean-burn agricultural engines in southern FRAQMD, respectively, except for agricultural engines that emit less than 50% of the major source thresholds for regulated air pollutants and/or hazardous air pollutants.20 The NOX emission limits for agricultural engines in SCAQMD Rule 1110.2 and FRAQMD Rule 3.22 are significantly more stringent than the 90 ppmv and 150 ppmv limits applicable to agricultural engines in SJVUAPCD Rule 4702. Moreover, SJVUAPCD Rule 4702 itself establishes NOX emission limits for IC engines used in other (non-agricultural) operations that range from 11 to 50 ppmv for rich-burn engines and 11 to 75 ppmv for lean-burn engines, depending on type of fuel and use.21

    18 SCAQMD Rule 1110.2 (amended February 1, 2008), section (d)(1) (referencing Tables I and II). Rule 1110.2 provides an exemption from the 11 ppmv emission limit for agricultural engines that meet EPA Tier 4 emission standards and either of two additional conditions: (1) The engine operator submits documentation to the SCAQMD, by the deadline for a permit application, that the applicable electric utility has rejected an application for an electrical line extension to the location of the engines, or (2) the SCAQMD determines that the operator does not qualify for funding under California Health and Safety Code Section 44229 to replace, retrofit or repower the engine. SCAQMD Rule 1110.2 at section (h)(9).

    19 Email dated May 3, 2016, from Kevin Orellana (SCAQMD) to Nicole Law (EPA), regarding “Question on Engines under Rule 1110.2.”

    20 FRAQMD Rule 3.22 (amended October 6, 2014), section D.1, Table 2 (South FRAQMD Emission Limits) and section B.1.e (Exemptions). As of June 2016, staff at the FRAQMD were unaware of any stationary SI engines currently operating at agricultural facilities in the Feather River area that have demonstrated compliance with the 25 ppm or 65 ppm NOX emission limits in FRAQMD Rule 3.22. See email dated June 2, 2016, from Alamjit Mangat (FRAQMD) to Nicole Law (EPA), regarding “Engines in FRAQMD” (stating that all 423 agricultural engines currently operating in the Feather River area qualify for an exemption from the NOX emission limits in FRAQMD Rule 3.22). Nonetheless, because these NOX emission limits are approved into the California SIP as part of an earlier version of FRAQMD Rule 3.22 (see 77 FR 12493, March 1, 2012), they are required as MSM if they can feasibly be implemented in the SJV.

    21 SJVUAPCD Rule 4702 (amended November 14, 2013), section 5.2.1. Table 1 and section 5.2.2. Table 2.

    In Appendix C of the 2015 PM2.5 Plan, the SJVUAPCD estimated the following costs of replacing agricultural SI engines: $76,209 per ton to replace a lean-burn engine to meet an 11 ppmv NOX limit; $42,146 per ton to replace a lean-burn engine to meet a 65 ppmv NOX limit; $59,754 per ton to replace a rich-burn engine to meet an 11 ppmv NOX limit; and $69,521 per ton to replace a rich-burn engine to meet a 25 ppmv NOX limit.22 The District subsequently submitted additional information indicating that the cost of replacing a lean-burn engine to meet 65 ppmv or 25 ppmv NOX limits would be the same as the replacement cost to meet an 11 ppmv NOX limit ($76,209 per ton), as selective catalytic reduction (SCR) would be necessary for a lean-burn engine to meet any of these limits, and indicating that the cost of replacing a rich-burn engine to meet a 65 ppmv NOX limit would also be the same as the replacement cost to meet 25 ppmv or 11 ppmv NOX limits ($59,754 or $69,521 per ton), as three-way catalysts (NSCR) would be necessary for a rich-burn engine to meet any of these limits.23 The SJVUAPCD did not, however, identify the bases for any of these cost estimates or submit related technical documentation. At the EPA's request, the SJVUAPCD provided additional information about the technological and economic feasibility of IC engine retrofits to meet lower NOX limits but similarly did not identify the bases for its cost estimates or provide any related technical documentation.24 Moreover, according to the SCAQMD, the cost-effectiveness of replacing an agricultural SI engine ranges from $5,650 to $29,000 per ton of NOX reduced and, for most engine categories, is below $20,000 per ton.25

    22 2015 PM2.5 Plan, Appendix C, pp. C-132 to C-139.

    23 Email dated April 27, 2016, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA), regarding “Additional SJV info.”

    24 Email dated June 25, 2015, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA), regarding “Requested Information.”

    25 Email dated May 3, 2016, from Kevin Orellana (SCAQMD) to Nicole Law (EPA), regarding “Question on Engines under Rule 1110.2.”

    Given the absence of a technical basis for the SJVUAPCD's cost estimates for engine replacements or retrofits, the contrary information presented by the SCAQMD regarding costs for the same type of engines, and the significantly lower NOX emission levels achieved in practice in the South Coast area, as well as the lower NOX limits for similar engines required in SIP-approved rules for both the Feather River area and the SJV, we find the District's analyses in the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes MSM for NOX emissions from IC engines used in agricultural operations.

    Third, the 2015 PM2.5 Plan does not adequately demonstrate that it includes MSM for NOX emissions from container glass melting furnaces in the SJV. SJVUAPCD Rule 4354, as amended May 19, 2011, establishes a NOX emission limit of 1.5 pounds of NOX per ton (lbs NOX/ton) of glass pulled, over a 30-day rolling average.26 Under the SCAQMD's Regional Clean Air Incentives Market (RECLAIM) Program, the SCAQMD determined in 2000 that a NOX limit of 1.2 lbs NOX/ton of glass pulled represented Best Available Retrofit Control Technology (BARCT) 27 for glass melting furnaces, and in 2015 the SCAQMD determined that a lower NOX limit of 0.24 lbs NOX/ton of glass pulled represents BARCT for this source category based on use of SCR or the “Ultra Cat ceramic filter system,” which the SCAQMD found is guaranteed to achieve an 80% NOX reduction and has been installed or is under construction at 12 glass manufacturing locations worldwide.28 The Owens-Brockway Glass Container facility, which manufactures clear and colored beer bottles, is the only glass melting facility currently operating in the South Coast area.29 At the EPA's request, the SCAQMD provided continuous emission monitoring system (CEMS) data from February 2015 for the Owens-Brockway facility. The CEMS data shows that the facility operated at approximately 90% production capacity and consistently emitted below 0.72 lbs NOX/ton of glass pulled during that month, using oxyfuel firing to control NOX emissions.30

    26 SJVUAPCD Rule 4354 (amended May 19, 2011), section 5.1.

    27 BARCT is defined as “an emission limitation that is based on the maximum degree of reduction achievable taking into account environmental, energy, and economic impacts by each class or category of source.” California Health & Safety Code Section 40406.

    28 The RECLAIM program requires that container glass melting facilities achieve NOX reductions consistent with the 2015 BARCT determination (0.24 lbs NOX/ton of glass pulled) by 2022. SCAQMD Rule 2002 (as amended December 4, 2015), subparagraph (f)(1)(L) and Table 6 (“RECLAIM NOX 2022 Ending Emission Factors”); see also SCAQMD, Draft Final Staff Report, “Proposed Amendments to Regulation XX, Regional Clean Air Incentives Market (RECLAIM), NOX RECLAIM,” December 4, 2015, at pp. 170-171.

    29 Email dated May 13, 2016, from Kevin Orellana (SCAQMD) to Idalia Perez (EPA) regarding “question regarding SCAQMD boilers and container glass facility;” see also email dated April 28, 2016, from Kevin Orellana (SCAQMD) to Idalia Perez (EPA) regarding “question regarding SCAQMD boilers and container glass facility.”

    30 Email dated April 13, 2016, from Kevin Orellana (SCAQMD) to Idalia Perez (EPA) regarding “question regarding SCAQMD boilers and container glass facility.”

    According to the SJVUAPCD, NOX emissions from glass melting facilities operating oxyfuel or SCR systems can vary widely depending on multiple factors, including the stability of the glass pull rate and the condition and age of the furnace refractory and insulation.31 The SJVUAPCD states that glass melting facilities in the SJV manufacture a large variety of sizes and shapes of still and sparkling wine glass bottles and often must respond to fluctuating demands in the wine industry, which require operators to use their furnaces in a manner that results in a less stable pull rate compared to facilities located in the South Coast, which mainly produce beer bottles. Additionally, according to the SJVUAPCD, as furnaces age the refractory is not as effective at retaining heat in the furnace and the burner fire rate must be increased over time to maintain the same overall furnace and glass temperature, which increases NOX emissions on a lb/ton basis. The District states that all of these factors result in varied NOX emission rates depending on production conditions, furnace age, and furnace design.32 The District did not, however, submit or reference any technical documentation to support its conclusions about the feasibility of lower NOX emission limits for glass melting furnaces in the SJV. Given the absence of a technical basis for the SJVUAPCD's conclusions about the feasibility of more stringent controls for glass melting furnaces, and the available information from the SCAQMD about significantly lower NOX emission levels that have been achieved in practice both in the South Coast and elsewhere, we find the District's analyses in the 2015 PM2.5 Plan insufficient to demonstrate that the plan includes MSM for NOX emissions from container glass melting furnaces.

    31 Email dated April 27, 2016, from Sheraz Gill (SJVUAPCD) to Andrew Steckel (EPA) regarding “Additional SJV info.”

    32Id.

    Finally, the 2015 PM2.5 Plan does not adequately demonstrate that the State and District reevaluated, for potential adoption, control measures rejected during the State's and District's development of the previous attainment plan for the 1997 PM2.5 NAAQS in the SJV area (the “2008 PM2.5 Plan”) 33 in accordance with the EPA's longstanding interpretation of the MSM requirement. As explained in our proposed rule, given the strategy in the nonattainment provisions of the Act to offset longer attainment time frames with more stringent control requirements, the EPA interprets the MSM provision to assure that additional controls that can feasibly be implemented in the area beyond the set of measures adopted as BACM are implemented. Two ways to do this are (1) to require that more sources and source categories be subject to MSM analysis than to BACM analysis and controlled as necessary—i.e., by expanding the applicability provisions in the MSM control requirements to cover more sources, and (2) to require reanalysis of any measures adopted in other areas that were rejected during the BACM analysis because they could not be implemented by the BACM implementation deadline to see if they are now feasible for the area given the longer attainment timeframe.34 In this case, because CARB submitted both the BACM demonstration required under CAA section 189(b)(1)(B) and the MSM demonstration required under CAA section 188(e) simultaneously, we compared the BACM and MSM analyses in the 2015 PM2.5 Plan with the previous RACM analysis carried out by the District to support the 2008 PM2.5 Plan.

    33 76 FR 69896 (November 9, 2011) (final rule approving most elements of 2008 PM2.5 Plan).

    34 81 FR 6936, 6941 (February 9, 2016); see also EPA, Final Rule, “Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements,” 81 FR 58010, 58096-58097 (August 24, 2016).

    The 2015 PM2.5 Plan identifies four District control measures not included in the RACM control strategy that the EPA approved as part of the 2008 PM2.5 Plan.35 Collectively, these four District measures are projected to achieve a total of 0.0357 tpd of NOX emission reductions and 3.3 tpd of direct PM2.5 emission reductions by 2018 and to achieve a total of 0.4011 tpd of NOX emission reductions and 2.0 tpd of direct PM2.5 emission reductions by 2020.36 The MSM evaluation in the 2015 PM2.5 Plan provides little discussion of actions to either expand the applicability provisions in the RACM control measures to cover more sources, or to reanalyze measures that were rejected during the previous RACM analysis to see if they are now feasible for the area given the longer attainment timeframe (i.e., the extended attainment dates requested by the State). While the Plan provides the District's conclusions that its existing SIP control measures satisfy BACM and MSM requirements and that no additional control measures are feasible, it provides limited technical support for these conclusions.37 We note that many of the SJVUAPCD rules that the 2015 PM2.5 Plan relies on to address the MSM requirement have not been revised in many years 38 and that the State and District should conduct a more comprehensive evaluation of potential measures to strengthen these regulations, subject to notice-and-comment rulemaking, to ensure expeditious attainment of the 1997 PM2.5 NAAQS in the SJV.

    35 81 FR at 6973-6975 (February 9, 2016). The four District control measures are: (1) Rule 4308 (“Boilers, Steam Generators, and Process Heaters 0.075 to <2 MMBtu/hr”), as amended November 14, 2013; (2) an enforceable commitment to amend Rule 4692 (“Commercial Charbroiling”) in 2016 to add requirements for under-fired charbroilers; (3) Rule 4901 (“Wood Burning Fireplaces and Wood Burning Heaters”), as amended September 18, 2014; and (4) Rule 4905 (“Natural Gas-Fired, Fan-Type Residential Central Furnaces”), as amended January 22, 2015.

    36Id. at 6975, Table 9.

    37See generally 2015 PM2.5 Plan, Appendix C (BACM and MSM for Stationary and Area Sources).

    38See, e.g., 2015 PM2.5 Plan, Appendix C at pp. C-106 to C-114 (discussing SJVUAPCD Rule 4550, as adopted August 19, 2004); pp. C-194 to C-197 (discussing SJVUAPCD Rule 8061, as amended August 19, 2004); and pp. C-275 to C-278 (discussing SJVUAPCD Rule 4565, as adopted March 15, 2007).

    In light of the deficiencies in the MSM analyses, we find that the State and District have not demonstrated to the EPA's satisfaction that the 2015 PM2.5 Plan includes the most stringent measures that are included in the implementation plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area, in accordance with the requirements of CAA section 188(e). For these reasons, the EPA is denying CARB's request for extension of the December 31, 2015 Serious area attainment date under CAA section 188(e) for the 1997 PM2.5 NAAQS in the SJV.

    We note that the EPA had proposed to grant the State's requested extension of the Serious area attainment date in the SJV for the reasons explained in our February 9, 2016 proposed action on the 2015 PM2.5 Plan. Public comments on our proposal, however, presented information indicating that our proposal to grant the requested extension would not be consistent with the requirements of the Act. Our proposal to grant the State's request for extension of the Serious area attainment date raised the question as to whether the 2015 PM2.5 Plan satisfied the minimum criteria in CAA section 188(e) for such extensions. Implicit in any such proposal to grant an extension requested by a state is the possibility that the EPA may decide to deny the extension, after considering public comments. Because our February 9, 2016 proposed rule provided adequate notice of both the possibility that the EPA would grant the State's request for extension of the attainment date for the SJV and the possibility that the EPA would deny this request, we are not providing additional opportunity for comment before this final action takes effect.

    The EPA is taking final action only to deny the State's requested extension of the attainment date for the 1997 PM2.5 NAAQS in the SJV and is not finalizing its proposed actions on other elements of the 2015 PM2.5 Plan at 81 FR 6936 (February 9, 2016) at this time. The EPA will take final action on the remaining portions of the submitted 2015 PM2.5 Plan, as appropriate, in a subsequent rulemaking.

    III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not 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.

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 5, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: September 23, 2016. Alexis Strauss, Acting Regional Administrator, EPA Region 9.
    [FR Doc. 2016-24082 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2016-0121; FRL-9951-90] Dichlormid; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of dichlormid in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor. Drexel Chemical Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective October 6, 2016. Objections and requests for hearings must be received on or before December 5, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2016-0121, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Acting Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0121 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 5, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0121, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-for Tolerance

    In the Federal Register of April 25, 2016 (81 FR 24044) (FRL-9944-86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP IN-10858) by Drexel Chemical Company, P.O. Box 13327, Memphis, TN 38113-03227. Although the notice announced the petition requested that 40 CFR 180.469 be amended by establishing tolerances for residues of the inert ingredient (safener) dichlormid, in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor at 0.05 parts per million (ppm), the notice of filing submitted simply listed numerous commodities that were intended to correspond to the commodities for which metolachlor and s-metolachlor tolerances were established. That document referenced a summary of the petition prepared by Drexel Chemical Company, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    To ensure consistency between the notice of filing and the petition filed and to avoid any confusion, EPA requested that Drexel revise and resubmit their notice of filing to clarify that the request is to establish tolerances for residues of the inert ingredient (safener) dichlormid, in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor at 0.05 ppm. Upon receiving that revised petition, EPA issued a notice of filing of that petition pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3) in the Federal Register of July 20, 2016 (81 FR 47150) (FRL-9948-45). The petition requested that 40 CFR 180.469 be amended by establishing tolerances for residues of the inert ingredient (safener) dichlormid, in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor at 0.05 ppm. That revised petition prepared by Drexel Chemical Company, the registrant, is available in the docket, http://www.regulations.gov. There was one comment received in response to this notice of filing; however, the comment was not related to this chemical or petition and is therefore, not relevant to this action.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for dichlormid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with dichlormid follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The database for dichlormid has been previously reviewed by the Agency, most recently March 23, 2011 when the permanent tolerance for dichlormid was issued (76 FR 16308) (FRL-8866-2). No new data was reviewed as part of this petition for tolerance.

    Specific information on the studies received and the nature of the adverse effects caused by dichlormid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

    In acute toxicity studies, dichlormid exhibits low to moderate toxicity, depending on the route of exposure. The oral lethal dose (LD)50 for dichlormid in rats is 2,816 milligram/kilogram (mg/kg) in males and 2,146 mg/kg for females (Category III). The dermal LD50 of dichlormid in rats is greater than 2,000 mg/kg (Category III). The acute inhalation lethal concentration (LC)50 in rats is greater than 5.5 mg/(L) (Category IV). Dichlormid is mildly irritating to the skin of rabbits (Category IV) and severely irritating to the eyes of rabbits (Category II). Dichlormid is a mild dermal sensitizer.

    The liver is the target organ in subchronic and chronic toxicity studies in rats and dogs. There are two 90-day rat toxicity studies are available. One older study (1972), was determined to be an unacceptable study. In the other study, toxicity was manifested as minor decreased in body weight gains and food efficiency in females and on increased liver weight and a slightly increased (not statistically significant) incidence of liver lipidosis in males. Similarly two 90-day toxicity studies in dogs are available. In the newer study, via capsules, decreased body weight gains, hematological and clinical chemistry alternations, liver toxicity and voluntary muscle pathological changes were observed. In a 1-year toxicity study in the dogs, voluntary muscle fiber degeneration and slight to moderate vacuolation of the adrenal cortex was observed at 20 mg/kg/day. There was also increased in alkaline phosphatase activity in both sexes and decreased in aspartate aminotransferase activity in females. Liver weights (absolute and relative to body) were increased in both sexes.

    In a developmental toxicity study in rats, decreased mean absolute body weights, body weight gains, and food consumption was observed in maternal animals. Developmental toxicity in rats was manifested as marginal increased in skeletal anomalies in the presence of maternal toxicity. In the developmental toxicity study in rabbits, increased incidence of alopecia and decreased mean maternal body weight gains and food consumption was observed in maternal animals. The fetal effects in rabbits, exhibited in the presence of maternal toxicity, were manifested as increases in post-implantation loss accompanied by an increase number of resorptions/doe (both early and late resorptions), decreased number of live/fetuses/litter, and slightly decreased mean fetal body weights. In a 2-generation reproduction study in rats, no treatment related effects on reproductive parameters were observed. Minimal increased liver weight, minimal decreased weight gain and minimal decreased in food consumption was observed in parental animals. Increased liver weights were observed in the offspring.

    No increased incidences of treatment related tumors were observed in mice and rats. In the carcinogenicity study in mice, kidney changes and changes in reproductive organs were observed, while rats exhibited decreased body weights and liver toxicity. Mutagenic potential for dichlormid was evaluated in an adequate battery of in vivo and in vitro assays. A negative response was observed in these assays except in one in vitro assay (mouse lymphoma assay). However, the in vivo mouse micronucleus assay was negative.

    In an acute neurotoxicity study in rats, decreased body weight gains with lower food consumption was observed in both sexes. Functional observational battery (FOB) measurements at the time of peak effect (4 hrs post dose) showed decreased activity, hunching, increased touch response, lachrimation, piloerection, reduced splay reflex, and signs of salivation. These effects were deemed slight with a greater incidence in females. No treatment-related changes in bodyweight, food consumption, FOB, motor activity, brain weight, or neuropathology were identified in the 90-day neurotoxicity study in rats; however, the high dose of 750 ppm (equal to 55.4 mg/kg/day) was not considered as adequate for testing. No evidence of immunotoxicity was observed in a dietary immunotoxicity study in rats. There were no treatment related effects on spleen and thymus weights at any of the doses of dichlormid tested.

    Approximately 90% of the orally administered dose was absorbed in rats. Urinary excretion was the major route of elimination of orally administered dichlormid, consistently accounting for 60-78% of the administered dose over 48-168 hours following a single oral dose. Fecal excretion accounted for ~8-20% of a single oral dose. Approximately 70-77% of urinary excretion (representing 52-54% of the administered dose) occurred within 24 hours. No gender-related difference in rate or amount of urinary excretion was observed. No significant accumulation in the body was observed. Dichlormid was metabolized via two pathways:

    1. Initial dechlorination followed by formation of various chlorinated, water-soluble metabolites, and;

    2. Formation of various chlorinated metabolites.

    In a subchronic inhalation toxicity study in rats via whole body exposure for 6 hours a day, 5 days/week for 14 weeks, decreased body weights and increased liver weights were observed at the highest dose tested. The increased liver weights was considered as an adaptive response. Chromorhinorrhea, a respiratory system clinical observation based on the discharge of colored secretion from the nostrils, was exhibited consistently in the two top dose exposure groups. Microscopic pathology identified in the two top dose exposure groups, dose-dependent respiratory tract tissue alterations involving the olfactory epithelium for both genders.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    A summary of the toxicological endpoints for dichlormid used for human health risk assessment are shown in Table 1 of this unit.

    Table 1—Summary of Toxicological Dose and Endpoints for Dichlormid Use in Human Risk Assessment 1 Exposure scenario Dose and factors FQPA SF and
  • endpoint for
  • risk assessment
  • Study and toxicological effects
    Acute Dietary, all populations including infants and children NOAEL = 10 mg/kg
  • UF = 100
  • Acute RfD = 0.10 mg/kg/day
  • FQPA SF = 1
  • aPAD = acute RfD/FQPA SF = 0.10 mg/kg/day
  • Developmental Toxicity Study—Rat
  • Maternal LOAEL = 40 mg/kg/day based on decreased body weight gain and food consumption (most significant on days 7-10 of dosing).
  • Chronic Dietary, all populations NOAEL = 5 mg/kg/day
  • UF = 100
  • Chronic RfD = 0.05 mg/kg/day.
  • FQPA SF = 1
  • cPAD = chr RfD/FQPA SF = 0.05 mg/kg/day.
  • 1-year Study—Dog
  • LOAEL = 20 mg/kg/day (male, female), based on increased liver weights, increased in alkaline phosphatase activity, minimal muscle fiber degeneration in, slight to moderate vacuolation of the inner cortex of the adrenal gland, and increased kidney weights (females).
  • Dermal Absorption 100% default; neither a dermal absorption study nor a dermal toxicity study (for extrapolation) is available in the database. Short-term Dermal Oral NOAEL = 10.0 mg/kg/day MOE = 100 Developmental toxicity Study—Rats
  • Maternal LOAEL = 40 mg/kg/day based on decreased body weight gain and food consumption (most significant on days 7-10 of dosing). This dose/endpoint/study was used for deriving the aRfD. Dermal toxicity study is not available. 100% dermal absorption factor should be used for this risk assessment.
  • Intermediate- and Long-Term (Dermal) Oral NOAEL = 5 mg/kg/day MOE = 100 1-year study—Dog
  • LOAEL = 20 mg/kg/day (male, female), based on increased liver weights, increased in alkaline phosphatase activity, minimal muscle fiber degeneration in, slight to moderate vacuolation of the inner cortex of the adrenal gland, and increased kidney weights (females).
  • Inhalation (All Durations) 2 μg/L MOE = 100 14-week inhalation study
  • LOAEL = 20 μg/L based on clinical signs, increased liver and kidney weights, gross pathology and non-neoplastic histopathology. The route of exposure in this study is appropriate for this risk assessment.
  • Cancer No evidence of carcinogenicity in rats and mice. 1 UF = uncertainty factor; FQPA SF = FQPA Safety Factor; NOAEL = no observed adverse effect level; LOAEL = lowest observed adverse effect level; PAD = population adjusted dose (a = acute, c = chronic); RfD = reference dose; LOC = level of concern; MOE = margin of exposure.
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to dichlormid, EPA considered exposure under the petitioned-for tolerances as well as all existing dichlormid tolerances in 40 CFR 180.469. The assessment was conducted using the proposed tolerance of 0.05 ppm for those commodities for which there is a current tolerance for metolachlor and S-metolachlor as well as for all commodities to account for the potential dietary exposure that could result from dichlormid should additional tolerances be established for metolachlor and S-metolachlor. EPA assessed dietary exposures from dichlormid in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for dichlormid. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA used tolerance level residues (i.e., 0.05 ppm) and 100% crop treated.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 CSFII. As to residue levels in food, EPA used tolerance level residues (i.e., 0.05 ppm) and 100% crop treated.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that dichlormid does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

    iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for dichlormid. Tolerance level residues (i.e., 0.05 ppm) and 100% CT were assumed for all food commodities.

    2. Dietary exposure from drinking water. For the current screening level dietary risk assessment, to support the request for expanded tolerances for dichlormid, a conservative drinking water concentration value of 100 parts per billions (ppb), based on screening level modeling, was used to account for the contribution of the additional commodities to drinking water for the chronic dietary risk assessments for the parent compound. These values were directly entered into the dietary exposure model.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Dichlormid is not contained in any pesticide formulation registered for any specific use patterns that would result in residential exposure.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found dichlormid to share a common mechanism of toxicity with any other substances, and dichlormid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that dichlormid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There is no evidence of increased susceptibility of infants and children from in utero exposure to dichlormid based on developmental toxicity study in rats. In this study the developmental toxicity was manifested as marginal increased in skeletal anomalies (developmental toxicity NOAEL 40 mg/kg/day) at a one dose higher than the NOAEL for maternal toxicity (NOAEL 10 mg/kg/day). There is qualitative evidence of increased susceptibility demonstrated following in utero exposure in the prenatal developmental toxicity study in rabbits, since fetal effects observed (resorptions, decreased live fetuses per litter, and decreased fetal body weight) are considered to be more severe than those observed in maternal animals (increased alopecia, decreased body weight gain and food consumption). In this study the NOAEL for maternal and developmental toxicity is 30 mg/kg/day. There is no evidence increased susceptibility of infants and children from pre-and post-natal exposure to dichlormid in the two generation reproduction study. In this study, increased liver, weights, decreased body weight gain and decreased food consumption was observed in parental animals and increased liver weights in the offspring.

    There is no/low concern for increased qualitative susceptibility seen in the developmental toxicity study in rabbits because there is well characterized NOAEL for the developmental toxicity.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The toxicity database for dichlormid is complete. All part 158 data requirements are fulfilled. The dichlormid toxicity database included subchronic studies in rats and dogs, mutagenicity battery, carcinogenicity studies in mice and rats, developmental toxicity study in rats and rabbits, 2-generation reproduction study, acute and subchronic neurotoxicity study, immunotoxicity study, metabolism and repeat dose inhalation toxicity study.

    ii. There is no indication that dichlormid is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity based on acute and subchronic neurotoxicity study.

    iii. There is no evidence that dichlormid results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. There was some evidence of increased qualitative susceptibility seen in the developmental toxicity study in rabbits, however, there is no residual uncertainty or concern because there is well characterized NOAEL for the developmental toxicity and regulatory end points are below the NOAEL for the developmental effects thus providing additional margin of safety.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to dichlromid in drinking water. These assessments will not underestimate the exposure and risks posed by dichlromid.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to dichlormid will occupy 26.2% of the aPAD for all infants (<1 year old), the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to dichlormid from food and water will utilize 15.3% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for dichlormid.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term adverse effect was identified; however, dichlormid is not contained in any pesticide product registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for dichlormid.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, dichlormid is not contained in any pesticide product registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for dichlormid.

    5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity, dichlormid is not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to dichlormid residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (gas chromatography with nitrogen selective thermionic detection) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected]

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for dichlormid.

    V. Conclusion

    Therefore, tolerances are established for residues of dichlormid, in or on all commodities for which there is a tolerance for metolachlor and S-metolachlor at 0.05 ppm as listed in 40 CFR 180.368.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: September 27, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.469, redesignate the existing paragraph (a) as (a)(1), and add paragraph (a)(2) to read as follows:
    § 180.469 Dichlormid; Tolerances for residues.

    (a) General. (1) * * *

    (2) Tolerances are established for residues of dichlormid, including its metabolites and degradates, at 0.05 parts per million (ppm) when used as an inert ingredient (herbicide safener) in pesticide formulations containing metolachlor or S-metolachlor in or on raw agricultural commodities for which tolerances have been established for metolachlor or S-metolachlor. Compliance with the tolerances is to be determined by measuring only dichlormid (2,2-dichloro-N,N-di-2-propenylacetamide).

    [FR Doc. 2016-24214 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 258 [EPA-R09-RCRA-2015-0445; FRL-9953-45-Region 9] Final Determination To Approve Site-Specific Flexibility for Closure and Monitoring of the Picacho Landfill AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency, Region IX, is making a final determination to approve two Site-Specific Flexibility Requests (SSFRs) from Imperial County (County or Imperial County) to close and monitor the Picacho Solid Waste Landfill (Picacho Landfill or Landfill). The Picacho Landfill is a commercial municipal solid waste landfill (MSWLF) operated by Imperial County from 1977 to the present on the Quechan Indian Tribe of the Fort Yuma Indian Reservation in California.

    EPA is promulgating a site-specific rule proposed on April 7, 2016, that approves an alternative final cover and a modification to the prescribed list of groundwater detection-monitoring parameters for ongoing monitoring for the Picacho Landfill.

    DATES:

    This final rule is effective on October 6, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R09-RCRA-2015-0445. All documents in the docket are listed in the http://www.regulations.gov index. Publicly available docket materials are available electronically in http://www.regulations.gov and in hard copy at the EPA Library, located at the Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California. The EPA Library is open from 9:00 a.m. to 4:00 p.m., Monday through Thursday, excluding legal holidays, and is located in a secured building. To review docket materials at the EPA Library, it is recommended that the public make an appointment by calling (415) 947-4406 during normal business hours. Copying arrangements will be made through the EPA Library and billed directly to the recipient. Copying costs may be waived depending on the total number of pages copied.

    FOR FURTHER INFORMATION CONTACT:

    Steve Wall, Land Division, Mail Code LND 2-3 U.S. Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105-3901; telephone number: (415) 972-3381; fax number: (415) 947-3564; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. What did EPA propose?

    After completing a review of Imperial County's Picacho Landfill Final Closure/Post-Closure Maintenance Plan and the associated SSFRs, EPA proposed this rulemaking in the Federal Register. The proposed determination was published at 81 FR 20274, April 7, 2016. EPA proposed to approve an alternative final cover that varies from the final closure requirements of 40 CFR 258.60(a) but meets the criteria at 40 CFR 258.60(b), and alternative groundwater detection monitoring parameters for post-closure monitoring in accordance with 40 CFR 258.54(a).

    II. Legal Authority for This Action

    Under sections 1008, 2002, 4004, and 4010 of the Resource Conservation and Recovery Act of 1976 (RCRA) as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6901 et seq., Congress required EPA to establish revised minimum federal criteria for MSWLFs, including landfill location restrictions, operating standards, design standards, and requirements for ground water monitoring, corrective action, closure and post-closure care, and financial assurance. Under RCRA section 4005, states are to develop permit programs for facilities that may receive household hazardous waste or waste from conditionally exempt small quantity generators of hazardous waste, and EPA is to determine whether the state's program is adequate to ensure that such facilities will comply with the revised federal criteria.

    The MSWLF criteria are set forth in the Code of Federal Regulations at 40 CFR part 258. These regulations are prescriptive, self-implementing and apply directly to owners and operators of MSWLFs. Many of these criteria include a flexible performance standard as an alternative to the prescriptive, self-implementing regulation. The flexible standard is not self-implementing, and requires approval by the Director of an EPA-approved state MSWLF permitting program. However, EPA's approval of a state program generally does not extend to Indian Country because states generally do not have authority over Indian Country. For this reason, owners and operators of MSWLF units located in Indian Country cannot take advantage of the flexibilities available to those facilities that are within the jurisdiction of an EPA-approved state program. However, the EPA has the authority under sections 2002, 4004, and 4010 of RCRA to promulgate site-specific rules to enable such owners and operators to use the flexible standards. See Yankton Sioux Tribe v. EPA, 950 F. Supp. 1471 (D.S.D. 1996); Backcountry Against Dumps v. EPA, 100 F.3d 147 (D.C. Cir. 1996). EPA refers to such rules as “Site-Specific Flexibility Determinations.” EPA has developed guidance for owners and operators on preparing a request for such a site-specific rule, entitled “Site-Specific Flexibility Requests for Municipal Solid Waste Landfills in Indian Country, Draft Guidance,” EPA530-R-97-016 (August 1997) (Draft Guidance).

    III. Background

    The Picacho Landfill is located on Quechan tribal lands on the Fort Yuma Indian Reservation approximately four miles north-northeast of the community of Winterhaven, in Imperial County, California. The Picacho Landfill is a commercial MSWLF operated by Imperial County from 1977 to the present. The landfill site is approximately 12.5 acres.

    In January 2006, the Tribe requested that EPA provide comments on the County's closure plan. Between 2006 and 2011, EPA worked with the Tribe, the Bureau of Indian Affairs (BIA) and the County to develop the closure plan. During this time, EPA also reviewed the SSFRs to determine whether they met technical and regulatory requirements. On October 27, 2010, Imperial County submitted its Picacho Final Closure/Post‐Closure Maintenance Plan. EPA provided a final round of comments on February 10, 2011, which Imperial County incorporated as an addendum. On April 30, 2012, the Tribe approved the Picacho Landfill Final Closure/Post-Closure Maintenance Plan as amended, and, pursuant to EPA's Draft Guidance, the Tribe forwarded to EPA two SSFRs that had been submitted by Imperial County to close and monitor the Picacho Landfill. The requests sought EPA approval to use an alternative final cover meeting the performance requirements of 40 CFR 258.60(a), and to modify the prescribed list of groundwater detection-monitoring parameters provided in 40 CFR 258.54(a)(1) and (2) for ongoing monitoring.

    IV. Basis for Final Determination

    EPA is basing its final determination to approve the site-specific flexibility requests on the Tribe's approval, dated April 30, 2012, EPA's independent review of the Picacho Landfill Final Closure/Post-Closure Maintenance Plan as amended, and the associated SSFRs.

    A. Alternative Final Cover SSFR: Alternative Final Cover System

    The regulations require the installation of a final cover system specified in 40 CFR 258.60(a), which consists of an infiltration layer with a minimum of 18 inches of compacted clay with a permeability of 1 × 10−5 cm/sec, covered by an erosion layer with a minimum six inches of topsoil. Imperial County sought approval for an alternative final cover designed to satisfy the performance criteria specified in 40 CFR 258.60(b); Imperial County proposed to replace this with an alternative cover consisting of two and a half feet of native soil to control infiltration covered by six inches of a soil gravel mixture to control erosion.

    EPA is basing its final determination on a number of factors, including: (1) Research showing that prescriptive, self-implementing requirements for final covers, comprised of low permeability compacted clay, do not perform well in the arid west. The clay dries out and cracks, which allows increased infiltration along the cracks; (2) Research showing that in arid environments thick soil covers comprised of native soil can perform as well or better than the prescriptive cover; and (3) Imperial County's analysis demonstrates, based on site-specific climatic conditions and soil properties, that the proposed alternative soil final cover will achieve equivalent reduction in infiltration as the prescriptive cover design and that the proposed erosion layer provides equivalent protection from wind and water erosion. This analysis is provided in Appendix D and Appendix D-1 of the Picacho Landfill Final Closure/Post-Closure Maintenance Plan dated October 27, 2010 and amended by EPA's comments dated February 20, 2011.

    B. Groundwater Monitoring SSFR: Alternative Detection Monitoring Parameters

    The regulations require post-closure monitoring of 15 heavy metals, listed in 40 CFR part 258, Appendix I. Imperial County proposed to replace these, with the exception of arsenic, with the alternative inorganic indicator parameters chloride, nitrate as nitrogen, sulfate, and total dissolved solids.

    EPA's final determination is based on the fact that the County has performed over 15 years of semi-annual groundwater monitoring at the site, and during that time arsenic was the only heavy metal detected at a value that slightly exceeded the federal maximum contaminant level (MCL), a standard used for drinking water.

    V. Summary of Public Comments Received and Response to Comments

    EPA received one anonymous public comment during the public comment period stating support for EPA's Tentative Determination to Approve Site-Specific Flexibility for Closure and Monitoring of the Picacho Landfill, as proposed in the Federal Register on April 7, 2016.

    VI. Additional Findings

    In order to comply with the National Historic Preservation Act, 54 U.S.C. 100101 et seq., Imperial County Department of Public Works will coordinate with the Tribe to arrange for a qualified Native American monitor to be present during any work. If buried or previously unidentified resources are located during project activities, all work within the vicinity of the find will cease, and the provisions of 36 CFR 800.13(b) will be implemented. If, during the course of the Landfill closure activities, previously undocumented archaeological material or human remains are encountered, all work shall cease in the immediate area and a qualified archaeologist shall be retained to evaluate the significance of the find and recommend further management actions.

    Though no known threatened or endangered species or their habitat exist on the site, in order to ensure compliance with the Endangered Species Act, 16 U.S.C. 1536 et seq., a preconstruction survey will be conducted prior to cover installation to ensure no threatened or endangered species are present. In particular, the survey will look for the presence of desert tortoises, which may occur in Imperial County. Should desert tortoises or other threatened or endangered species be encountered in the survey, or at any time during the closure of the Picacho Landfill, the County shall contact the U.S. Fish and Wildlife Service to develop avoidance measures to ensure that impacts to the species are minimized. Following closure and vegetation restoration activities, the project site may become suitable for threatened and endangered species. This would be a beneficial effect.

    Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget (OMB).

    This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only.

    Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA.

    Because this rule will affect only a particular facility, this proposed rule does not have federalism implications. It will not 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, as specified in Executive Order 13132, “Federalism,” (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule.

    This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks posed by this action present a risk to children. The basis for this belief is EPA's analysis of the potential risks posed by Imperial County's alternative final cover and alternative groundwater detection-monitoring parameters proposals and the standards set forth in this rulemaking.

    This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    As required by section three of Executive Order 12988, “Civil Justice Reform,” (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” (65 FR 67249, November 9, 2000), calls for EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” See also “EPA Policy for the Administration of Environmental Programs on Indian Reservations,” (November 8, 1984) and “EPA Policy on Consultation and Coordination with Indian Tribes,” (May 4, 2011). EPA consulted with the Quechan Tribe throughout Imperial County's development of its closure and monitoring plans for the Picacho Landfill.

    List of Subjects in 40 CFR Part 258

    Environmental protection, Final cover, Monitoring, Municipal landfills, Post-closure care groundwater, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.

    Dated: September 22, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    For the reasons stated in the preamble, 40 CFR part 258 is amended as follows:

    PART 258—CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS 1. The authority citation for part 258 continues to read as follows: Authority:

    33 U.S.C. 1345(d) and (e); 42 U.S.C. 6902(a), 6907, 6912(a), 6944, 6945(c) and 6949a(c), 6981(a).

    Subpart F—Closure and Post-Closure Care 2. Section 258.62 is amended by removing “[Reserved]” at the end of the section and adding paragraph (b) to read as follows:
    § 258.62 Approval of site-specific flexibility requests in Indian country.

    (b) Picacho Municipal Solid Waste Landfill—alternative list of detection monitoring parameters and alternative final cover. This paragraph (b) applies to the Picacho Landfill, a Municipal Solid Waste Landfill operated by Imperial County on the Quechan Indian Tribe of the Fort Yuma Indian Reservation in California.

    (1) In accordance with § 258.54(a), the owner and operator may modify the list of heavy metal detection monitoring parameters specified in appendix I of this part, as required during Post-Closure Care by § 258.61(a)(3), by replacing monitoring of the inorganic constituents, with the exception of arsenic, with the inorganic indicator parameters chloride, nitrate as nitrogen, sulfate, and total dissolved solids.

    (2) In accordance with § 258.60(b), the owner and operator may replace the prescriptive final cover set forth in § 258.60(a), with an alternative final cover as follows:

    (i) The owner and operator may install an evapotranspiration cover system as an alternative final cover for the 12.5 acre site.

    (ii) The alternative final cover system shall be constructed to achieve an equivalent reduction in infiltration as the infiltration layer specified in § 258.60(a)(1) and (2), and provide an equivalent protection from wind and water erosion as the erosion layer specified in § 258.60(a)(3).

    (iii) The final cover system shall consist of a minimum three-foot-thick multi-layer cover system comprised, from bottom to top, of:

    (A) A minimum 30-inch thick infiltration layer consisting of:

    (1) Existing intermediate cover; and

    (2) Additional cover soil which, prior to placement, shall be wetted to optimal moisture and thoroughly mixed to near uniform condition, and the material shall then be placed in lifts with an uncompacted thickness of six to eight inches, spread evenly and compacted to 90 percent of the maximum dry density, and shall:

    (i) Exhibit a grain size distribution that excludes particles in excess of three inches in diameter;

    (ii) Have a minimum fines content (percent by weight passing U.S. No. 200 Sieve) of seven percent for an individual test and eight percent for the average of ten consecutive tests;

    (iii) Have a grain size distribution with a minimum of five percent smaller than five microns for an individual test and six percent for the average of ten consecutive tests; and

    (iv) Exhibit a maximum saturated hydraulic conductivity on the order of 1.0E-03 cm/sec.; and

    (3) A minimum six-inch surface erosion layer comprised of a rock/soil admixture. The surface erosion layer admixture and gradations for 3% slopes and 3:1 slopes are detailed below:

    (i) 3% slopes: For the 3% slopes the surface admixture shall be composed of pea gravel (3/8-inch to 1/2-inch diameter) mixed with cover soil at the ratio of 25% rock to soil by volume with a minimum six-inch erosion layer.

    (ii) For the 3:1 side slopes the surface admixture shall be composed of either: gravel/rock (3/4-inch to one-inch diameter) mixed with additional cover soil as described in paragraph (b)(2)(iii)(A)(2) of this section at the ratio of 50% rock to soil by volume and result in a minimum six-inch erosion layer, or gravel/rock (3/4-inch to two-inch diameter) mixed with additional cover soil as described in paragraph (b)(2)(iii)(A)(2) of this section at the ratio of 50% rock to soil by volume and result in a minimum 12-inch erosion layer.

    (iii) The owner and operator shall place documentation demonstrating compliance with the provisions of this section in the operating record.

    (iv) All other applicable provisions of this part remain in effect.

    (B) [Reserved]

    [FR Doc. 2016-23839 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 02-376, RM-10617, RM-10690; DA 16-1062] Radio Broadcasting Services; Sells, Willcox, and Davis-Monthan Air Force Base, Arizona AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; dismissal of application for review.

    SUMMARY:

    In this document, the Media Bureau (Bureau) dismisses as moot the Application for Review filed jointly by KZLZ, LLC (KZLZ) and Lakeshore Media, LLC, the current and former licensee, respectively, of Station KWCX-FM. While the AFR was pending, KZLZ filed a minor modification application to change the community of license of Station KWCX-FM from Willcox to Tanque Verde, Arizona. Once the requested facility modification to Station KWCX-FM was granted, the assignment at Willcox was deleted, and this in turn rendered moot any Section 307(b) comparison between Davis-Monthan AFB and the deleted Willcox assignment.

    DATES:

    Effective October 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Adrienne Denysyk, Media Bureau, (202) 418-2700.

    SUPPLEMENTARY INFORMATION:

    This is a synopsis of the Bureau's Letter, DA 16-1062, released September 21, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554.

    This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of the Letter to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the Application for Review was dismissed as moot.)

    Federal Communications Commission. Nazifa Sawez, Assistant Chief, Audio Division, Media Bureau.
    [FR Doc. 2016-24174 Filed 10-5-16; 8:45 am] BILLING CODE 6712-01-P
    SURFACE TRANSPORTATION 49 CFR Parts 1108 and 1115 [Docket No. EP 730] Revisions to Arbitration Procedures AGENCY:

    Surface Transportation Board.

    ACTION:

    Final rules.

    SUMMARY:

    The Surface Transportation Board (Board or STB) adopts changes to its arbitration procedures to conform to the requirements of the Surface Transportation Reauthorization Act of 2015.

    DATES:

    These rules are effective on October 30, 2016.

    ADDRESSES:

    Information or questions regarding these final rules should reference Docket No. EP 730 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001.

    FOR FURTHER INFORMATION CONTACT:

    Amy C. Ziehm at 202-245-0391. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.]

    SUPPLEMENTARY INFORMATION:

    Under Section 13 of the STB Reauthorization Act (codified at 49 U.S.C. 11708), the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. Section 11708 sets forth specific requirements and procedures for the Board's arbitration process. While the Board's existing arbitration regulations 1 are for the most part consistent with the new statutory provisions, certain changes are needed so that the Board's regulations conform fully to the requirements under section 11708.

    1 In Assessment of Mediation & Arbitration Procedures, EP 699 (STB served May 13, 2013), the Board adopted modified rules governing the use of mediation and arbitration to resolve matters before the Board. The rules established a new arbitration program under which shippers and carriers may voluntarily agree in advance to arbitrate certain disputes with clearly defined limits of liability.

    On May 12, 2016, the Board issued a Notice of Proposed Rulemaking (NPR), proposing to modify its existing arbitration regulations, set forth at 49 CFR part 1108 and 49 CFR 1115.8, to conform to the provisions set forth by the statute and to make other minor clarifying changes. Specifically, the Board proposed adding rate disputes to the list of matters eligible for arbitration under its arbitration program and barring two matters from the arbitration program (disputes to prescribe for the future any conduct, rules, or results of general, industry-wide applicability and disputes solely between two or more rail carriers). For rate disputes, pursuant to section 11708(c)(1)(C), the proposed rules indicated that arbitration would be available only if the rail carrier has market dominance (as determined under 49 U.S.C. 10707). The Board sought comment on whether parties should be given the option to concede market dominance, thereby forgoing the need for a determination by the Board under 49 U.S.C. 10707.

    The Board also proposed that, as an alternative to filing a written complaint, arbitration could be initiated by the parties if they submit a joint notice to the Board indicating their consent to arbitrate. In accordance with section 11708(g), the Board proposed setting the maximum amount of relief that could be awarded under the arbitration program to $25,000,000 in rate disputes and $2,000,000 in practice disputes. The Board also proposed rules to establish a process for creating and maintaining a roster of arbitrators and selecting arbitrators from the roster in accordance with section 11708(f). Pursuant to section 11708(d) and (h), the proposed rules would also modify the requirements for, and applicable standard of review of, arbitration decisions, which are to be “consistent with sound principles of rail regulation economics.” The proposed rules would also modify the deadlines governing the arbitration process in accordance with the statutory provisions. Lastly, the proposed rules would correct an inadvertent omission made in Docket No. EP 699 that unintentionally removed the Board's standard of review for labor arbitration cases.

    The Board sought comments on the proposed regulations by June 13, 2016, and replies by July 1, 2016. The Board received comments from seven parties: Association of American Railroads (AAR), American Chemistry Council (ACC), National Grain and Feed Association (NGFA), Growth Energy, Rail Customer Coalition (RCC), National Industrial Transportation League (NITL), and Samuel J. Nasca on behalf of SMART/Transportation Division, New York State Legislative Board (SMART/TD-NY). AAR, ACC, and SMART/TD-NY also filed replies. After giving consideration to the comments and suggestions submitted by parties, the Board clarifies and modifies its proposed rules, as discussed below.

    Creating and Maintaining the Roster. Under section 11708(f)(1), arbitrators on the roster must be “persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector.” The NPR further proposed that arbitrators be required to have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. Under the proposed rules, the Chairman would have discretion as to whether an individual meets the qualifications to be added to the roster.

    NGFA and ACC suggest revising the proposed rules so that all Board members would have input as to which applicants are qualified and should be included in the roster. (NGFA Comments 6, ACC Comment 4.) The Board agrees that all Board Members should have input in establishing the roster of arbitrators. (See NGFA Comments 6.) The final rules will provide that the Chairman will solicit input and recommendations from all Members in selecting qualified individuals to be included in the arbitrator roster, which will then be established by a Board no-objection vote.

    AAR asserts that the Board should have no discretion to exclude qualified individuals from the roster. (AAR Comment 5.) Rather, AAR suggests that the Board adopt a more transparent process in which individuals meeting set criteria would automatically be added to the roster. Under this process, an applicant would submit a narrative describing his or her qualifications, which would then be posted for a 20-day comment period. (AAR Comment 6.) The Board would add all uncontested applicants to the roster, but if there is an objection, the Board would decide whether the individual should or should not be added and issue a decision explaining its reasoning. (Id.) The Board finds this additional process to be unnecessarily inflexible for creating and maintaining a roster of qualified individuals. Soliciting input from all Board Members concerning the roster, and requiring a final Board no-objection vote as discussed above, should ensure that a comprehensive list of qualified arbitrators with necessary expertise is developed. Additionally, allowing for Board input and discretion is consistent with the statutory requirement that the roster be “maintained by the Board.” 49 U.S.C. 11708(f).

    AAR suggests that the Board establish additional qualifications for arbitrators, such as “10 years of experience and a professional reputation for fairness, integrity and good judgment.” (AAR Comment 5.) The Board finds the additional qualifications suggested by AAR to be unnecessary. The rules adopted here require individuals seeking to be on the roster to have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. To that end, individuals seeking to be on the roster should include in their notice to the Board details about their relevant training and/or experience (including the number of years of experience). In creating and maintaining the roster, Board Members will thus be able to assess each applicant's qualifications and determine which individuals could ably serve as arbitrators based on the criteria established in these rules. In addition, the parties can make their own assessments regarding an arbitrator's “fairness, integrity, and good judgment” during the party-driven selection process we are adopting, discussed below under “Selection of Arbitrators.”

    We are adopting the proposal in the NPR to publish the roster on the Board's Web site to allow the parties to make that assessment of the arbitrators' qualifications. AAR also suggests that each arbitrator's fees and area(s) of expertise be included on the roster. (AAR Comment 6.) The Board agrees that publication of each arbitrator's fees and area(s) of expertise would be helpful to the parties in selecting an arbitrator and has amended the proposed rules accordingly.

    Lastly, the NPR proposed that the Chairman, at any time, may add qualified individuals to the roster. The Board clarifies here that the names of eligible arbitrators who have consented to being included on the roster would only be added by a Board no-objection vote.

    Selection of Arbitrators. The NPR proposed revising the arbitration selection process to be used when parties cannot mutually agree on a single arbitrator or lead arbitrator of a panel of arbitrators. The Board proposed that it would provide parties a list of not more than 15 arbitrators culled from the Board's roster. The parties would then select a single or lead arbitrator by alternately striking names from the list until only one remains, in accordance with section 11708(f)(3)(A).

    AAR proposes a two-step, party-driven approach to selecting a single or lead arbitrator. (AAR Comment 6-8.) First, parties would be given the opportunity to remove individuals from the roster for cause in their particular dispute, such as partiality or lack of independence. Second, each party would submit a list of up to 10 potential arbitrators. If only one arbitrator appears on both lists, he or she would be selected as the single or lead arbitrator. If multiple arbitrators appear on both lists, the parties would alternatively strike names until one remains, beginning with the complainant. If no name appears on both lists, the parties would alternatively strike from the Board's entire roster, as culled by those that are disqualified for cause. In its reply, ACC expressed support of AAR's approach, but stressed that the standard for removing an arbitrator from the roster must be defined narrowly and require clear evidence of bias. (ACC Reply 3.)

    The Board agrees that a party-driven approach to selecting an arbitrator is preferable, as parties are in the best position to assess whether an arbitrator is suitable for a particular dispute. However, the first step of AAR's proposal presents the need to define the standard for removing a name from the roster and could potentially require the Board to determine whether a name on the roster was properly removed “for cause.” This could turn selection of the arbitrator into a cumbersome and adversarial process, when the purpose of arbitration is supposed to be an expedited alternative to adjudication. Accordingly, the final rules will adopt AAR's two-step approach to selecting a single or lead arbitrator, but modified so that, under the first step, rather than allowing parties to remove arbitrators for cause, each party will be given three peremptory strikes to remove names from the entire roster without offering a reason.2 Then, as proposed by AAR, from the remaining arbitrators on the roster, each party would submit a list of up to 10 potential arbitrators. If only one arbitrator appears on both lists, he or she would be selected as the single or lead arbitrator. If multiple arbitrators appear on both lists, the parties would alternatively strike names of the jointly listed arbitrators until one remains, beginning with complainant. If no name appears on both lists, the parties would alternatively strike from the Board's entire roster, as amended based on the peremptory strikes.

    2 The Board will limit peremptory strikes because otherwise parties could strike all names on the list except that party's top choice. If that were to happen, then under our rules, the parties would revert to alternatively striking names from the entire roster, which would defeat the purpose of allowing parties to help cull the roster before the alternative-striking process starts. It is reasonable to allow each party three peremptory strikes. Prior to the modified arbitration regulations adopted in Docket No. EP 699, the Board maintained a roster of arbitrators, which had around 35 individuals. Using that roster as a guide, three peremptory strikes per party would allow the parties to cull about 20% of the roster before the alternative-striking process begins, which is a substantial percentage. Moreover, our rule is similar to 28 U.S.C. 1870, which allows each party in federal civil litigation three peremptory challenges in selecting a jury.

    Arbitration Decisions. Under section 11708(c)(3) and the proposed rules at 49 CFR 1108.4, an arbitrator or panel of arbitrators resolving rate reasonableness disputes shall consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under 49 U.S.C. 10704(a)(2)). As for the actual arbitration decisions, in accordance with section 11708(d), the proposed rule at 49 CFR 1108.9 states, “[a]ll arbitration decisions must be consistent with sound principles of rail regulation economics.” Likewise, in accordance with section 11708(h), the proposed rule at 49 CFR 1108.11 states that, “[t]he Board will review a decision to determine if the decision is consistent with sound principles of rail regulation economics.”

    AAR requests that the Board revise the proposed rules so that the language contained in § 1108.4 be added to the proposed rules regarding arbitration decisions at §§ 1108.9 and 1108.11. (AAR Comment 3.) Specifically, AAR would require arbitration decisions resolving rate disputes to “give due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under section 10704(a)(2)).” AAR would also include this requirement under the Board's standard of review. ACC argues that AAR's proposed changes are unnecessary, because, under the proposed rules, arbitration decisions “must be consistent with sound principles of rail regulation economics,” which include differential pricing. (ACC Reply 1-2.) ACC asserts that adopting AAR's proposal would inappropriately add requirements to arbitration decisions beyond what the statute provides and would broaden the Board's standard of review. (Id.)

    The Board agrees that this additional language would go beyond the statutory requirements for arbitration decisions, and effectively broadens the Board's narrow standard of review. AAR's proposed changes to §§ 1108.9 and 1108.11 will therefore not be adopted.

    Under the proposed rule at § 1108.9, an unredacted draft of the arbitration decision would be made available to the parties to the dispute. AAR requests that the final rule account for the fact that an arbitration decision may contain highly confidential information that should be made available only to opposing outside counsel and not be made available to in-house personnel. (AAR Comment 4.) The Board agrees and will adopt AAR's suggested language. The final rule at § 1108.9 will require an unredacted draft to be issued in accordance with any protective order governing the release of confidential and highly confidential information pursuant to § 1108.7(e).

    Under the current rule at 49 CFR 1108.11(a), appeals of arbitration decisions are to be filed “within 20 days of service of a final arbitration decision.” NGFA requests that the 20-day period begin when the parties receive the arbitration decision, as opposed to when “a final arbitration decision is reached.” (NGFA Comment 7.) The current rules are unclear as to whether the 20-day period begins upon service on the parties (30 days after the close of evidentiary period) or on the Board (60 days after the close of evidentiary period). The Board clarifies here that the 20-day period to file an appeal will begin upon service of the arbitration decision upon the Board, and the final rules at §§ 1108.11 and 1115.8 will include language to that effect. This clarification should address NGFA's concern, as parties should receive the arbitration decision well before the decision is served on the Board.

    NGFA requests that the Board require arbitration decisions to be made public by posting them on the Board's Web site. (NGFA Comment 7.) Under the current rule at § 1108.9(g), redacted copies of the arbitration decisions are published and maintained on the Board's Web site. Therefore, no changes to the proposed rules are required.

    Rate Disputes. Many parties submitted comments on the proposed rules pertaining to the arbitration of rate disputes.

    Conceding market dominance. In accordance with section 11708(c)(1)(C), arbitration of rate disputes is only available if the rail carrier has market dominance (as determined under 49 U.S.C. 10707). In the NPR, the Board sought comment on whether parties should be given the option to concede market dominance when agreeing to arbitrate a rate dispute (thereby forgoing the need for a determination from the Board) or, alternatively, whether the Board should limit the availability of the arbitration process in rate disputes to cases where market dominance is conceded. Several parties supported the option for a rail carrier to concede market dominance. (ACC Comment 3, Growth Energy Comment 1, RCC Comment 2, NITL Comment 2.) AAR and NGFA would limit arbitration to situations where market dominance is conceded. (AAR Comment 3, NGFA Comment 3.) Some shippers propose establishing criteria that would trigger a rebuttable presumption of market dominance, such as criteria based on limit price methodology, competitive switching availability, or revenue adequacy. (RCC Comment 2; ACC Comment 4.)

    Recognizing that the arbitration process is voluntary and that market dominance determinations may significantly delay the arbitration process, the Board will allow parties to concede market dominance in rate disputes. Parties will also have the option to arbitrate rate disputes where market dominance is not conceded. The Board envisions it would be a rare situation in which the parties disagree on whether there is market dominance but agree to arbitrate a rate dispute. In such a situation, however, there is nothing in the statute that technically prohibits parties from arbitrating. That is, if parties agree to arbitrate, but only upon a finding of market dominance from the Board, they could request a ruling from the Board solely on the issue of market dominance. The Board declines to adopt a rebuttable presumption of market dominance in these rules, as proposed by ACC and RCC, as it would be inconsistent with the complainant's burden to prove market dominance under the statute. 49 U.S.C. 10707; 5 U.S.C. 556(d); CSX Corp.—Control & Operating Leases/Agreements—Conrail Inc., 3 S.T.B. 196, 266 (1998); Gov't of the Territory of Guam v. Sea-Land Serv., Inc., WCC 101, slip op. at 5-6 (STB served Feb. 2, 2007).

    Use of alternative methodologies. As discussed above, under section 11708(c)(3) and the proposed rule at 49 CFR 1108.4, an arbitrator or panel of arbitrators resolving rate reasonableness disputes shall consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under 49 U.S.C. 10704(a)(2)). Arbitration decisions “must be consistent with sound principles of rail regulation economics.” 49 U.S.C. 11708(d). Several shippers assert that arbitrators should have the flexibility to use alternatives to the Board's methodologies (e.g., the Stand-Alone Cost or Three-Benchmark methodologies) or be allowed to modify the application of these methodologies in resolving rate disputes. (NGFA Comment 5, ACC Comment 2, RCC Comment 1-2.) AAR opposes the use of “untested methodologies” and “methodologies rejected by the agency and the courts.” (AAR Reply 3-4.)

    The statutory provisions require arbitrators in rate disputes to “consider” Board methodologies, and the final arbitration decision “must be consistent with sound principles of rail regulation economics.” section 11708(d)(1). The Board finds that this language is adequate to address the commenters' concerns.

    Five-year rate prescription. AAR asks that the Board's rules reflect the requirement set forth in section 11708(g)(3)(B) that rate prescriptions be limited to five years. (AAR Comment 4.) The Board will amend its rule at § 1108.8 accordingly, noting that an arbitrator may grant relief in the form of a rate prescription in rate disputes, but that the rate prescription shall not exceed five years from the date of the arbitration decision.

    Definition of “Rate Disputes.” NGFA recommends that the Board clarify that “rate disputes,” under the proposed § 1108.1(m), involve more than “a rail carrier's rates,” and that the phrase may encompass other charges and surcharges, such as tariff rates for empty tank car movements and fuel surcharges. (NGFA Comment 4.) The Board clarifies that the term “rate disputes” entails challenges to the reasonableness of a rail carrier's whole line-haul rate, which may include other charges, such as fuel surcharges, in addition to the base rate. See, e.g., N. Am. Freight Car Ass'n v. BNSF Ry., NOR 42060 (Sub-No. 1), slip op. at 7 (STB served Jan. 26, 2007) (rate reasonableness refers to the “total amount paid” in the line-haul rate). A challenge to a tariff rate for empty car movements would be a “rate dispute.” Parties may voluntarily agree to arbitrate other matters under § 1108.4(e), such as the application of a specific charge or fuel surcharge that would not constitute a “rate dispute,” but such disputes would be subject to the monetary award cap of $2,000,000 for non-rate cases.

    Other Items to Address or Clarify. NGFA recommends that the Board define “accessorial charges,” which are listed as matters eligible for arbitration under section 11708 and the proposed rules at § 1108.1(d) and (j). (NGFA Comment 5.) The Board clarifies here that accessorial charges may include, but are not limited to, charges for diversion, inspection, reconsignment, storing, weighing, and other services not specified in the statute and § 1108.1(d) and (j).

    Several shippers suggest that the Board maintain a record of unsuccessful attempts to arbitrate disputes, so that if the arbitration system is not well utilized, the record would help the Board understand why the arbitration system is not being used. (ACC Comment 2; RCC Comment 2; NGFA Comment 4.) Given that arbitration is voluntary under these rules, the Board declines to keep a record of unsuccessful attempts to arbitrate. A record of unsuccessful attempts to arbitrate would not necessarily provide useful guidance to the Board, given the wide variety of valid reasons why a party may decline to arbitrate a given dispute.

    NGFA recommends that the proposed rules be revised to expressly state that the Board's arbitration rules do not preempt the applicability of, or otherwise supersede, existing industry-operated arbitration systems. (NGFA Comment 8.) The Board's current regulations at § 1108.2(a)(2) provide that “nothing in these rules shall be construed in a manner to prevent parties from independently seeking or utilizing private arbitration services to resolve any disputes they may have.” Nothing in the rules we adopt here changes that aspect of the existing rules.

    SMART/TD-NY requests that the Board allow third parties, such as labor parties, to intervene in arbitration proceedings. (SMART/TD-NY Comment 7.) As the Board noted in Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation Board, 2 S.T.B. 564, 574 (1997), a central objective of arbitration is to avoid a formal regulatory proceeding, and allowing the participation of uninvited third parties would contravene the voluntary and informal nature of the arbitration process. Accordingly, the Board denies SMART/TD-NY's request to allow for third-party intervention in arbitration proceedings.

    Lastly, SMART/TD-NY states that the labor arbitration standard in 49 CFR 1115.8 should be deleted because labor disputes are not eligible for arbitration. (SMART/TD-NY Comment 9.) Under 49 U.S.C. 11708(b)(2)(C), the Board's arbitration procedures do not apply to disputes “to enforce a labor protective condition.” But it is well settled that the Board can delegate authority to arbitrators to adjudicate disputes—subject to Board review—over the appropriate conditions to impose to protect affected employees. Ass'n of Am. R.R.s v. STB, 162 F.3d 101, 107 (D.C. Cir. 1998). Accordingly, the Board clarifies here that § 1115.8 reflects both the standard of review used by the Board for arbitrations conducted pursuant to 49 CFR part 1108 and the standard of review for labor arbitration cases to resolve disputes involving employee protection conditions. In Docket No. 699, the Board inadvertently omitted the standard of review for labor arbitration cases in § 1115.8. In the NPR, the Board properly proposed to correct this omission.

    The final rules are set forth below.

    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. Under section 605(b), an agency is not required to perform an initial or final regulatory flexibility analysis if it certifies that the proposed or final rules will not have a “significant impact on a substantial number of small entities.”

    Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 478, 480 (7th Cir. 2009). An agency has no obligation to conduct a small entity impact analysis of effects on entities that it does not regulate. United Distrib. Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).

    In the NPR, the Board already certified under 5 U.S.C. 605(b) that the proposed rules would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. The Board explained that the proposed rules would not place any additional burden on small entities, but rather amend the existing procedures for arbitrating disputes before the Board. The Board further explained that, although some carriers and shippers impacted by the proposed rules may qualify as a “small business” within the meaning of 5 U.S.C. 601(3), it did not anticipate that the revised arbitration procedures would have a significant economic impact on a large number of small entities. The Board noted that, to the extent that the rules have any impact, it would be to provide faster resolution of a controversy at a lower cost. Moreover, the Board noted that the relief that could be accorded by an arbitrator would presumably be similar to the relief shippers could obtain through use of the Board's existing formal adjudicatory procedures, and at a greater net value considering that the arbitration process is designed to consume less time and likely will be less costly. A copy of the NPR was served on the U.S. Small Business Administration (SBA).

    The final rules adopted here make slight modifications to the proposed rules. However, the same basis for the Board's certification of the proposed rules apply to the final rules adopted here. The final rules will not create a significant impact on a substantial number of small entities. The modifications adopted in the final rules refine the proposed arbitration process and clarify the existing regulations. Therefore, the Board certifies under 5 U.S.C. 605(b) that the final rules will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

    Paperwork Reduction Act. In the NPR, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.11 regarding: (1) Whether the collection of information associated with the proposed arbitration program is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. No comments were received pertaining to the collection of this information under the PRA.

    The proposed collection was submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11. OMB is withholding approval pending submission of the final rules. Simultaneously with publishing these final rules, we are submitting the final rules to OMB for approval. Once approval is received, OMB will issue a collection control number (2140-XXXX), and we will publish a notice in the Federal Register. Until renewed, OMB approval of this collection is expected to expire October 30, 2019. Under the PRA and 5 CFR 1320.11, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number. As required, simultaneously with the publication of these final rules, the Board is submitting this modified collection to OMB for review.

    List of Subjects 49 CFR Part 1108

    Administrative practice and procedure, Railroads.

    49 CFR Part 1115

    Administrative practice and procedure.

    It is ordered:

    1. The Board adopts the final rules as set forth in this decision. Notice of the adopted rules will be published in the Federal Register.

    2. This decision is effective 30 days after the day of service.

    Decided: September 28, 2016.

    By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

    Kenyatta Clay, Clearance Clerk.

    For the reasons set forth in the preamble, under the authority of 49 U.S.C. 1321, title 49, chapter X, parts 1108 and 1115 of the Code of Federal Regulations are amended as follows:

    PART 1108—ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY JURISDICTION OF THE SURFACE TRANSPORTATION BOARD 1. Revise the authority citation for part 1108 to read as follows: Authority:

    49 U.S.C. 11708, 49 U.S.C. 1321(a), and 5 U.S.C. 571 et seq.

    2. Amend § 1108.1 as follows: a. In paragraph (b), add the words “from the roster” after the word “selected” and remove the word “neutral” and add in its place “lead”. b. In paragraph (d), add “rates;” after “subjects:”. c. In paragraph (g), add the words “and the Surface Transportation Board Reauthorization Act of 2015” after “1995”. d. Revise paragraphs (h) and (i). e. Redesignate paragraphs (j) and (k) as paragraphs (k) and (l). f. Add a new paragraph (j) and paragraph (m).

    The revisions and additions read as follows:

    § 1108.1 Definitions.

    (h) Lead arbitrator or single arbitrator means the arbitrator selected by the strike methodology outlined in § 1108.6(c).

    (i) Monetary award cap means a limit on awardable damages of $25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in practice disputes, unless the parties mutually agree to a lower award cap. If parties bring one or more counterclaims, such counterclaims will be subject to a separate monetary award cap.

    (j) Practice disputes are disputes involving demurrage; accessorial charges; misrouting or mishandling of rail cars; and disputes involving a carrier's published rules and practices as applied to particular rail transportation.

    (m) Rate disputes are disputes involving the reasonableness of a rail carrier's rates.

    3. Amend § 1108.2 as follows: a. In paragraph (a) introductory text, remove “$200,000” and add in its place “$25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in other disputes” and remove the word “different” and add in its place “lower”. b. In paragraph (a)(1), remove the word “different” and add in its place “lower”. c. Revise paragraph (b).

    The revision reads as follows:

    § 1108.2 Statement of purpose, organization, and jurisdiction.

    (b) Limitations to the Board's arbitration program. These procedures shall not be available:

    (1) To resolve disputes involving labor protective conditions;

    (2) To obtain the grant, denial, stay or revocation of any license, authorization (e.g., construction, abandonment, purchase, trackage rights, merger, pooling), or exemption related to such matters;

    (3) To prescribe for the future any conduct, rules, or results of general, industry-wide applicability;

    (4) To resolve disputes that are solely between two or more rail carriers.

    Parties may only use these arbitration procedures to arbitrate matters within the statutory jurisdiction of the Board.

    4. Amend § 1108.3 as follows: a. In paragraph (a) introductory text, remove the word “either”. b. In paragraph (a)(1)(ii), remove the words “different monetary award cap” and add in their place “lower monetary award cap than the monetary award caps provided in this part”. c. Revise paragraph (a)(2). d. Remove paragraph (a)(2)(i). e. Add paragraph (a)(3). f. In paragraph (b), add “itself” after “not” and remove “within that” and add in its place “prior to the end of the”. g. In paragraph (c), remove “on a case-by-case basis” and add in its place “only for a particular dispute”.

    The revision and addition read as follows:

    § 1108.3 Participation in the Board's arbitration program.

    (a) * * *

    (2) Participants to a proceeding, where one or both parties have not opted into the arbitration program, may by joint notice agree to submit an issue in dispute to the Board's arbitration program. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the monetary award cap that would otherwise be applicable.

    (3) Parties to a dispute may jointly notify the Board that they agree to submit an eligible matter in dispute to the Board's arbitration program, where no formal proceeding has begun before the Board. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the applicable monetary award cap.

    5. Amend § 1108.4 as follows: a. In paragraph (a), add “rates;” before the word “Demurrage”. b. In paragraph (b) introductory text, remove “may not exceed” and add in its place “will be subject to”; remove “$200,000” and add in its place “$25,000,000, including any rate prescription,”; and remove “arbitral proceeding” and add in its place “rate dispute and $2,000,000 per practice dispute”. c. In paragraphs (b)(1) and (2), remove the word “different” and add in its place “lower”. d. In paragraph (b)(3), remove “$200,000” and add in its place “$25,000,000, including any rate prescription,”; remove “case” and add in its place “rate dispute and $2,000,000 per practice dispute”; and remove “different” and add in its place “lower”. f. In paragraph (c), remove the words “arising in a docketed proceeding” and add “for a particular dispute” after “consent to arbitration”. g. In paragraph (e), add a sentence after the second sentence and remove “which” and add in its place “that”. h. Add paragraph (g).

    The revision and additions read as follows:

    § 1108.4 Use of arbitration.

    (e) * * * Such disputes are subject to a monetary award cap of $2,000,000 or to a lower cap agreed upon by the parties in accordance with paragraph (b)(2) of this section.* * *

    (g) Rate disputes. Arbitration of rate disputes will only be available to parties if the rail carrier has market dominance as determined by the Board under 49 U.S.C. 10707. In rate disputes, the arbitrator or panel of arbitrators, as applicable, shall consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under 49 U.S.C. 10704(a)(2)).

    6. Amend § 1108.5 as follows: a. In paragraph (a) introductory text, add “Except as provided in paragraph (e) of this section,” to the beginning of the first sentence and remove “Arbitration” and add in its place “arbitration”. b. In paragraph (a)(1), remove the word “single-neutral” and add in its place “single”. c. In paragraph (a)(3), remove the word “different” and add in its place “lower”; remove “$200,000”; and add “that would otherwise apply” after “cap”. d. In paragraph (b)(1) introductory text, remove the word “single-neutral” and add in its place “single” wherever it appears and remove the words “the request” and add in their place “that request”. f. In paragraph (b)(1)(i), remove the word “single-neutral” and add in its place “single”. g. In paragraph (b)(1)(ii), remove the word “single-neutral” and add in its place “single” wherever it appears; remove “§ 1108.6(a)-(c)” and add in its place “§ 1108.6(a) through (d)”; remove the word “matter” and add in its place “case”; and add “by the Board” after “adjudication”. h. Revise paragraph (b)(2). i. In paragraph (b)(3), remove the word “different” and add in its place “lower” and remove “$200,000” and add in its place “otherwise applicable”. j. Revise paragraph (e). k. Add paragraphs (f) and (g).

    The revisions and additions read as follows:

    § 1108.5 Arbitration commencement procedures.

    (b) * * *

    (2) When the complaint limits the arbitrable issues, the answer must state whether the respondent agrees to those limitations or, if the respondent is already a participant in the Board's arbitration program, whether those limitations are consistent with the respondent's opt-in notice filed with the Board pursuant to § 1108.3(a)(1)(i). If the answer contains an agreement to arbitrate some but not all of the arbitration-program-eligible issues in the complaint, the complainant will have 10 days from the date of the answer to advise the respondent and the Board in writing whether the complainant is willing to arbitrate on that basis.

    (e) Jointly-filed notice. In lieu of a formal complaint proceeding, arbitration under these rules may commence with a jointly-filed notice by parties agreeing to submit an eligible matter in dispute to the Board's arbitration program under § 1108.3(a)(3). The notice must:

    (1) Contain a statement that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested;

    (2) Indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator;

    (3) Indicate if the parties have agreed to a lower amount of potential liability in lieu of the otherwise applicable monetary award cap.

    (f) Arbitration initiation. When the parties have agreed upon whether to use a single arbitrator or a panel of arbitrators, the issues(s) to be arbitrated, and the monetary limit to any arbitral decision, the Board shall initiate the arbitration under § 1108.7(a) and provide a list of arbitrators as described in § 1108.6.

    (g) Arbitration agreement. Shortly after the panel of arbitrators or arbitrator is selected, the parties to arbitration together with the lead or single arbitrator, as applicable, shall create a written arbitration agreement, which at a minimum will state with specificity the issues to be arbitrated and the corresponding monetary award cap to which the parties have agreed. The agreement may also contain other mutually agreed upon provisions.

    (1) Any additional issues selected for arbitration by the parties, that are not outside the scope of these arbitration rules as explained in § 1108.2(b), must be subject to the Board's statutory authority.

    (2) These rules shall be incorporated by reference into any arbitration agreement conducted pursuant to an arbitration complaint filed with the Board.

    7. Amend § 1108.6 as follows: a. In paragraph (a), remove “§ 1108.5(a)(1)” and add in its place “§ 1108.5(a)(1) and agreed to by all parties to the arbitration”. b. Revise paragraph (b). c. Revise paragraph (c) introductory text. d. In paragraph (c)(1), remove the word “neutral” wherever it appears and in the second sentence add “lead” in its place. e. Revise paragraph (c)(2). f. Remove paragraph (c)(3). g. Revise paragraph (d). h. Redesignate paragraph (e) as paragraph (f). i. Add a new paragraph (e). j. In newly redesignated paragraph (f)(1), remove “§ 1108.6(b)” and add in its place “§ 1108.6(d)”. k. Revise newly redesignated paragraph (f)(2).

    The revisions and addition read as follows:

    § 1108.6 Arbitrators.

    (b) Roster. Arbitration shall be conducted by an arbitrator (or panel of arbitrators) selected, as provided herein, from a roster of persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector. Persons seeking to be included on the roster must have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. The Board will establish the initial roster of arbitrators by no-objection vote. The Board may modify the roster at any time by no-objection vote to include other eligible arbitrators or remove arbitrators who are no longer available. The Board's roster will provide a brief biographical sketch of each arbitrator, including information such as background, area(s) of expertise, arbitration experience, and geographical location, as well as general contact information and fees, based on the information supplied by the arbitrator. The roster shall be published on the Board's Web site. The Board will update the roster every year. The Board will seek public comment on any modifications that should be made to the roster, including requesting the names and qualifications of new arbitrators who wish to be placed on the roster, and updates from arbitrators appearing on the roster to confirm that the biographical information on file with the Board remains accurate. Arbitrators who wish to remain on the roster must notify the Board of their continued availability.

    (c) Selecting the lead arbitrator. If the parties cannot mutually agree on a lead arbitrator for a panel of arbitrators, the parties shall use the following process to select a lead arbitrator: First, each party will be given three peremptory strikes to remove names from the Board's roster. Then, from the remaining names on the roster, each party will submit a list of up to 10 potential arbitrators. If only one arbitrator appears on both lists, he or she would be selected as the single or lead arbitrator. If multiple arbitrators appear on both lists, the parties would alternatively strike names of the jointly listed arbitrators until one remains, beginning with complainant. If no name appears on both lists, the parties would alternatively strike from the Board's entire roster, as amended based on the peremptory strikes. A lead arbitrator shall be selected within 14 days of the Board initiating the arbitration process.

    (2) The lead arbitrator appointed through the strike methodology shall serve as the head of the arbitration panel and will be responsible for ensuring that the tasks detailed in §§ 1108.7 and 1108.9 are accomplished.

    (d) Party-appointed arbitrators. The party or parties on each side of an arbitration dispute shall select one arbitrator from the roster, regardless of whether the other party struck the arbitrator's name in selecting a lead arbitrator. The party or parties on each side will appoint that side's own arbitrator within 14 days of the Board initiating the arbitration process. Parties on one side of an arbitration proceeding may not challenge the arbitrator selected by the opposing side.

    (e) Use of a single arbitrator. Parties to arbitration may request the use of a single arbitrator. Requests for use of a single arbitrator must be included in a complaint or an answer as required in § 1108.5(a)(1), or in the joint notice filed under § 1108.5(e). Parties to both sides of an arbitration dispute must agree to the use of a single arbitrator in writing. If the single-arbitrator option is selected, and if parties cannot mutually agree on a single arbitrator, the arbitrator selection procedures outlined in paragraph (c) of this section shall apply.

    (f) * * *

    (2) If the incapacitated arbitrator was the lead or single arbitrator, the parties shall promptly inform the Board of the arbitrator's incapacitation and the selection procedures set forth in paragraph (c) of this section shall apply.

    8. Revise § 1108.7 to read as follows:
    § 1108.7 Arbitration procedures.

    (a) Initiation. With the exception of rate dispute arbitration proceedings, the Board shall initiate the arbitration process within 40 days after submission of a written complaint or joint notice filed under § 1108.5(e). In arbitrations involving rate disputes, the Board shall initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier has market dominance.

    (b) Arbitration evidentiary phase timetable. Whether the parties select a single arbitrator or a panel of three arbitrators, the lead or single arbitrator shall establish all rules deemed necessary for each arbitration proceeding, including with regard to discovery, the submission of evidence, and the treatment of confidential information, subject to the requirement that this evidentiary phase shall be completed within 90 days from the date on which the arbitration process is initiated, unless a party requests an extension, and the arbitrator or panel of arbitrators, as applicable, grants such extension request.

    (c) Written decision timetable. The lead or single arbitrator will be responsible for writing the arbitration decision. The unredacted arbitration decision must be served on the parties within 30 days of completion of the evidentiary phase. A redacted copy of the arbitration decision must be served upon the Board within 60 days of the close of the evidentiary phase for publication on the Board's Web site.

    (d) Extensions to the arbitration timetable. The Board may extend any deadlines in the arbitration timetable provided in this part upon agreement of all parties to the dispute.

    (e) Protective orders. Any party, on either side of an arbitration proceeding, may request that discovery and the submission of evidence be conducted pursuant to a standard protective order agreement.

    9. Amend § 1108.8 by revising paragraph (a) to read as follows:
    § 1108.8 Relief.

    (a) Relief available. An arbitrator may grant relief in the form of monetary damages or a rate prescription in rate disputes to the extent they are available under this part or as agreed to in writing by the parties. A rate prescription shall not exceed 5 years.

    10. Amend § 1108.9 as follows: a. Revise paragraph (a). b. In paragraph (b), remove the word “neutral” and add in its place “lead or single”. c. In paragraph (d), remove the heading “Neutral arbitrator authority” and add in its place “Lead or single arbitrator authority”; remove the word “neutral” from the first sentence and add in its place “lead or single”; and add “, if any,” after “what”. d. In paragraph (e), remove the word “neutral” wherever it appears and add in its places “lead or single” and remove “§ 1108.7(b)” and add in its place “§ 1108.7(c)”. e. In paragraph (f), remove the word “neutral” and add in its place “lead or single”.

    The revision reads as follows:

    § 1108.9 Decisions.

    (a) Decision requirements. Whether by a panel of arbitrators or a single arbitrator, all arbitration decisions shall be in writing and shall contain findings of fact and conclusions of law. All arbitration decisions must be consistent with sound principles of rail regulation economics. The arbitrator shall provide an unredacted draft of the arbitration decision to the parties to the dispute, in accordance with any protective order governing the release of confidential and highly confidential information pursuant to § 1108.7(e).

    11. Amend § 1108.11 as follows: a. In paragraph (a), add “upon the Board” after “20 days of service”. b. Revise paragraph (b) introductory text.

    The revision reads as follows:

    § 1108.11 Enforcement and appeals.

    (b) Board's standard of review. On appeal, the Board's standard of review of arbitration decisions will be narrow. The Board will review a decision to determine if the decision is consistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred; the decision directly contravenes statutory authority; or the award limitation was violated. Using this standard, the Board may modify or vacate an arbitration award in whole or in part.

    12. Amend § 1108.12 as follows: a. Revise paragraph (b). b. Remove paragraphs (c) and (d).

    The revision reads as follows:

    § 1108.12 Fees and costs.

    (b) Costs. The parties shall share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs.

    PART 1115—APPELLATE PROCEDURES 13. The authority citation for part 1115 is revised to read as follows: Authority:

    5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.

    14. Revise § 1115.8 to read as follows:
    § 1115.8 Petitions to review arbitration decisions.

    An appeal of right to the Board is permitted. The appeal must be filed within 20 days upon the Board of a final arbitration decision, unless a later date is authorized by the Board, and is subject to the page limitations of § 1115.2(d). For arbitrations authorized under part 1108 of this chapter, the Board's standard of review of arbitration decisions will be narrow, and relief will only be granted on grounds that the decision is inconsistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred, the decision directly contravenes statutory authority, or the award limitation was violated. For labor arbitration decisions, the Board's standard of review is set forth in Chicago and North Western Transportation Company—Abandonment—near Dubuque & Oelwein, Iowa, 3 I.C.C.2d 729 (1987), aff'd sub nom. International Brotherhood of Electrical Workers v. Interstate Commerce Commission, 862 F.2d 330 (D.C. Cir. 1988). The timely filing of a petition will not automatically stay the effect of the arbitration decision. A stay may be requested under § 1115.3(f).

    [FR Doc. 2016-24065 Filed 10-5-16; 8:45 am] BILLING CODE 4915-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2015-0142; 4500030113] RIN 1018-BB09 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Suwannee Moccasinshell AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the Suwannee moccasinshell (Medionidus walkeri), a freshwater mussel species from the Suwannee River Basin in Florida and Georgia. The effect of this regulation will be to add this species to the List of Endangered and Threatened Wildlife.

    DATES:

    This rule becomes effective November 7, 2016.

    ADDRESSES:

    This final rule is available on the internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2015-0142 and the Panama City Ecological Services Field Office. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Panama City Ecological Services Field Office, 1601 Balboa Avenue, Panama City, FL 32405; by telephone 850-769-0552; or by facsimile at 850-763-2177.

    FOR FURTHER INFORMATION CONTACT:

    Catherine T. Phillips, Project Leader, U.S. Fish and Wildlife Service, Panama City Ecological Services Field Office, 1601 Balboa Avenue, Panama City, FL 32405; by telephone 850-769-0552; or by facsimile at 850-763-2177. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act (Act), a species may require protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    What this document does. This rule will finalize the listing of the Suwannee moccasinshell (Medionidus walkeri) as a threatened species. In the near future, we intend to publish a proposed rule in the Federal Register to designate critical habitat for the Suwannee moccasinshell under the Act.

    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 the Suwannee moccasinshell is threatened by the degradation of its habitat due to polluted runoff from agricultural lands, pollutants discharged or accidentally released from industrial and municipal wastewater sources and mining operations, decreased flows due to groundwater extraction and drought, stream channel instability, and excessive sedimentation (Factor A); State and Federal water quality standards that are inadequate to protect sensitive aquatic organisms like mussels (Factor D); the potential of contaminant spills as a result of transportation accidents (Factor E); increased drought frequency and degraded water quality as a result of changing climatic conditions (Factor E); greater vulnerability to certain threats because of small population size and range (Factor E); and competition and disturbance from the introduced Asian clam (Factor E).

    Peer review and public comment. We sought comments from independent specialists to ensure that our listing rule is based on scientifically sound data, assumptions, and analyses. We invited three peer reviewers with expertise in Suwannee moccasinshell biology and ecology, and freshwater mussel biology and conservation, to comment on our listing proposal. We also considered all other comments and information received during the public comment period. All comments and information received are available on the internet at http://www.regulations.gov in Docket No. FWS-R4-ES-2015-0142.

    Previous Federal Action

    Please refer to the proposed listing rule for the Suwannee moccasinshell (80 FR 60335; October 6, 2015) for a detailed description of previous Federal actions concerning this species.

    Background

    For a more detailed discussion of the biology, status, and threats affecting the species, please refer to the proposed listing rule for the Suwannee moccasinshell published in the Federal Register on October 6, 2015 (80 FR 60335). In the proposed rule, we evaluated the biological status of the species and factors affecting its continued existence. Our assessment was based upon the best available scientific and commercial data available on the status of the species, including past, present, and future threats to the species.

    Summary of Comments and Recommendations

    In the proposed rule published on October 6, 2015 (80 FR 60335), we requested that all interested parties submit written comments on the proposal by December 7, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in The Lake City Reporter, Columbia County, FL; The Gainesville Sun, Alachua County, FL; and The Valdosta Daily Times, Lowndes County, GA. During the public comment period, we received public comments from 11 individuals or organizations, including 3 submissions by the individuals asked to serve as peer reviewers. We did not receive any requests for a public hearing. All substantive information provided during the comment period is summarized below in the Summary of Changes From the Proposed Rule and has either been incorporated directly into this final determination or addressed in the more specific response to comments below.

    Comments From Peer Reviewers

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise in the species' biology, habitat, and threats and stream ecology. We received responses from all of the peer reviewers.

    We reviewed all comments from the peer reviewers for substantive issues and new information regarding the listing of the Suwannee moccasinshell. In general, the peer reviewers concurred with our methods and conclusions. Where appropriate, we incorporated new information into the final rule as a result of the peer reviewer comments, and any substantive comments are discussed below.

    (1) Comment: One peer reviewer expressed concern that there has been no modern taxonomic study to assess whether the Suwannee moccasinshell is a distinct species from the Gulf moccasinshell. The peer reviewer mentioned that shell morphological traits are notoriously problematic taxonomic features that have led to the misclassification of many freshwater mussel taxa, and that only with molecular data can you be reasonably sure that you are dealing with separate species. The reviewer also added that there was no reason to suspect that the Suwannee moccasinshell is not a valid species.

    Our Response: We relied on the best information currently available regarding the taxonomy of the species. The Suwannee moccasinshell is considered a distinct taxonomic entity by the general scientific community, and we are aware of no contradicting views on the taxonomy of this entity. However, in the final rule we have refined our discussion of the species' taxonomy and added a recent publication by Johnson et al. (in press) to the list of authors who recognize the entity as a separate species.

    (2) Comment: One peer reviewer expressed concerned about the lack of surveys in the Withlacoochee drainage, and stated that this stream still supports large populations of freshwater mussels. The reviewer stated that there has apparently been very little recent work in the system, and that intensive surveys should be done in the Withlacoochee Drainage to determine the status of the Suwannee moccasinshell in this system.

    Our Response: We agree and stated in the proposed rule that additional survey work is needed in the Withlacoochee River subbasin (80 FR 60335, October 6, 2015; p. 60338). Since publishing the proposed rule, some additional surveys were conducted in the lower Withlacoochee drainage. Those surveys are included in Table 2 below. Surveyors using snorkel gear searched seven locations in the lower basin in September 2015. Several mussel species were detected, but not Suwannee moccasinshell. Likely contributing factors for non-detection include the conditions noted at survey locations within this species' historical range, including an odor of treated sewage and considerable amounts of filamentous algae (an indicator of excess nutrients).

    Also, since the proposed rule was published, the Service's Panama City Field Office received two reports of mussel surveys conducted in 2005 and 2007 around the State Road 31 Bridge in Georgia, where the Suwannee moccasinshell was collected in 1969. Comprehensive surveys were conducted over several days using SCUBA gear to search a 1.5-kilometer reach (approximately) of the Withlacoochee River (Bowers 2006, entire; Bowers 2007, entire). The species was not detected during these dive surveys. These additional data support our conclusion that the Suwannee moccasinshell may no longer occur in the Withlacoochee subbasin.

    (3) Comment: One peer reviewer commented that spate flows (e.g., sudden fast flows with high sediment loads) in the upper Santa Fe River should be listed as a threat.

    Our Response: We agree and have added this threat to the Factor A discussion under the heading of Stream Channel Instability.

    (4) Comment: One peer reviewer commented that deadhead logging, though probably past its heyday, is still a potential threat to the Suwannee moccasinshell as it can cause destabilization of microhabitat occupied by freshwater mussels. The peer reviewer also stated that the impact of constant and, in many cases, large boat wakes frequently striking shore is a problem, especially in the lower Santa Fe River, which is a relatively narrow channel frequented by large numbers of boats.

    Our Response: We appreciate this information, and we have added a discussion of both activities to the Factor A discussion under the heading of Stream Channel Instability.

    (5) Comment: One peer reviewer suggested deleting flathead catfish as a potential threat. The reviewer pointed out that there is only one record from the Suwannee River of flathead catfish, which was collected near Branford in 1989, and the species is not currently considered to be extant in the basin. The reviewer believed that flathead catfish may represent a future threat if they ever become successfully established in the basin.

    Our Response: Based on this information, we agree that flathead catfish are not a significant concern at this time and have deleted the discussion from the final rule.

    Comments From States

    The proposed rule was reviewed by the three members of the Florida Fish and Wildlife Conservation Commission's (FWC) freshwater mussel conservation program, one of which was asked to serve as a peer reviewer. The comments were combined into one document and submitted as a single peer review. The FWC reviewers provided additional information and clarification on threats, and provided updated information on surveys conducted by the agency. Their comments are addressed in Comments 3, 4, and 5 above, and are incorporated into the final rule as appropriate. The FWC generally concurred with our methods and conclusions, and supports the listing.

    We also received comments from the Florida Department of Transportation (FDOT). They are addressed below.

    (6) Comment: The FDOT expressed concern about our use of the term “transportation accidents” with regard to possible contamination spills. The agency stated that transportation agencies have protocols in place to address and track these spills.

    Our Response: We continue to maintain that accidents involving vehicles transporting large volumes of hazardous materials are a potential threat to the Suwannee moccasinshell. Accidental spills of hazardous materials or organic materials into streams as a result of transportation accidents have occurred in the past. Incidents in or near streams that illustrate the potential risk include two train derailments: one on September 12, 2006, that spilled four tank cars of soybeans into a tributary of Yellow Leaf Creek in Alabama resulting in a drastic decline in dissolved oxygen, killing fishes, mussels, and snails (USFWS 2009); and another on January 28, 2014, that spilled up to 30,000 gallons of phosphoric acid into a small tributary to the Escambia River in Florida (NorthEscambia.com), and was contained before reaching critical habitat in the mainstem.

    (7) Comment: The FDOT expressed concerns regarding our discussion of water quality degradation and increased sedimentation. The agency commented that State DOTs abide by rigorous environmental permit processes (both Federal and State) that address these matters including requirements of the ESA. Specifically, roadway projects have to obtain a State Water Quality Certification in order for the U.S. Army Corps to issue a permit under section 404 of the Clean Water Act.

    Our Response: FDOT's standard Best Management Practices (BMPs) for erosion and sediment control are a good baseline measure to protect water quality. However, the success of these measures is highly dependent on their contractors to meticulously implement, monitor, and repair erosion control measures. In instances where endangered and threatened species are present in combination with highly erodible soils, a higher level of protection may be needed. While not frequent, instances of erosion control failures that have impacted waterways during road construction in Florida have been documented.

    (8) Comment: The FDOT commented that the following activities listed in the proposed rule (80 FR 60335, October 6, 2015; p. 60347) as potentially harming the Suwannee moccasinshell and, therefore, resulting in take, could impact State DOT projects: destruction or alteration of the species' habitat by discharge of fill material; dredging or modification of stream channels or banks; and discharge of pollutants into a stream or into areas hydrologically connected to a stream occupied by the species.

    Our Response: The majority of the stream channels currently occupied by the Suwannee moccasinshell, including the Suwannee River mainstem and the lower Withlacoochee River, are also occupied by, or designated as critical habitat for, the federally threatened Gulf sturgeon. The lower Santa Fe River is the only area occupied by Suwannee moccasinshell, but not by Gulf sturgeon. Therefore, because activities that affect the Suwannee moccasinshell would also affect the Gulf sturgeon or its habitat (for example, dredging, filling, modification of stream channels or banks, and discharge of pollutants), in the majority of the Suwannee moccasinshell's current range, the FDOT already consults on such activities. When formal section 7 consultation is required, we will work with the FDOT to find solutions that will reduce impacts to all listed species and aquatic habitats, while allowing the activity to proceed.

    Public Comments

    (9) Comment: One commenter expressed concern about our finding that forestry is a contributing threat to the Suwannee moccasinshell. The commenter provided information on the implementation rates and effectiveness of forestry BMPs and cited various studies purported to demonstrate that forestry BMPs minimize erosion and sediment transport to streams below levels that degrade aquatic habitats and/or harm aquatic species, including the Suwannee moccasinshell.

    Response: We appreciate the commenters' support of forestry BMPs as a means of protecting water quality and we concur that, when properly implemented, forestry BMPs can reduce erosion and sedimentation levels, especially as compared to past forestry practices. However, the best available data indicate that, even when forestry BMPs are properly implemented, erosion rates at harvested sites, skid trails, unpaved haul roads, and stream crossings are significantly higher than from undisturbed sites. We consider sediment from silvicultural activities to be one of many potential sediment sources within the Suwannee River watershed.

    Summary of Changes From the Proposed Rule

    After consideration of the comments we received during the public comment period (refer to Summary of Comments and Recommendations above), and new information published or obtained since the proposed rule was published, we made changes to the final listing rule. Many small, nonsubstantive changes and corrections, not affecting the determination (e.g., updating the Background section in response to comments, minor clarifications) were made throughout the document. Below is a summary of substantive changes made to the final rule.

    (1) The Taxonomy discussion was refined slightly. The distinctiveness of Suwannee moccasinshell as a separate species was further bolstered by a recent study (Johnson et al. in Press).

    (2) Table 2 was added to provide a clear and updated summary of all recent survey information.

    (3) The flathead catfish (Pylodictis olivaris) was removed as a threat to reflect information provided by the Florida FWC indicating that flathead catfish have not become established in the Suwannee River Basin.

    (4) Stream Channel Instability was added as a threat under Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range. The new discussion adds threats identified by a peer reviewer that include scouring flows, boat wakes, and deadhead logging.

    Summary of Biological Status

    Below we present a summary of the biological and distributional information discussed in the proposed listing rule. We also present new information published or obtained since the proposed rule was published, including a study by Johnson et al. (in Press), additional survey data, and information received during the comment period.

    The Suwannee moccasinshell (Medionidus walkeri) is a small freshwater mussel of the family Unionidae. The species was originally described by B.H. Wright in 1897. It was briefly considered a synonym of Medionidus penicillatus (Clench and Turner 1956), but subsequently was recognized as a valid species by Johnson (1977, pp. 176-177), who described walkeri as being “quite distinct” from the other members of the genus. Its sharp posterior ridge and generally dark, rayless shell distinguishes it from other species of Medionidus in Gulf drainages (Johnson 1977, p. 177; Williams and Butler 1994, p. 86). Its distinctiveness as a separate species is recognized by recent authors (Williams and Butler 1994, pp. 85-86; Williams et al. 2014, pp. 278-280; Johnson et al. in Press).

    The Suwannee moccasinshell typically inhabits larger streams where it is found in substrates composed of muddy sand or sand with some gravel, and in areas with slow to moderate current (Williams and Butler 1994, p. 86; Williams 2015, p. 2). The species is also associated with large woody material, and individuals are often found near embedded logs. Like other freshwater mussels, the Suwannee moccasinshell requires a fish host to complete its life cycle. Reproduction in freshwater mussels is unique in that they require specific fish species to serve as hosts for their larvae (called glochidia); the larval mussel must attach to the gills or fins of a suitable host fish in order to transform into a juvenile mussel. Parasitism serves as a means of upstream dispersal for this relatively sedentary group of organisms (Haag 2012, p. 145). A recent study examining the early life history of the Suwannee moccasinshell has provided information about its reproductive biology. Females were found gravid with mature glochidia from October to May (Johnson et al. in Press). In laboratory trials, Suwannee moccasinshell glochidia transformed only on darters—primarily on the blackbanded darter (Percina nigrofasciata) and to a lesser extent on the brown darter (Etheostoma edwini)—indicating that the mussel is a host specialist and dependent on darters for reproduction (Johnson et al. in Press). Darters are small, bottom-dwelling fish that generally do not move considerable distances (Freeman 1995, pp. 363-365; Holt 2013, p. 657). Thus, the exclusive use of darters as a host may limit the Suwannee moccasinshell's ability to disperse and to recolonize some areas from which it has become extirpated.

    The Suwannee moccasinshell is endemic to the Suwannee River Basin in Florida and Georgia. Its historical range includes the lower and middle Suwannee River mainstem, and two large tributary rivers—the Santa Fe River subbasin and the lower Withlacoochee River mainstem (Williams 2015, p. 7). An evaluation of historical and recent collection data show that its range has declined in recent decades, and the species is presently known only from the middle Suwannee River and lower Santa Fe River in Florida. In the Suwannee River mainstem, the species occurs intermittently throughout a 75-mile (121-kilometer) reach of the middle river, and sporadically in a 28-mile (45-kilometer) segment of the lower Santa Fe River. The species was not detected in recent surveys in the Withlacoochee River or in the upper Santa Fe River subbasin. A summary of Suwannee moccasinshell occurrence and distribution by waterbody are shown in Table 1 below.

    In addition to a reduction of range, recent surveys targeting the Suwannee moccasinshell show that its numbers are very low. Florida FWC and Georgia Department of Natural Resources biologists surveyed 144 sites during 2013-2015, covering nearly all of its historical range (FFWCC 2015 unpub. data; USFWS 2015 unpub. data). Suwannee moccasinshell densities were found to be exceedingly low in comparison to other mussel species, particularly in the lower Santa Fe River. A summary of survey results are shown in Table 2 below.

    Table 1—Summary of Suwannee Moccasinshell Populations by Waterbody Water body State and county Occurrence * Distribution and abundance Suwannee River mainstem FL: Madison Suwannee, Lafayette, Gilchrist, Dixie, Levy Recent Occurs in a 75-mile reach of middle river; abundance low but population stable. May be extirpated from the lower river. Lower Santa Fe River FL: Suwannee, Gilchrist, Columbia, Alachua, Union, Bradford Recent Occurs in 28-mile reach in lower river; drastic decline and abundance very low. Upper Santa Fe and New Rivers FL: Union, Alachua, Bradford Historical May be extirpated; last collected in system in 1996. Withlacoochee River GA: Brooks, Lowndes;
  • FL: Madison, Hamilton
  • Historical May be extirpated; last collected in system in 1969.
    * Recent occurrence is based on collections made from 2000 to 2015; historical occurrence is based on collections made prior to 2000.
    Table 2—Summary of 2013-2015 Suwannee Moccasinshell Surveys by Waterbody Water body Survey year Number of sites Total mussels Live suwannee moccasinshells Suwannee River mainstem 2013-2015 103 15,195 73 Lower Santa Fe River 2015 15 7,044 1 Upper Santa Fe and New Rivers 2015 19 1,969 0 Withlacoochee River 2014-2015 17 4,377 0

    Historical mussel collection data are often limited, making it difficult to compare trends in abundance over time. However, it does seem clear from museum collections that Suwannee moccasinshell numbers have declined over time, especially in the Santa Fe River subbasin where it has declined dramatically in recent decades (see our discussion on page 60339 of the proposed rule (80 FR 60335, October 6, 2015). Despite its low abundance, populations in the Suwannee River mainstem presently appear to be stable. We attribute its persistence in the mainstem to the stability of habitat and the attenuation of certain threats by larger flow volumes (threats are summarized below).

    Summary of Threats

    Below we present a summary of the threats information discussed in the proposed listing rule. We also present new information published or obtained since the proposed rule was published and information received during the comment period.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    The stream habitats of freshwater mussels are vulnerable to degradation and modification from a number of threats associated with modern civilization. Within the Suwannee River Basin, a rapidly growing human population and changing land use represent significant threats to the aquatic ecosystem, primarily through pollution and water withdrawal (Katz and Raabe 2005, p. 14). The Suwannee moccasinshell's habitat is subject to degradation as a result of pollutants discharged from industries, mines, and sewage treatment facilities, polluted runoff from agricultural lands, reduced flows as a result of groundwater extraction and drought, and stream channels destabilized by scouring floods and other perturbations.

    Two pollutants of particular concern to the Suwannee moccasinshell are ammonia and pesticides. Both are highly toxic to freshwater mussels, particularly juveniles, and both are widely used on agricultural lands within the basin. Ammonia is also a common pollutant in wastewater discharged into streams of the basin by numerous permitted wastewater treatment facilities. Another concern is that nitrogen and phosphorus levels have increased within the range of the Suwannee moccasinshell. In excess, these two plant nutrients may indirectly affect the species by causing algal blooms that deplete oxygen and cause dense mats of filamentous algae that entrain juveniles.

    Perhaps the most significant threat to Suwannee moccasinshell populations is flow reduction due to the withdrawal of groundwater. Groundwater pumping for agricultural purposes in neighboring basins, along with periods of extreme drought conditions, has caused unprecedented declines in groundwater levels, resulting in decreases in the amount of groundwater entering streams of the basin. Flow declines of approximately 30 percent have been observed in the lower Santa Fe and lower Suwannee Rivers; the upper Santa Fe River, once a perennial system, has gone dry multiple times since 2000 (Johnson et al. in Press). Reduced flows may exacerbate drought conditions (elevating temperature, pH, and pollutant concentrations (causing biotic die-off, and reducing dissolved oxygen), which in turn may have lethal or other harmful effects (prematurely aborting glochidia, reduced growth rates) to the species, or may cause stranding mortality.

    Stream Channel Instability

    In the following paragraphs, we include a full discussion of stream channel instability, a threat identified by a peer reviewer and not discussed in the proposed rule.

    The Suwannee moccasinshell requires geomorphically stable stream channels to maintain its habitats. Channel instability occurs when the natural erosion process is accelerated, leading to erosion (degradation) and sediment deposition (aggradation). Channel instability can cause profound changes to mussel habitats due to scouring and sediment deposition (Hartfield 1993, p. 138). Channels can become destabilized as a result of physical alterations to the stream channel (such as dredging, straightening, impounding, and hardening), and because of alterations to the flow regime. Changes to land use that accelerate surface runoff (for example, croplands and development) can increase the amount and rate in which stormwater runoff enters stream channels, causing increases in flow volume and velocity. These more forceful flows can scour the streambed and banks and eventually lead to channel incision (lowering of the streambed) (Booth 1990, p. 407; Wood and Armitage 1997, pp. 204-205; Doyle et al. 2000, pp. 156-157, 175). Disturbance to riparian areas (particularly the removal of vegetation) can also lead to bank erosion (Rosgen 1996, pp. 8-11). This accelerated erosion process can also cause sedimentation in downstream areas (Waters 1995, pp. 44-47, 172; Rosgen 1996, pp. 6-31, 8-32-33; Doyle et al. 2000, p. 156). Sampling conducted in 2015 by FWC biologists in a reach of the Santa Fe River in Alachua County revealed the river has highly eroded banks and an incised channel with much unconsolidated sand substrates (FFWCC 2015 unpub. data). Increased stormwater runoff from a nearby town and surrounding agricultural lands are likely responsible for these changes in channel geomorphology (M. Rowe, in litt.).

    Other sources of physical disturbance to mussel habitat include motorboat wakes frequently striking shores and the removal of large woody material. Boat wakes have been shown to cause significant bank erosion and sediment resuspension in river systems (Bauer et al. 2002, pp. 156-161). This problem appears to be especially severe in the lower Santa Fe River, which is a relatively narrow channel and is frequented by large numbers of motorboats (M. Rowe, in litt.). The removal of large woody material, especially wood embedded in the substrate, can cause the destabilization of microhabitat occupied by the Suwannee moccasinshell. Suwannee moccasinshell individuals are often found near embedded logs, which may stabilize the habitat and provide refuge for its host fishes. Over 7,200 pre-cut submerged (deadhead) logs have been removed from the Suwannee River, more than any other river in Florida (FDEP 2014 unpub. data). The removal of deadhead logs and snags can compromise habitat stability and affect channel morphology (Watters 1999, p. 269; Linohss et al. 2012, p. 160).

    Many of the threats discussed above are greater in the two tributary systems, as evidenced by the species' possible disappearance from the Withlacoochee River and upper Santa Fe River subbasins. Currently, nearly the entire population resides in the middle reach of the Suwannee River mainstem. In the mainstem, flows are generally sustained, and pollutant concentrations may be diluted by larger flow volumes. In addition, geomorphically stable limestone and reduced surface runoff contribute to habitat stability in the mainstem Suwannee River.

    While there are programs in place that may indirectly alleviate some detrimental impacts on aquatic habitats, there currently are no conservation efforts designed specifically to protect or recover Suwannee moccasinshell populations. Therefore, we conclude that habitat degradation is presently a significant threat to Suwannee moccasinshell populations in the Withlacoochee and Santa Fe River subbasins, and a moderate threat to populations in the Suwannee River main channel. This threat is expected to continue into the future and, because it is linked to human activities, is expected to increase as the human population within the Suwannee River Basin grows.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    The Suwannee moccasinshell is not a commercially valuable species, and collecting is not considered a factor in its decline. Therefore, we do not consider overutilization to be a threat to the Suwannee moccasinshell at this time.

    Factor C. Disease or Predation

    We have no specific information indicating that disease or predation is negatively impacting Suwannee moccasinshell populations. Therefore, we do not consider these to be threats to the Suwannee moccasinshell at this time.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Despite existing authorities such as the Clean Water Act, pollutants continue to impair water quality throughout the range of the Suwannee moccasinshell. State and Federal regulatory mechanisms have helped reduce the negative effects of point source discharges since the 1970s, yet these regulations are difficult to implement and regulate, and may not provide adequate protection for sensitive aquatic organisms like freshwater mussels. While new water quality criteria are being developed that take into account more sensitive aquatic species, most criteria currently do not. Thus, we conclude that existing regulatory mechanisms do not adequately protect the Suwannee moccasinshell.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Several other natural and manmade factors are negatively impacting the Suwannee moccasinshell. The Gulf coastal region is prone to extreme hydrologic events including droughts and flooding. Extended droughts (along with groundwater extraction) can cause severely reduced flows, exposing mussels to higher water temperatures, lower dissolved oxygen levels, and predators. Heavy rainfall events can cause scouring floods that dislodge mussels and alter stream channels, especially in smaller streams. Although floods and droughts are a natural part of the hydrologic processes that occur in river systems, these events may exacerbate the decline of mussel populations suffering the effects of other threats.

    Accidental contaminant releases from industrial and municipal facilities and mining operations are a constant threat to the Suwannee moccasinshell as numerous potential sources are present throughout the basin, and these spills have occurred in the past. Spills as a result of transportation accidents are a potential threat as numerous railroads and highways traverse the basin. Because of the linear nature of the Suwannee moccasinshell's habitat and its reduced range, a major contaminant spill has the potential to impact a large portion of the population.

    The introduced Asian clam (Corbicula fluminea) is widespread in the Suwannee River Basin, and can be found in high densities within the range of the Suwannee moccasinshell. Although the specific interaction between the Asian clam and native mussels is not well understood, enough information exists to conclude that dense Asian clam populations would negatively affect native mussels.

    Numerous impacts associated with changing climatic patterns may amplify stressors currently impacting the Suwannee moccasinshell, including the prospect of more frequent and intense droughts and increased temperatures. These changes would further exacerbate current problems associated with reduced flows and degraded water quality. Saltwater encroachment also has the potential to impact moccasinshell populations in the lower river, especially during low flow conditions. The variables related to climate change are complex, and it is difficult to predict all of the possible ways climate change will affect Suwannee moccasinshell populations. However, information available is sufficient to indicate that climate change is a significant threat in the future, as it will likely exacerbate certain stressors already affecting the species.

    Finally, the Suwannee moccasinshell's small population size and restricted range make it more vulnerable to threats associated with habitat degradation and catastrophic events. Therefore, we find that other natural or manmade factors, as a whole, pose a significant threat to the Suwannee moccasinshell, both now and continuing into the future.

    Determination

    Section 4 of the Act (16 U.S.C. 1533), 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(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.

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Suwannee moccasinshell. The primary reason for the Suwannee moccasinshell's decline is the degradation of its habitat due to polluted runoff from agricultural lands, polluted discharges from industrial and municipal facilities and mining operations, decreased flows due to groundwater extraction and drought, and stream channel instability (Factor A). These threats occur throughout its range, but are more intense in the two tributaries, the Withlacoochee and Santa Fe River systems. In portions of its range, sedimentation has also impacted its habitat.

    Other threats to the species include State and Federal water quality standards that are inadequate to protect sensitive aquatic organisms like mussels (Factor D); accidental contaminant releases from industrial, municipal, and mining sources, and as a result of transportation accidents (Factor E); increased drought frequency and higher temperatures as a result of changing climatic conditions (Factor E); greater vulnerability to certain threats because of small population size and range (Factor E); and competition and disturbance from the introduced Asian clam (Factor E). These threats have resulted in the decline of the species throughout its range, and pose the highest risk to populations in the two tributary systems, as evidenced by the species' decline and possible disappearance in the Withlacoochee River, and its decline in the Santa Fe River subbasin. In addition, the species likely has a limited ability to disperse and, therefore, may not be able recolonize areas from which it has been extirpated.

    Currently, nearly the entire population resides in the middle and lower reach of the Suwannee River main channel, where the two greatest threats, pollutants and reduced flows, are attenuated by higher flow volumes. Therefore, Suwannee moccasinshell populations in the Withlacoochee and Santa Fe River subbasins are presently facing threats that are high in magnitude, and populations in the Suwannee River main channel are presently facing threats that are moderate in magnitude. Most of these threats, including reduced flows, pollution, degraded water quality, and channel instability, are expected to increase in the future due to human population growth and climate change.

    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 Suwannee moccasinshell presently is likely to become endangered throughout all or a significant portion of its range within the foreseeable future based on the severity and immediacy of threats currently impacting the species. The Suwannee moccasinshell's range and abundance have been reduced, and its remaining habitat and populations are threatened by a variety of factors acting in combination to reduce the overall viability of the species. The risk of becoming endangered is high because remaining populations are small, linearly distributed within the mainstem Suwannee River, and numerous threats can impact those populations.

    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 Suwannee moccasinshell 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).

    Therefore, on the basis of the best available scientific and commercial information, we are listing the Suwannee moccasinshell as threatened in accordance with sections 3(6) and 4(a)(1) of the Act. We find that endangered species status is not appropriate, because despite low population densities and numerous threats, the populations in the mainstem presently appear to be stable, which has been attributed to the threats being attenuated and the streambed habitat being stable.

    Critical Habitat

    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. As discussed above (see Factor B discussion), there is currently no imminent threat of take or other overutilization 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 Suwannee moccasinshell.

    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 at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses 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 this species is located. On the basis of a review of available information, we find that critical habitat for the Suwannee moccasinshell 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, and we intend to publish a proposed rule in the Federal Register to designate critical habitat for the Suwannee moccasinshell in the near future.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all 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 requires 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 identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or may be downlisted or delisted, 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 Panama City 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, Tribal, 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.

    Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Florida and Georgia will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Suwannee moccasinshell. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Please let us know if you are interested in participating in recovery efforts for the Suwannee moccasinshell. 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 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)(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 any endangered or threatened 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 consultation as described in the preceding paragraph include issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of roads, highways, or bridges by the U.S. Department of Transportation's Federal Highway Administration; funding of various projects administered by the U.S. Department of Agriculture's Natural Resources Conservation Service and the Federal Emergency Management Agency; and management and any other landscape-altering activities on Federal lands administered by the U.S. Fish and Wildlife Service or the U.S. Forest Service.

    Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. 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 through regulations 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 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 final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions may 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 or alteration of the species' habitat by discharge of fill material, dredging, snagging, impounding, channelization, or modification of stream channels or banks;

    (3) Discharge of pollutants into a stream or into areas hydrologically connected to a stream occupied by the species; and

    (4) Diversion or alteration of surface or ground water flow.

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

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

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act 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).

    Government-to-Government Relationship With Tribes

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

    References Cited

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

    Authors

    The primary authors of this final rule are the staff members of the Panama City Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

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

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

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

    2. Amend § 17.11(h) by adding an entry for “Moccasinshell, Suwannee” to the List of Endangered and Threatened Wildlife in alphabetical order under CLAMS to read as set forth below:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * CLAMS *         *         *         *         *         *         * Moccasinshell, Suwannee Medionidus walkeri Wherever found T 81 FR [Insert Federal Register page where the document begins]; October 6, 2016. *         *         *         *         *         *         *
    Dated: September 26, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-24138 Filed 10-5-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [4500090022] Endangered and Threatened Wildlife and Plants; 12-Month Findings on Petitions To List 10 Species as Endangered or Threatened Species AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Notice of 12-month petition findings.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), announce 12-month findings on petitions to list 10 species as endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that listing the Huachuca-Canelo population of the Arizona treefrog, the Arkansas darter, black mudalia, Highlands tiger beetle, Dichanthelium (=panicum) hirstii (Hirst Brothers' panic grass), two Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle), relict leopard frog, sicklefin redhorse sucker, and Stephan's riffle beetle is not warranted at this time. However, we ask the public to submit to us at any time any new information that becomes available concerning the stressors to any of the 10 species listed above or their habitats.

    DATES:

    The findings announced in this document were made on October 6, 2016.

    ADDRESSES:

    Detailed descriptions of the basis for each of these findings are available on the Internet at http://www.regulations.gov at the following docket numbers:

    Species Docket No. Arizona treefrog (Huachuca-Canelo population) FWS-R2-ES-2016-0111. Arkansas darter FWS-R6-ES-2016-0113. Black mudalia FWS-R4-ES-2016-0112. Highlands tiger beetle FWS-R4-ES-2016-0114. Dichanthelium (=panicum) hirstii (Hirst Brothers' panic grass) FWS-R5-ES-2016-0105. Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle) FWS-R4-ES-2016-0115. Relict leopard frog FWS-R8-ES-2016-0116. Sicklefin redhorse sucker FWS-R4-ES-2016-0117. Stephan's riffle beetle FWS-R2 ES-2016-0118.

    Supporting information used to prepare these findings is available for public inspection, by appointment, during normal business hours, by contacting the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT. Please submit any new information, materials, comments, or questions concerning these findings to the appropriate person, as specified under FOR FURTHER INFORMATION CONTACT.

    FOR FURTHER INFORMATION CONTACT:

    Species Contact information Arizona treefrog (Huachuca-Canelo population) Nathan Allan, Acting Listing Coordinator, Southwest Regional Office, Ecological Services, 512-490-0057. Arkansas darter Jason Luginbill, Field Supervisor, Kansas Ecological Services Field Office, 785-539-3474. Black mudalia Bill Pearson, Field Supervisor, Alabama Ecological Services Field Office, 251-441-5181. Highlands tiger beetle Roxanna Hinzman, Field Supervisor, South Florida Ecological Services Field Office, 772-562-3909. Dichanthelium (=panicum) hirstii (Hirst Brothers' panic grass) Krishna Gifford, Listing Coordinator, Northeast Regional Office, Ecological Services, 413-253-8619. Submit any new information concerning the species' taxonomy, population status, or threats to: New Jersey Ecological Services Field Office, 4 E. Jimmie Leeds Road, Suite 4, Galloway, NJ 08205. Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle) Lee Andrews, Field Supervisor, Kentucky Ecological Services Field Office, 502-695-0468. Relict leopard frog Michael Senn, Field Supervisor, Southern Nevada Ecological Services Field Office, 702-515-5244. Sicklefin redhorse sucker Jason Mays, Asheville (North Carolina) Ecological Services Field Office, 828-258-3939. Stephan's riffle beetle Steve Spangle, Field Supervisor, Arizona Ecological Services Field Office, 602-242-0210. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION:

    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 Huachuca-Canelo population of the Arizona treefrog, the Arkansas darter, black mudalia, Highlands tiger beetle, Dichanthelium (=panicum) hirstii (Hirst Brothers' panic grass), two Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle), relict leopard frog, sicklefin redhorse sucker, and Stephan's riffle beetle 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.

    Summary of Information Pertaining to the Five Factors

    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 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; 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 Huachuca-Canelo population of the Arizona treefrog, the Arkansas darter, black mudalia, Highlands tiger beetle, Dichanthelium (=panicum) hirstii, two Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle), relict leopard frog, sicklefin redhorse sucker, and Stephan's riffle beetle 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 Act's 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, and other available published and unpublished information. This evaluation may include information from recognized experts; Federal, State, and tribal governments; academic institutions; foreign governments; private entities, and other members of the public.

    Arizona Treefrog, Huachuca-Canelo Population (Hyla wrightorum) Previous Federal Actions

    In our annual candidate notice of review (CNOR) published on December 6, 2007 (72 FR 69034), we recognized the Huachuca-Canelo population of the Arizona treefrog as a candidate for listing as a distinct population segment (DPS). Subsequently, we published similar findings in our CNORs on December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584). In 2007, the Huachuca-Canelo population of the Arizona treefrog was assigned a listing priority number (LPN) of 3, reflecting the taxonomic identity of the listable entity as a subspecies/population with threats that we considered to be imminent and high in magnitude. The LPN numbers range from 1 to 11, with 1 being the highest priority.

    Background

    The Arizona treefrog (Hyla wrightorum) is a small (4.6 centimeters (cm) (1.8 inches (in)) green frog with a dark eyestripe that extends past the shoulder onto the side of the body, and sometimes to the groin area. It occurs in Madrean oak woodland and savannah, pine-oak woodland, mixed conifer forest, and Plains grasslands at elevations of approximately 1,525 to 2,590 meters (m) (5,000 to 8,500 feet (ft)), and requires ponds for successful reproduction.

    The Arizona treefrog is known to occur within Arizona, New Mexico, and Mexico. In Arizona and New Mexico, the Arizona treefrog occurs along the Mogollon Rim (central Arizona and western New Mexico), in the Huachuca Mountains and Canelo Hills area (a disjunct mountain range on the Arizona/Sonora, Mexico border), and farther south in Mexico (in the Sierra Madre Occidental and sky island mountain ranges). We refer to these three areas as the Mogollon Rim, Huachuca-Canelo, and Mexico populations.

    Within the Huachuca-Canelo population, historical information has documented Arizona treefrogs from three general localities at Rancho Los Fresnos, Sonora, Mexico, and from 13 to 15 verified localities in the Huachuca Mountains and Canelo Hills, Arizona. The Huachuca-Canelo population of Arizona treefrog has continued to persist in Arizona sky island mountain range and Plains grassland habitats, and the treefrog has recently been found in new locations within grasslands and ciénegas (a swamp or marsh, especially one formed and fed by springs) in Arizona. These new locations in varied habitats indicate that the Arizona treefrogs may be less selective in choosing breeding habitat than previously thought. In addition, the species likely occurs in other wet canyons with suitable breeding habitat in the Huachuca Mountains, and perhaps in ciénegas in the vicinity of Rancho Los Fresnos.

    The Huachuca-Canelo DPS of the Arizona treefrog was originally defined based on the historical locations. However, recently the Service has received information on Arizona treefrog locations nearby, but outside of, the DPS area. This new information, along with many new location detections in the Huachuca Mountains and Canelo Hills, indicates that the Arizona treefrog is not only more numerous, but is much more widespread than we knew when the Service made this Arizona treefrog a candidate species as a DPS. There are now approximately more than 30 known localities in Arizona in the Huachuca Mountains and Canelo Hills, and the Arizona treefrog also occurs in areas outside of the DPS boundary, but within the vicinity of the Huachuca Mountains and Canelo Hills.

    Summary of Status Review

    Based on new information and review of previously referenced studies, we find that the Huachuca-Canelo population of the Arizona treefrog does not meet the requirements of the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS Policy) published in the Federal Register on February 7, 1996 (61 FR 4722). The DPS Policy sets forth three elements for the Service to consider in determining whether a vertebrate population is a DPS that warrants listing: Whether the population is discrete and whether the population is significant. If the population is determined to be both discrete and significant, then the DPS Policy requires the Service to evaluate the conservation status of the population to determine whether the population falls within the Act's definition of an “endangered species” or of a “threatened species.”

    On the basis of the best available scientific and commercial information, and in accordance with our DPS Policy, we conclude that the Huachuca-Canelo population of the Arizona treefrog is discrete but it is not significant (i.e., it is not biologically or ecologically important) to the taxon as a whole. Regarding discreteness, we have reviewed the best available scientific and commercial information and the evidence relative to potential differences in physical, behavioral, morphological, and genetic attributes. We conclude that the Huachuca-Canelo population of the Arizona treefrog is discrete based on its geographical separation from the other two populations on the Mogollon Rim and in Mexico.

    Regarding significance, we considered the four classes of information listed in the DPS Policy as possible considerations in making a determination, as well as all other information that might be relevant to making this determination for the Huachuca-Canelo population. The Huachuca-Canelo population of the Arizona treefrog does not appear to exhibit any direct or indirect habitat adaptation or behavioral advantage that would indicate that their persistence in the Huachuca Mountains and Canelo Hills area is biologically or ecologically important to the taxon as a whole. Moreover, we considered the other three considerations that the DPS Policy sets out for evaluating significance, and none of them provides evidence that the Huachuca-Canelo population is significant to the Arizona treefrog as a whole: (1) Loss of the Huachuca-Canelo population would not result in a significant gap in the range; (2) the Huachuca-Canelo population does not represent the only surviving natural occurrence of the Arizona treefrog; and (3) the Huachuca-Canelo population's genetic characteristics do not differ markedly from those of other Arizona treefrog populations.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the Act's five threat factors, we conclude that the Huachuca-Canelo population of the Arizona treefrog does not meet the significance criterion of the DPS Policy, as detailed above and, therefore, is not a valid DPS under our DPS Policy. As a result, we find that the Huachuca-Canelo population of the Arizona treefrog is not a listable entity under section 3(16) of the Act. Therefore, we find that listing the Huachuca-Canelo population of Arizona treefrog 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 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-Canelo population of the Arizona treefrog. A detailed discussion of the basis for this finding can be found in the species-specific assessment form for the Huachuca-Canelo population of the Arizona treefrog and other supporting documents (see ADDRESSES, above).

    Arkansas Darter (Etheostoma cragini) Previous Federal Actions

    The Arkansas darter was first identified as a candidate for listing under the Act in 1989 (54 FR 554; January 6, 1989), as a Category 2 candidate species. Category 2 candidate species were identified as those taxa for which the Service possessed information indicating proposing to list the taxa was possibly appropriate, but for which conclusive data on biological vulnerability and threats sufficient to support a proposed listing rule was lacking. On February 28, 1996, the CNOR (61 FR 7596) discontinued recognition of Categories 1-3. Because listing the Arkansas darter was warranted but precluded, we assigned the species an LPN of 5. In 2002, we changed the LPN from 5 to 11 (67 FR 40657; June 13, 2002).

    On May 11, 2004, the Service received a petition dated May 4, 2004, from the Center for Biological Diversity and others to list 225 species, including the Arkansas darter. The Service published a 12-month finding in the Federal Register on May 11, 2005, with a reaffirmed determination that listing was warranted but precluded and that the taxon had an LPN of 11 (70 FR 24870). We have continued to evaluate the status of the candidate taxon through our annual CNOR and maintained the LPN of 11 for this species (see September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584)).

    Background

    The Arkansas darter (Etheostoma cragini) is a small fish in the perch family native to the Arkansas River basin. The species occurs most often in sand- or pebble-bottomed pools of small, spring-fed streams and marshes, with cool water, and broad-leaved aquatic vegetation. Arkansas darters prefer flowing, spring-fed streams and pools in contact with groundwater sources. However, the species is very tolerant to periods of very poor water quality, including high water temperatures, low dissolved oxygen, high turbidity, and hyper-eutrophication.

    The Arkansas darter's range includes eastern Colorado, southwest and central Kansas, northwest and northeast Oklahoma, southwest Missouri, and northwest Arkansas. Recent surveys have expanded our knowledge of occupied Arkansas darter populations. We currently consider to be extant a total of 80 populations within 15 metapopulations rangewide. This is more than we knew of for previous assessments of this species.

    Summary of Status Review

    In completing our status review for the Arkansas darter, we reviewed the best available scientific and commercial information and compiled this information in the Species Status Assessment Report (SSA Report) for the Arkansas darter. In previous candidate assessments and findings for this species, the identified threats we considered were water depletion, water quality degradation, urbanization and development, confined-animal feeding operations, dams and reservoirs, salt cedar invasion, disease, and predation. Although localized negative effects have been observed, all of these stressors (other than water depletion) occur at a limited scale and scope, and the overall impact at the population and species level is minimal.

    Water depletion is the stressor with the largest potential impact to the Arkansas darter's viability, affecting approximately 25 percent of the geographic range, resulting mainly from groundwater withdrawals for agriculture. Seasonal low flows and intermittency of streams are common within the Great Plains portion of its range, and it appears the species is adapted to this phenomenon. However, the continued existence of the species in these areas is dependent on localized areas of refugia. Typically refugia exist where groundwater flows come to the surface and create permanent pools or small wetland areas along the stream course. When seasonal precipitation occurs and the streams become flowing systems, typically in the spring, the stream then provides habitat for spawning, rearing, and dispersal of young and adult individuals throughout the watershed. Climate change projections forecast minimal change in average annual precipitation in the Arkansas River basin and do not forecast reduced or diminished streamflow as a result of future changes in precipitation patterns. Therefore, we do not expect to see climate-change-driven decreased trends in precipitation and related stream flows.

    Water depletion results in decreased resiliency of populations affected in the portions of the range in southwestern Kansas, northwestern Oklahoma, and parts of Colorado, approximately 25 percent of the range. However, the species has endured over 40 years of groundwater withdrawals in these areas, indicating continued resiliency of these populations. The large number of populations (80) spread across the multi-State range provides the Arkansas darter species with a high level of redundancy should a catastrophic event occur somewhere within its occupied range. Multiple populations and metapopulations currently occupying the unique ecological settings of the three unique physiogeographic areas, the same physiogeographic areas that this species was known to occupy historically, allow the species to maintain adaptive potential and the underlying genetic makeup to adapt to changing environmental conditions.

    Over the next 30 years, under our expected scenario, we are likely to see a continuation of similar levels of impact from the stressors affecting this species as we have in the past. We believe a continued rate of groundwater usage and continued rates of impact from other stressors over the next 30 years would not likely result in significant effects to the occupied range of the Arkansas darter. Although we expect little change on a rangewide basis, we could see some range contraction in the western Cimarron and upper Rattlesnake Creek basin in Kansas and Oklahoma due to water depletion, as well as small portions of the Colorado range. Additionally, we could see range contraction in the eastern portion of the range (Arkansas, Kansas, Missouri, and Oklahoma) due to development effects. However, we do not expect to see a reduction in redundancy of the species overall (e.g., no the loss of entire populations).

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the Act's five threat 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 Arkansas darter is currently in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species). In conclusion, we find that this species no longer warrants listing throughout its range.

    We evaluated the current range of the Arkansas darter to determine if there is any apparent geographic concentration of potential threats for the species. Groundwater withdrawals are currently impacting portions of the upper, central, and lower Arkansas River basins in Kansas, Oklahoma, and Colorado, an area representing approximately 25 percent of geographic range of the Arkansas darter. Additional stressors outside of this area are generally low level, localized impacts not affecting entire populations. The 25 percent of the range affected by groundwater withdrawal does not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species). If that 25 percent of the range were lost, the species would still have approximately 75 percent of its geographic range in areas that are not expected to be subject to the negative effects of water depletion. Therefore, we determined that there are no significant portions of the species' range where the Arkansas darter meets the definition of an endangered or a threatened species and that the best available scientific and commercial information indicates this species is no longer in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened) throughout all or a significant portion of its range.

    Arkansas darter populations appear to be resilient to threats identified in previous status assessments; these threats are now believed to have fewer impacts on the Arkansas darter than previously understood; the species is expected to maintain a high level of redundancy and representation into the future; we know of more currently-occupied populations then we have in previous assessments; and while groundwater withdrawals affecting water depletion are expected to continue in approximately 25 percent of the range, we do not expect to see a reduction in redundancy of the species overall (e.g., no loss of Arkansas darter populations). Therefore, we find that listing the Arkansas darter as an endangered or threatened species 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 Arkansas darter, and constitutes the Service's 12-month finding on the May 4, 2004, petition to list the Arkansas darter as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Arkansas darter's species-specific assessment form, SSA Report, and other supporting documents (see ADDRESSES, above).

    Black Mudalia (Elimia melanoides) Previous Federal Actions

    The Service first identified black mudalia as a candidate for listing in the September 12, 2006, CNOR and assigned an LPN of 2 based on imminent, high-magnitude threats (71 FR 53756). In the December 6, 2007, CNOR, we concluded that the threats were at the time moderate in magnitude and changed the LPN to 8 (72 FR 69034). We retained the LPN of 8 in all subsequent CNORs (see December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584)).

    On April 20, 2010, we received a petition from the Center for Biological Diversity requesting that the Service list 404 species, including black mudalia, as endangered or threatened. No new information regarding black mudalia was presented in the petition, and on September 27, 2011, we published a 90-day finding (76 FR 59836).

    Background

    The species formerly described as the black mudalia is a small species of aquatic snail growing to 13 millimeters (mm) (0.5 inches (in)) in length and belongs to the aquatic snail family of Pleuroceridae. The species formerly described as the black mudalia was found clinging to clean gravel, cobble, boulders, and/or logs in flowing water on shoals and riffles within five streams in the Locust Fork drainage in Jefferson and Blount Counties, Alabama.

    Summary of Status Review

    The following summary is based on our review of the best available scientific and commercial information. No new information was provided in the petition we received on April 20, 2010. The species was described from “rivers in North Alabama” by T.A. Conrad as Anculosotus melanoides, but he failed to provide a specific type of locality. For the second half of the 20th century, the black mudalia was considered to be extinct. However, in 2003, Dr. Russell Minton published a paper on the apparent rediscovery of the species, with a re-description of what he believed was Conrad's black mudalia. He designated an individual from the upper Black Warrior Basin as the neotype—a biological specimen that is selected as the type specimen when the holotype (a single specimen chosen for designation of a new species), lectotype (a specimen chosen from syntypes to designate types of species), or any syntypes (any one specimen of a series used to designate a species when the holotype has not been selected) have been lost or destroyed—and restricted the type locality to one site on the Little Warrior River in Blount County, Alabama; however, the neotype is currently unavailable for study.

    Recently, the Service's Alabama Ecological Services Field Office learned that a specimen at the Museum of Comparative Zoology in Boston, Massachusetts, identified by T.A. Conrad as A. melanoides is not the same species that was described by Minton et al. (2003). Therefore, we cannot with any certainty determine the status of either the entity that Conrad (1834) first described as A. melanoides, or the entity that Minton et al. (2003) re-described as E. melanoides. Additional taxonomic review, led by the Smithsonian Institution, is underway as of early 2016. The results of this review will require additional efforts to define Elimia spp. boundaries, status, and distribution within the Black Warrior River Basin.

    Finding

    The Act only allows listing of “species” as defined under Section 3(16)—that is, recognized species, subspecies, or distinct population segments of vertebrates. Based on our review of the best available scientific and commercial information, and in light of the best available scientific information regarding taxonomic uncertainty described above, we conclude that the black mudalia is not currently a recognized “species.” We are therefore removing the black mudalia from candidate status pending further study.

    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 black mudalia, and constitutes the Service's 12-month finding on the April 20, 2010, petition to list the black mudalia as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the black mudalia's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Highlands Tiger Beetle (Cicindela highlandensis) Previous Federal Actions

    The Highlands tiger beetle was first recognized as a candidate species on November 21, 1991 (56 FR 58804), when we assigned the species an LPN of 2. In the October 30, 2001, CNOR (66 FR 54808), we changed the LPN for the Highlands tiger beetle from 2 to 5, because the immediacy of threats to the species' scrub habitat had decreased with the acquisition of scrub habitat by the State of Florida and conservation groups. On May 11, 2004, the Service received a petition dated May 4, 2004, from the Center for Biological Diversity and others to list 225 species as endangered or threatened, including the Highlands tiger beetle. The species was maintained as a candidate with an LPN of 5 through the 2015 CNOR (see June 13, 2002 (67 FR 40657); May 4, 2004 (69 FR 24876); May 11, 2005 (70 FR 24870); September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584)).

    Background

    The Highlands tiger beetle is elongate with an oval shape and bulging eyes, and is one of the smallest (7.0-9.5 mm) (0.28-0.37 in) tiger beetles in the United States. As is typical of other tiger beetles, adult Highlands tiger beetles are active diurnal predators that use their keen vision to detect movement of small arthropods and run quickly to capture prey with their well-developed mandibles (jaws). Tiger beetle larvae have an elongate white grub-like body and a dark or metallic head with large mandibles. Larvae are sedentary sit-and-wait predators occurring in permanent burrows flush with the ground surface. When feeding, larvae position themselves at the burrow mouth and quickly strike at and seize small arthropods that pass within a few centimeters of the burrow mouth. Larvae prey on small arthropods, similar to adults.

    The Highlands tiger beetle occurs primarily in open sandy patches of Florida scrub habitat on the Lake Wales Ridge in Highlands and Polk Counties. The Lake Wales Ridge is one of the largest and oldest Florida scrub ecosystems. The harsh environment on the Lake Wales Ridge is characterized by hot weather, nutrient-poor sandy soils, and (historically) frequent wildfires. The Highlands tiger beetle is often associated with evergreen scrub oaks, as well as high pineland with deciduous turkey oak (Quercus laevis) and longleaf pine (Pinus palustris). High-quality habitat for the species is primarily scrub or sandhill having natural or management-created interior patches with a high percent of open sand (greater than 50 percent) that is continuous or connected to adjacent open patches by lightly disturbed trails or paths. The known extant range of the Highlands tiger beetle exists in the core of the suitable (scrub) habitat in the central and south-central portion of the Lake Wales Ridge, approximately 90 km (56 mi) in length and about 10 km (6 mi) in width).

    Summary of Status Review

    The following summary is based on information contained in our files. The Highlands tiger beetle is narrowly distributed and restricted to areas of bare sand within scrub and sandhill on ancient sand dunes of the Lake Wales Ridge in Polk and Highlands Counties, Florida. Adult tiger beetles have been found in 56 of the total 71 sites surveyed at the core of the Lake Wales Ridge. In 2004-2005 surveys, a total of 1,574 adults were found at four sites. A total of 643 adults at 31 sites were found in 1996, 928 adults at 31 sites in 1995, and 742 adults at 21 sites in 1993. A visual reference count of 2,231 adults was found from 46 sites in 2014. This increase in index counts over time can be attributed to new survey sites and finding a large number of beetles at these sites. Estimates from the visual reference (index) counts are used to provide an estimate of the populations. Results from a limited removal study suggest that the actual population size at some survey sites can be as much as two to three times as high as the visual reference. In addition, surveys for Highland tiger beetles were not exhaustive, and there are additional potential suitable habitats. An estimate of beetle numbers likely present in these additional potential habitats added to the modified index count produces an estimated minimum total abundance of 10,438 adults in at least 16 populations. Based on these expanded surveys and the findings of additional large beetle populations at these sites, it is determined that the Highland tiger beetle is more abundant than previously documented, and its habitat is of much better quality than previously documented. Of the 15 sites with the largest populations, 7 sites show an increase in number of individuals. The number of occupied sites identified as high or good quality also increased from 13 in 2005, to 21 in 2014, and of the currently known sites nearly half of them (21 of 46) are of high or good quality.

    We evaluated all known potential impacts to the Highlands tiger beetle, including the Act's five threat factors. While these impacts were previously believed to pose imminent or significant threats to the species, and some may have caused losses to individuals or habitat, the updated information we received regarding species' occurrence and population size has improved our understanding on how the stressors affect the status of species. In our current candidate assessment, we evaluated the best available scientific and commercial information, and concluded that the species is resilient to these stressors and that current impacts to the species are not as strong as previously believed. Approximately 43.4 percent of the existing potential suitable habitat for the species is protected conservation lands. While fragmentation of the Lake Wales Ridge scrub and sandhill habitats exists, 63 percent of the Highlands tiger beetle populations occur on these protected conservation lands, including three of the largest known populations. These lands are managed for the scrub habitat and species, including the Highlands tiger beetle, through government and private partnership prescribed burn programs, invasive species control, best management practices, and enforcement and protection of the resources. Fragmentation of the habitat was identified as a stressor compromising the dispersal capabilities of Highlands tiger beetle populations. However, the new information on the number and distribution of occupied sites and population size indicates that the threat to the dispersal capabilities of the species is not as high as previously reported. New sites have been identified in four populations across the north to south range of the species, and the Lake Wales Ridge as a whole has areas of open lands, remnant scrub and sandhill, and patchworks of scrub roadside habitat that can act as corridors or “stepping stones” for Highlands tiger beetle movement and flight, making active migration to new sites or the exchange of individuals between sites feasible for this species. In addition, storm winds, water flow, rafting transport, and animals are possible means of stochastic dispersal of individual beetles.

    As a result of the new information and analysis, we no longer consider the threats originally identified in our previous 12-month finding for the Highlands tiger beetle to be current or foreseeable threats for the following reasons: (1) The species is larger in individual numbers and occurs in more sites across its range than previously documented; (2) the populations occur primarily on protected conservation lands; (3) more than half of the potential suitable habitat for the species consists of protected lands under conservation management, with new conservation lands and conservation banks acquired in 2014; (4) the species occurs in 16 populations across 225,920 acres (91,426 hectares) or 353 square miles (920 square kilometers), and existing unsurveyed suitable habitat occurs in the species' range; (5) new survey information has identified an increased number of sites graded as “high” and “good” quality habitat for the Highlands tiger beetle; (6) the analysis reveals annual prescribed burning schedules are being implemented across the range of the Highlands tiger beetle on government and private conservation lands; and (7) the stressors identified in the 2015 candidate assessment, including collections, occur at the individual level but are not rising to the level of population or species impacts.

    Overall, current information from additional surveys indicates an increase in occupied sites with a large increase in the number of beetles. Most threats are being addressed through the presence of large populations of the species occurring on protected lands and through the management actions that occur on these lands. Any actual impact from threats occurs at the individual, not population or species, level, and no impact, individually or cumulatively, rises to the level that it contributes to making the species meet the definition of “threatened species” or “endangered species.”

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the Act's five threat factors, we find that the current stressors acting on the species and its habitat are not of sufficient imminence, intensity, or magnitude to make the Highlands tiger beetle warrant listing throughout the species' range at this time. Because the distribution of the species is relatively stable across its range and stressors are similar throughout the species' range, we found no concentration of stressors that suggests that the Highlands tiger beetle may be in danger of extinction or likely to become so in any portion of its range. With the documentation of 16 newly identified occupied sites, the identification of improved habitat quality, and the existing estimated adult beetle count of over 10,000 individuals in 56 sites, we find that Highlands tiger beetle is no longer in danger of extinction (endangered) or likely to become endangered within the foreseeable future (threatened) throughout all of its range or any portion of its range. Therefore, we find that listing the Highlands tiger beetle 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 the Highlands tiger beetle, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list the Highlands tiger beetle as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Highland tiger beetle's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Dichanthelium (=panicum) hirstii (Hirst Brothers' Panic Grass) Previous Federal Actions

    In 1975, Panicum hirstii (i.e., Dichanthelium hirstii's former scientific name; see Summary of Status Review, below) was 1 of more than 3,000 vascular plants included in a Smithsonian Institution report entitled “Report on Endangered and Threatened Plants of the United States” (Report) that the Service subsequently treated as a petition under the Act (40 FR 27824; July 1, 1975). The Federal Register notice indicated that P. hirstii and the other plants were under consideration for listing, and the notes of endangered or threatened after each species' name solely represented the views of the authors of the Report. The Report indicated that P. hirstii occurred in Georgia and placed it in the endangered category. The Service did not publish another species notice of review until 1980.

    In 1980, Panicum hirstii was considered a Category 2 candidate species (45 FR 82480; December 15, 1980). Category 2 candidate species were identified as those taxa for which the Service possessed information indicating proposing to list the taxa was possibly appropriate, but for which conclusive data on biological vulnerability and threats sufficient to support a proposed listing rule was lacking. Panicum hirstii remained a Category 2 candidate species in the subsequent plant notices of review in 1983, 1985, 1990, and 1993 (48 FR 53640, November 28, 1983; 50 FR 39526, September 27, 1985; 55 FR 6184, February 21, 1990; 58 FR 51144, September 30, 1993). The Service did not publish any other notices of review for plants during this time period.

    The Service revised candidate categories in 1996, and Panicum hirstii was not included as a candidate species under the updated categorization (61 FR 7596; February 28, 1996). The revised categories further defined a candidate species as a 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 is precluded by other higher-priority listing activities.

    In 1999, the Service included Panicum hirstii as a new candidate species, using the updated definition, through its own internal assessment process (i.e., not via a petition), and assigned it an LPN of 5, meaning it was a species with a high magnitude of nonimminent threats (64 FR 57534, October 25, 1999). Panicum hirstii was included in the subsequent annual CNORs with an LPN of 5 in 2001, 2002, and 2004 (66 FR 54808, October 30, 2001; 67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004). The Service did not publish a CNOR in 2003.

    On May 11, 2004, we received a petition dated May 4, 2004, from the Center for Biological Diversity and other groups and individuals requesting that the Service list Panicum hirstii and 225 other candidate species as endangered species or threatened species under the Act. In 2005, the Service again made a warranted-but-precluded finding for the plant, with an LPN of 5, but noted a change in its scientific name to Dichanthelium hirstii (70 FR 24870, May 11, 2005). In 2006 through 2014, D. hirstii remained a candidate with an LPN of 5 (see September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), and December 5, 2014 (79 FR 72450)). In 2015, D. hirstii was included as a candidate in the CNOR, but the LPN was elevated from 5 to 2, indicating a species with a high magnitude of imminent threats (80 FR 80584, December 24, 2015).

    Background

    Dichanthelium hirstii, as referenced in some literature, is a perennial, wetland-obligate grass that is currently estimated to occur in eight locations distributed across four States: New Jersey (Barkwoods Pond, Labounsky Pond, and Berlin Avenue Bogs North in Atlantic County, and Hampton Furnace Pond in Burlington County); Delaware (Assawoman Pond in Sussex County); North Carolina (Starretts Meadow and Lyman Road in Onslow County); and Georgia (Leslie Pond in Sumter County). A ninth location, in Calhoun County, Georgia, is considered historical.

    Summary of Status Review

    The plant that the Service has been referring to as either P. hirstii or D. hirstii has always had a complex taxonomic history, and has undergone several changes to its scientific name as understanding about its distribution and morphology has evolved. The Flora of North America (FNA) is one source of information available to the Service and is considered the taxonomic authority for plants in North America because it is a comprehensive, systematic taxonomic account of the plants of North America. While several authors have published regional flora and descriptions that recognize Panicum hirstii/Dichanthelium hirstii as a separate entity, few have published taxonomic treatments. The last taxonomic treatment was the 2003 FNA, which is a complete taxonomic treatment of the Dichanthelium genus and the species therein, that explicitly relegates P. hirstii/D. hirstii to a synonym of D. dichotomum ssp. roanokense (Ashe). This indicates that the plant the Service had considered a candidate species is not a valid taxon and is a component of a larger, more widespread species that appears to grow on the coastal plain from Delaware to southeastern Texas and in the West Indies. Although the Integrated Taxonomic Information System (ITIS; http://www.itis.gov/) reports that Dichanthelium hirstii is an accepted species and the Service often relies on ITIS as a reliable database source of taxonomic information, in this instance ITIS is incorrect. Given this closer review of the taxonomic history of P. hirstii/D. hirstii, the Service recognizes that we overlooked the significance of the synonymy information, and in retrospect should not have included P. hirstii or D. hirstii as a candidate species. While the 2015 published and draft documents of McAvoy et al. and Weakley, respectively, and the ITIS database information are more recent than the 2003 FNA's published treatment, those documents and database do not individually or collectively represent a more comprehensive systematic analysis of the plant's taxonomic status because they are not full taxonomic treatments of Panicum and Dichanthelium. Therefore, the Service considers the FNA's 2003 treatment of Panicum and Dichanthelium as representing the best available scientific and commercial information regarding the plant's taxonomic status. The FNA's treatment indicates that neither P. hirstii nor D. hirstii is considered a species, subspecies, or variety. Therefore, the best available scientific and commercial information indicates that P. hirstii/D. hirstii does not meet the Act's definition of a species.

    Finding

    Based on the best available scientific and commercial information, we find that Dichanthelium hirstii does not meet the Act's definition of “species” and is, therefore, not a listable entity under the Act. Dichanthelium hirstii was subsumed into D. dichotomum ssp. roanokense (Ashe), which “grows on the coastal plain from Delaware to southeastern Texas and in the West Indies.” As a result, we are removing Dichanthelium hirstii from the candidate list.

    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 Hirst Brothers' panic grass, and constitutes the Service's 12-month finding on the May 4, 2004, petition to list the Hirst Brothers' panic grass as an endangered or threatened species. A detailed discussion of the basis for this finding, including a complete review of the taxonomic history, can be found in the Hirst Brothers' panic grass's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Two Kentucky Cave Beetles (Louisville Cave Beetle (Pseudanophthalmus troglodytes) and Tatum Cave Beetle (Pseudanophthalmus parvus) Previous Federal Actions

    The Louisville cave beetle and Tatum Cave beetle were added to the Federal list of candidate species in the November 15, 1994, CNOR (59 FR 58982) as Category 2 species. Category 2 candidate species were identified as those taxa for which the Service possessed information indicating proposing to list the taxa was possibly appropriate, but for which conclusive data on biological vulnerability and threats sufficient to support a proposed listing rule was lacking. The February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories, so both species were no longer considered candidate species and were therefore removed from the candidate list.

    In the October 30, 2001, CNOR, the Service re-evaluated both cave beetle species, and placed them back on the candidate list through the Service's own internal process with an LPN of 5 (66 FR 54808). The Service received a petition from the Center for Biological Diversity and others, dated May 11, 2004, to list eight cave beetles, including the Louisville cave beetle and Tatum Cave beetle, as endangered or threatened species. In the May 11, 2005, CNOR (70 FR 24870), the Service determined that listing the Louisville cave beetle and Tatum 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 (see October 30, 2001 (66 FR 54808); June 13, 2002 (67 FR 40657); May 4, 2004 (69 FR 24876); May 11, 2005 (70 FR 24870); September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584)).

    Background

    These two species are small (about 4 mm (0.16 in) 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 rarity from fairly widespread species that are found in many caves to species that are extremely rare and commonly restricted to one or only a few cave habitats. The Louisville cave beetle is restricted to four caves in Jefferson County, Kentucky, while the Tatum Cave beetle is known from one cave (Tatum Cave) in Marion County, Kentucky.

    Summary of Status Review

    When the Louisville cave beetle and Tatum Cave beetle were identified as candidates for protection under the Act in the October 30, 2001, CNOR (66 FR 54808), the Service considered both species to be vulnerable to toxic chemical spills, discharges of large amounts of polluted water, closure or alterations of cave entrances, and the disruption of cave energy processes by highway construction and industrial, residential, and commercial development. Our general perception was that both species were vulnerable to these habitat stressors, and we suspected that these stressors were significant and the species' overall population trends were likely decreasing. We also noted the lack of State or Federal regulations to ameliorate those threats. In the May 11, 2005, CNOR (70 FR 24870), we noted both species' limited distribution and how that would increase their vulnerability to isolated events that would have only a minimal effect on more wide-ranging members of the genus Pseudanophthalmus. Both species were assigned an LPN of 5.

    Louisville Cave Beetle

    Over the last 2 years, field surveys for the Louisville cave beetle have provided new information on the species' distribution and stressors. Based on this new information, we have re-examined the species' status and re-evaluated the magnitude and imminence of its threats. Lewis and Lewis confirmed the continued presence of P. troglodytes in Eleven Jones Cave (a period of 20 years) and observed the species in three new caves (Sauerkraut Cave, Cave Hill Cave, and Cave Creek Cave), demonstrating that the species is more abundant and widespread than previously believed. The species was difficult to find in each of these caves (one to four individuals observed), but this is not unusual for the genus Pseudanophthalmus, which is often difficult to find and is frequently observed in low numbers. Population estimates or discernable trends for these populations have not been possible due to the low number of individuals observed and the difficulty in finding specimens during repeat visits. We acknowledge that caves within the species' range likely continue to be affected by many of the same stressors identified by previous investigators: reduced energy inputs, sedimentation, pollution, and human visitation. However, we have no evidence that these stressors are operative threats that are adversely affecting P. troglodytes at a population level.

    Tatum Cave Beetle

    With respect to the Tatum Cave beetle, we have no evidence suggesting that the species is still extant in Tatum Cave. The species was relatively abundant (20 individuals) in Tatum Cave when first observed by C. H. Krekeler in 1957, but the species appeared to be less common in 1965, when T. C. Barr observed only two individuals. Since 1965, extensive surveys of Tatum Cave have been completed on eight separate occasions, using search techniques similar to those used by C. H. Krekeler and T. C. Barr (i.e., methodical visual searches of all available habitats). Three of these survey efforts also involved the use of baited pitfall traps (small cups buried in the substrate and baited with limburger cheese) placed in several locations within Tatum Cave for a period of one week. Despite all of these searches, no Tatum Cave beetles have been observed in Tatum Cave since the last observation by Barr in 1965 (a period of 51 years).

    The Tatum Cave beetle is small in size and may be more difficult to locate than some cave organisms; however, both Krekeler and Barr were able to find the species using methodical, visual searches of suitable habitats in Tatum Cave. Subsequent researchers have used identical search methods on eight separate occasions in the exact same habitats within Tatum Cave, but no Tatum Cave beetles have been observed. Therefore, based on our review of the best available scientific and commercial information, the Service believes the Tatum Cave beetle to be extinct. We acknowledge that it is difficult, if not impossible, to verify a species' extinction. There is considerable uncertainty about the actual status of the species, and we acknowledge that, as suggested by Lewis and Lewis, there is some chance that the species remains extant but occurs in low numbers and is simply undetectable using traditional search methods. However, considering the best available scientific and commercial information, we believe that it is reasonable to conclude that the species is extinct. The Service encourages continued surveys for the Tatum Cave beetle in Tatum Cave, as time and funding allow. If the species is subsequently found to be extant, we can reevaluate its legal status under the Act in the future.

    Finding Louisville Cave Beetle

    Based our review of the best available scientific and commercial information pertaining to the Act's five threat factors and our review of the species' status, we conclude that the Louisville cave beetle is not subject to the degree of threats sufficient to indicate that it 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.

    We evaluated the current range of the Louisville cave beetle to determine if there is any apparent geographic concentration of potential threats for this species. It has a relatively small range that is limited to four caves. We examined potential stressors including human visitation and disturbance, commercial and residential development, sources of water quality impairment, and small population size. We found no concentration of stressors that suggests that the species may be in danger of extinction in any portion of its range. Therefore, we find that listing the Louisville cave beetle as an endangered species or a threatened species under the Act throughout all or a significant portion of its range is not warranted at this time, and consequently we are removing it from candidate status.

    Tatum Cave Beetle

    A review of the best available scientific and commercial information, leads us to believe that the Tatum Cave beetle is extinct, and, as such, it is not eligible for listing as an endangered species or a threatened species under the Act. Therefore, we did not further evaluate whether the Tatum Cave beetle is in danger of extinction throughout its range (an endangered species), likely to become in danger of extinction throughout its range in the foreseeable future (a threatened species), or whether the species is an endangered or threatened species in a significant portion of its range.

    Therefore, we find that listing the Louisville cave beetle and Tatum Cave beetle as 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 Louisville cave beetle and Tatum Cave beetle, and constitutes the Service's 12-month finding on the May 11, 2004, petition to list the Louisville cave beetle and Tatum Cave beetles as endangered or threatened species under the Act. A detailed discussion of the basis for this finding can be found in the Louisville cave beetle's and Tatum Cave beetle's species-specific assessment form and other supporting documents (see ADDRESSES, above).

    Relict Leopard Frog (Lithobates onca) Previous Federal Actions

    On May 9, 2002, the Service received a petition from the Center for Biological Diversity and Southern Utah Wilderness Alliance (SUWA) seeking to list the relict leopard frog and designate critical habitat, under the authority of the Act. The petition identified information regarding the species' ecology, historical and current distribution, present status, and actual and potential causes of decline.

    Prior to receipt of the May 2002 petition, the Service was involved in coordinated conservation efforts for the relict leopard frog among multiple partners and was aware of the species' status. On June 13, 2002, the Service's CNOR determined the species (as Rana onca) warranted listing but that listing was precluded by higher priorities; therefore, it became a candidate species with an LPN of 5 (67 FR 40657).

    In 2006, the species' LPN was lowered to 11, and remained at that LPN through the 2010 CNOR (see September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), and November 10, 2010 (75 FR 69222)). The lower priority ranking resulted from the development of the 2005 Relict Leopard Frog Conservation Agreement and Strategy (Conservation Agreement) and implementation of conservation actions by the relict leopard frog Conservation Team (Conservation Team), which led to an overall reduction in most threats and an overall improvement in the species' status. On October 26, 2011 (76 FR 66370), we changed the species' LPN to 8, due in part to the discovery of chytrid fungus (Batrachochytrium dendrobatidis (Bd)) in relict leopard frogs in 2010, and we maintained an LPN of 8 for the species through the 2015 CNOR (see November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584)). In 2010, we recognized the scientific name of the relict leopard frog as Lithobates onca (see November 10, 2010 (75 FR 69222)).

    Background

    Relict leopard frogs are endemic to the Colorado, Virgin, Santa Clara, and Muddy Rivers and associated springs in Nevada, Arizona, and Utah. Relict leopard frogs appear to require habitat heterogeneity (consisting of diverse habitat types) in the aquatic and terrestrial environments. Relict leopard frogs historically occupied a variety of habitats including springs, streams, and wetlands characterized by clean, clear water with various depths, and cover such as submerged, emergent, and perimeter vegetation. Nonnative predators such as Louisiana red swamp crayfish (Procambarus clarki), American bullfrogs (Lithobates catesbeiana), and nonnative fish are associated with extirpation of relict leopard frogs.

    The relict leopard frog currently occurs at 8 natural sites—three in the Northshore Springs Complex (along the base of the Muddy Mountains near the Overton Arm area of Lake Mead) and five in the Black Canyon (below Lake Mead). Natural sites are those sites that support wild populations of relict leopard frogs that were not established through translocation effort.

    The Northshore Springs Complex and Black Canyon populations represent distinct relict leopard frog metapopulations, wherein each metapopulation consists of smaller, spatially separated populations that occasionally interact through the movement of individuals between them, but do not interact with the other metapopuation. Within the Northshore Springs Complex, dispersal of relict leopard frogs may be possible between Blue Point and Rogers Springs. Migration and dispersal among sites also appears likely in Black Canyon but not between the two metapopulations.

    In addition to natural sites, relict leopard frogs were introduced to 15 sites, 11 of which are extant. Introduction sites are those estimated by deliberately translocating relict leopard frogs to suitable habitat within the assumed historical range. All extant natural and introduction sites occur on lands managed by the National Park Service (NPS), Bureau of Land Management (BLM), Bureau of Reclamation (BR), and the Service. There is low genetic variation within the relict leopard frog, which may indicate a history of bottlenecking or small effective population size.

    Summary of Status Review Conservation Actions Implemented

    The Conservation Team was established in March 2001, and has since met at least twice each year for the past 15 years to establish and carry forward the conservation and monitoring program for the relict leopard frog. The Conservation Team has included Federal, State, and local representatives from the Service, NPS, BLM, BR, the Environmental Protection Agency, the Nevada Department of Wildlife, the Arizona Game and Fish Department, the Utah Division of Wildlife Resources, Clark County (Nevada), the Southern Nevada Water District (including the Las Vegas Springs Preserve), the University of Nevada-Las Vegas, and the University of Nevada-Reno. The primary objective of the Conservation Team was to develop and implement the 2005 Conservation Agreement. Much conservation occurred prior to finalization of the Conservation Agreement, and the Conservation Team developed the first annual work plan in 2003. Conservation actions continue to be implemented by partners through annual work plans. Revision of the Conservation Agreement is in development with an anticipated completion date of late 2016. Part of the management effort the Conservation Team undertakes to increase population sizes and expand the distribution of the species is to collect portions of relict leopard frog egg masses from natural sites, and then captive-rear and translocate them to appropriate sites as late-stage tadpoles and juvenile frogs. The Conservation Team may augment any population, natural or introduction, as determined necessary to conserve the species.

    The main relict leopard frog conservation actions, both those completed and ongoing into the foreseeable future, are:

    • Remove or substantially minimize threats to extant populations and occupied habitats.

    • Enhance existing habitat and/or create new habitats where feasible.

    • Establish additional populations of relict leopard frogs in existing or created habitats.

    • Manage relict leopard frogs and their habitats to ensure persistence in diverse aquatic ecosystems, and facilitate processes that promote self-sustaining populations.

    • Monitor relict leopard frog populations.

    • Investigate the conservation biology of the relict leopard frog, and use the results of such investigations to better meet the overall conservation goal and objectives.

    Current Analysis of Stressors Impacting the Relict Leopard Frog

    In completing our status review for the relict leopard frog, we reviewed the best available scientific and commercial information, and compiled this information in the SSA Report for the relict leopard frog. We evaluated the potential threats (identified in the SSA Report as “stressors” or “potential stressors,” and consistent with the Act's five threat factors identified in the SSA Report) that may be operative upon the relict leopard frog currently or in the future.

    As required by the Act, we considered the five threat factors in assessing whether the relict leopard frog is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future stressors faced by the relict leopard frog. We reviewed the information available in our files and other available published and unpublished information, and we consulted with recognized relict leopard frog species and habitat experts and other Federal, State, and tribal agencies. Listing under the Act is warranted if, based on our review of the best available scientific and commercial information, we find that the stressors to the relict leopard frog are so severe or broad in scope as to indicate that the species 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.

    In the SSA Report we evaluated each of the potential stressors for the relict leopard frog, and we determined that the following factors have impacted, or may impact individuals, specific sites, or portions of suitable habitat in the future: (1) Alteration of natural spring and groundwater systems and reduced habitat connectivity; (2) overgrowth of emergent vegetation and nonnative or invasive plants; (3) excessive disturbance due to feral horses, burro, and livestock use; (4) disease; (5) nonnative fish predation; (6) small population size; and (7) climate change, flash flood events, and wildfire. Although these stressors may continue to affect the relict leopard frog, they are not causing a population-level risk to the species now nor are they expected to do so into the foreseeable future. Overutilization and crayfish and bullfrog predation were evaluated in the SSA Report for the relict leopard frog but were found to result in no or low impacts, respectively, across the species' range. Thus, we do not discuss overutilization or predation further in this document. We have summarized the threats analysis from the SSA Report below. A complete description of those stressors and threats, and how they affect the viability of the species, is included in the SSA Report.

    The effects of historical alteration of natural riverine and groundwater systems and reduced habitat connectivity to the relict leopard frog at the individual or site-specific level are ongoing and may continue into the future. However, there have not been any recent alterations of natural riverine and groundwater systems and reduced habitat connectivity on relict leopard frog populations and their habitat. Historical modification to the Colorado and Virgin rivers effectively isolated the two metapopulations of relict leopard frog, and they will most likely never be reconnected. Although the two relict leopard frog metapopulations and most relict leopard frog introduction sites are not connected, ongoing management actions by the Conservation Team minimizes population isolation through captive rearing and translocation of frogs to targeted sites. We conclude that there are effects to relict leopard frog populations and perhaps the species from historical alteration of natural riverine and ground water systems and reduced habitat connectivity, but these the effects are low in severity and do not threaten the persistence of the species.

    Some sites can have overgrowth of vegetation that can have adverse effects on relict leopard frogs that reduce the extent of surface water and habitat for breeding and feeding. These effects from overgrowth of vegetation are low in severity because they are reduced by storms that remove vegetation through scouring, by manual removal, and by grazing.

    Burro and cattle grazing have both degraded and improved aquatic habitat at some sites. Controlled, low-level grazing typically provides disturbance that benefits frog habitat by removing excess vegetation. If grazing increases to heavy use, habitat conditions may become degraded. Similarly, burro and cattle grazing are not having a population-level effect to the relict leopard frog now or into the future.

    Disease and nonnative fish predation have been evaluated and monitored by the Conservation Team. The presence of the chytrid fungus, Batrachochytrium dendrobatidis (Bd) in relict leopard frogs at Lower Blue Point Spring warrants further evaluation of its impact to the species. Although there is evidence that Bd is present in one population, there is no indication any frogs have been adversely affected by disease. The Conservation Team will continue to monitor populations for effects of disease. Any potential effects at the individual or site- specific level resulting from nonnative fish in the Northshore Springs Complex and Corn Creek are low in severity. Disease and predation are not having a population-level effect on the relict leopard frog now, and such effects are not expected to occur in the future. The Conservation Team is taking action to improve the conditions for disease and predation through conservation measures (see “Conservation Actions Implemented,” above).

    The small population size is the focus of conservation efforts, including population augmentation and establishing introduction sites. Low numbers of individual frogs at a given site may increase risk and vulnerability of the species to other stressors. Although small population size can affect the species as a whole by reducing genetic diversity and possibly reducing the species' ability to adapt to changing environmental conditions, the best available scientific and commercial information shows that this species is capable of persisting into the foreseeable future with current population sizes and under existing levels of management by the Conservation Team. The potential for effects of small population size has been, and will continue to be, minimized by actions taken by the Conservation Team, including habitat management and a captive-rearing program that produces frogs from eggs collected in the wild. These frogs are used to establish new sites and augment both natural and introduction sites, as appropriate. Conservation Team actions continue to minimize the potential for effects of small population size, and small population effects are not expected to affect the persistence of frogs at any site or population.

    Climate change effects may result in reduced spring flow, habitat loss, increased severity of storms, flooding, and increased prevalence of wildfire that could adversely affect relict leopard frog populations. Although negative effects from climate change could occur to individuals or specific sites, species-level effects would not reach a level now or into the foreseeable future to the extent that rangewide numbers and distribution would be substantially reduced. The relict leopard frog Conservation Team has been addressing these stressors in the past, and ongoing efforts are planned to continue into the future.

    We considered relevant Federal, State, and tribal laws and regulations when evaluating the status of the species. Regulatory mechanisms, if they exist, may preclude the need for listing if we determine that such mechanisms adequately reduce the stressors to the species such that listing is not warranted. The effects of applicable existing regulatory mechanisms are considered in our evaluation of the stressors acting on the species. Below, we briefly review those regulatory mechanisms aimed to help reduce stressors to the relict leopard frog and its habitat.

    The relict leopard frog is protected by the State laws of Nevada, Arizona, and Utah. Nevada Revised Statutes (NRS) 533.367 states that before a person may obtain a right to the use of water from a spring or water that has seeped to the surface of the ground, that person must ensure that wildlife which customarily uses the water will have access to it. However, the State Engineer, who oversees all water rights, may waive this requirement for a domestic use of water (NRS 533.367). Authority provided by NRS 503.587 allows the Wildlife Commission to use its authority to manage land to carry out a program for conserving, protecting, restoring and propagating selected species of native fish, wildlife, and other vertebrates and their habitat, which are threatened with extinction and destruction. Also, habitat protection for the relict leopard frog is provided by Nevada Administrative Code 504.520, which prohibits alteration of a wetland or stream to the detriment of wildlife without a permit.

    The Arizona Game and Fish Department (AGFD) classified the relict leopard frog as a Tier 1A Species of Greatest Conservation. Commission Order 41 of the AGFD regulations prohibits collection or hunting of relict leopard frogs, except under the authority of a special permit. Protection under Commission Order 41 provides protection to individual frogs, but not to habitat.

    The Utah Division of Wildlife Resources classified the relict leopard frog as a Sensitive Species in Utah. State of Utah Rule 657-3 prohibits the collection, importation, and possession of relict leopard frogs without a certificate of registration but provides no protection of habitat.

    All populations of the relict leopard frog occur on Federal land (Service, BLM, NPS, BR). Existing Federal laws, such as the NPS Organic Act of 1916, as amended (16 U.S.C. 1 et seq.), National Environmental Policy Act of 1976 (NEPA; 42 U.S.C. 4321 et seq.), and the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57), have facilitated conservation efforts that have reduced the threats to the relict leopard frog. NPS and BLM manage all extant relict leopard frog sites except Pupfish Refuge and Corn Creek. The Pupfish Refuge occurs in a protected area of Hoover Dam and Corn Creek, and is an experimental population on a Service National Wildlife Refuge. NPS provides the captive-rearing facility, which is important for establishing and augmenting relict leopard frog populations.

    BLM uses their regulatory mechanisms and authority to provide sites to establish new populations of relict leopard frog, a BLM sensitive species, and complete habitat improvements to benefit the species.

    BLM's manual (6840—Special Status Species Management) establishes policy for management of BLM sensitive species under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.). BLM sensitive species will be managed consistent with species and habitat management objectives in land use and implementation plans to promote their conservation and to minimize the likelihood and need for listing under the Act. BLM is a member of the Conservation Team and implements or authorizes conservation actions for the conservation of the relict leopard frog.

    The National Wildlife Refuge System Improvement Act of 1997 provides the mission for the Service's wildlife refuges to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats for the benefit of present and future generations of Americans. Each refuge is required to fulfill this mission and provide for the conservation of fish, wildlife, and plants, and their habitats within the Refuge System. Within the range of the relict leopard frog, the Desert National Wildlife Refuge would complement efforts of States and other Federal agencies to conserve fish and wildlife and their habitats, and to assist in the maintenance of adequate water quantity and water quality to fulfill the mission. Prior to release of relict leopard frogs at Corn Creek, the Refuge eradicated bullfrogs and substantially improved conditions that created habitat for the relict leopard frog. The Refuge manager provides access to biologists to perform releases of frogs and monitor the population. The Refuge continues to control crayfish, maintain habitat conditions by removing excess vegetation, and inform the public about the species.

    NPS and BLM authorities and regulatory mechanisms have successfully provided or facilitated conservation of the species (see “Conservation Actions Implemented,” above). NPS, BLM, BR, and the Service are signatories on the Conservation Agreement and actively involved in all actions of the Conservation Team. Each agency coordinates development of annual work plans and utilizes their authority to implement conservation actions that benefit the species. Federal authorities and regulatory mechanisms have successfully provided or facilitated conservation of the species.

    We did not find any stressors examined under the Act's threat factors A, B, C, and E to rise to the level of a threat that would cause us to determine listing of the relict leopard frog is warranted. Based on our review of the stressors combined with the beneficial effects that the various conservation efforts and regulatory mechanisms provided to the species, we find that the existing regulatory mechanisms (Factor D) are adequate to address the stressors currently impacting the relict leopard frog and its habitat.

    Regarding cumulative effects, there are potential stressors that may act together to affect relict leopard frogs at certain sites. Overgrowth of vegetation, nonnative plants and predators, and disease acting on small populations may adversely affect certain populations concurrently. Flash floods or wildfire may adversely affect a site at the same time as nonnative plants and predators. Reduced habitat connectivity adversely affects sites with small populations at the same time as overgrowth of vegetation, and nonnative plants and predators. Climate change may affect a site at the same time as grazing, wildfire, and flash floods. However, after evaluating the cumulative effects, we conclude that the magnitude of cumulative effects to the relict leopard frog is low to moderate. Most stressors adversely affect the relict leopard frog in a single geographic area due to the isolated distribution of most sites. Although individuals may be affected by cumulative effects in a single geographic area, there would not be population level effects to the species.

    Multiple stressors on relict leopard frogs may act synergistically, exacerbating effects greater than what may be observed by individual stressors. The effects of climate change may increase the number and frequency of wildfires and flash flood events. The presence of nonnative plants can make the effects of excess vegetation worse. Overgrowth of vegetation may reduce habitat for breeding, potentially making small populations smaller. Disease and nonnative predators such as bullfrogs, crayfish, and fishes may also exacerbate the effects of small populations by removing frogs. We determined that synergistic effects may occur, although they are expected to be low in magnitude. Most individual stressors adversely affect the relict leopard frog in a single geographic area, due to the isolated distribution of most sites. Although individuals may be affected by synergistic effects in a single geographic area, there would not likely be population-level effects to the species.

    To minimize or mitigate effects from stressors affecting the relict leopard frog, the Conservation Team will continue monitoring populations and reintroducing frogs to sites should they become greatly reduced in numbers or extirpated due to the effects of one or more stressors.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the Act's five threat 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 relict leopard frog is in danger of extinction (an endangered species) throughout all of its range, or likely to become endangered within the foreseeable future (a threatened species) throughout all of its range.

    Populations of relict leopard frogs are improving due to past conservation actions and current efforts to re-establish and increase naturally-occurring and reintroduced populations. Current and ongoing habitat management, establishment of new sites, and restoration activities have made substantial progress since their inception and are continuing into the future. We have determined that the number of frogs and habitat conditions at individual sites change from year to year and may vary widely, but the rangewide status of the species is stable or increasing.

    After determining the species is not endangered or threatened throughout all of its range, we then conducted an analysis to determine if it was endangered or threatened throughout a significant portion of the species' range. To do this, we evaluated whether there was any portion of the species' range where threats were concentrated such that the species in that portion would be endangered or threatened, and that losing that portion of the range would cause the remainder of the species to be endangered or threatened. Once we determined that there was no geographic concentration of threats that would cause any portion of the species' range to be at greater risk of extinction, then we could conclude that no portion warranted further consideration. Therefore, we find that listing the relict leopard frog as an endangered or a threatened species throughout all of or a significant portion of its range 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 relict leopard frog, and constitutes the Service's 12-month finding on the May 8, 2002, petition to list the relict leopard frog as an endangered or threatened species. A detailed discussion of the basis for this finding, including the many effective conservation measures completed by the Conservation Team, can be found in the relict leopard frog's species-specific assessment form, SSA Report, and other supporting documents (see ADDRESSES, above).

    Sicklefin Redhorse Sucker (Moxostoma sp.) Previous Federal Actions

    The sicklefin redhorse sucker was originally made a candidate species in the May 11, 2005, CNOR (70 FR 24870), and it was included in the subsequent CNORs through 2015 (see September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), and December 5, 2014 (79 FR 72450)).

    On April 20, 2010, we received a petition from the Center for Biological Diversity, requesting that the Service list 404 aquatic species as endangered or threatened species under the Act, including the sicklefin redhorse sucker. The petition included supporting information regarding the species' taxonomy and ecology, historical and current distribution, present status, and actual and potential causes of decline. In a partial 90-day finding on the petition to list 404 species, published on September 27, 2011 (76 FR 59836), the Service reaffirmed the existing candidate status of the sicklefin redhorse sucker.

    Background

    The sicklefin redhorse sucker (Moxostoma sp.), a freshwater fish species, can grow to a length of approximately 650 mm (roughly 25.6 in). It has an elongate, somewhat compressed body and a highly falcate (sickle shaped) dorsal fin (back fin). Its body is olive-colored, with a coppery or brassy sheen; its lower fins (pectoral, pelvic, and anal fins) are primarily dusky to dark, often tinted yellow or orange and pale edged; the caudal fin (tail fin) is mostly red; and its dorsal fin is olive in color, sometimes partly red.

    Although the sicklefin redhorse sucker is now known to have been collected in 1937 (based upon preserved specimens collected at the then-unimpounded mouth of Forney Creek near its confluence with the Tuckasegee River), it was not recognized as a potentially distinct species until 1992, when Dr. Robert Jenkins obtained and examined two specimens that had been collected in 1981 and 1982 from the Little Tennessee River by Dr. Edward Menhinick (University of North Carolina at Charlotte, Charlotte, North Carolina). Based on the characteristics of the specimens' lower lips, dorsal fins, and pharyngeal teeth, Jenkins recognized the species as possibly a previously unidentified species or a hybrid of the smallmouth redhorse (M. breviceps) and the river redhorse (M. carinatum). Subsequent detailed morphological and behavioral studies and genetic studies have concluded that the sicklefin redhorse sucker is, in fact, a distinct species. The Service has reviewed the available taxonomic literature, and is not aware of any challenges to the validity of this conclusion.

    The species is currently known to occupy cool to warm, moderate-gradient creeks and rivers and, during at least parts of its early life, large reservoirs. In streams, adults of the species are generally associated with moderate to fast currents, in riffles, runs, and well-flowing pools, while juveniles show a preference for moderate to deep pools with slow currents and large boulder crevice cover. Adults feed and spawn over gravel, cobble, boulder, and bedrock substrates with no, or very little, silt overlay.

    Past and recent collection records of the sicklefin redhorse sucker, together with what is known about the habitat utilization of the species, indicate that the sicklefin redhorse sucker once inhabited the majority, if not all, of the rivers and large creeks in the Blue Ridge portion of the Hiwassee and Little Tennessee River systems in North Carolina, Tennessee, and Georgia. Currently, there are only two metapopulations of the sicklefin redhorse sucker known to remain: One in the Hiwassee River system and one in the Little Tennessee River system. Estimated occupied stream habitat in the Hiwassee river systems totals about 53.0 river miles (rm). However, use of various streams/stream reaches within this total appears to be seasonal. Available information indicates that the sicklefin redhorse sucker uses Brasstown Creek, Hanging Dog Creek, Beaverdam Creek, Nottely River, and the mid and upper reaches of the Valley River, primarily for spawning. No spawning or courting behavior was observed within the mainstem of the Hiwassee River; the mid and lower Hiwassee River or lower reaches of the spawning tributaries primarily from the post-spawning period through the fall and early winter; or the lower un-impounded reaches of the Hiwassee River, and to a lesser extent, the lower Valley River, during the winter months.

    The Little Tennessee River system metapopulation of the sicklefin redhorse sucker includes a total of approximately 59.15 rm of creek and river reaches plus near-shore areas of Fontana Reservoir, including: (1) The main stem of the Little Tennessee River in Macon and Swain Counties, North Carolina, between the Franklin Dam and Fontana Reservoir (approximately 23.2 rm), and its tributaries, Burningtown Creek (approximately 5.5 rm) and Iotla Creek (approximately 0.1 rm) in Macon County, North Carolina; (2) the main stem of the Tuckasegee River in Swain and Jackson Counties, North Carolina, from approximately rm 27.5, downstream to Fontana Reservoir (approximately 27.5 rm), and its tributaries, Forney Creek (mouth of the creek), Deep Creek (approximately 2.35 rm), and the Oconaluftee River below the Bryson Dam (also sometimes referred to as the Ela Dam) (approximately 0.5 rm), in Swain County, North Carolina; and (3) sub-adults in the near shore portions of Fontana Reservoir, Swain County, North Carolina.

    Summary of Status Review

    In completing our status review, we reviewed the best available scientific and commercial information and compiled this information in the SSA Report for the sicklefin redhorse sucker. For our finding, we evaluated potential stressors related to the sicklefin redhorse sucker and its habitat. The stressors we analyzed were: (1) Hydroelectric operations, inadequate erosion/sedimentation control during agricultural, timbering, and construction activities; (2) runoff and discharge of organic and inorganic pollutants from industrial, municipal, agricultural, and other point and nonpoint sources; (3) habitat alterations associated with channelization and instream dredging/mining activities; (4) predation and habitat suitability impacts by nonnative species; (5) fragmentation and isolation of surviving populations; and (6) other natural and human-related factors that adversely modify the aquatic environment. Associated with the status review for this 12-month finding, we conducted an analysis of the Candidate Conservation Agreement (CCA) for the Sicklefin Redhorse Sucker under the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE policy), published in the Federal Register on March 28, 2003 (68 FR 15100), and found that the CCA does meet the PECE policy criteria for certainty of implementation and certainty of effectiveness.

    A number of factors likely contributed to a reduction in the species' historical range and may have affected population dynamics within the existing occupied stream reaches. The construction of hydroelectric dams fragmented populations, confining spawning activity only to river reaches accessible from the two reservoirs where this species is thought to reside during the juvenile stage of its life cycle. The sicklefin redhorse sucker also appears to be absent from several reaches of unimpounded river habitat where it was likely extirpated by degradation of the habitat or by cold water from hypolimnetic (deepwater that remains perpetually cold) discharges or hydropeaking (releasing frequent, large discharge pulses of water) for hydropower production. The introduction of blueback herring (Alosa aestivalis) into the habitat occupied by the sicklefin redhorse sucker was also considered a potential threat to future population stability in past candidate assessments.

    Upon further review of the information related to the factors believed to be affecting the species at present, it appears many of them were largely historical, were less significant than previously thought, have been mitigated, or could be managed to alleviate many of the effects on the species. The sicklefin redhorse sucker likely experienced substantial range contraction associated with dam construction, power generation, and historical habitat degradation early in the 20th century, but the remaining populations appear to have stabilized within the present conditions and are successfully spawning and recruiting in four primary river drainages accessible from Hiwassee and Fontana Reservoirs.

    In the future, we expect human population growth and land development to be primary factors affecting habitat quality in the range of the sicklefin redhorse sucker. However, compared to historical land use effects, we expect the effect of these future activities to be minimized by more stringent State and local land quality regulations, such as are required by current regulations for land development and water quality, and a trend of diminishing agriculture in the area. Improvements in land use practices are likely attributable to the modern regulatory environment that provides protection to the stream environment. The Fish and Wildlife Coordination Act of 1934 (16 U.S.C. 661 et seq.), North Carolina Environmental Policy Act of 1971, Clean Water Act of 1972 (33 U.S.C. 1251 et seq.), North Carolina Sediment and Pollution Control Act of 1973, Georgia Erosion and Sedimentation Act of 1975, as well as other regulatory actions, were enacted to control the effects of land development and pollution on the aquatic environment. Historical records indicate that the existing populations of the sicklefin redhorse sucker have persisted through significant agricultural land disturbance that resulted in considerable sedimentation of its habitat, indicating that the sicklefin redhorse sucker is likely able to tolerate moderate land disturbance. Rural development and the growth of several small towns within the range of the sicklefin redhorse sucker appear to be the dominant forms of land use disturbance. Rural development is limited in certain areas due to large portions of the watershed that are permanently protected by inclusion in the Nantahala and Chattahoochee National Forests. The region is currently experiencing a trend of diminishing agricultural land use, indicating that widespread conversion to farmland is not likely. Commercial development is likely to be limited by a lack of large metropolitan areas or interstate highways that would facilitate rapid growth. The trend of high suspended sediment yield in the range of the sicklefin redhorse sucker appears to have improved over the last few decades. Increasing environmental regulation, greater public awareness, and the actions of governmental and nongovernmental organizations to improve water quality conditions have resulted in considerable improvements in suspended sediment rates. Therefore, we expect existing regulations for land development and water quality to adequately maintain habitat quality, and we anticipate that the species is likely to persist into the future even with the expected increase in development.

    The sicklefin redhorse sucker is provided additional protection by State endangered species regulations and association with other federally listed species. It is listed as threatened by the State of North Carolina and endangered by the State of Georgia. Both States prohibit direct take of the species and the collection of the fish for scientific purposes without a valid State collecting permit. In the unimpounded portions of the mainstems of the Little Tennessee River and Tuckasegee River where the sicklefin redhorse sucker occurs, the species' habitat is indirectly provided Federal protection through the Act, where the mainstem portions of both of these rivers are designated as critical habitat for the endangered Appalachian elktoe (Alasmidonta raveneliana) (a mussel). In addition to the Appalachian elktoe, the portion of the Little Tennessee River where the sicklefin redhorse sucker occurs also supports populations of the endangered little-wing pearlymussel (Pegias fabula) and the threatened spotfin chub (Erimonax monachus) and is also designated as critical habitat for the spotfin chub.

    Substantial public land ownership in the watersheds occupied by the sicklefin redhorse sucker provides partial protection to the watershed. Approximately 43 percent of the land adjacent to waterways occupied this species is owned by State and Federal agencies or by nongovernmental conservation organizations. On these conserved properties, land development is prohibited, providing protection to buffers and potentially improving water quality throughout the watershed. Most of the land surrounding Hiwassee and Fontana Lakes is publicly owned, limiting shoreline development and protecting the near shore habitat used by juvenile sicklefin redhorse suckers. The Eastern Band of Cherokee Indians has management jurisdiction over a portion of the lands within both the Hiwassee River and Tuckasegee River watersheds, and tribal water quality ordinances protect habitat and water quality. Approximately 65 percent of the occupied area of the Little Tennessee River is protected from development by inclusion in the Needmore Game Lands. Along the other three major spawning tributaries, most of the land is privately held and does not have any restriction on land development.

    When the sicklefin redhorse sucker was elevated to candidate status in 2005, the blueback herring, an invasive predator species, had been inadvertently introduced into the Hiwassee Reservoir, a major waterbody supporting the sicklefin redhorse sucker. At the time, predation of young sicklefin redhorse sucker by blueback herring was an unassessed threat. However, a recent study examining the gut contents of blueback herring in the Valley River and Hiwassee Reservoir failed to find any sicklefin redhorse suckers among the samples. It appears that the sicklefin redhorse sucker may naturally avoid predation by blueback herring by spawning farther upstream than typical foraging habitat for blueback herring. In the spring of 2016, blueback herring were collected from Fontana Reservoir, the other reservoir important for sicklefin redhorse sucker recruitment. Further investigation is required to determine the degree of impact the presence of blueback herring in Fontana Reservoir poses to the sicklefin redhorse sucker, but the distance to spawning sites upstream of Fontana Reservoir is similar to the distance in the Hiwassee Reservoir, suggesting that blueback herring will be similarly separated from the hatching sicklefin redhorse sucker fry during the time when they are most likely to be present in the reservoir. Collections in the Hiwassee River system in 2014-2015 produced many young adult/late juvenile sicklefin redhorse suckers that have clearly recruited since the herring invasion, even while juvenile walleye and white bass steeply declined immediately after the invasion, suggesting the blueback herring is not preventing successful recruitment of sicklefin redhorse suckers. Therefore, recent observations indicate that blueback herring have not proven to be a threat to the sicklefin redhorse sucker as once feared.

    Many of the stressors that may affect the sicklefin redhorse sucker in the future can be further minimized by conservation actions carried out under the recently signed CCA among the Service, North Carolina Wildlife Resources Commission, Duke Energy Carolinas, Eastern Band of Cherokee Indians, Tennessee Valley Authority, and Georgia Department of Natural Resources. A primary goal of the CCA is to expand the range of this species upstream of barrier dams to repopulate stream reaches that were formerly degraded, but currently appear suitable. Expanding the range of the sicklefin redhorse sucker into the upper sections of these watersheds will provide a greater variety of available habitat, allowing the species to more easily adjust to temporary effects of construction and landscape alteration, and providing more opportunities to use areas of refuge during periods of adverse conditions, such as periods of high temperature or increased flow. Accessibility to more suitable habitat will increase the number of available spawning sites, increasing the opportunities for successful recruitment, and will provide alternative spawning areas should some spawning sites become unsuitable. Successful reintroduction will increase the carrying capacity of the sicklefin redhorse sucker by providing the species with additional riverine habitat as well as access to additional reservoirs to serve as juvenile rearing habitat. The SSA Report for the sicklefin redhorse sucker noted that threats (i.e., factors affecting the species) could be exacerbated by climate change or interaction among the threats. However, the SSA Report's evaluation of all of the threats facing this species indicates that the existing populations are stable and are likely to remain stable in most of the plausible future scenarios. In addition, while populations are currently stable and likely to remain so, under the CCA's management framework, the parties will work collaboratively to address threats in a way that reduces the likelihood that they will negatively affect the future viability of the species.

    Finding

    Based on our review of the best available scientific and commercial information pertaining to the Act's five threat 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 sicklefin redhorse sucker 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 finding is based on stability of existing populations, re-evaluation of threats that are likely to affect the populations in the future, and development of a CCA that ensures the continued participation by all stakeholders in a focused effort to address and mitigate potential threats while expanding the range and population health of the species. Additionally, we evaluated the current range of the sicklefin redhorse sucker to determine if there is any apparent geographic concentration of potential threats for the species. The current range of the species is relatively small and limited to two river systems in western North Carolina and northwestern Georgia. We examined potential threats from: (1) Hydroelectric operations, inadequate erosion/sedimentation control during agricultural, timbering, and construction activities; (2) runoff and discharge of organic and inorganic pollutants from industrial, municipal, agricultural, and other point and nonpoint sources; (3) habitat alterations associated with channelization and instream dredging/mining activities; (4) predation and habitat suitability impacts by nonnative species; (5) fragmentation and isolation of surviving populations; and (6) other natural and human-related factors that adversely modify the aquatic environment. We found no portions of the species' range where potential threats are significantly concentrated or substantially greater than in other portion of its range so as to suggest that the species may be in danger of extinction in a portion of its range. Therefore, we find that factors affecting the sicklefin redhorse sucker 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 sicklefin redhorse sucker as an endangered or a threatened species under the Act 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 sicklefin redhorse sucker, and constitutes the Service's 12-month finding on the April 20, 2010, petition to list the sicklefin redhorse sucker as an endangered or threatened species. A detailed discussion of the basis for this finding, including the PECE policy analysis of the CCA, can be found in the sicklefin redhorse sucker's species-specific assessment form, SSA Report, and other supporting documents (see ADDRESSES, above).

    Stephan's Riffle Beetle (Heterelmis stephani) Previous Federal Actions

    Stephan's riffle beetle (Heterelmis stephani) was designated as a Category 2 candidate in the notice published in the Federal Register on May 22, 1984, at 49 FR 21664. Category 2 candidate species were identified as those taxa for which the Service possessed information indicating proposing to list the taxa was possibly appropriate, but for which conclusive data on biological vulnerability and threats sufficient to support a proposed listing rule was lacking. The February 28, 1996, CNOR (61 FR 7596) discontinued recognition of categories, so this species was no longer considered a candidate species. In the June 13, 2002, CNOR (67 FR 40657), Stephan's riffle beetle was designated as a candidate species as currently defined, with an LPN of 5. On May 11, 2004, we received a petition dated May 4, 2004, from the Center for Biological Diversity, requesting that 225 plants and animals, including Stephan's riffle beetle, be listed as endangered species under the Act and critical habitat be designated. In response to the May 4, 2004, petition to list Stephan's riffle beetle as an endangered species, we published a warranted-but-precluded 12-month finding in the Federal Register on May 11, 2005 (70 FR 24870). Subsequent warranted-but-precluded 12-month findings were published on September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 80584).

    Background

    Stephan's riffle beetle is one of five known species in the genus Heterelmis found in the United States. Historically, Stephan's riffle beetle occurred in Santa Cruz and Pima Counties, Arizona, at two known locations: Bog Springs Campground and Sylvester Spring in Madera Canyon. Stephan's riffle beetle is no longer found at the Bog Springs Campground location, as the habitat there no longer exists. Stephan's riffle beetle has not been collected or documented since 1993, despite the Service's surveying for the species at the one remaining known location, Sylvester Spring, and at numerous other nearby locations with potential habitat. Based on our review of the best available scientific and commercial information, we believe that the Stephan's riffle beetle is extinct.

    The preponderance of Stephan's riffle beetle specimens have been documented in artificial habitat created by a water tank's leaking pipeline and overflow at the Bog Springs Campground. Only two specimens have ever been documented from Sylvester Spring, the only relatively intact spring habitat remaining where the species was known to exist. Historically, Stephan's riffle beetle may have only occupied Sylvester and Bog Springs, and populations may have started declining when water from springs in Madera Canyon was first captured in concrete boxes and piped to divert water for domestic and recreational water supplies. Up until 1993, when Stephan's riffle beetle was last detected, the species appears to have existed only in extremely low numbers within Sylvester Spring, making it very difficult to detect, in contrast to the relatively large numbers collected in 1979 at the Bog Springs Campground site. The species has not been documented as extant since 1993, 23 years ago, when one individual was found at Sylvester Spring as part of a specific effort to survey for Stephan's riffle beetle in Madera Canyon.

    Beginning in 2012, the Service surveyed Sylvester Spring, the one remaining known population location for Stephan's riffle beetle, and seven other locations with potential habitat on multiple occasions. The most intensive survey efforts occurred at Sylvester Spring and Bog Springs, the water source for the extirpated Bog Springs Campground population. Three different survey methods were used in an effort to find the species, and no Stephan's riffle beetles were found. While Stephan's riffle beetle is small in size (and therefore difficult to find), adult beetles, if present, should be detected regardless of the time of year surveyed based on their life history (multi-year metamorphosis and relatively long life span). Therefore, based on the best available scientific and commercial information, the Service believes Stephan's riffle beetle to be extinct.

    Summary of Status Review

    The SSA Report for Stephan's riffle beetle is a summary of the information assembled and reviewed by the Service and incorporates the best available scientific and commercial information for this species. Our analysis leads us to believe Stephan's riffle beetle is extinct. Species extinction is difficult, if not impossible, to prove, and the Service has no policy specifically defining the level of information necessary to conclude that a species should be considered extinct. For any species there is uncertainty in drawing a conclusion of extinction. For the Stephan's riffle beetle, we have carefully assessed the best scientific and commercial information available regarding the current status of the species. The biological information we reviewed and analyzed as the basis for our findings is documented in the SSA Report. Our analysis of this information found that there has been no confirmation of the existence of the Stephan's riffle beetle in more than 23 years, despite multiple survey efforts since 2012 in known and potential habitat where other riffle beetles were documented, across multiple seasons, and using a variety of survey methods. The type locality consisting of a leaking pipeline to a water storage tank, where the largest number of Stephan's riffle beetle was collected, no longer exists. The Service surveyed the only remaining site at which Stephan's riffle beetle had been documented, Sylvester Spring, on numerous occasions with different survey methods. Despite these efforts, we have been unable to confirm the existence of the species.

    Finding

    Our review of the best available scientific and commercial information leads us to believe that the Stephan's riffle beetle is extinct, and, as such, it is not eligible for listing as an endangered or threatened species under the Act. Although the Act does not directly address the situation of considering a species for listing where the best available information indicates that the species is likely already extinct, the purpose of the Act is to prevent species from becoming extinct. If we believe the species is already extinct, by definition, the species cannot be in danger of, or likely to become in danger of, extinction. Therefore, we did not further evaluate whether Stephan's riffle beetle is in danger of extinction throughout its range (an endangered species), is likely to become in danger of extinction throughout its range in the foreseeable future (a threatened species), or is an endangered or threatened species in a significant portion of its range. We find that listing Stephan's riffle beetle as an endangered or a threatened species under the Act is not warranted throughout all or a significant portion of its range, 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 Stephan's riffle beetle and constitutes the Service's 12-month finding on the May 4, 2004, petition to list the Stephan's riffle beetle as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Stephan's riffle beetle's species-specific assessment form, SSA Report, and other supporting documents (see ADDRESSES, above).

    New Information

    We request that you submit any new information concerning the taxonomy, biology, ecology, status of, or stressors to the Huachuca-Canelo population of the Arizona treefrog, the Arkansas darter, black mudalia, Highlands tiger beetle, Dichanthelium (=panicum) hirstii (Hirst Brothers' panic grass), two Kentucky cave beetles (Louisville cave beetle and Tatum Cave beetle), relict leopard frog, sicklefin redhorse sucker, and Stephan's riffle beetle 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 any of these species, we will act to provide immediate protection.

    References Cited

    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.

    Authors

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

    Authority

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

    Dated: September 26, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2016-24142 Filed 10-5-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XE935 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is exchanging unused flathead sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2016 total allowable catch of yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.

    DATES:

    Effective October 6, 2016 through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 flathead sole and yellowfin sole CDQ reserves specified in the BSAI are 1,617 metric tons (mt), and 16,933 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 64782, September 21, 2016). The 2016 flathead sole and yellowfin sole CDQ ABC reserves are 5,472 mt and 5,719 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 64782, September 21, 2016).

    The Aleutian Pribilof Island Community Development Association has requested that NMFS exchange 80 mt of flathead sole CDQ reserves for 80 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 80 mt of flathead sole CDQ reserves for 80 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 64782, September 21, 2016), are revised as follows:

    Table 11—Final 2016 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole Tacs [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • district
  • Central
  • Aleutian
  • district
  • Western
  • Aleutian
  • district
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 7,900 7,000 9,000 16,390 55,180 150,530 CDQ 845 749 963 1,537 5,215 17,013 ICA 200 75 10 5,000 6,000 3,500 BSAI trawl limited access 685 618 161 0 0 14,979 Amendment 80 6,169 5,558 7,866 9,853 43,965 115,038 Alaska Groundfish Cooperative 3,271 2,947 4,171 1,411 11,129 43,748 Alaska Seafood Cooperative 2,898 2,611 3,695 8,442 32,836 71,290 Note: Sector apportionments may not total precisely due to rounding.
    Table 13—Final 2016 and 2017 ABC Surplus, Community Development Quota (CDQ) ABC Reserves, and Amendment 80 ABC Reserves in the BSAI for Flathead Sole, Rock Sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2016
  • Flathead sole
  • 2016
  • Rock sole
  • 2016
  • Yellowfin sole
  • 2017
  • Flathead sole
  • 2017
  • Rock sole
  • 2017
  • Yellowfin sole
  • ABC 66,250 161,100 211,700 64,580 145,000 203,500 TAC 16,390 55,180 150,530 21,000 57,100 144,000 ABC surplus 49,860 105,920 61,170 43,580 87,900 59,500 ABC reserve 49,860 105,920 61,170 43,580 87,900 59,500 CDQ ABC reserve 5,552 12,023 5,639 4,663 9,405 6,367 Amendment 80 ABC reserve 44,308 93,897 55,531 38,917 78,495 53,134 Alaska Groundfish Cooperative for 2016 1 4,145 22,974 24,019 n/a n/a n/a Alaska Seafood Cooperative for 2016 1 40,163 70,923 31,512 n/a n/a n/a 1 The 2017 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2016.
    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Aleutian Pribilof Island Community Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 30, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 3, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24185 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XE932 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Atka Mackerel in the Bering Sea and Aleutian Islands Management Area AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amount of the 2016 Atka mackerel incidental catch allowance (ICA) for the Bering Sea subarea and Eastern Aleutian district (BS/EAI) to the Amendment 80 cooperative allocations in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the 2016 total allowable catch of Atka mackerel in the BSAI to be fully harvested.

    DATES:

    Effective 1200 hrs Alaska local time (A.l.t.), October 3, 2016 through 2400 hrs, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 Atka mackerel ICA for the BS/EAI is 1,000 metric tons (mt) and 2016 Atka mackerel total allowable catch allocated to the Amendment 80 cooperatives is 21,895 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016).

    The Administrator, Alaska Region, NMFS, has determined that 775 mt of the Atka mackerel ICA for the BS/EAI will not be harvested. Therefore, in accordance with § 679.91(f), NMFS reallocates 775 mt of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. In accordance with § 679.91(f), NMFS will reissue cooperative quota permits for the reallocated Atka mackerel following the procedures set forth in § 679.91(f)(3).

    The harvest specifications for Atka mackerel included in the harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) are revised as follows: 225 mt of Atka mackerel for the BS/EAI ICA and 22,670 mt of Atka mackerel for the Amendment 80 cooperative allocations in the BS/EAI. Table 6 is revised and republished in its entirety as follows:

    Table 6—Final 2016 Seasonal and Spatial Allowances, Gear Shares, CDQ Reserve, Incidental Catch Allowance, and Amendment 80 Allocations of the BSAI Atka Mackerel TAC [Amounts are in metric tons] Sector 1 Season 2 3 4 2016 Allocation by area Eastern Aleutian district/Bering Sea Central
  • Aleutian
  • district 5
  • Western
  • Aleutian
  • district
  • TAC n/a 28,500 16,000 10,500 CDQ reserve Total 3,050 1,712 1,124 A 1,525 856 562 Critical Habitat n/a 514 337 B 1,525 856 562 Critical Habitat n/a 514 337 ICA Total 225 75 40 Jig 6 Total 122 0 0 BSAI trawl limited access Total 2,433 1,421 0 A 1,217 711 0 Critical Habitat n/a 426 0 B 1,217 711 0 Critical Habitat n/a 426 0 Amendment 80 sectors Total 22,670 12,792 9,337 A 11,335 6,396 4,668 B 11,335 6,396 4,668 Alaska Groundfish Cooperative Total 6 12,808 7,609 5,741 A 6,404 3,805 2,871 Critical Habitat n/a 2,283 1,722 B 6,404 3,805 2,871 Critical Habitat n/a 2,283 1,722 Alaska Seafood Cooperative Total 6 9,862 5,183 3,596 A 4,931 2,592 1,798 Critical Habitat n/a 1,555 1,079 B 4,931 2,592 1,798 Critical Habitat n/a 1,555 1,079 1 Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs, after subtracting the CDQ reserves, jig gear allocation, and ICAs to the Amendment 80 and BSAI trawl limited access sectors. The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and § 679.91. The CDQ reserve is 10.7 percent of the TAC for use by CDQ participants (see §§ 679.20(b)(1)(ii)(C) and 679.31). 2 Sections 679.20(a)(8)(ii)(A) and 679.22(a) establish temporal and spatial limitations for the Atka mackerel fishery. 3 The seasonal allowances of Atka mackerel are 50 percent in the A season and 50 percent in the B season. 4 Section 679.23(e)(3) authorizes directed fishing for Atka mackerel with trawl gear during the A season from January 20 to June 10 and the B season from June 10 to December 31. 5 Section 679.20(a)(8)(ii)(C)(1)(i) limits no more than 60 percent of the annual TACs in Areas 542 and 543 to be caught inside of critical habitat; (a)(ii)(C)(1)(ii) equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3); and (a)(8)(ii)(C)(2) requires the TAC in Area 543 shall be no more than 65 percent of ABC. 6 Section 679.20(a)(8)(i) requires that up to 2 percent of the Eastern Aleutian District and the Bering Sea subarea TAC be allocated to jig gear after subtracting the CDQ reserve and ICA. The amount of this allocation is 0.5 percent. The jig gear allocation is not apportioned by season. Note: Seasonal or sector apportionments may not total precisely due to rounding.

    This will enhance the socioeconomic well-being of harvesters dependent upon Atka mackerel in this area. The Regional Administrator considered the following factors in reaching this decision: (1) The current catch of Atka mackerel ICA in the BS/EAI, (2) the harvest capacity and stated intent on future harvesting patterns of the Amendment 80 cooperatives that participate in this BS/EAI fishery.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Atka mackerel from the BS/EAI ICA to the Amendment 80 cooperatives in the BSAI. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 30, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.91 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 3, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24182 Filed 10-3-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150916863-6211-02] RIN 0648-XE924 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is reallocating the projected unused amounts of Pacific cod from catcher vessels greater than 60 feet (18.3 meters (m)) length overall (LOA) using pot gear, catcher vessels using trawl gear, and vessels using jig gear to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, catcher processors (C/Ps) using pot gear, and Amendment 80 (A80) C/Ps in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2016 total allowable catch of Pacific cod to be harvested.

    DATES:

    Effective October 5, 2016, through 2400 hours, Alaska local time (A.l.t.), December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 Pacific cod TAC specified for catcher vessels greater than 60 feet (18.3 m) LOA using pot gear in the BSAI is 18,798 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016). The Regional Administrator has determined that catcher vessels greater than 60 feet (18.3 m) LOA using pot gear in the BSAI will not be able to harvest 1,200 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(5).

    The 2016 Pacific cod TAC specified for catcher vessels using trawl gear in the BSAI is 49,638 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016). The Regional Administrator has determined that catcher vessels using trawl gear will not be able to harvest 1,000 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(9).

    The 2016 Pacific cod TAC specified for vessels using jig gear in the BSAI is 394 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016) and reallocation (81 FR 57491, August 23, 2016). The Regional Administrator has determined that vessels using jig gear will not be able to harvest 300 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1).

    Therefore, in accordance with § 679.20(a)(7)(iii)(A) and § 679.20(a)(7)(iii)(B), NMFS reallocates 2,500 mt of Pacific cod to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, C/Ps using pot gear, and A80 C/Ps in the Bering Sea and Aleutian Islands management area.

    The harvest specifications for Pacific cod included in the final 2016 and 2017 harvest specifications for groundfish of the BSAI (81 FR 14773, March 18, 2016, 81 FR 57491, August 23, 2016, 81 FR 61143, September 6, 2016) are revised as follows: 17,598 mt for catcher vessels greater than 60 feet (18.3 m) LOA using pot gear, 48,638 mt for catcher vessels using trawl gear, 94 mt for vessels using jig gear, 8,674 for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, 4,357 for C/Ps using pot gear, and 31,097 mt for A80 C/Ps.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from multiple sectors to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear, C/Ps using pot gear, and A80 C/Ps in the Bering Sea and Aleutian Islands management area. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 29, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 30, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24116 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    81 194 Thursday, October 6, 2016 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 [NRC-2004-0006, NRC-2002-0018] RIN 3150-AH29 Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Rulemaking activity; discontinuation.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is discontinuing a rulemaking activity titled, “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements.” The purpose of this action is to inform members of the public of the discontinuation of this rulemaking and to provide a brief discussion of the NRC's decision to discontinue it. This rulemaking activity will no longer be reported in the NRC's portion of the Unified Agenda of Regulatory and Deregulatory Actions (the Unified Agenda).

    DATES:

    Effective October 6, 2016, the rulemaking activity discussed in this document is discontinued.

    ADDRESSES:

    Please refer to Docket ID NRC-2004-0006 for the rulemaking and Docket ID NRC-2002-0018 for the petition for rulemaking (PRM), PRM-50-75, when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:

    Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2004-0006 for the rulemaking and Docket ID NRC-2002-0018 for PRM-50-75. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Robert Beall, Office of Nuclear Reactor Regulations, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3874; email: [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Process for Discontinuing Rulemaking Activities III. Discussion IV. Petition for Rulemaking (PRM-50-75) V. Conclusion I. Background

    In SECY-16-0009, “Recommendations Resulting from the Integrated Prioritization and Re-Baselining of Agency Activities,” dated January 31, 2016 (ADAMS Accession No. ML16028A189), the NRC staff requested Commission approval to implement recommendations on work to be shed, de-prioritized, or performed with fewer resources. One of the items listed to be shed (i.e., discontinued) was a rulemaking titled, “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements,” that would have amended § 50.46 of title 10 of the Code of Federal Regulations (10 CFR), “Acceptance criteria for emergency core cooling systems (ECCS) for light-water nuclear power reactors” (50.46a ECCS rulemaking). In the Staff Requirements Memorandum (SRM) for SECY-16-0009, dated April 13, 2016 (ADAMS Accession No. ML16104A158), the Commission approved discontinuing the 50.46a ECCS rulemaking, and directed the NRC staff to publish a Federal Register notice to inform the public that the rule is being discontinued.

    A discussion of the NRC's decision to discontinue the rulemaking on “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements” is provided in Section III of this document.

    II. Process for Discontinuing Rulemaking Activities

    When the NRC staff identifies a rulemaking activity that can be discontinued, it will request, through a Commission paper, approval from the Commission to discontinue the rule. The Commission provides its decision by issuing an SRM. If the Commission approves discontinuing the rulemaking activity, the NRC staff will inform the public of the Commission's decision.

    A rulemaking activity may be discontinued at any stage of the rulemaking process. For a rulemaking activity that has received public comments, the NRC staff will consider those comments before discontinuing it; however, the NRC staff will not provide individual comment responses.

    After Commission approval to discontinue the rulemaking activity, the NRC staff will update the next edition of the Unified Agenda to indicate that the rulemaking is discontinued. The rulemaking activity will appear in the completed section of that edition of the Unified Agenda, but will not appear in subsequent editions.

    III. Discussion

    In the SRM for SECY-02-0057,1 “Update to SECY-01-0133, `Fourth Status Report on Study of Risk-Informed Changes to the Technical Requirements of 10 CFR part 50 (Option 3) and Recommendations on Risk-Informed Changes to 10 CFR 50.46 (ECCS Acceptance Criteria),' ” dated March 31, 2003 (ADAMS Accession No. ML030910476), the Commission directed the NRC staff to prepare a proposed rule that would provide a risk-informed alternative maximum loss-of-coolant accident (LOCA) break size. On June 9, 2003, and July 24, 2003, the NRC staff held two public meetings 2 to obtain stakeholder feedback on this proposed rule. As a result of these interactions, the NRC staff found differences between the stated Commission objectives and industry stakeholder interests.

    1 SECY-02-0057, “Update to SECY-01-0133, `Fourth Status Report on Study of Risk-Informed Changes to the Technical Requirements of 10 CFR part 50 (Option 3) and Recommendations on Risk-Informed Changes to 10 CFR 50.46 (ECCS Acceptance Criteria),' ” dated March 29, 2002 (ADAMS Accession No. ML020660607).

    2 Meeting Summaries: June 9, 2003 (ADAMS Accession No. ML031810178), and July 24, 2003 (ADAMS Accession No. ML032130059).

    To reach a common understanding of the objectives of the rulemaking, the NRC staff requested additional Commission direction in SECY-04-0037, “Issues Related to Proposed Rulemaking to Risk-Inform Requirements Related to Large Break Loss-of-Coolant Accident (LOCA) Break Size and Plans for Rulemaking on LOCA with Coincident Loss-of-Offsite Power,” dated March 3, 2004 (ADAMS Accession No. ML040490133). The Commission directed the NRC staff in the SRM for SECY-04-0037, dated July 1, 2004 (ADAMS Accession No. ML041830412), to determine an appropriate risk-informed alternative break size and remove breaks larger than this size from the design-basis event category.

    In SECY-05-0052, “Proposed Rulemaking for `Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements,' ” dated March 29, 2005 (ADAMS Accession No. ML050480172), the NRC staff provided a proposed rule to the Commission for approval. In the SRM for SECY-05-0052, dated July 29, 2005 (ADAMS Accession No. ML052100416), the Commission approved publication of the proposed rule.

    On November 7, 2005, the NRC published the proposed rule in the Federal Register (70 FR 67597). After evaluating the public comments, the NRC staff completed the draft final rule language.

    On October 31 and November 1, 2006, the NRC staff met with the Advisory Committee on Reactor Safeguards (ACRS) to discuss the draft final rule. In a letter dated November 16, 2006 (ADAMS Accession No. ML063190465), the ACRS recommended that the NRC staff not issue the rule in its current form and suggested numerous changes, primarily to strengthen the assurance of defense-in-depth provided for large pipe breaks.

    The NRC staff evaluated the ACRS recommendations and, in SECY-07-0082, “Rulemaking to Make Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements; 10 CFR 50.46a, `Alternative Acceptance Criteria for Emergency Core Cooling Systems for Light Water Nuclear Power Reactors,' ” dated May 16, 2007 (ADAMS Accession No. ML070180692), sought additional Commission direction on both the priority of the rule and the issues raised by the ACRS. In the SRM for SECY-07-0082, dated August 10, 2007 (ADAMS Accession No. ML072220595), the Commission approved the NRC staff's recommendations for a revised rule priority and an approach for addressing ACRS concerns and completing the final rule.

    The NRC staff modified the rule by making numerous substantive changes in the draft final rule. The NRC published a supplemental proposed rule for public comment on August 10, 2009 (74 FR 40006). The NRC staff evaluated the public comments received on the supplemental proposed rule and prepared a revised draft final rule. The draft final rule language was made publicly available on May 12, 2010, in the rulemaking docket on www.regulations.gov (NRC-2004-0006). The NRC staff prepared the final draft rule and discussed it in meetings with the ACRS subcommittee and full committee on September 22 and October 7, 2010. The ACRS provided its views on the rule to the Commission in a letter dated October 20, 2010 (ADAMS Accession No. ML102850279).

    In SECY-10-0161, “Final Rule: Risk-Informed Changes to Loss-of-Coolant Accident Technical Requirements (10 CFR 50.46(a)) (RIN 3150-AH29),” dated December 10, 2010 (ADAMS Accession No. ML102210460), the NRC staff submitted a final rulemaking package to the Commission for approval. The Commission's review of the final rule was suspended to address higher-priority issues associated with the March 2011 Fukushima Dai-ichi accident. On April 20, 2012, the NRC staff requested to withdraw the 50.46a ECCS final rule from Commission consideration so that the NRC staff could review the rule and ensure its compatibility with the ongoing regulatory framework activities under Recommendation 1 of the Fukushima Near-Term Task Force report (ADAMS Accession No. ML111861807). The Commission approved the NRC staff's request in the SRM for SECY-10-0161, dated April 26, 2012 (ADAMS Accession No. ML12117A121).

    In SECY-16-0009, the NRC staff recommended that the 50.46a ECCS rulemaking be discontinued. Based on interactions with the nuclear industry, the NRC staff understood that there were concerns with the potential implementation burden of the rule. The NRC staff's Regulatory Analysis for the 50.46a ECCS final rule (ADAMS Accession No. ML103230250) discussed the comments submitted by the Boiling Water Reactor Owners Group which conveyed that it would be extremely difficult to evaluate the cost-benefit due to uncertainties about the true cost of adopting the 50.46a ECCS rule. Furthermore, at a public meeting on the Risk Management Regulatory Framework paper, certain industry representatives indicated that the industry would not be interested in implementing the final rule.

    As explained in SECY-16-0009, this rule would be voluntary if issued, so licensees could choose to not implement the requirements. Therefore, the NRC staff believes that there is minimal adverse impact on the NRC's mission, principles, or values by discontinuing this rulemaking. In the SRM for SECY-16-0009, the Commission approved the NRC staff's recommendation to discontinue this rulemaking.

    In summary, the NRC has decided not to proceed with this rulemaking activity because there is minimal adverse impact on our mission, principles, or values and the industry has indicated that there may not be much interest in implementing the final rule.

    IV. Petition for Rulemaking (PRM-50-75)

    On February 6, 2002, Anthony R. Pietrangelo, on behalf of the Nuclear Energy Institute (NEI), filed PRM-50-75 requesting that the NRC amend 10 CFR 50.46 to allow licensees to use an alternative to the double-ended guillotine break of the largest pipe in the reactor coolant system (ADAMS Accession No. ML020630082). On April 8, 2002 (67 FR 16654), the NRC published a notice of receipt and request for public comment for PRM-50-75. The comment period closed on June 24, 2002, and the NRC received 18 comment letters (ADAMS Accession No. ML082460625). The NRC staff determined that the issues raised in PRM-50-75 were appropriate for consideration and, in fact, the issues were already being considered in the 50.46a ECCS rulemaking. On November 6, 2008, the NRC published a Federal Register document (73 FR 66000) stating that the NRC would address the substantive comments filed in PRM-50-75 as part of the 50.46a ECCS rulemaking. In SECY-16-0009, the staff recommended discontinuing the 50.46a ECCS rulemaking and stated that PRM-50-75 would be addressed by alternative means. The NRC will issue a separate Federal Register document to disposition PRM-50-75.

    V. Conclusion

    The NRC is no longer pursuing the “Risk-Informed Changes to Loss-Of-Coolant Accident Technical Requirements” rulemaking for the reasons discussed in this document. In the next edition of the Unified Agenda, the NRC will update the entry for this rulemaking and reference this document to indicate that the 50.46a ECCS rulemaking is no longer being pursued. This rulemaking activity will appear in the completed section of that edition of the Unified Agenda, but will not appear in subsequent editions. If the NRC decides to pursue a similar or related rulemaking in the future, it will inform the public through a new rulemaking entry in the Unified Agenda.

    Dated at Rockville, Maryland, this 13th day of September 2016.

    For the Nuclear Regulatory Commission.

    Victor M. McCree, Executive Director for Operations.
    [FR Doc. 2016-24189 Filed 10-5-16; 8:45 am] BILLING CODE 7590-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0494; FRL-9953-65-Region 9] Findings of Failure To Attain the 1997 PM2.5 Standards; California; San Joaquin Valley AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to determine that the San Joaquin Valley nonattainment area failed to attain the 1997 annual and 24-hour fine particulate matter (PM2.5) national ambient air quality standards by the December 31, 2015 “Serious” area attainment date. This proposed determination is based upon monitored air quality data from 2013 through 2015. If the EPA finalizes this determination as proposed, the State of California will be required to submit a revision to the California State Implementation Plan that, among other elements, provides for expeditious attainment of the 1997 PM2.5 standards and for a five percent annual reduction in the emissions of direct PM2.5 or a PM2.5 plan precursor pollutant.

    DATES:

    Any comments must arrive by November 7, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0494 at http://www.regulations.gov, or via email to Rory Mays at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Rory Mays, Air Planning Office (AIR-2), EPA Region 9, (415) 972-3227, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we”, “us” and “our” refer to the EPA.

    Table of Contents I. Background A. PM2.5 NAAQS B. San Joaquin Valley Designations, Classifications, and Attainment Dates for 1997 PM2.5 NAAQS II. Proposed Determination and Consequences A. Applicable Statutory and Regulatory Provisions B. Monitoring Network Considerations C. Data Considerations and Proposed Determination D. Consequences for Serious PM2.5 Nonattainment Area Failing To Attain Standards by Attainment Date III. Proposed Action and Request for Public Comment IV. Statutory and Executive Order Reviews I. Background A. PM2.5 NAAQS

    Under section 109 of the Clean Air Act (CAA or “Act”), the EPA has established national ambient air quality standards (NAAQS or “standards”) for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established.

    On July 1, 1987 (52 FR 24634), the EPA replaced the original standard for particulate matter, measured as total suspended particulate matter (TSP) (i.e., particles roughly 30 micrometers or less), with new standards that replaced TSP as the indicator for particulate matter with a new indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10).

    On July 18, 1997 (62 FR 38652), the EPA revised the standards for particulate matter by establishing new standards for particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2.5). The EPA established primary and secondary annual and 24-hour standards for PM2.5.1 The annual primary and secondary standards were set at 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations, and the 24-hour primary and secondary standards were set at 65 μg/m3, based on the 3-year average of the 98th percentile of 24-hour PM2.5 concentrations at each monitoring site within an area. See 40 CFR 50.7. Collectively, we refer herein to the 1997 24-hour and annual PM2.5 NAAQS as the “1997 PM2.5 NAAQS” or “1997 PM2.5 standards.” 2 The EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5 concentrations above these levels.

    1 For a given air pollutant, “primary” NAAQS are those determined by the EPA as requisite to protect the public health, allowing an adequate margin of safety, and “secondary” standards are those determined by the EPA as requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. See CAA section 109(b).

    2 On October 17, 2006 (71 FR 61144), the EPA revised the level of the 24-hour PM2.5 standards to 35 μg/m3, and on January 15, 2013 (78 FR 3086), the EPA revised the primary annual PM2.5 standard to a level of 12.0 μg/m3. We recently published a final rule revoking the 1997 primary annual PM2.5 NAAQS for areas designated (or redesignated) attainment for that standard and revising the regulations governing implementation of the PM2.5 standards. See 81 FR 58010 (August 24, 2016). However, because the San Joaquin Valley remains designated nonattainment for the 1997 annual primary PM2.5 standard, the 1997 primary annual PM2.5 standard will remain in effect in the San Joaquin Valley under the EPA's recent PM2.5 implementation rule until such time as the area is redesignated to attainment for that standard. Thus, even though the EPA has lowered the 24-hour and annual PM2.5 standards, the original 1997 PM2.5 standards remain in effect in the San Joaquin Valley and represent the standards for which today's proposed determination are made.

    Epidemiological studies have shown statistically significant correlations between elevated PM2.5 levels and premature mortality. Other important health effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), changes in lung function and increased respiratory symptoms. There is also new evidence for more subtle indicators of cardiovascular health. Individuals particularly sensitive to PM2.5 exposure include older adults, people with heart and lung disease, and children.3

    3 EPA, Air Quality Criteria for Particulate Matter, No. EPA/600/P-99/002aF and EPA/600/P-99/002bF, October 2004.

    PM2.5 can be emitted directly into the atmosphere as a solid or liquid particle (primary PM2.5 or direct PM2.5) or can be formed in the atmosphere as a result of various chemical reactions from precursor emissions of nitrogen oxides, sulfur oxides, volatile organic compounds, and ammonia (secondary PM2.5).4

    4 80 FR 15340, 15342 (March 23, 2015).

    B. San Joaquin Valley Designations, Classifications, and Attainment Dates for 1997 PM2.5 NAAQS

    Following promulgation of a new or revised NAAQS, the EPA is required under CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 5, 2005, the EPA published initial air quality designations for the 1997 annual and 24-hour PM2.5 NAAQS, using air quality monitoring data for the three-year periods of 2001-2003 and 2002-2004.5 These designations became effective April 5, 2005.6 The EPA designated the San Joaquin Valley area as nonattainment for both the 1997 annual PM2.5 standards and the 1997 24-hour PM2.5 standards.7

    5 70 FR 944 (January 5, 2005).

    6Id.

    7 40 CFR 81.305. The 2001-2003 design values for the San Joaquin Valley were 21.8 μg/m3 for the annual standard and 82 μg/m3 for the 24-hour standard. See EPA design value workbook dated August 28, 2014, worksheets “Table 3a” and “Table 3b.”

    The San Joaquin Valley PM2.5 nonattainment area encompasses over 23,000 square miles and includes all or part of eight counties: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and the valley portion of Kern.8 The area is home to four million people and is the nation's leading agricultural region. Stretching over 250 miles from north to south and averaging 80 miles wide, it is partially enclosed by the Coast Mountain range to the west, the Tehachapi Mountains to the south, and the Sierra Nevada range to the east.

    8 For a precise description of the geographic boundaries of the San Joaquin Valley PM2.5 nonattainment area, see 40 CFR 81.305.

    Under state law, the California Air Resources Board (CARB or “State”) is the Governor's designee for adoption and submittal of the state implementation plan (SIP) and SIP revisions to the EPA in compliance with CAA requirements. CARB is also generally responsible under state law for the regulation of mobile emission sources. Local air pollution control districts are responsible for regulation of stationary emission sources. In the San Joaquin Valley, regional air quality plans are developed by the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) with input from CARB and typically rely on both mobile source control measures for which CARB is responsible and stationary source control measures for which the District is responsible. Once the District adopts a regional air quality plan, the plan is submitted to CARB for adoption as part of the California SIP and submittal to the EPA.

    Between 2007 and 2011, California made six SIP submissions to address nonattainment area planning requirements for the 1997 PM2.5 NAAQS in the San Joaquin Valley.9 We refer to these submissions collectively as the “2008 PM2.5 Plan.” On November 9, 2011, the EPA approved all elements of the 2008 PM2.5 Plan except for the contingency measures, which the EPA disapproved.10 As part of that action and pursuant to CAA section 172(a)(2)(A), the EPA granted California's request for an extension of the attainment date for the San Joaquin Valley area to April 5, 2015.11

    9 76 FR 69896 at n. 2 (November 9, 2011).

    10Id. at 69924.

    11Id. Under CAA section 172(a)(2)(A), the attainment date for a nonattainment area is “the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the date such area was designated nonattainment,” except that EPA may extend the attainment date as appropriate for a period no greater than ten years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures. CAA section 172(a)(2)(A).

    A 2013 court decision by the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) in Natural Resources Defense Council v. EPA concluded that the EPA erred in implementing the 1997 PM2.5 standards solely pursuant to the general implementation requirements of subpart 1, without also considering the requirements specific to PM10 nonattainment areas in subpart 4, part D of title I of the CAA.12 Consistent with the NRDC decision, on June 2, 2014, the EPA classified all areas designated nonattainment for the 1997 or the 2006 PM2.5 standards as “Moderate” nonattainment areas under subpart 4.13 Because this rulemaking did not affect any action that the EPA had previously taken under section 110(k) of the Act on a SIP for a PM2.5 nonattainment area, the April 5, 2015 attainment date that the EPA had approved for the San Joaquin Valley area in November 2011 remained in effect.14

    12Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013) (“NRDC”).

    13 79 FR 31566 (June 2, 2014). As part of this rulemaking, EPA established a December 31, 2014 deadline for states to submit attainment-related and nonattainment new source review SIP elements required for PM2.5 nonattainment areas pursuant to subpart 4. Id.

    14Id. at 31569.

    On April 7, 2015, the EPA reclassified the San Joaquin Valley area as a “Serious” PM2.5 nonattainment area under subpart 4, based on the EPA's determination that the area could not practicably attain the 1997 PM2.5 standards by the April 5, 2015 attainment date.15 This reclassification was based upon the EPA's evaluation of ambient air quality data from the 2003-2014 period, including the 2012-2014 design value, which indicated that it was not practicable for certain monitoring sites within the San Joaquin Valley area to show PM2.5 design values at or below the level of the 1997 PM2.5 NAAQS by April 5, 2015.16

    15 80 FR 18528 (April 7, 2015).

    16Id. at 18529; see also proposed rule, 80 FR 1482 (January 12, 2015). Air quality data for 2012-2014 indicated that the highest monitors in the San Joaquin Valley area had design values of 19.7 μg/m3 for the annual standard and 71 μg/m3 for the 24-hour standard.

    As a consequence of reclassification as a Serious PM2.5 nonattainment area, the San Joaquin Valley area became subject to a new attainment date under CAA section 188(c)(2) and the requirement to submit a Serious area plan that satisfies the requirements of part D of title I of the Act, including the requirements of subpart 4, for the 1997 PM2.5 NAAQS.17 Under subpart 4, the attainment date for an area classified as Serious is as expeditiously as practicable, but no later than the end of the tenth calendar year following designation. As explained in the EPA's final reclassification action, the Serious area plan for the San Joaquin Valley must include provisions to assure that the best available control measures for the control of direct PM2.5 and PM2.5 precursors shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B)), and a demonstration (including air quality modeling) that the plan provides for attainment as expeditiously as practicable but no later than December 31, 2015, which is the latest permissible attainment date under CAA section 188(c)(2).18

    17 80 FR 18258 at 18530-18532.

    18Id.

    Given the December 31, 2015 outermost attainment deadline for the San Joaquin Valley area under section 188(c)(2), the EPA noted its expectation that the State would adopt and submit a Serious area plan for the San Joaquin Valley well before the statutory SIP submission deadlines in CAA section 189(b)(2).19 The EPA also noted that, in light of the available ambient air quality data and the short amount of time available before the December 31, 2015 attainment date, California could choose to submit a request for an extension of the Serious area attainment date pursuant to CAA section 188(e) simultaneously with its submission of a Serious area plan for the area.20

    19Id. at 18531.

    20Id.

    California submitted its 1997 PM2.5 Serious area plan for the San Joaquin Valley in two submittals dated June 25, 2015 and August 13, 2015, including a request under section 188(e) to extend the attainment date for the 1997 24-hour PM2.5 NAAQS by three years (to December 31, 2018) and to extend the attainment date for the 1997 annual PM2.5 NAAQS by five years (to December 31, 2020). The EPA proposed to approve most of the San Joaquin Valley 1997 PM2.5 Serious area plan, to conditionally approve the Plan's quantitative milestones, to disapprove the plan's contingency measures, and to grant the requested attainment date extensions.21 We received adverse comments on our proposal on several aspects of the plan and its control measures. Upon further evaluation of the plan and after consideration of the comments, the EPA decided it could no longer support an action to extend the attainment date for the San Joaquin Valley Serious PM2.5 nonattainment area for the 1997 PM2.5 NAAQS.22

    21 81 FR 6936 (February 9, 2016).

    22See U.S. EPA, Final rule, “Denial of Request for Extension of Attainment Date for 1997 PM2.5 NAAQS; California; San Joaquin Valley Serious Nonattainment Area,” to be published in the same edition of the Federal Register as this proposed rule, and U.S. EPA Fact Sheet, “San Joaquin Valley Fine Particulate Matter,” June 29, 2016.

    Since the EPA has not approved the requested attainment date extensions, the applicable attainment date remains December 31, 2015 for the San Joaquin Valley with respect to the 1997 PM2.5 NAAQS. As discussed in section II of this proposed rule, the EPA must determine, based on air quality data as of the attainment date, whether an area attained the applicable NAAQS by its attainment date.

    II. Proposed Determination and Consequences A. Applicable Statutory and Regulatory Provisions

    Sections 179(c)(1) and 188(b)(2) of the CAA require the EPA to determine whether a PM2.5 nonattainment area attained the applicable PM2.5 standards by the applicable attainment date, based on the area's air quality as of the attainment date.

    A determination of whether an area's air quality meets the PM2.5 standards is generally based upon the most recent three years of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in a nonattainment area and entered into the EPA's Air Quality System (AQS) database. Data from ambient air monitors operated by state/local agencies in compliance with the EPA monitoring requirements must be submitted to AQS. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, the EPA relies primarily on data in AQS when determining the attainment status of areas. See 40 CFR 50.7; 40 CFR part 50, Appendix L; 40 CFR part 53; 40 CFR part 58, and 40 CFR part 58, Appendices A, C, D, and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, Appendix N.

    Under EPA regulations in 40 CFR part 50, § 50.7 and in accordance with Appendix N, the 1997 annual PM2.5 standards are met when the design value is less than or equal to 15.0 µg/m3 (based on the rounding convention in 40 CFR part 50, Appendix N) at each eligible monitoring site within the area.23 Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data.

    23 The annual PM2.5 standard design value is the 3-year average of annual mean concentration, and the 1997 annual PM2.5 NAAQS are met when the annual standard design value at each eligible monitoring site is less than or equal to 15.0 µg/m3.

    Under EPA regulations in 40 CFR part 50, section 50.7 and in accordance with Appendix N, the 1997 24-hour PM2.5 standards are met when the design value is less than or equal to 65 µg/m3 (based on the rounding convention in 40 CFR part 50, Appendix N) at each eligible monitoring site within the area.24 Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data.

    24 The 24-hour PM2.5 standard design value is the 3-year average of annual 98th percentile 24-hour average values recorded at each eligible monitoring site, and the 1997 24-hour PM2.5 NAAQS are met when the 24-hour standard design value at each such monitoring site is less than or equal to 65 µg/m3.

    B. Monitoring Network Considerations

    Section 110(a)(2)(B)(i) of the CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. Our monitoring requirements are specified by regulation in 40 CFR part 58. These requirements are applicable to state, and where delegated, local air monitoring agencies that operate criteria pollutant monitors. Our regulations in 40 CFR part 58 establish specific requirements for operating air quality surveillance networks to measure ambient concentrations of PM2.5, including requirements for measurement methods, network design, quality assurance procedures, and in the case of large urban areas, the minimum number of monitoring sites designated as SLAMS.

    In section 4.7 of Appendix D to 40 CFR part 58, the EPA specifies minimum monitoring requirements for PM2.5 to operate at SLAMS. SLAMS produce data that are eligible for comparison with the NAAQS, and therefore, the monitor must be an approved federal reference method (FRM), federal equivalent method (FEM), or approved regional method (ARM). The minimum number of SLAMS required is described in section 4.7.1, and can be met by either filter-based or continuous FRMs or FEMs. The monitoring regulations also provide that each core-based statistical area must operate a minimum number of PM2.5 continuous monitors (section 4.7.2); however, this requirement can be met by either an FEM or a non-FEM continuous monitor, and the continuous monitors can be located with other SLAMS or at a different location. Consequently, the monitoring requirements for PM2.5 can be met with filter-based FRMs/FEMs, continuous FEMs, continuous non-FEMs, or a combination of monitors at each required SLAMS.

    Under 40 CFR 58.10, states are required to submit Annual Network Plans for ambient air monitoring networks for approval by the EPA. Within the San Joaquin Valley, CARB and the District are the agencies responsible for assuring that the area meets air quality monitoring requirements. The District submits annual monitoring network plans to the EPA that describe the various monitoring sites operated by the District as well as those operated by CARB within the San Joaquin Valley. These plans discuss the status of the air monitoring network, as required under 40 CFR 58.10. The most recent plan submitted by the District is the 2015 Air Monitoring Network Plan, dated August 28, 2015. The EPA regularly reviews these Annual Network Plans for compliance with the applicable reporting requirements in 40 CFR part 58. On December 28, 2015, the EPA approved those portions of the 2015 Air Monitoring Network Plan that pertain to the adequacy of the network for PM2.5 monitoring purposes.25

    25 Letter dated December 28, 2015, from Meredith Kurpius, Manager, EPA Region 9, Air Quality Analysis Office, to Sheraz Gill, Director of Strategies and Incentives, SJVUAPCD.

    During the 2013-2015 period, PM2.5 ambient concentration data that is eligible for use in determining whether an area has attained the PM2.5 NAAQS were collected at a total of 17 sites within the San Joaquin Valley: four sites in Fresno County; three sites in Kern County; two sites each in Kings, Merced, San Joaquin, and Stanislaus counties; and one site each in Madera and Tulare counties. The District operates 10 of these sites while CARB operates seven of the sites. Fourteen of the sites are designated SLAMS for PM2.5. Three of the sites are designated as special purpose monitors (i.e., the Merced (Coffee Street), Tranquility, and Hanford sites), but the PM2.5 data collected there are eligible for use in determining PM2.5 NAAQS compliance due to the duration of monitoring at the site and the use of FRM or FEM monitors consistent with EPA quality assurance requirements and siting criteria.26 The primary monitors are FRMs at 11 of the 17 sites and beta attenuation monitor FEMs at six of the 17 sites.

    26 There are a number of other PM2.5 monitoring sites within the valley, including other sites operated by the District, the National Park Service, and certain Indian tribes, but the data collected from these sites are non-regulatory and not eligible for use in determining whether the San Joaquin Valley has attained the PM2.5 NAAQS.

    Based on our review of the PM2.5 monitoring network as summarized above, we find that monitoring network in the San Joaquin Valley is adequate for the purpose of collecting ambient PM2.5 concentration data for use in determining whether the San Joaquin Valley attained the 1997 PM2.5 NAAQS by the December 31, 2015 attainment date.

    C. Data Considerations and Proposed Determination

    Under 40 CFR 58.15, monitoring agencies must certify, on an annual basis, data collected at all SLAMS and at all FRM, FEM, and ARM SPM stations that meet EPA quality assurance requirements. In doing so, monitoring agencies must certify that the previous year of ambient concentration and quality assurance data are completely submitted to AQS and that the ambient concentration data are accurate to the best of her or his knowledge. CARB annually certifies that the data the agency submits to AQS are quality assured, including data collected by CARB at monitoring sites in the San Joaquin Valley.27 SJVUAPCD does the same for data submitted to AQS from monitoring sites operated by the District.28

    27See, e.g., letter from Ravi Ramalingam, Chief, Consumer Products and Air Quality Assessment Branch, CARB, to Elizabeth Adams, Acting Director, Air Division, EPA Region 9, certifying calendar year 2015 ambient air quality data and quality assurance data, dated May 10, 2016.

    28See, e.g., letter from Jon Klassen, Program Manager, SJVUAPCD, letter to Deborah Jordan, Director, Air Division, EPA Region 9, certifying calendar year 2015 ambient air quality data and quality assurance data, dated May 9, 2016.

    As noted above, CAA sections 179(c)(1) and 188(b)(2) require the EPA to determine whether a PM2.5 nonattainment area attained the applicable PM2.5 standards by the applicable attainment date, based on the area's air quality “as of the attainment date.” For the San Joaquin Valley, for reasons discussed above, the applicable attainment date is December 31, 2015 with respect to the 1997 PM2.5 NAAQS. Because determinations of PM2.5 NAAQS compliance, in accordance with 40 CFR part 50, Appendix N, are based on three calendar years of data, to determine the San Joaquin Valley's air quality as of December 31, 2015, we must review the data collected during the three-year period immediately preceding December 31, 2015, i.e., January 1, 2013-December 31, 2015.

    Thus, we verified that the data for the 2013-2015 period have been certified by the relevant monitoring agencies, and then we reviewed the data for completeness. We note above the most recent annual data certifications from CARB and the District. With respect to completeness, we determined that the data collected by CARB and the District meet the quarterly completeness criterion for all 12 quarters of the three-year period at most of the PM2.5 monitoring sites in the San Joaquin Valley.

    More specifically, among the 17 PM2.5 monitoring sites from which regulatory data are available, the data from four of the sites did not meet the 75% completeness criterion (for each quarter); however, the data from all but one site (Bakersfield—Golden State Highway) are sufficient nonetheless to produce a valid design value for either the annual PM2.5 NAAQS or the 24-hour PM2.5 NAAQS pursuant to the rules governing design value validity in 40 CFR part 50, Appendix N, sections 4.1 and 4.2. We note that monitors with incomplete data in one or more quarters may still produce valid design values if the conditions for applying one of the EPA's data substitution tests are met.29

    29See 40 CFR part 50, Appendix N, section 4.1(b) for the annual PM2.5 NAAQS and section 4.2(b) for the 24-hour PM2.5 NAAQS. Each year the EPA produces a workbook identifying PM2.5 monitors with valid design values taking into account the data substitution tests set forth in 40 CFR part 50, Appendix N, section 4 where appropriate. The workbook design values reflect the concentration data input to AQS, but the design values calculated therein differ for some monitors from the design values calculated by AQS because at this time only the workbook design values accurately accounts for the two data substitution tests set forth in 40 CFR part 50, Appendix N, section 4.0.

    Table 1 and Table 2 show the annual and 24-hour PM2.5 design values, respectively, at each of the 17 monitoring sites within the San Joaquin Valley nonattainment area for the relevant three-year period (2013-2015). The tables show that the annual PM2.5 design values for the 2013-2015 period are greater than 15.0 µg/m3 at eight of the sites and that the 24-hour PM2.5 design values are greater than 65 µg/m3 at four of the sites.

    Table 1—2013-2015 Annual PM2.5 Design Values for the San Joaquin Valley Nonattainment Area General location Site
  • (AQS ID)
  • Annual Mean (µg/m3) 2013 2014 2015 2013-2015 Annual design values
  • (µg/m3)
  • Fresno County: Fresno-Pacific 06-019-5025 15.9 13.8 14.1 14.6 Fresno—Garland 06-019-0011 16.8 15.1 14.4 15.4 Clovis 06-019-5001 15.9 14.8 15.0 15.2 Tranquility a 06-019-2009 8.3 Inc 10.0 8.7 Kern County: Bakersfield—Planz Road 06-029-0016 22.8 21.6 17.9 20.8 Bakersfield—California Ave. 06-029-0014 20.0 18.6 16.3 18.3 Bakersfield—Golden State Highway 06-029-0010 Inc Inc 16.7 Inv Kings County: Corcoran ab 06-031-0004 15.6 15.4 Inc 22.2 Hanford 06-031-1004 18.2 17.5 16.6 17.4 Madera County: Madera—Avenue 14 06-039-2010 17.8 14.0 13.8 15.2 Merced County: Merced—M Street 06-047-2510 13.5 11.2 12.6 12.5 Merced—Coffee 06-047-0003 13.3 10.8 12.8 12.3 San Joaquin County: Stockton 06-077-1002 17.7 12.1 12.8 14.2 Manteca 06-077-2010 11.7 9.8 12.6 11.4 Stanislaus County: Modesto 06-099-0005 14.5 11.4 Inc Inv Turlock 06-099-0006 15.1 12.3 14.4 13.9 Tulare County: Visalia 06-107-2002 18.9 17.9 16.1 17.6 Notes: Inc = Incomplete data. Inv = Invalid design value due to incomplete data. Design values shown in bold type do not meet the applicable NAAQS. Source: EPA, AQS Design Value Report, Report Request ID: 1463864, July 15, 2016, except as otherwise noted. a Source: EPA, design value workbook dated July 29, 2016, worksheet “Table 5. PM2.5 Site Listing, 2013-2015,” column S. b The 2015 design value site (Corcoran-Patterson) is based on concentration data from January 1, 2013 to February 6, 2015. Data from February 7, 2015 to December 31, 2015 are not available due to a fire that destroyed the site. Based on design value calculation methodologies described in 40 CFR part 50, Appendix N, section 4.1(b), the annual design value for Corcoran-Patterson is considered valid despite the missing 2015 data. The second highest 2013-2015 concentration (annual PM2.5 design value of 20.8 µg/m3) at Bakersfield-Planz includes data measured for three years (January 1, 2013-December 31, 2015).
    Table 2—2013-2015 24-Hour PM2.5 Design Values for the San Joaquin Valley Nonattainment Area General location Site
  • (AQS ID)
  • 98th Percentile (µg/m3) 2013 2014 2015 2013-2015 24-Hour
  • design
  • values
  • (µg/m3)
  • Fresno County: Fresno—Pacific 06-019—5025 71.6 61.8 42.0 58 Fresno-Garland 06-019-0011 63.8 66.7 52.0 61 Clovis 06-019-5001 56.2 64.5 45.7 55 Tranquility a 06-019-2009 35.7 Inc 35.8 34 Kern County: Bakersfield—Planz Road 06-029-0016 96.7 76.7 56.5 77 Bakersfield—California Ave. 06-029-0014 71.8 79.9 57.2 70 Bakersfield—Golden State Highway a 06-029-0010 Inc 107.2 51.5 Inv Kings County: Corcoran b 06-031-0004 66.0 71.0 99.2 79 Hanford 06-031-1004 67.6 81.9 51.4 67 Madera County: Madera—Avenue 14 06-039-2010 54.6 56.0 43.7 51 Merced County: Merced—M Street 06-047-2510 67.3 45.9 39.0 51 Merced—Coffee 06-047-0003 42.3 43.8 40.3 42 San Joaquin County: Manteca 06-077-2010 40.2 40.0 42.7 41 Stockton 06-077-1002 56.3 44.5 39.1 47 Stanislaus County: Modesto 06-099-0005 56.4 49.5 30.8 46 Turlock 06-099-0006 55.4 51.2 47.3 51 Tulare County: Visalia 06-107-2002 62.5 75.4 45.8 61 Notes: Inc = Incomplete data. Inv = Invalid design value due to incomplete data. Design values shown in bold type do not meet the applicable NAAQS. Source: EPA, AQS Design Value Report, Report Request ID: 1463864, July 15, 2016, except as otherwise noted. a Source: EPA, design value workbook dated July 29, 2016, worksheet “Table 5. PM2.5 Site Listing, 2013-2015,” column Z. b The 2015 design value site (Corcoran-Patterson) is based on concentration data from January 1, 2013 to February 6, 2015. Data from February 7, 2015 to December 31, 2015 are not available due to a fire that destroyed the site. Based on design value calculation methodologies described in 40 CFR part 50, Appendix N, section 4.2(b), the 24-hour design value for Corcoran-Patterson is considered valid despite the missing 2015 data. The second highest 2013-2015 concentration (24-hour PM2.5 design value of 77 µg/m3) at Bakersfield—Planz includes data measured for three years (January 1, 2013-December 31, 2015).

    The data in Tables 1 and 2 show that a number of sites in central and southern San Joaquin Valley failed to attain the 1997 annual PM2.5 NAAQS by December 31, 2015 and that the geographic extent of failure to attain the 1997 24-hour PM2.5 NAAQS was more limited than for the annual standard in that only sites in southwestern San Joaquin Valley failed to attain the 24-hour standard. The 2015 annual design value site, i.e., the site with the highest design value based on 2013-2015 data, is the Corcoran site with a 2015 annual PM2.5 design value of 22.2 µg/m3. With respect to the 24-hour average, the 2015 design value site is the Corcoran site with a 24-hour PM2.5 design value of 79 µg/m3.

    For an area to attain the 1997 PM2.5 NAAQS by December 31, 2015, the 2015 design value (reflecting data from 2013-2015) at each eligible monitoring site must be equal to or less than 15.0 µg/m3 for the annual standard and 65 µg/m3 for the 24-hour standard. Tables 1 and 2 show that the 2015 design values at a number of sites in the San Joaquin Valley are greater than those values. Therefore, based on quality-assured and certified data for 2013-2015, we are proposing to determine that the San Joaquin Valley failed to attain the 1997 annual and 24-hour PM2.5 standards by the December 31, 2015 attainment date.

    Lastly, we note that, under our regulations at 40 CFR 50.14, a monitoring agency may request the EPA to exclude data showing exceedances or violations of the standard that are directly due to an exceptional event from use in determinations by demonstrating that such event caused a specific air pollution concentration at a particular air quality monitoring location. A monitoring agency notifies the EPA of its intent to request exclusion of concentrations by placing a “flag” in the appropriate field for the data of concern in AQS.

    For PM2.5 ambient data collected from 2013-2015, the District “flagged” one 24-hour concentration at the Bakersfield (Planz Road) site and two 24-hour concentrations at the Bakersfield (California Avenue) site due to high winds. The District also flagged twenty-four 24-hour concentrations at each of the Madera and Merced (Coffee Avenue) sites due to wildfire.30

    30 EPA, AQS Raw Data Qualifier Report, Report Request ED: 1464417, July 18, 2016.

    The State has not requested concurrence on the flagged data, and thus the data are not excluded from the set of data used to determine whether the standard was attained. However, even if all of the flagged data were to be excluded, i.e., even if the EPA had concurred on the data as qualifying as exceptional events, the design values reported in Tables 1 and 2, though slightly lower at certain sites, would remain well above the NAAQS.31

    31 EPA, AQS Design Value Report, Report Request ED: 1463865, July 15, 2016.

    For instance, the 2015 annual PM2.5 design value at the Bakersfield (Planz Road) monitoring site would be 20.4 μg/m3 instead of 20.8 μg/m3 if all of the flagged data were excluded. Thus, it would still fail to attain the applicable standard of 15.0 μg/m3. Similarly, the 2015 24-hour PM2.5 design value at the same site would be 72 μg/m3 instead of 77 μg/m3 if all of the flagged data were excluded, thus also failing to attain the applicable standard of 65 μg/m3. Furthermore, several additional sites, for which the District has not flagged exceptional events, exceed the 1997 PM2.5 NAAQS based on 2015 annual PM2.5 design values (i.e., Fresno-Garland, Clovis, Corcoran, Hanford, and Visalia) and 2015 24-hour design values (i.e., Corcoran and Hanford).

    D. Consequences for Serious PM2.5 Nonattainment Area Failing To Attain Standards by Attainment Date

    The consequences for a Serious PM2.5 nonattainment area for failing to attain the standards by the applicable attainment date are set forth in CAA sections 179(d) and 189(d). Under section 179(d), a state must submit a SIP revision for the area meeting the requirements of CAA section 110 and 172, the latter of which requires, among other elements, a demonstration of attainment and reasonable further progress, and contingency measures. CAA section 189(d) requires that the SIP revision must provide for attainment of the standards and, from the date of the SIP submittal until attainment, for an annual reduction in the emissions of PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent of the amount of such emissions as reported in the most recent inventory prepared for such area.32 The requirement for a new attainment demonstration under CAA section 189(d) also triggers the requirement for the SIP revision for quantitative milestones under section 189(c) that are to be achieved every three years until redesignation to attainment.

    32 81 FR 58010 at 58100, 58158 (August 24, 2016). The EPA defines PM2.5 plan precursor as those PM2.5 precursors required to be regulated in the applicable attainment plan and/or nonattainment new source review program. 81 FR 58010 at 58152.

    The new attainment date is set by CAA section 179(d)(3), which relies upon section 172(a)(2) to establish a new attainment date but with a different starting point than provided in section 172(a)(2). Under section 179(d)(3), the new attainment date is the date by which attainment can be achieved as expeditiously as practicable, but no later than five years from the date of the final determination of failure to attain, except that the EPA may extend the attainment date for a period no greater than 10 years from the final determination, considering the severity of nonattainment and the availability and feasibility of pollution control measures. Lastly, section 179(d) requires that the state submit the required SIP revision within 12 months after the applicable attainment date. In this case, if the EPA finalizes the proposed rule, then the State of California will be required to submit a SIP revision that complies with sections 179(d) and 189(d) within 12 months of December 31, 2015, i.e., by December 31, 2016.

    III. Proposed Action and Request for Public Comment

    Under CAA sections 179(c)(1) and 188(b)(2), the EPA proposes to determine that the San Joaquin Valley “Serious” PM2.5 nonattainment area has failed to attain the 1997 annual and 24-hour PM2.5 standards by the applicable attainment date of December 31, 2015. If finalized, the State of California will be required under CAA sections 179(d) and 189(d) to submit a revision to the SIP for the San Joaquin Valley that, among other elements, demonstrates expeditious attainment of the standards within the time period provided under CAA section 179(d) and that provides for annual reduction in the emissions of PM2.5 or a PM2.5 plan precursor pollutant within the area of not less than five percent until attainment. The SIP revision required under CAA sections 179(d) and 189(d) would be due for submittal to the EPA no later than December 31, 2016.

    The EPA is soliciting public comments on the issues discussed in this document. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.

    IV. Statutory and Executive Order Reviews

    This proposed action in and of itself establishes no new requirements; it merely documents that air quality in the San Joaquin Valley did not meet the 1997 PM2.5 standards by the CAA deadline. For that reason, this proposed action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • Does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this proposed action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian Tribes and thus this proposed action will not impose substantial direct costs on Tribal governments or preempt Tribal law. Nonetheless, the EPA has notified the Tribes within the San Joaquin Valley PM2.5 nonattainment area of the proposed action.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 23, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.
    [FR Doc. 2016-24084 Filed 10-5-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2016-0121; 4500030113] RIN 1018-BB46 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Louisiana Pinesnake AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the Louisiana pinesnake (Pituophis ruthveni), a reptile species from Louisiana and Texas, as a threatened species under the Endangered Species Act (Act). If we finalize this rule as proposed, it would extend the Act's protections to this species.

    DATES:

    We will accept comments received or postmarked on or before December 5, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 21, 2016.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2016-0121, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2016-0121, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    Brad S. Rieck, Acting Field Supervisor, U.S. Fish and Wildlife Service, Louisiana Ecological Services Office, 646 Cajundome Blvd., Suite 400, Lafayette, LA; telephone 337-291-3101; facsimile 337-291-3139. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    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 proposed rule in the Federal Register and make a determination on our proposal within 1 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 of critical habitat can only be completed by issuing a rule. We have determined that designating critical habitat for the Louisiana pinesnake is prudent, but not determinable at this time, 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.

    This rule proposes to list the Louisiana pinesnake as a threatened species. The Louisiana pinesnake 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 development of a listing rule had been, until now, precluded by other higher priority listing activities.

    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 the Louisiana pinesnake is threatened primarily because of the past and continuing loss, degradation, and fragmentation of habitat in association with incompatible silviculture, fire suppression, road and right-of-way construction, and urbanization (Factor A), and the magnified vulnerability of all the small, isolated, genetically compromised extant populations to mortality from vehicle strikes and from predators (Factors C and E).

    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 this listing proposal.

    Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other 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 Louisiana pinesnake'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 on activities that might warrant being exempted under section 4(d) of the Act (16 U.S.C. 1531 et seq.). The Service is considering proposing such measures before the final listing determination is published, and will evaluate ideas provided by the public in considering whether such exemptions are necessary and advisable for the conservation of the Louisiana pinesnake.

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

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

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

    If you submit information via 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, Louisiana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

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

    Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule 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.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we are seeking the expert opinions of six 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 Louisiana pinesnake biology, habitat, physical or biological factors, etc., and they are currently reviewing the status information in the proposed rule, which will inform our determination. We invite comment from the peer reviewers during this public comment period.

    Previous Federal Actions

    We identified the Louisiana pinesnake (as Pituophis melanoleucus ruthveni) as a Category 2 candidate species in the December 30, 1982, Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454). Category 2 candidates were defined as taxa for which we had information that proposed listing was possibly appropriate, but for which substantial data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in subsequent annual candidate notices of review (CNORs) (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Louisiana pinesnake was no longer a candidate species.

    We added the Louisiana pinesnake (as Pituophis melanoleucus) to the candidate list in 1999 (64 FR 57534, October 25, 1999). Currently, candidate species are defined as plants and animals for which the Service has sufficient information on their biological status and threats to propose them as endangered or threatened under the Act, but for which development of a listing rule is precluded by other higher priority listing actions. The Louisiana pinesnake was assigned a listing priority number (LPN) of 5, based on the immediacy and magnitude of threats to this species.

    In the October 30, 2001, CNOR (66 FR 54808), we recognized the Louisiana pinesnake as Pituophis ruthveni and retained an LPN of 5 for the species. The Louisiana pinesnake was included with an LPN of 5 in our subsequent annual CNORs through 2005 (67 FR 40657, June 13, 2002; 69 FR 24876, May 4, 2004; 70 FR 24870, May 11, 2005). In 2006, we changed the Louisiana pinesnake's LPN to 8, based on threats of moderate to low magnitude that were imminent (71 FR 53756; September 12, 2006). In 2007, we again changed the Louisiana pinesnake's LPN, reassigning it an LPN of 5, based on non-imminent, high-magnitude threats (72 FR 69034; December 6, 2007). The Louisiana pinesnake was included with an LPN of 5 in our subsequent annual CNORs through 2015 (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; 80 FR 80584, December 24, 2015).

    In August 2000, the Service received a petition to list the Louisiana pinesnake as endangered under the Act. No new information was provided in the petition, and we had already found the species warranted listing, so 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 the work plan with the U.S. District Court for the District of Columbia. The work plan enabled the Service 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 Louisiana pinesnake, to determine if these species should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. This work plan enabled the Service to again prioritize its workload based on the needs of candidate species, while also providing State wildlife agencies, stakeholders, and other partners with 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 allowed the agency to focus its resources on the species most in need of protection under the Act. These agreements were approved on September 9, 2011. Therefore, the timing of this proposed listing is, in part, an outcome of the work plan.

    Background Species Description and Taxonomy

    Pinesnakes (genus Pituophis) are large, short-tailed, non-venomous, powerful constricting snakes with keeled scales, a single anal plate (the scale covering the cloaca), and disproportionately small heads (Conant and Collins 1991, pp. 201-202). Their snouts are pointed, and they have a large rostral (tip of the snout) scale, both presumably contributing to the snakes good burrowing ability. The Louisiana pinesnake (P. ruthveni) has a buff to yellowish background color with dark brown to russet dorsal blotches covering its total length (Vandeventer and Young 1989, p. 35; Conant and Collins 1991, p. 203). The belly of the Louisiana pinesnake is unmarked or boldly patterned with black markings. It is variable in both coloration and pattern, but a characteristic feature is that the body markings on its back are always conspicuously different at opposite ends of its body. Blotches run together near the head, often obscuring the background color, and then become more separate and well-defined towards the tail. Typically, there are no noticeable head markings, although rarely a light bar or stripe may occur behind the eye. The length of adult Louisiana pinesnakes ranges from 48 to 56 inches (in) (122 to 142 centimeters (cm)) (Conant and Collins 1991, p. 203). The largest reported specimen was 5.8 feet (ft) (178 cm) long (Davis 1971, p. 1; Conant and Collins 1991, p. 203).

    The Louisiana pinesnake is a member of the Class Reptilia, Order Squamata, Suborder Serpentes, and Family Colubridae. Stull (1929, pp. 2-3) formally described the Louisiana pinesnake as a pinesnake subspecies (P. melanoleucus ruthveni) based on two specimens taken in Rapides Parish, Louisiana. Reichling (1995, p. 192) reassessed this snake's taxonomic status and concluded that the Louisiana pinesnake was geographically isolated and phenotypically distinct, and thus a valid evolutionary species. The Louisiana pinesnake has subsequently been accepted as a full species, P. ruthveni (Crother 2000, p. 69; Rodriguez-Robles and Jesus-Escobar 2000, p. 46; Collins and Taggert 2002, p. 33). We have carefully reviewed this taxonomic research for the Louisiana pinesnake and conclude that the species is a valid taxon.

    Habitat

    Louisiana pinesnakes are known from and associated with a disjunct portion of the historic longleaf-dominated (hereafter, “longleaf”) pine (Pinus palustris) ecosystem that existed in west-central Louisiana and east Texas (Reichling 1995, p. 186). Longleaf pine forests (which are dominated by longleaf, but may also contain other overstory species such as loblolly and shortleaf pine and sparse hardwoods) have the most species-rich herpetofaunal community compared to other similarly sized and located pine forest habitat in North America, and harbor more species that are specialists of that habitat (Guyer and Bailey 1993, p. 142). Early accounts of Louisiana pinesnake collections indicate a strong affinity for longleaf pine habitat, as most reports indicated the snakes were collected within or adjacent to longleaf pine stands (Fugler 1955, p. 24; Conant 1956, pp. 5, 19, 24; Walker 1965, p. 160; Thomas et al 1976, p. 253; Jennings and Fritts 1983, p. 3; Wright and Wright 1994, pp. 622, 623; Jordan 1998, p. 11). The vast majority of natural longleaf pine habitat has been lost or degraded due to conversion to extensive pine plantations and suppression of the historic fire regime. As a result, current Louisiana pinesnake habitat generally consists of sandy, well-drained soils in open canopy pine forest, which may include species such as longleaf, shortleaf, slash, or loblolly pines with a sparse midstory, and well-developed herbaceous ground cover dominated by grasses and forbs (Young and Vandeventer 1988, p. 204; Rudolph and Burgdorf 1997, p. 117).

    Abundant ground-layer herbaceous vegetation is important for the Louisiana pinesnake's primary prey, the Bairds pocket gopher (Geomys breviceps), which constitutes 75 percent of the Louisiana pinesnake's estimated total prey biomass (Rudolph et al 2012, p. 243). Baird's pocket gopher depends mostly on various plant parts of a variety of herbaceous species (Pennoyer 1932, pp. 128-129; Sulentich et al. 1991, p. 3). Pocket gopher abundance is associated with a low density of trees, an open canopy, and a small amount of woody vegetation cover, which allow greater sunlight and more herbaceous forage for pocket gophers (Himes 1998, p. 43; Melder and Cooper 2015, p. 75).

    Bairds pocket gophers also create the burrow systems in which Louisiana pinesnakes are most frequently found (Rudolph and Conner 1996, p. 2; Rudolph and Burgdorf 1997, p. 117; Himes 1998, p. 42; Rudolph et al. 1998, p. 146; Rudolph et al. 2002, p. 62; Himes et al. 2006, p. 107), and the snakes use these burrow systems as nocturnal refugia and hibernacula, and to escape from fire (Rudolph and Burgdorf 1997, p. 117; Rudolph et al. 1998, p. 147; Ealy et al. 2004, p. 386; Rudolph et al. 2007 p. 561; Pierce et al. 2014, p. 140). From 74 percent to greater than 80 percent of radio-tagged Louisiana pinesnake relocations have been underground in pocket gopher burrow systems (Ealy et al. 2004, p. 389; Himes et al. 2006, p. 107). In Louisiana, habitat selection by Louisiana pinesnakes seems to be determined by the abundance and distribution of pocket gophers and their burrow systems (Rudolph and Burgdorf 1997, p. 117). Active Louisiana pinesnakes occasionally use debris, logs, and low vegetation as temporary surface shelters (Rudolph and Burgdorf 1997, p. 117; Himes 1998, p. 26; Ealy et al. 2004, p. 386); however, most Louisiana pinesnakes disturbed on the surface retreat to nearby burrows (Rudolph and Burgdorf 1997, p. 117). Louisiana pinesnakes also minimally use decayed or burned stumps, or nine-banded armadillo (Dasypus novemcinctus) burrows as underground refugia (Ealy et al. 2004, p. 389).

    Baird's pocket gophers appear to prefer well-drained, sandy soils with low clay content in the topsoil (Davis et al. 1938, p. 414). Whether by choice for burrowing efficiency or in pursuit of Baird's pocket gophers (or likely both), Louisiana pinesnakes also occur most often in sandy soils (Wagner et al. 2014, p. 152). In Wagner et al.'s study, modelling of Louisiana pinesnake habitat revealed that in addition to suitable forest structure and herbaceous vegetation, specific soil characteristics are an important determinant of Louisiana pinesnake inhabitance. Wagner et al. (2014, entire) developed a Landscape-scaled Resource Selection Functions Model of Potential Louisiana Pinesnake Habitat (LRSF-Model) using available Louisiana pinesnake location data with county and parish soil survey data as independent variables to more accurately identify the percentage of certain soil characteristics that were selected from what was available in the landscape, indicating preference. The snakes were found to prefer soils with high sand content and a low water table (Wagner et al. 2014, p. 152). In a separate modelling study, using essentially the same dataset but a different study method, Duran (2010, p. 11) also found that Louisiana pinesnakes prefer sandy, well-drained soils, confirming the validity of the LRSF-Model, originally proposed in 2009 (Wagner et al. 2009, entire).

    The fire-climax park-like conditions of typical Louisiana pinesnake habitat are created and maintained by recurrent, low-intensity ground fires that occur approximately every 3 to 5 years. In the absence of recurrent fire, growth of woody midstory species is increased, and conditions supporting the Louisiana pinesnake's prey species are lost due to shading of herbaceous vegetation. Using radio-telemetry in Bienville Parish, Louisiana, Himes et al. (2006, p. 107) recorded wild-caught (i.e., not captive-bred) Louisiana pinesnakes (nine adults and one juvenile) most frequently in pine forests (56 percent), followed by pine plantation (23 percent) and clear-cuts (9 percent). It should be noted, however, that across all sites, snakes appeared to select areas with few large trees (7 to 9 trees per plot) that were approximately 0.1 ac (0.04 ha) in size, resulting in less canopy closure and more light penetration, which supports increased understory vegetation growth and therefore more pocket gophers (Himes et al. 2006, pp. 108-110; 113) regardless of the type of wooded land. In a 2-year (2004-2005) trapping study of three locations (two were mixed long leaf/loblolly pine stands being managed specifically for Louisiana pinesnake habitat, and one was a loblolly pine plantation managed for fiber tree production), Reichling et al. (2008, p. 4) found the same number of Louisiana pinesnakes in the pine plantation (n=2) as one of the mixed pine stands managed for Louisiana pinesnake (n=2); however, of all the three trapping locations studied, the greatest number of snakes was found in the second mixed pine stand managed for Louisiana pinesnake (n=8). In addition, the snakes found in pine plantation conditions by Reichling et al. appeared thin or emaciated (indicating they probably had not fed recently), and were not recaptured in that habitat, which may have indicated they were moving through these sites (Reichling et al. 2008, pp. 9, 14). Further trapping at the same sites since the study has produced 17 and 9 more Louisiana pinesnakes for the first and second beneficially managed stands, respectively, and only 3 more for the plantation site (Pierce 2015, unpub. data).

    Life History

    Louisiana pinesnakes appear to be most active March through May and September through November (especially November), and least active December through February and during the summer (especially August) (Himes 1998, p. 12). During the winter, Louisiana pinesnakes use Baird's pocket gopher burrows as hibernacula (Rudolph et al. 2007 p. 561; Pierce et al. 2014, p. 140). In a study conducted by Pierce et al. (2014, pp. 140, 142), the species did not use burrows communally, and they did not exhibit fidelity to hibernacula sites in successive years. Louisiana pinesnakes observed in east Texas appear to be semi-fossorial and essentially diurnal, and were also relatively immobile (i.e., moved less than 33 ft (10 meters (m)) on 54.5 percent of days monitored (Ealy et al. 2004, p. 391). In one study, they spent, on average, 59 percent of daylight hours (sunrise to sunset) below ground, and moved an average of 541 ft (163 m) per day (Ealy et al. 2004, p. 390). Adult males in a Louisiana study by Himes et al. moved an average of 495 ft (150 m) daily (longest = 3,802 ft (1,159 m)), adult females 348 ft (106 m), and juveniles 112 ft (34 m) (Himes 1998, p. 18). Himes et al. (2006, p. 107) documented an average home range size of 82 ac (33.2 ha) (range 16 to 267 ac (6.5 to 108 ha)) for the Louisiana pinesnake. Himes et al. also found that adult males had larger average home ranges (145 acres (ac) (58.7 hectares (ha))) than females (25 ac (14 ha)) and juveniles (13 ac (5.5 ha)) (Himes 1998, p. 18).

    Baird's pocket gopher is the primary prey of the Louisiana pinesnake (Rudolph et al. 2002, p. 58), comprising an estimated 53 percent of available individual prey records (75 percent of total prey biomass) (Rudolph et al. 2012, p. 243). The Louisiana pinesnake exhibits specialized prey handling behavior for the burrow-dwelling pocket gopher not common among constricting snake species (Rudolph et al. 2002, pp. 59-61). The Louisiana pinesnake is also known to eat eastern moles (Scalopus aquaticus), cotton rats (Sigmodon hispidus), deer mice (Peromyscus sp.), harvest mice (Reithrodontomys sp.), and turtle (probably Trachemys scripta) eggs (Rudolph et al. 2002, p. 59; Rudolph et al. 2012, p. 244).

    Louisiana pinesnake sexual maturity is attained at an approximate length of 4 ft (120 cm) and an age of approximately 3 years (Himes et al. 2002, p. 686). The Louisiana pinesnake is an egg-layer (oviparous), with a gestation period of about 21 days (Reichling 1988, p. 77), followed by 60 days of incubation. Having the smallest clutch size (three to five) of any North American colubrid snake, the Louisiana pinesnake exhibits a remarkably low reproductive rate (Reichling 1990, p. 221). However, the Louisiana pinesnake produces the largest eggs (generally 12 cm (5 in) long and 5 cm (2 in) wide) of any U.S. snake (Reichling 1990, p. 221). It also produces the largest hatchlings reported for any North American snake, ranging 18 to 22 in (45 to 55 cm) in length, and up to 3.77 ounces (oz) (107 grams (g)) in weight (Reichling 1990, p. 221). No Louisiana pinesnake nests have been located in the wild. Captive Louisiana pinesnakes can live over 30 years, but females have not reproduced beyond the age of 18 years (Reichling and Schad 2010, p. 5).

    Historical and Current Distribution

    The Louisiana pinesnake historically occurred in portions of northwest and west-central Louisiana and extreme east-central Texas (Conant 1956, p. 19). This area coincides with an isolated, and the most westerly, occurrence of the longleaf pine ecosystem and is situated west of the Mississippi River. Most of the sandy, longleaf pine-dominated savannahs historically inhabited by the Louisiana pinesnake had been lost by the mid-1930s (Bridges and Orzell 1989, p. 246; Frost 1993, p. 30). After virgin longleaf pine was cut, it rarely regenerated naturally. In some parts of the Southeast, free-ranging hogs depredated the longleaf pine seedlings, and fire suppression allowed shrubs, hardwoods, and loblolly pine to dominate (Frost 1993, pp. 34-36). The naturally maintained open structure and abundant herbaceous vegetation characteristic of the historical longleaf pine forests was diminished or lost, and, therefore, it is likely that undocumented populations of this species historically occurred but were lost before 1930.

    The U.S. Forest Service (USFS), Southern Research Station (SRS), Wildlife Habitat and Silviculture Laboratory in Nacogdoches, Texas, has compiled and maintains a historical records database of all known Louisiana pinesnake locations (excluding telemetry data). According to that database, 267 occurrence records of 235 individual Louisiana pinesnakes have been verified from 1927 through December 21, 2015 (excluding reintroductions), all from Louisiana and Texas (Pierce 2015, unpub. data). By comparison, for the Florida pinesnake (Pituophis melanoleucus mugitus), a species with a four State range (Ernst and Ernst 2003, p. 281), there are 874 records of occurrence through 2015 in the State of Florida alone (Enge 2016, pers. comm.). Similarly, there are approximately 395 total records of black pinesnakes (Pituophis melanoleucus lodingi) since 1932 (Hinderliter 2016, pers.comm.).

    Based on the Louisiana pinesnake database, there are records from seven parishes in Louisiana (Beauregard, Bienville, Jackson, Natchitoches, Rapides, Sabine, and Vernon) and 11 counties in Texas (Angelina, Hardin, Jasper, Nacogdoches, Newton, Polk, Sabine, San Augustine, Trinity, Tyler, and Wood) (Figure 1). Previous Louisiana pinesnake reports that are not included in this database are: single records for Calcasieu and Jefferson Davis Parishes in Louisiana (Williams and Cordes 1996, p. 35), considered suspect (Pierce 2015, unpub. data; Thomas et al. 1976, pp. 253-254; Walls 2008, pers. comm.); a single record from Cherokee County, Texas, which was erroneous (Pierce 2009, pers. comm.); single records from Montgomery and Walker Counties in Texas reclassified as Pituophis catenifer (Pierce 2008, pers. comm.); two records from Rapides Parish, Louisiana, and one from Caldwell County, Texas, from the 1960s considered not verifiable (Reichling 2012, pers. comm.; Thomas et al. 1976, pp. 253-254).

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    Despite being primarily diurnal, the Louisiana pinesnake's apparent rarity, secretive nature, and preference for occupying pocket gopher burrow systems has made it difficult to generate extensive natural history information (Ealy et al. 2004, pp. 383-384). Trapping results are functions of trap location selection, trap success, and true presence or absence; thus trapping data only approximate Louisiana pinesnake use of an area, but are the best available estimate. Currently trapping is the only standardized and most effective known method for surveying Louisiana pinesnakes. While it is the most effective, it is also expensive and labor intensive. Trapping for Louisiana pinesnakes involves the use of multiple sets of drift fences with box traps in an area either known to be inhabited by Louisiana pinesnakes or that appears to have suitable habitat. Box and funnel traps, with and without drift fences, are effective in catching snakes similar in size, and related to the Louisiana pinesnake, including the bullsnake (Pituophis catenifer sayi), black pinesnake, Florida pinesnake, and northern pinesnake (Pituophis melanoleucus melanoleucus) (Burgdorf et al. 2005, p. 424; Fitch 1951, p. 80; Yager et al. 2005, p. 24; Zappalorti 2016, p. 7; Enge 2016, pers. comm.).

    Since 1993, extensive Louisiana pinesnake trapping has been conducted at first near recent recorded occurrences of the species that appeared to be in suitable habitat, and then more broadly, in other locations of varying habitat conditions within the snake's historical range (Rudolph et al. 2006, p. 464) by the USFS, the U.S. Army, the Memphis Zoo, and the Louisiana Department of Wildlife and Fisheries (LDWF). Trapping has been conducted to provide animals for telemetry studies, to determine the effects of vehicle-caused mortality, and for surveys to document presence of the species (Rudolph et al. 2015, p. 3). A variable number of traps are operated per year in 10 Texas counties and seven Louisiana parishes (Rudolph et al. 2015, p. 3). Through the years, there have been slight modifications to some traps, but it is not considered to have had major impacts on trap success (Rudolph et al. 2015, p. 3). Additionally, over time, new traps may be added to locations thought to contain Louisiana pinesnakes because of the presence of suitable conditions, such as preferred soils (Melder 2015, p. 115; Wagner et al. 2014, p. 152).

    In total, trapping during 1993-2015 from throughout the historical range of the Louisiana pinesnake has resulted in 101 unique individual captures. Supported by rangewide trapping results and the historical records database, Rudolph et al. (2006, p. 467-469) concluded that the failure to document existing Louisiana pinesnake populations at known historical localities, coupled with the degradation and fragmentation of habitat in those areas, indicates that the Louisiana pinesnake had been extirpated from significant portions of its historical range. Three parishes (Beauregard, Jackson, and Rapides) in Louisiana, and seven counties (Hardin, Nacogdoches, Polk, Sabine, San Augustine, Trinity, and Wood) in Texas, are now considered unoccupied by the Louisiana pinesnake. Rudolph et al. (2006, pp. 467-469) determined that six occupied areas were in existence in 2006. In 2007, an area on the Kisatchie District of the Kisatchie National Forest (KNF) in Louisiana was determined to be occupied by the Louisiana pinesnake. Based on 2014 analysis (and reaffirmed by 2016 analysis) of occurrence records of counties or parishes with multiple observations since 1993, six natural, potentially extant, populations of Louisiana pinesnakes occur in four parishes (Bienville, Natchitoches, Sabine, and Vernon) in Louisiana, and three counties (Angelina, Jasper, and Newton) in Texas. Louisiana pinesnake habitat currently considered occupied (based upon 1993-2015 occurrence data) is primarily concentrated on public lands controlled by the Department of Defense (DOD) (Joint Readiness Training Center and Fort Polk [Fort Polk] and Peason Ridge), the USFS (KNF and Angelina National Forest [ANF]), and privately owned industrial timberlands in Louisiana and Texas. There is also a reintroduction feasibility-study population of Louisiana pinesnakes that has been established from captive-bred snakes in Grant Parish, Louisiana, on KNF lands.

    Although single observations were not used to establish known occupied areas, single individuals have been documented in one Louisiana parish and two Texas counties (see Figure 1, above). A single Louisiana pinesnake was observed crossing a road in 1994 in Tyler County, but no others have been recorded in that county in the 22 years since that observation. A single observation of a Louisiana pinesnake found dead along a road in 2001 indicates that the current population in Natchitoches Parish may have extended into extreme northwestern Rapides Parish, Louisiana; however, no more have been sighted in Rapides Parish since 2001. A juvenile Louisiana pinesnake was captured in 2008, in Nacogdoches County near Garrison, Texas (Pierce 2015, unpub. data), suggesting that at least some individuals existed near that site as recently as 8 years ago.

    To estimate the size of occupied habitat areas, all Louisiana pinesnake records from 1993 to 2015 (Pierce 2015, unpub. data) containing location data and meeting the criteria established below (157 records), were plotted in a Geographic Information System (GIS). Using ArcMap (Version 10.2.1), a minimum convex polygon (MCP) was drawn around clusters of records, and a 0.6-mile (mi) (1.0-kilometer (km)) buffer was drawn around each MCP, resulting in the estimated occupied habitat area (EOHA) for Louisiana pinesnakes represented by that group of records. The MCP was buffered to accommodate the fact that trap locations were not placed on the landscape with the intent of delineating population boundaries. A 0.6-mi (1.0-km) buffer was used because telemetry data indicate this is a reasonable approximation of the area that a Louisiana pinesnake uses during 1 or more years (Rudolph 2008a, pers. comm.). After discussions with experts, including Dr. Craig Rudolph and members of the Association of Zoos and Aquariums (AZA), the Service developed criteria to determine the data and methodology to be used for estimating the boundaries of the EOHAs.

    All Louisiana pinesnake verified occurrence records were used for EOHA analysis except for: Those obtained prior to 1993 (before extensive trapping began); and records older than 11 years (from the time of analysis; which is the estimated Louisiana pinesnake generational turnover period (Marti 2014, pers. comm.)), when traps within 0.6 mi (1 km) of those records had been unproductive for 5 years of trap effort following the date of the records.

    That methodology uses records (including non-trap occurrence) obtained over a period of intense surveys during the estimated generational time of Louisiana pinesnakes in captivity. However, some records that are located in areas potentially still occupied by the species, where habitat attributes have remained similar or improved since observed occurrence, are not used for this estimation of occupied range because significant trapping efforts have not produced any additional records in that area.

    The original purpose of the EOHAs designation was to match proactive habitat management activities to areas most likely to be currently occupied by the Louisiana pinesnake (U.S. Fish and Wildlife Service 2014, p. 8). Based on the previously described methodology, the following EOHAs have been delineated (Figure 2): (1) The Bienville EOHA located on privately owned industrial timberlands in Bienville Parish, Louisiana; (2) the Kisatchie EOHA located on USFS lands (the Kisatchie Ranger District of the KNF in Natchitoches Parish, Louisiana); (3) the Peason Ridge EOHA located on DOD lands (Vernon and Sabine Parishes) and a small amount of private lands (inholdings) in Louisiana; (4) the Fort Polk/Vernon EOHA located on DOD lands (Fort Polk), USFS lands (the Vernon Unit/Calcasieu District of the KNF), and a small amount of private lands (inholdings) in Vernon Parish, Louisiana; (5) the Scrappin' Valley EOHA located primarily on privately owned timberlands in Newton County, Texas; (6) the Angelina EOHA located on USFS lands (the southern section of ANF in Angelina and Jasper Counties) and private lands in Texas; and (7) the Catahoula Reintroduction Feasibility EOHA located on USFS lands (the Catahoula Ranger District of the KNF in Grant Parish, Louisiana). Utilizing the methods described above, the Winn Ranger District of the KNF in Natchitoches Parish, Louisiana, and the Sabine National Forest in Sabine County, Texas, identified in 2008, are no longer considered occupied.

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    Those EOHAs occur on 30,751.9 ac (12,444.8 ha) of DOD lands, 47,101.3 ac (19,061.2 ha) of USFS lands, 499.7 ac (202.2 ha) of State and municipal lands, and 67,324.9 ac (27,245.4 ha) of private lands (Table 1).

    Table 1—Land Ownership in Acres (Hectares) of Estimated Louisiana Pinesnake Occupied Habitat Areas as Determined for 2016 According to Location Records Through 2015 [Totals may not sum to rounding] State Estimated occupied habitat area U.S. Forest Service Department of Defense State and
  • municipal
  • Private Total for estimated occupied habitat area
    Louisiana Bienville 0 0 363.7 60,727.2 61,090.9 (0) (0) (147.2) (24,575.5) (24,722.6) Kisatchie 1,598.8 0 0 0 1,598.8 (647.0) (0) (0) (0) (647.0) Peason Ridge 0 3,147.3 0 0 3,147.3 (0) (1,273.7) (0) (0) (1,273.7) Fort Polk/Vernon 34,164.7 27,601.3 0 222.6 61,988.7 (13,826.0) (11,169.8) (0) (90.1) (25,085.9) Catahoula Reintroduction 1,828.5 0 0 0 1,828.5 (739.9) (0) (0) (0) (739.9) Louisiana Total 37,592.0 30,748.5 363.7 60,949.9 129,654.1 (15,213.0) (12,443.5) (147.2) (24,665.6) (52,469.2) Texas Scrappin' Valley 0 0 21.3 5,036.5 5,057.8 (0) (0) (8.6) (2,038.2) (2,046.8) Angelina 9,509.3 3.3 114.7 1,338.6 10,965.8 (3,848.3) (1.4) (46.4) (541.7) (4,437.7) Texas Total 9,509.3 3.3 136.0 6,375.0 16,023.6 (3,848.3) (1.4) (55.1) (2,579.9) (6,484.5) Total Ownership 47,101.3 30,751.9 499.7 67,324.9 145,677.7 (19,061.3) (12,444.8) (202.2) (27,245.4) (58,953.7)
    Population Estimates and Status

    The Louisiana pinesnake is recognized as one of the rarest snakes in North America (Young and Vandeventer 1988, p. 203; Himes et al. 2006, p. 114). It was classified in 2007 as endangered on the International Union for Conservation of Nature's (IUCN's) Red List of Threatened Species (version 3.1; http://www.iucnredlist.org/).

    Most Louisiana pinesnake records that were used to approximately delineate occupied habitat for 2016 were acquired by trapping. We considered each day that a trap was open a “trap day.” Thus, for an area being surveyed, all traps in that area that were open contribute to the number of trap days (i.e., four traps that are open for 3 days each equals 12 trap days). The ratio of trap days and number of unique snakes captured is called “trap success” (i.e., two unique snakes captured during 2,000 trap days = 1 capture per 1,000 trap days or a 1:1,000 trap success) and was determined for each population. Louisiana pinesnake trapping across the species' entire range (including areas outside of EOHAs in Louisiana and Texas) during 1993 through 2015 has resulted in 101 unique individual captures during 448,892 trap days (1:4,444 trap success) (Pierce 2016a, pers. comm.). Trapping information can be compared to similar species to get a sense of the relative rarity of this species when compared to a similar species trapped in a comparable way. For instance, a Florida pinesnake trapping effort using similar drift fence trapping methods in one 30,000-ac (12,141-ha) section of the species' range captured 87 unique individuals during 50,960 trap days (1:585.7 trap success) over a 13-year period from 2003 to 2015 (Smith 2016b, pers. comm.). The Louisiana pinesnake site with the greatest long-term trap success by far, the Bienville EOHA, which is 61,090.9 ac (24,722.6 ha), has a trap success rate of 1:854.0 between 1993 and 2015 (Pierce 2016a, pers. comm.), which is substantially lower than those found in Smith's study of Florida pinesnake. Actual population densities cannot be reliably estimated from trapping data because mark-recapture analyses cannot be conducted without sufficient numbers of Louisiana pinesnake recaptures, but similar trapping methods have been used by others to estimate snake abundance.

    All Louisiana pinesnake EOHAs contain at least some suitable habitat, and experience varying amounts of beneficial forest management. However, most populations appear to show either a decline or no conclusive change in trap success through time, indicating that numbers of individuals in most populations are likely decreasing (Rudolph et al. 2015, p. 8). Despite continued effort, some populations have not experienced trap success or other occurrence records for many years. For this reason, as discussed earlier, the Winn Ranger District of the KNF portion of the Bienville EOHA and the Sabine EOHA are no longer considered occupied. Trapping efforts (all provided by Pierce (2015, unpub. data)) and habitat management actions are presented below for each EOHA.

    Bienville EOHA

    Based on trap and other occurrence records (84 occurrences (including trap recaptures) from 1988 through 2015) (Pierce 2015, unpub. data), the Bienville population is widely believed to be the largest extant Louisiana pinesnake population (Rudolph et al. 2006, p. 465; Reichling et al. 2008, p. 10). For all trapping efforts so far (1995 through 2015, not continuous), trap success for this population was 1:854. While trap success varies annually, the trap success in this area has been consistently greater than for any other population overall. Trapping on that private timberland has only recently resumed in 2012, after cessation in 2009. The Kepler Lake area of the Bienville EOHA has produced the best trap success of any trapping area in areas currently known to be inhabited by the species. Consequently, Reichling et al. (2008, p. 10) believed this site was critical for the preservation of this species. Trapping from a previous effort on the Winn District portion of this population between 2000 and 2001 provided two captures (in addition to one recapture). Trap efforts in the same area from 2004 to 2013 have produced zero captures in 7,525 trap days, and the area is now regarded as unoccupied.

    Within the privately owned timberland described above, two disjunct areas are managed for the Louisiana pinesnake with thinning, longleaf pine restoration, targeted herbicide use, and prescribed burning (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Kisatchie EOHA

    Two relatively recent Louisiana pinesnake occurrence records (one non-capture sighting (2003) and one hand-capture (2007)) exist for this population. No Louisiana pinesnakes were captured during 12,011 trap days (1997 to 2003) on the Kisatchie District of the KNF. However, past trapping did not occur in the locations of the records mentioned above. Furthermore, despite the presence of substantial amounts of suitable habitat on the Kisatchie District, past trapping did not sample the best habitat (Rudolph et al. 2006, p. 469). Trapping resumed within this population in 2012, in the best habitat, and has continued through 2015, but no captures (by hand or trap) have occurred since the 2007 capture (Pierce 2015, unpub. data).

    Active habitat management for the endangered red-cockaded woodpecker (Picoides borealis) and the Louisiana pinesnake occur within and surrounding the EOHA of this population (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Peason Ridge EOHA

    Six occurrence records (from 2003 to 2013, all observed after 2005) exist for this population; one of which was a non-trap sighting. The trapping effort for the last 5 years (2009 to 2013 (8,446 trap days)) produced four captures, one in 2010, two in 2012, and one in 2013, with a success rate of 1:2,112 (Pierce 2015, unpub. data).

    Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurring at this site has stabilized or increased the amount of preferable habitat that exhibits suitable vegetative characteristics (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Fort Polk/Vernon EOHA

    Twenty-two occurrence records from 2003 to 2013, including four non-trap sightings and four trap-recaptures, exist for this population. Trap success for this population over 5 years (2009 to 2013) is estimated to be 1:2,625 (eight unique individual captures out of 21,003 trap days), which includes all recent unsuccessful surveying on the Vernon Unit of the KNF. Since 2003, no captures have occurred on the Vernon Unit. Excluding trapping on the Vernon Unit, DOD observed a trap success rate over 5 years (2009 to 2013) of 1:1,959 (eight unique individual captures during 15,672 trap days) on DOD property (Pierce 2015, unpub. data). Two snakes were trapped in 2014, and there were three records of occurrence in 2015 (one hand-captured and two dead on roads).

    Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake has stabilized or increased the amount of habitat that has suitable vegetative characteristics (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Scrappin' Valley EOHA

    On this primarily private land, five occurrence records during 2005 to 2015 exist for this population; however, two of those were road mortalities, two were removed from the wild for captive breeding, and one was sighted but not captured. There have been no trap captures since 2009 during 15,628 trap days within this population and no other occurrences. During trapping efforts on this land from 1995 to 1997, five captures occurred during 2,128 trap days (a success rate of 1:426), demonstrating a reduction of trap success at this site (Pierce 2015, unpub. data).

    Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at this site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Despite Louisiana pinesnake occurrences as recent as 2008, and proactive habitat management by the former and current private landowners, the lack of recent trap success when compared to trap success in the 1990s suggests that this population has declined due to prolonged minimal suitable habitat availability.

    Angelina EOHA

    Seven occurrence records during 2003 to 2013 exist for this population. Four were unique trap captures, one was a trap recapture, one was hand-caught alive on a road, and one previously captured and pit-tagged individual was found dead on a road in 2009. Both the trap recapture and hand-caught individual were removed from the wild for captive breeding. From 2009 to 2013, no unique trap captures have occurred within this population during 16,277 trap days. The most recent unique individual trap capture at this site was in 2007. However, a recapture did occur within this population as recently as 2012, and that individual was removed from the wild for captive breeding. Trap success rates have shown a steady decline throughout the effort period: From 1992 to 1997, success rate was 1:652 (2 captures during 1,303 trap days); during 1998 to 2005, success rate was 1:3,420 (2 captures during 6,840 trap days); and during 2007 to 2012, success rate was 1:5,305 (3 captures during 15,916 trap days). However, all trap effort within this population produced only a total of seven unique individual Louisiana pinesnakes since the 1990s (27,656 trap days) (Pierce 2015, unpub. data).

    Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at this site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Catahoula Reintroduction Feasibility EOHA

    An informal committee was established to oversee and conduct an experimental reintroduction of the Louisiana pinesnake in an attempt to demonstrate the feasibility of reintroducing a population using individuals from a captive population, and establishment of a viable population in restored habitat. In total, 77 captive-bred Louisiana pinesnakes (11 in 2010, 15 in 2011, 3 in 2012, 15 in 2013, 1 in 2014, 15 in 2015, and 17 in 2016) have been released into the wild at the Catahoula Ranger District of the KNF (Pierce 2016, unpub. data; Pierce 2016b, pers. comm.; Smith 2016a, pers. comm.). This area is not near any known Louisiana pinesnake populations and not within the known historical range of the species. Detection of released snakes is occurring within this EOHA through monitoring of deployed Automated PIT Tag Recorders (APTRs) and trapping. Prior to March 22, 2016, 60 snakes have been released, and as of that date a total of 26 individual snakes have been detected at least once after release (detections beginning 1 day after release): of those, 14 snakes have been detected alive more than 60 days after release, of those, 10 have been detected alive in the year following the winter after release, of those, 7 have been detected 2 years (winters) after release, of those, 3 have been detected 3 years (winters) after release, and of those, 1 snake has been detected 4 years (winters) after release (Pierce 2016b, pers. comm.; Pierce 2016c, pers. comm.).

    Active habitat management for the red-cockaded woodpecker and the Louisiana pinesnake occurs at the Catahoula Ranger District site (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” below).

    Captive-Breeding Population

    The captive Louisiana pinesnake zoo population established in 1984 was initially maintained through wild collection. The AZA Species Survival Plan (SSP) for the Louisiana pinesnake was implemented in 2000, to manage the zoo population (Reichling et al., in litt. 2015, p. 1). The goals of the SSP are to: Maintain an assurance colony for wild Louisiana pinesnake populations, preserve or increase genetic heterozygosity into the future, preserve representative genetic integrity of wild populations, and provide individuals as needed for research and repopulation for the conservation of wild populations (U.S. Fish and Wildlife Service 2013, pp. 32-33). As of March 2016, the captive-breeding Louisiana pinesnake population consists of 111 individuals (51 males, 53 females, and 7 unsexed individuals) in 18 AZA accredited institutions and 2 non-AZA partner institutions (Reichling 2016, pers. comm.). Initially, three populations were managed based on their different geographic origins, which are separated by rivers (one from Texas, separated from Louisiana by the Sabine River, and two from Louisiana, which are separated by the Red River) (Reichling and Schad 2010, p. 1). Recent genetic analyses showed that all populations were similar in population structure and the Texas and southern Louisiana populations were difficult to separate genetically (Kwiatkowski et al. 2014, p. 12). Therefore, currently one group is derived from Bienville Parish, Louisiana, founders and the other group is a combination of Vernon Parish, Louisiana, and eastern Texas snakes (Reichling 2016, pers. comm.).

    Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), 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(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. In this section, we summarize the biological condition of the species and its resources, and the influences of the listing factors on them, to assess the species' overall viability and the risks to that viability.

    Factor A: The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    Both the quantity and quality of the natural longleaf pine ecosystem, the primary historical habitat of the Louisiana pinesnake, have declined sharply in Louisiana and Texas since European settlement. The loss, degradation, and fragmentation of the longleaf pine dominant ecosystem was historically caused by logging, turpentining, fire suppression, alteration of fire seasonality and periodicity, conversion to generally off-site pine species plantations, agriculture, and free-range hogs (Frost 1993, pp. 24-30, 31, 35). Virtually all virgin timber in the southern United States was cut during intensive logging from 1870 to 1920 (Frost 1993, p. 30). Only about 2.9 percent of longleaf pine forests in Louisiana and Texas were uncut old-growth stands in 1935 (Bridges and Orzell 1989, p. 246). During the latter half of the 20th century, Louisiana, Alabama, and Mississippi lost between 60 and 90 percent of their already reduced longleaf acreage (Outcalt and Sheffield 1996, pp. 1-10). By the late 1980s, the natural longleaf pine acreage in Louisiana and Texas was only about 15 and 8 percent, respectively, of what had existed in 1935 (Bridges and Orzell 1989, p. 246). Those longleaf pine forests were primarily converted to extensive monoculture pine plantations (Bridges and Orzell 1989, p. 246), which presumably were not primarily managed for enhancement of herbaceous vegetation.

    In short, the longleaf dominant pine forest (longleaf pine forest type plus longleaf pine in mixed species stands) in the southeastern United States declined approximately 96 percent from the historical estimate of 92 million ac (37 million ha) (Frost 1993, p. 20) to approximately 3.75 million ac (1.52 million ha) in 1990 (Guldin et al. 2016, p. 324). Since the 1990s, longleaf pine dominant forest acreage has been trending upward in parts of the Southeast through restoration efforts (Guldin et al. 2016, pp. 323-324). By 2010, the longleaf dominant pine forest stands had increased to approximately 4.3 million ac (1.7 million ha) (Oswalt et al. 2012, p. 10; Guldin et al. 2016, pp. 323-324). A recent estimate for the extent of longleaf dominant pine forest in 2015 was 4.7 million ac (2.8 million ha) (America's Longleaf Restoration Initiative 2016, p. 12).

    In general, southern forest futures models predict declines of overall forest land area in the southeastern United States between 2 and 10 percent in the next 50 years (Wear and Greis 2013, p. 78). The model-projected losses of natural pine forest in the Southeast would be mostly the result of conversion to planted pine forests (Wear and Greis 2013, p. 79). For the southern Gulf region, model runs assuming high levels of urbanization and high timber prices predict large percentage losses in longleaf pine in some parishes and counties of Louisiana and Texas that were historically and that are currently occupied by the Louisiana pinesnake, while two Louisiana parishes in the current occupied range are expected to gain (less than the percent decline predicted in the other parishes and counties) in longleaf pine acreage (Klepzig et al. 2014, p. 53). The outer boundary or “footprint” of the longleaf pine ecosystem across its historical range has contracted as recently as the period of 1990 to 2010, with losses (primarily due to conversion to loblolly pine) in western Louisiana and eastern Texas (Oswalt et al. 2012, pp. 10-14).

    Impacts from urbanization are not consistent throughout the Southeast, and most population growth is predicted to occur near major cities (Wear and Greis 2013, p. 21), which are generally not near known Louisiana pinesnake occurrences; however, the most recent assessment still predicts decreased use of land for forests (mainly due to urbanization) in the next 45 years in all of the parishes (Louisiana) and counties (Texas) historically and currently occupied by the species (Klepzig et al. 2014, pp. 21-23).

    High-quality longleaf pine forest habitat, which is generally characterized by a high, open canopy and shallow litter and duff layers, is maintained by frequent, low-intensity fires, which in turn restrict a woody midstory and promote the flowering and seed production of fire-stimulated groundcover plants (Oswalt et al. 2012, pp. 2-3). The Louisiana pinesnake was historically associated with natural longleaf pine forests, which were maintained in good condition by natural processes and have the abundant herbaceous vegetation necessary to support the Louisiana pinesnake's primary prey, the Baird's pocket gopher (Himes 1998, p. 43; Sulentich et al. 1991, p. 3; Rudolph and Burgdorf 1997, p. 17). Based on trapping surveys and location records, it appears that areas managed with silvicultural practices for fiber production that do not allow sufficient herbaceous vegetation growth do not support viable Louisiana pinesnake populations (Rudolph et al. 2006, p. 470) because the snake's pocket gopher prey requires herbaceous vegetation for forage.

    Rudolph et al. (2006, p. 467) assessed habitat conditions during 1999 and 2000, at the locations of all historical Louisiana pinesnake records (n = 118 localities) known at that time. They found that 70 percent (26 of 37) of the localities on public lands met their criteria as excellent or good condition, whereas only 33 percent (27 of 81) of the localities on private lands met their criteria as excellent or good condition. Due to habitat fragmentation, most sites with excellent or good habitat were isolated and small (typically a few hundred hectares, or less (Rudolph et al. 2006, p. 466)). The distribution of Louisiana pinesnakes within the current range was further restricted because intensive land use activities and the disruption of natural fire regimes had decreased the quantity and quality of the intervening areas as habitat for this species (Rudolph et al. 2006, p. 470). Based on the low capture rates reported during trapping from 1993 to 2001, and the limited habitat availability, Rudolph et al. (2006, p. 468) concluded that remnant Louisiana pinesnake populations are not large. In fact, during this 9-year trapping period, only 24 unique captures of Louisiana pinesnakes occurred out of 2,372 total unique snake captures in 101,828 trap days (a trap success of 1:3,775 for Louisiana pinesnake). At many sites, no pinesnakes were captured, but even at sites where they were captured, the average trap success was only 1:733 (Rudolph et al. 2006, p. 465).

    The disruption of natural fire regimes, due to fire suppression and inadequate, infrequent prescribed burning, is the leading factor responsible for the degradation of the small amount of remaining suitable longleaf pine forest habitat (Rudolph and Burgdorf 1997, p. 118; Rudolph 2000, p. 7). In the absence of frequent and effective fires, upland pine savannah ecosystems rapidly develop a midstory of hardwoods and other overstory species that suppress or eliminate any herbaceous understory. As the presence of pocket gophers is directly related to the extent of herbaceous vegetation available to them, their population numbers and distribution decline as such vegetation declines, which in turn directly impacts the number and distribution of Louisiana pinesnakes. The use of prescribed burning has decreased on private timberlands because of legal liability and the expense of liability insurance, the planting of pine species which have a reduced tolerance to fire, limited funds and personnel, and smoke management issues. According to Wear and Greis (2013, p. 509), southern forests are likely to see increasing challenges to prescribed burning in the future as land-use changes involving fuels management, increased urban interface, and revised safety and health regulations will continue to constrain prescribed fire efforts. Some of these constraints could be in the form of reduced fire intervals or reductions in average area burned per fire event (strategies often used in management of pine plantations), which may not provide adequate fire intensity or frequency to suppress the overgrown understory and midstory conditions that limit herbaceous vegetation growth.

    Overstory species other than longleaf pine can be managed to provide suitable understory for pocket gophers, but this is generally more difficult, as these species lack the physical characteristics and ecological adaptations to sustain desired understory conditions during all life stages, especially when managed with prescribed fire. Specifically, longleaf pine is adapted to thrive with frequent fire during all life stages, which allows continual maintenance of herbaceous communities. Other pine species lack these adaptations to fire that allow for frequent fire during all life stages (especially very young trees). Non-longleaf pine communities can be managed to provide suitable habitat within a stand when burning is not recommended (e.g., very young trees) by using herbicides and other techniques. However, if those techniques alter the composition or density of the groundcover vegetation and pocket gophers decline in response, it is likely that Louisiana pinesnakes will decline in response as well (USFWS 2001). In addition, longleaf pine structure (e.g., branch and needle structure) naturally allows more sunlight penetration at similar stem densities than other pine species.

    Regardless of the methods used to promote herbaceous vegetation in the understory, the amount and types of herbaceous vegetation are limited by the amount of sunlight able to reach the forest floor and, for some species, by the presence of fire (i.e., to scarify seeds, promote seed production, and consume leaf litter). Therefore, conversion and management of overstory vegetation that does not provide for continued maintenance of herbaceous vegetation in otherwise suitable habitat will further limit habitat available to the Louisiana pinesnake.

    Habitat fragmentation threatens the continued existence of all Louisiana pinesnake populations, particularly those on private lands. This is frequently the result of urban development, conversion of longleaf pine sites to intensively managed pine plantations, and an increase in the number of roads. When patches of available habitat become separated beyond the dispersal range of a species, small populations may become less resilient because additions of individuals to the population may decline along with their potential genetic diversity contributions, thus increasing the risk of extirpation (see discussion under Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence).

    In summary, habitat loss and continuing degradation of the Louisiana pinesnake's habitat remain a significant threat to this species' continued existence.

    Conservation Efforts To Reduce Habitat Destruction, Modification, or Curtailment of Its Range

    When considering whether or not to list a species under the Act, we must identify existing conservation efforts and their effect on the species. In this section, we describe the extensive habitat restoration efforts that have occurred on Federal lands throughout the range (to a lesser extent on private lands) that have reduced the threat of habitat loss for some populations. We also discuss the lack of a definitive positive response of the Louisiana pinesnake to these efforts, at present.

    Existing and Planned Conservation Efforts: As early as the 1980s, forest restoration and management had been implemented on Fort Polk, Peason Ridge, and adjacent USFS lands to restore and maintain conditions of widely spaced trees, clear of dense midstory growth (U.S. Department of the Army 2014, p. 21). Management occurred for training suitability and red-cockaded woodpecker habitat, and most recently for Louisiana pinesnake habitat. The requirements for those three objectives happen to have significant overlap, especially the maintenance of open canopy pine forest.

    USFS has also implemented habitat restoration and management for many years on Sabine National Forest (SNF), ANF, and KNF to benefit the red-cockaded woodpecker, as provided for in its land and resource management plans (USFS 1996, pp. 107-134; USFS 1999, pp. 2-61 to 2-73). In 2003, a candidate conservation agreement (CCA) for the Louisiana pinesnake, which includes the Service, USFS, DOD, Texas Parks and Wildlife Department (TPWD), and LDWF, was completed. Targeted conservation actions are currently being implemented as part of that agreement. The CCA is designed to identify and establish beneficial habitat management actions for the Louisiana pinesnake on Federal lands in Louisiana and Texas, and provides a means for the partnering agencies to work cooperatively on projects that avoid and minimize impacts to the species. The CCA also set up mechanisms to exchange information on successful management practices and coordinate research efforts. SNF [Sabine Louisiana pinesnake population considered extirpated since 2014] and ANF in Texas, and KNF and Fort Polk in Louisiana, agreed in the CCA to continue or start new stem thinning and prescribed burning operations in sections of upland pine forests and, where possible, to convert forests to longleaf pine (CCA 2003, p. 12-16).

    Since completion of the CCA, beneficial forest management activities conducted by USFS and Fort Polk have been formally dedicated to conservation of the Louisiana pinesnake. Removing some trees from a dense stand with heavy canopy cover allows more light to reach the ground, which can promote the growth of herbaceous vegetation, an important food source for the primary prey of the Louisiana pinesnake. Prescribed burning helps to control midstory cover, particularly hardwood species that compete with pine seedlings and reduce light penetration. Converting forests to longleaf pine is helpful because longleaf pine is better adapted to fire (and tolerates it at an earlier age) than other pine species, and therefore is generally easier to manage with prescribed fire over multiple rotations. Historically, Louisiana pinesnakes were predominantly found in longleaf pine forests, and that forest type was historically the dominant type in the areas that now make up the KNF, ANF, and Fort Polk.

    The CCA was revised in 2013, and now also includes the U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service (NRCS) and the AZA as cooperators (U.S. Fish and Wildlife Service 2013, pp. 7-8). That agreement updates, supersedes, and improves upon the 2003 CCA, and uses significant new information derived from research, threats assessments, and habitat modeling that was not available in 2003 to focus conservation actions, including beneficial forest management, in areas with the best potential to become suitable habitat for the Louisiana pinesnake. Those areas are called habitat management units (HMUs), and they were delineated based on existing red-cockaded woodpecker habitat management areas (HMAs) in upland pine forests. Those areas were further defined by the location of preferable and suitable soils (LRSF-Model) for the Louisiana pinesnake in order to dedicate resources to areas the species is most likely to inhabit. However, the updated CCA addresses threats from habitat loss only on Federal lands, and for the activities performed by NRCS on private land. The CCA also includes guidance on practices to reduce impacts to Louisiana pinesnakes from vehicles on improved roads and off-road all-terrain vehicle (ATV) trails (see “Conservation Efforts To Reduce Threats Under Factor E,” below).

    Thousands of acres of forests on Federal lands have been treated over many years with prescribed burning, and that treatment along with tree thinning continues to the present. The following tables summarize recent forest management activities on Federal lands where Louisiana pinesnake populations occur. Values have been rounded to the nearest acre.

    Table 2—Acres (Hectares) of Prescribed Burning and Thinning Conducted in the Kisatchie Ranger District of the KNF (Kisatchie Population) Within the 2014 Delineated EOHA (1,599 Total ac [647 ha]) and the Larger Surrounding HMU (36,114 Total ac [14,615 ha]) Area Prescribed burning 2015 Prescribed burning 2013-2015 Stocking reduction (thinning) 2015 EOHA 963 (390) 1,980 (801) 0 (0) HMU 4,285 (1,734) 24,893 (10,074) 193 (78) Table 3—Acres (ha) of Prescribed Burning and Thinning Conducted in the Vernon Unit of the KNF (Fort Polk/Vernon Population) Within the 2014 Delineated EOHA (34,487 Total Acres [13,956 ha]) and the Larger Surrounding HMU (61,387 Total Acres [24,842 ha]) Area Prescribed burning 2015 Prescribed burning 2013-2015 Stocking reduction (thinning) 2015 EOHA 12,670 (5,127) 43,281 (17,515) 1,541 (624) HMU 20,734 (8,391) 74,927 (30,322) 1,670 (676) Table 4—Acres (ha) of Prescribed Burning and Thinning Conducted at Fort Polk (Fort Polk/Vernon Population) Within the 2014 Delineated EOHA (27,502 Total Acres [11,130 ha]) and the Larger Surrounding HMU (29,037 Total Acres [11,751 ha]) Area Prescribed burning 2015 Prescribed burning 2013-2015 Stocking reduction (thinning) 2015 EOHA 7,675 (3,106) 22,628 (9,157) 430 (174) HMU 9,159 (3,707) 24,241 (9,810) 586 (237) Table 5—Acres (Hectares) of Prescribed Burning and Thinning Conducted at Peason Ridge (Peason Ridge Population) Within the 2014 Delineated EOHA (4,886 Total ac [1,977 ha]) and the Larger Surrounding HMU (11,265 Total ac [4,559 ha]) Area Prescribed burning 2015 Prescribed burning 2013-2015 Stocking reduction (thinning) 2015 EOHA 489 (198) 2,597 (1,051) 0 (0) HMU 2,651 (1,073) 7,440 (3,011) 100 (40) Table 6—Acres (ha) of Prescribed Burning and Thinning Conducted in ANF (ANF Population) Within the 2014 Delineated EOHA (10,966 Total ac [4,438 ha]) and the Larger Surrounding HMU (24,200 Total ac [9,793 ha]) Area Prescribed burning 2015 Prescribed burning 2013-2015 Stocking reduction (thinning) 2015 EOHA 2,735 (1,107) 10,179 (4,119) 0 (0) HMU 6,702 (2,712) 18,940 (7,665) 0 (0) Table 7—Acres (Hectares) of Prescribed Burning and Thinning Conducted in the Catahoula Ranger District KNF (Catahoula Reintroduction Feasibility Population) Within the 2014 Delineated EOHA (1,828 Total ac [740 ha]) and the Larger Surrounding HMU (57,394 Total ac [ha]) Area Prescribed burning 2015 Prescribed burning 2011-2015 Stocking reduction (thinning) 2015 EOHA 784 (317) 784 (317) 0 (0) HMU 8,279 (3,350) 40,419 (16,357) 231 (93)

    Within the Bienville EOHA, the 851-ac (344-ha) Kepler Lake and 859-ac (348-ha) Sandylands Core Management Areas (CMAs) (approximately 2.8 percent of the EOHA) were voluntarily established by the landowners at the time to be managed for Louisiana pinesnake habitat. According to the current landowner (Cook 2016a, 2016b, pers. comm.), in the loblolly-longleaf pine mixed stands of the Kepler Lake and Sandylands CMAs, approximately 50 percent (430 ac (174 ha)) and 55 percent (475 ac (192 ha)), respectively, have been planted with longleaf pine beginning in 2001. Using a combination of supplemental funding sources (e.g., Service Private Stewardship Grant, Western Gulf Coastal Plain Prescribed Burning Initiative), the present landowner has completed prescribed burning of hundreds of acres on the CMAs each year since 2000 (except in 2005, 2008, 2009, and 2012). Additionally, midstory (hardwood and shrub) control is achieved in the CMAs by application of herbicide in narrow bands alongside the planted trees instead of broadcast spraying, which limits damage of herbaceous vegetation.

    Most of the 59,380 acres (24,030 ha) of timberlands surrounding the CMAs of the Bienville population are managed with intensive silvicultural practices that typically preclude continual, robust herbaceous vegetation growth. Reichling et al. (2008, p. 10) did not believe that isolated management areas that were 800 to 1,000 ac (324 to 405 ha) or less in size were sufficient to support viable Louisiana pinesnake populations, and therefore concluded the snakes in the Kepler Lake CMA were likely dependent upon the surrounding habitat. Consequently, Reichling et al. (2008, p. 10) felt that it was essential to the conservation of the species to restore and preserve the thousands of hectares of privately owned, upland, xeric habitat that surround the Kepler Lake CMA.

    The 5,057.8-ac (2,046.8-ha) Scrappin' Valley EOHA is located at least partially within 11,000 acres (4,452 ha) of privately owned forested land referred to as Scrappin' Valley. That area was managed for game animals for decades (Reid 2016, pers. comm.), and one section (approximately 600 ac (243 ha)) was managed specifically for quail. Prescribed burning was applied only to the 600-ac (243-ha) quail area annually and to another 1,500 ac (607 ha) at less frequent intervals. The remainder of the property was not beneficially managed for Louisiana pinesnake habitat. In 2012, the property was subdivided and sold as three separate properties of 1,900, 1,500, and 7,700 acres (769, 607, and 3,116 ha), respectively.

    On the 1,900-ac (769-ha) property from 2013 to spring 2016, hundreds of acres (some acres burned multiple times) of longleaf dominated pine forest occupied by the red-cockaded woodpecker or near red-cockaded woodpecker clusters were prescribed-burned each year; hardwood removal was conducted on 300 ac (121 ha); thinning by removal of loblolly and slash pine trees was conducted throughout the entire property; and 105 ac (42 ha) of longleaf pine restoration (removal of existing trees and planted with long leaf pine) was completed. The landowner is also currently working with The Nature Conservancy toward a perpetual conservation easement on 2,105 ac (852 ha) to protect habitat for the red-cockaded woodpecker and the Louisiana pinesnake.

    On the 1,500-ac (607-ha) property in 2015, approximately 250 ac (101 ha) of loblolly pine with dense understory vegetation was harvested, and 200 ac (81 ha) of the area was planted with longleaf pine. The landowner voluntarily agreed to manage the area to promote longleaf pine forest over a 10-year period through a Partners for Fish and Wildlife Program agreement with the Service.

    On the 7,700-ac (3,116-ha) property, most of the forest was not burned, so there is a dense midstory. Several hundred acres are comprised of young loblolly pine plantation. In 2014, approximately 400 ac (162 ha) were harvested, and in 2015, approximately 205 ac (83 ha) of longleaf pine were planted. The landowner voluntarily agreed to manage the area to promote longleaf pine forest over a 10-year period through a Partners for Fish and Wildlife Program agreement with the Service. Additionally, approximately 1,000 ac of this property are prescribed burned annually.

    Overall, less than 50 percent of the Scrappin' Valley EOHA is being managed beneficially for the Louisiana pinesnake, but more than 50 percent of the area is covered under safe harbor agreements (SHAs) for the red-cockaded woodpecker, which require forest management that is generally beneficial to the Louisiana pinesnake.

    Longleaf pine forest improvement and restoration efforts are also currently occurring within the historical range of the Louisiana pinesnake on smaller private properties, especially through programs administered by natural resource agencies such as NRCS, and nonprofit organizations such as The Nature Conservancy (TNC). NRCS has provided assistance with thousands of acres of forest thinning, longleaf pine planting, and prescribed burning (Chevallier 2016, pers.comm.). However, the extent of overlap of increases in longleaf pine acreage, due to this program, with occupied or potential Louisiana pinesnake habitat (i.e., preferable or suitable soils) is unknown because the specific locations of the projects within the area serviced are private and unavailable to the Service. TNC owns 1,551 ac (628 ha) of land within the Vernon Unit of KNF that is managed for the red-cockaded woodpecker and the Louisiana pinesnake (Jacob 2016, pers. comm.).

    The Service and LDWF are currently developing a programmatic candidate conservation agreement with assurances (CCAA) for the Louisiana pinesnake. A CCAA is intended to facilitate the conservation of candidate species by giving non-Federal property owners (enrollees) incentives to implement conservation measures. The incentive to a property owner provided through a CCAA is that the Service will impose no further land-, water-, or resource-use restrictions beyond those agreed to in the CCAA should the species later become listed under the Act. If the species does become listed, the property owner is authorized to take the covered species as long as the level of take is consistent with the level identified and agreed upon in the CCAA. The CCAA policy considers that all CCAAs will provide benefits to covered species through implementation of voluntary conservation measures that are agreed to and implemented by property owners.

    The Louisiana pinesnake programmatic CCAA is intended to establish a framework for participation of the Service and LDWF, and enrollees, through specific actions for the protection, conservation, management, and improvement of the status of the Louisiana pinesnake. Initiation of this CCAA will further the conservation of the Louisiana pinesnake on private lands by protecting known populations and additional potential habitat by reducing threats to the species' habitat and survival, restoring degraded potential habitat on preferred and suitable soils, and potentially reintroducing captive-bred snakes to select areas of the restored habitat.

    The CCAA is part of an application for an enhancement of survival permit (permit) under section 10(a)(1)(A) of the Act. The permit, which will be held by LDWF, will authorize take of the Louisiana pinesnake during the period of the CCAA. The permitted take will be that resulting from activities covered in the CCAA and the individual cooperative management agreements between LDWF and enrollees in Louisiana who are willing to engage in voluntary conservation actions for the Louisiana pinesnake. Take authorization provided by the permit will be extended to participating enrollees through certificates of inclusion (COI) issued by LDWF.

    The Louisiana pinesnake programmatic CCAA has not been finalized, and thus no enrollment has been initiated. The extent of landowner participation and subsequent conservation benefits are yet to be determined; therefore no conservation benefits to the Louisiana pinesnake from the programmatic CCAA are considered in this proposed rule.

    Concentrating effort by using the LRSF-Model to guide priorities, LDWF has been approaching landowners in the Louisiana pinesnake's range in Louisiana to recruit them into the Natural Areas Registry Program (Gregory 2013, pers. comm.). Landowners agree to protect the area and its unique natural elements to the best of their abilities, and they can receive, free of charge, an annual ecological check-up on the health of the plants, animals, or habitat of special concern, and preparation of a management plan.

    Additional research and survey efforts are being funded by the Texas Comptroller's office as part of the “Keeping Texas First” initiative. The research is underway and being conducted by Texas A&M University; research results are expected to provide additional information on the species' habitat requirements in Texas, which may contribute to future conservation efforts. Surveyors are expected to access suitable habitat on private lands that have previously been unavailable.

    Effectiveness of Conservation Efforts: In summary, forest management beneficial to the Louisiana pinesnake has occurred across significant portions of most Louisiana pinesnake EOHAs. The significant increases in the acreages of burning and thinning conducted have improved habitat conditions on many Federal lands that support Louisiana pinesnake populations (Rudolph 2008b, pers. comm.), and reduced the threat of habitat loss in those areas. On private land, there has also been habitat restoration and beneficial management, but it has not been as consistent and is generally on a smaller scale (i.e., less than about 3,000 ac (1,214 ha) in the Scrappin' Valley EOHA) than on Federal lands. The Bienville population, which appears to be the most abundant, has only about 1,700 ac (688 ha) of habitat currently managed specifically for the Louisiana pinesnake, and the home range of one Louisiana pinesnake can be as much as 267 ac (108 ha).

    There has been no definitive trend of increased trap success in Louisiana pinesnake populations over time (Rudolph et al. 2015, p. 33; Pierce 2015, unpub. data). As just discussed, extensive habitat restoration efforts have occurred on Federal lands where the Louisiana pinesnake occurs. Although the threat of habitat loss has been reduced on much of these lands, none of the populations has shown a definitive response to forest management conservation activities. Those Louisiana pinesnake populations are already small, and the species has a low reproductive rate, so recruitment to the population may not be detected for several years. However, it is also possible that increases in snake abundance may not be captured by traps currently in operation because some newly-created suitable habitat may be in areas farther from the current trap locations.

    Summary of Factor A

    In summary, the loss and degradation of habitat was a significant historical threat, and remains a current threat, to the Louisiana pinesnake. The historical loss of habitat within the longleaf pine ecosystem occupied by Louisiana pinesnakes occurred primarily due to timber harvest and subsequent conversion of pine forests to agriculture, residential development, and managed pine plantations with only intermittent periods of open canopy. This loss of habitat has slowed considerably in recent years, in part due to efforts to restore the longleaf pine ecosystem in the Southeast. In areas occupied by the Louisiana pinesnake on USFS and U.S. Army lands, mixed longleaf and loblolly pine forests are managed beneficially for the species through thinning, and through prescribed burning of thousands of acres of forests every year. However, habitat loss is continuing today on private land due to incompatible forestry practices, conversion to agriculture, and urbanization, which result in increasing habitat fragmentation (see discussion under Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence). While the use of prescribed fire for habitat management and more compatible site preparation has seen increased emphasis in recent years, expanded urbanization, fragmentation, and regulatory constraints will continue to restrict the use of fire and cause further habitat degradation (Wear and Greis 2013, p. 509).

    Extensive conservation efforts are being implemented that are restoring and maintaining Louisiana pinesnake habitat for the Fort Polk/Vernon, Peason Ridge, Kisatchie, and Angelina populations. Those populations are not threatened by continuing habitat loss. Portions of occupied habitat of the Scrappin' Valley (approximately 50 percent) and Bienville populations (about 2.8 percent) of the Louisiana pinesnake are also currently being managed beneficially through voluntary agreements. However, future conservation on private lands, which can change ownership and management practices, is uncertain, and the remaining land in the EOHAs with suitable or preferable soils is generally unsuitable habitat because of the current vegetation structure.

    Although the threat of habitat loss has been reduced in much of the Louisiana pinesnake's occupied habitat overall, the likely most abundant population has relatively little beneficially managed land, and none of the populations has yet shown a definitive response to forest management conservation activities.

    Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Ongoing take of Louisiana pinesnakes in Louisiana for commercial, recreational, scientific, or educational purposes has not been previously considered a threat (Boundy 2008, pers. comm.). Removal from wild populations for scientific purposes is not expected to increase significantly in the future. Any potential overutilization would be almost exclusively to meet the demand from recreational snake enthusiasts. According to a 2009 report of the United Nations Environment Program—World Conservation Monitoring Centre (UNEP—WCMC 2009, p. 17), captive-bred Louisiana pinesnakes were advertised for sale on four German Web sites, and two U.S. breeders were listed on another Web site. However, current levels of Louisiana pinesnake collection to support the commercial captive-bred snake market have not been quantified. Reichling (2008, pers. comm.) and Vandeventer (2016, pers. comm.) stated that there appears to be very little demand for this species by private collectors; however, there are at least a few Louisiana pinesnake breeders, and the snakes were still featured in advertisements recently for several hundred dollars for one adult (Castellanos 2016, pers. obs.).

    Given the restricted distribution, presumed low population sizes, and low reproductive potential of Louisiana pinesnakes, even moderate collecting pressure would negatively affect extant populations of this species. Webb et al. (2002, p. 64) concluded that, in long-lived snake species exhibiting low fecundity, the sustained removal of adults from isolated populations would eventually lead to extirpation.

    Non-permitted collection of the Louisiana pinesnake is prohibited by State law in Texas and Louisiana, and most areas in Louisiana where extant Louisiana pinesnake populations occur restrict public access or prohibit collection. In addition, general public collection of the Louisiana pinesnake would be difficult (Gregory 2008, pers. comm.) due to the species' secretive nature, semi-fossorial habits, and current rarity.

    Previously in Texas, TPWD has allowed captured Louisiana pinesnakes to be removed from the wild by permitted scientific researchers to help supplement the low representation of snakes from Texas populations in the AZA-managed captive breeding program. Currently, LDWF does not permit the removal from the wild of any wild-caught Louisiana pinesnakes to add founders to the AZA-managed captive-breeding program.

    Although concern has been expressed that Federal listing may increase the demand for wild-caught animals (McNabb 2014, in litt.), based on the best available information, we have no evidence that overutilization for commercial, recreational, scientific, or educational purposes is currently a threat to the Louisiana pinesnake.

    Factor C: Disease or Predation

    Like many other animals, the Louisiana pinesnake is potentially impacted by native and introduced predators.

    Known natural wild predators of pinesnakes (Pituophis) include mammals such as shrews, hawks, raccoons, skunks, and red foxes (Ernst and Ernst 2003, p. 284; Yager et al. 2006, p. 34). All of these species are common in the range of the Louisiana pinesnake. Several of these mammalian predators may be anthropogenically enhanced; that is, their numbers often increase with human development adjacent to natural areas (Fischer et al. 2012, pp. 810-811). Birds, especially hawks, are also known to prey on pinesnakes (Ernst and Ernst 2003, p. 284; Yager et al. 2006, p. 34). In one Louisiana pinesnake occurrence record, the snake was described as being “in combat with hawk,” presumably a predation attempt by the bird (Young and Vandeventer 1988, p. 204; Pierce 2015, unpub. data). Some snake species prey on other snakes, including pinesnakes. The scarlet snake (Cemophora coccinea) has been documented to prey on northern pinesnake eggs (Burger et al. 1992, p. 260). This species is found within the range of the Louisiana pinesnake. An eastern coachwhip (Masticophis flagellum flagellum), which is an abundant species in the Louisiana pinesnake's range, was observed attempting to predate a juvenile northern pinesnake in North Carolina (Beane 2014, p. 143). Speckled kingsnakes (Lampropeltis getula holbrooki) prey on pinesnakes (Ernst and Ernst 2003, p. 279), and one caught in a trap set for the Louisiana pinesnake was observed to have recently consumed another snake (Gregory 2015, pers. comm.).

    Pinesnakes also suffer from attacks by domesticated mammals, including dogs and cats (Ernst and Ernst 2003, p. 284). Lyman et al. (2007, p. 39) reported an attack on a black pinesnake by a stray domestic dog, which resulted in the snake's death.

    Invasive feral hogs are known to inhabit some Louisiana pinesnake EOHAs (Gregory 2016, pers. comm.), including the Catahoula Reintroduction Feasibility EOHA (Nolde 2016, pers. comm.), and are known to prey upon vertebrate animals, including snakes (Wood and Roark 1980, p. 508). They will also consume eggs of ground-nesting birds (Henry 1969, p. 170; Timmons et al. 2011, pp. 1-2) and reptiles (Elsey et al. 2012, pp. 210-213); however, there is no direct evidence that feral hogs prey on Louisiana pinesnakes or their eggs. Therefore, at this time, feral hogs are not known to be a threat to the Louisiana pinesnake. The Service and USFS are currently engaged in feral hog population control throughout Louisiana and Texas.

    Red imported fire ants (Solenopsis invicta), an invasive species, have been implicated in trap mortalities of black pinesnakes during field studies (Baxley 2007, p. 17). Red imported fire ants also occur in areas occupied by Louisiana pinesnakes and are potential predators of Louisiana pinesnake eggs and hatchlings (Parris et al. 2002, p. 514; Beane 2014, p. 142); they have also been documented predating snake eggs under experimental conditions (Diffie et al. 2010, p. 294).

    While there are no documented occurrences of successful predation (excessive or otherwise) specifically on Louisiana pinesnakes, predation on pinesnakes has been documented (Burger et al. 1992, entire; Baxley 2007, p. 17; Ernst and Ernst 2003, p. 284; Ernst and Ernst 2003, p. 284; Yager et al. 2006, p. 34). Even with the assumption that the Louisiana pinesnake is currently subject only to natural, historical types and rates of predation without additional pressure from invasive predators (e.g., feral hogs, red imported fire ants), the synergistic effect of that predation, together with other known sources of unnatural mortality on the currently reduced size of remaining Louisiana pinesnake populations, constitutes a threat to the species.

    Snake fungal disease (SFD) is an emerging disease in certain populations of wild snakes. It has been linked to mortality events for other species, including one juvenile broad-banded watersnake (Nerodia fasciata confluens [Blanchard]) in Louisiana (Glorioso et al. 2016, p. N5). The causative fungus (Ophidiomyces ophiodiicola) (Lorch et al. 2015, p. 5; Allender et al. 2015, p. 6) and evidence of disease have been documented in one Louisiana pinesnake. Symptoms of SFD (e.g., skin lesions) were found on one Louisiana pinesnake; scale clippings from the snake were analyzed and the causative fungus was positively identified (Lorch et al., in press). However, while SFD is suspected of threatening small, isolated populations of susceptible snake species, we currently have no evidence that SFD is negatively affecting Louisiana pinesnake individuals or populations. We know of no other diseases that are affecting the species, and, therefore, at this time, disease is not considered a threat to the Louisiana pinesnake.

    Factor D: The Inadequacy of Existing Regulatory Mechanisms

    In Texas, the Louisiana pinesnake is listed as State threatened, and prohibited from unauthorized collection (31 Texas Administrative Code [TAC] sections 65.171-176). As of February 2013, unpermitted killing or removal of native species of reptiles from the wild is prohibited in Louisiana (Louisiana Administrative Code, title 76, part XV, Reptiles and Amphibians, chapter 1, section 101.J.3(f)). Collection or harassment of Louisiana pinesnake is also specifically prohibited on USFS properties in Louisiana (USDA Forest Service 2002, p. 1). The capture, removal, or killing of non-game wildlife from Fort Polk and Peason Ridge (DOD land) is prohibited without a special permit (U.S. Department of the Army 2008, p. 6; U.S. Department of the Army 2013, p. 51). USFS's land and resource management plans (KNF, ANF), the Army's integrated natural resources management plans (INRMPs) (Fort Polk Main Post and Peason Ridge), and the Louisiana pinesnake CCA all require habitat management that is beneficial to the Louisiana pinesnake for the Kisatchie NF, Angelina NF, Fort Polk/Vernon, and Peason Ridge populations (see “Conservation Efforts to Reduce Habitat Destruction, Modification, or Curtailment of Its Range,” above). The Service has never been informed of any difficulties in the implementation or enforcement of the existing regulatory mechanisms that protect Louisiana pinesnakes by TPWD, LDWF, or Federal land managers, and no occurrences of noncompliance, including killing of snakes, have been reported to us (see Factor E discussion, below).

    Its habitat requirements being similar to that of the red-cockaded woodpecker, the Louisiana pinesnake receives indirect protection of its habitat via the protections of the Act provided for the endangered red-cockaded woodpecker, where it co-occurs with the red-cockaded woodpecker on Federal lands.

    These existing regulatory mechanisms provide no protection from the threat of Louisiana pinesnake habitat loss and degradation on privately owned lands, including those which contain the Bienville and Scrappin' Valley populations of the Louisiana pinesnake. Private landowners within some occupied habitat of the Scrappin' Valley population have voluntarily committed to agreements with the Service to manage those areas with prescribed burning and to promote the longleaf pine ecosystem for 10 years.

    In summary, although existing regulatory mechanisms appear to be adequate to prohibit direct harm to individual Louisiana pinesnakes across their entire range, and offer some protection to habitat on publicly owned land, they offer no protection to the already degraded, fragmented, and declining habitat that exists on private lands.

    Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence

    The historical loss, degradation, and fragmentation of the longleaf pine ecosystem across the entire historical range of the Louisiana pinesnake have resulted in six natural extant Louisiana pinesnake populations that are isolated and small. Habitat fragmentation and degradation on lands in between extant populations (Rudolph et al. 2006, p. 470) have likely reduced the potential for successful dispersal among remnant populations, as well as the potential for natural recolonization of vacant or extirpated habitat patches.

    Small, isolated populations resulting from habitat fragmentation are vulnerable to the threats of decreased demographic viability, increased susceptibility of extirpation from stochastic environmental factors (e.g., extreme weather events, epidemic disease), and the potential loss of valuable genetic resources resulting from genetic isolation with subsequent genetic drift, decreases in heterozygosity, and potentially inbreeding depression (Lacy 1987, p. 147). Kwiatkowski et al. (2014, pp. 15-18) found that the wild populations of the Louisiana pinesnake had lower heterozygosity and higher inbreeding than what is expected from a randomly breeding population. Low genetic diversity in small, isolated populations has been associated with negative effects on reproduction in snakes (Madsen 1996, p. 116). Recovery of a Louisiana pinesnake population from the existing individuals within the population following a decline is also uncertain because of the species' low reproductive rate (smallest clutch size [three to five] of any North American colubrid snake) (Reichling 1990, p. 221). Additionally, it is extremely unlikely that habitat corridors linking extant populations will be secured and restored; therefore, the loss of any extant population will be permanent without future reintroduction and successful recruitment of captive-bred individuals.

    Roads surrounding and traversing the remaining Louisiana pinesnake habitat pose a direct threat to the species. Population viability analyses have shown that extinction probabilities for some snake species may increase due to road mortality (Row et al. 2007, p. 117). In an assessment of data from radio-tracked eastern indigo snakes (Drymarchon corais couperi), it was found that adult snakes have relatively high survival in conservation core areas, but greatly reduced survival in edges of these areas along highways and in suburbs (Breininger et al. 2012, p. 361). In a Texas snake study, an observed deficit of snake captures in traps near roads suggests that a substantial proportion of the total number of snakes may have been eliminated due to road-related mortality (Rudolph et al. 1999, p. 130). That study found that populations of large snakes may be depressed by 50 percent or more due to proximity to roads, and measurable impacts may extend up to approximately 0.5 mi (850 m) from roads. During a radio-telemetry study in Louisiana and Texas, 3 of the 15 (20 percent) Louisiana pinesnake deaths documented could be attributed to vehicle mortality (Himes et al. 2002, p. 686). Approximately 16 percent (37 of 235) of all documented Louisiana pinesnake occurrences were on roads, and about half of those were dead individuals (Pierce 2015, unpub. data). During Duran's (1998, pp. 6, 34) study on Camp Shelby, Mississippi, 17 percent of the black pinesnakes with transmitters were killed while attempting to cross a road. In a larger study currently being conducted on Camp Shelby, 14 (38 percent) of the 37 pinesnakes found on the road between 2004 to 2012 were found dead, and these 14 individuals represent about 13 percent of all the pinesnakes found on Camp Shelby during that 8-year span (Lyman et al. 2012, p. 42). In Louisiana and Texas, areas with relatively large areas of protected suitable habitat and controlled access such as Fort Polk, KNF, and ANF, have several roads located within Louisiana pinesnake occupied habitat, and there have been a total of eight known mortalities due to vehicles in those areas (Pierce 2015, unpub. data).

    In addition, Dodd et al. (2004, p. 619) determined that roads fragment habitat for wildlife. Clark et al. (2010, pp. 1059-1069) studied the impacts of roads on population structure and connectivity in timber rattlesnakes (Crotalus horridus). They found that roads interrupted dispersal and negatively affected genetic diversity and gene flow among populations of this large snake, and was likely due to mortality and avoidance of roads (Clark et al. 2010, pp. 1059, 1067).

    Malicious killing of snakes by humans is a significant issue in snake conservation because snakes arouse fear and resentment from the general public (Bonnet et al. 1999, p. 40). Intentional killing of black pinesnakes by humans has been documented (Duran 1998, p. 34; Lyman et al. 2008, p. 34). The intentional killing of Louisiana pinesnakes by humans is not unlikely, but because of the species' relatively low abundance and secretive nature, it likely happens very infrequently and, therefore, is not considered a threat at this time.

    On many construction project sites, erosion control blankets are used to lessen impacts from weathering, secure newly modified surfaces, and maintain water quality and ecosystem health. However, the commonly used polypropylene mesh netting (also often utilized for bird exclusion) has been documented as being an entanglement hazard for many snake species, causing lacerations and sometimes mortality (Stuart et al. 2001, pp. 162-163; Barton and Kinkead 2005, p. 34A; Kapfer and Paloski 2011, p. 1; Zappalorti 2016, p. 19). This netting often takes years to decompose, creating a long-term hazard to snakes, even when the material has been discarded (Stuart et al. 2001, p. 163). Although no known instance of injury or death from this netting has been documented for Louisiana pinesnakes, it has been demonstrated to have negative impacts on other terrestrial snake species of all sizes and thus poses a potential threat to the Louisiana pinesnake when used in its habitat.

    Exotic plant species degrade habitat for wildlife, and in the Southeast, longleaf pine forest associations are susceptible to invasion by the exotic cogongrass (Imperata cylindrica). That plant species may rapidly encroach into areas undergoing habitat restoration, and is very difficult to eradicate once it has become established, requiring aggressive control with herbicides (Yager et al. 2010, pp. 229-230). Cogongrass displaces native grasses, greatly reducing foraging areas for some animals, and forms thick mats that restrict movement of ground-dwelling wildlife; it also burns at high temperatures that can kill or injure native seedlings and mature trees (DeBerry and Pashley 2008, p. 74; Alabama Cooperative Extension System 2005, p. 1). Its value as forage for pocket gophers is not known. Currently, cogongrass is limited to only a few locations in Louisiana and Texas, and is not considered a threat to the Louisiana pinesnake. However, cogongrass has significantly invaded States to the east of Louisiana, such as Alabama and Mississippi (Alabama Cooperative Extension System 2005, p. 1-4; USDA NRCS Plant Database 2016, p. 2), where it occurs in pine forests on Camp Shelby (Yager et al. 2005, p. 23) potentially impacting the habitat of black pinesnakes found there.

    The effects of climate change are predicted to have profound impacts on humans and wildlife in nearly every part of the world (International Panel on Climate Change [IPCC] 2014, p. 6). One downscaled projection for future precipitation change within the historical range of the Louisiana pinesnake varies between increasing and decreasing, but the average change is between 0.1 in (0.254 cm) drier and 1.1 in (2.8 cm) drier from 2020 to 2039 (Pinemap 2016, entire). Precipitation is projected to decrease even more for the 20 years following 2039. Additionally, the average summer temperature in the species' historical range is expected to increase by 2.7-3.5 degrees Fahrenheit (Pinemap 2016, entire). Increasing temperature and decreasing precipitation could potentially affect the pine forest habitat of the Louisiana pinesnake due to drought stress on trees, and the snake itself may be susceptible to injury from higher temperatures or from decreased water availability. However, the Service is not aware of any information that would substantiate those effects or how the Louisiana pinesnake might adapt to those potential environmental stressors.

    Effects of native phytophagous (plant-eating) insect species on Louisiana pinesnake habitat may increase due to the effects of climate change. In a study that modeled the effects of the southern pine beetle (Dendroctonus frontalis) related to environmental variables, southern pine beetle outbreak risk and subsequent damage to southern pine forests were substantially increased when considered for four separate climate change scenarios (Gan 2004, p. 68). In the openings left in the beetle-damaged pine forests, hardwoods may become the canopy dominants, and invasive vegetation may be more likely to colonize (Waldrop 2010, p. 4; Coleman et al. 2008, pp. 1409-1410), both of which can decrease the amount of herbaceous vegetation that the Louisiana pinesnake's primary prey (Baird's pocket gopher) depends upon for food.

    The Service considers the effects of increased temperatures, decreased precipitation, and increased insect impacts on the Louisiana pinesnake and its habitat due to climate change to be a potential threat in the future; however, because of the uncertainty of the rate, scale, and location of impacts due to climate effects, climate change is not currently considered a threat to the species.

    Conservation Efforts To Reduce Threats Under Factor E

    Efforts to reduce Factor E threats would have to address increasing the resiliency of individual populations by increasing abundance and decreasing mortality, or preferably both. Currently, there are ongoing efforts to reduce at least some types of mortality and to study the potential of increasing the number of wild Louisiana pinesnakes via introduction of captive-bred individuals.

    As discussed above under Population Estimates and Status, efforts to reintroduce Louisiana pinesnakes have been conducted only at the KNF Catahoula District site, where the Louisiana pinesnake is not known to have historically occurred. So far, there have been no attempts to augment existing populations of Louisiana pinesnakes with captive-bred individuals. Reintroduction, with improved success, done in multiple populations where appropriate habitat is available, has the potential to eventually increase the number of individuals and populations, increase genetic heterozygosity, and alleviate presumed inbreeding depression in the populations, making them more resistant to threats described for Factor E.

    As outlined in the CCA, the U.S. Army has committed to avoiding use erosion control blankets, and USFS is committed to trying to locate ATV routes outside of the boundaries of Louisiana pinesnake occupied habitat. Additionally, some improved roads on National Forests are also closed to the public during certain times of the year (e.g., September to February at ANF [U.S. Forest Service 2015, entire]), which should reduce the number of pinesnakes potentially killed by vehicle traffic during those times.

    In summary, a variety of natural or manmade factors, alone and in combination with other factors, currently threaten the Louisiana pinesnake. Fire suppression has been considered a primary reason for continuing degradation of the pine forests in Louisiana and Texas. Roads and rights-of-way, and fragmented habitat, isolate populations beyond the dispersal range of the species. Mortality caused by vehicle strikes is a threat because there are many roads bisecting Louisiana pinesnake habitat, and the remaining populations appear to be small and declining. The species' small clutch size may limit its ability to effectively counteract mortality. Other potential threats to Louisiana pinesnakes include SFD, erosion control blankets, insect and invasive vegetation effects on habitat, and malicious killing by humans. Overall, the threats under Factor E may act together and in combination with threats listed above under Factors A through D and increase their severity.

    Proposed Determination

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Louisiana pinesnake. Threats to the six known remaining Louisiana pinesnake populations exist primarily from: (1) Historical and continuing habitat loss and fragmentation (Factor A) primarily through land-use changes or degradation caused by fire suppression; and (2) synergistic effects from mortality caused by vehicle strikes and by predators acting on vulnerable, reduced populations (Factor E and Factor C).

    Portions of habitat occupied by two Louisiana pinesnake populations on private land are currently being managed beneficially for the species (some through formal agreements with the Service), and conservation efforts on Federal lands, such as KNF and ANF, and U.S. Army lands at Fort Polk and Peason Ridge through a CCA in existence since 2003, have been extensive and successful in restoring suitable Louisiana pinesnake habitat. However, the lack of a definitive positive response by the species' populations indicates that habitat restoration may take much longer than expected to increase snake abundance, especially when they are subjected to negative effects associated with small populations of animals (i.e., reduced heterozygosity, inbreeding depression) and mortality pressure from vehicles and predators.

    A captive-breeding population of Louisiana pinesnakes is also being maintained across 18 AZA accredited institutions and 2 non-AZA partner institutions. This captive population, established in 1984, has been managed under an AZA Species Survival Plan (SSP) since 2000. As of March 2016, this captive-breeding population consists of 111 individuals (51 males, 53 females, and 7 unsexed). Since 2010, this population has provided 77 captive-bred Louisiana pinesnakes for release into the wild at the Catahoula Ranger District of the KNF. This reintroduction feasibility effort has shown that at least one of the 77 captive-bred Louisiana pinesnakes has survived for at least 4 years after release in optimal habitat.

    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 Louisiana pinesnake meets the definition of a threatened species based on the severity and immediacy of threats currently impacting all populations of the species throughout all of its range. The species' overall range has been significantly reduced, populations have apparently been extirpated, and the remaining habitat (on private lands) and populations are threatened by factors acting in combination to reduce the overall viability of the species.

    We find that the Louisiana pinesnake does not meet the definition of an endangered species due to the existence of multiple populations within the species' range; the extensive habitat restoration and management efforts to benefit the species ongoing within occupied areas currently being managed by the USFS and U.S. Army, as well as similar efforts ongoing (albeit generally smaller and to a lesser extent) within occupied areas currently being managed on private lands; and reintroduction of captive-bred animals into the wild, which has shown some limited success (see Catahoula Reintroduction Feasibility EOHA, p. 32).

    Since completion of the CCA in 2003, beneficial forest management activities conducted by USFS and the U.S. Army have been formally dedicated to conservation of the Louisiana pinesnake. Extensive habitat restoration efforts have occurred on USFS and U.S. Army lands where the species occurs, and those populations are no longer threatened by continuing habitat loss. The resulting increases in snake abundance may not be reflected in captures by traps currently in operation because some newly-created suitable habitat may be in areas farther from current trap locations. While it is difficult to show an increase in population size with a species that is so difficult to detect, it is reasonable to assume that these populations will benefit from improved habitat management over time.

    The Louisiana pinesnake captive-breeding population provides some capability for population augmentation or re-establishing populations in areas with suitable habitat through the SSP. The goals of the SSP are to: Maintain an assurance colony for wild Louisiana pinesnake populations, preserve or increase genetic heterozygosity into the future, preserve representative genetic integrity of wild populations, and provide individuals as needed for research and repopulation for the conservation of wild populations. While reintroduction as a conservation tool is not universally accepted as effective for all animals, and the results of current reintroduction pilot efforts remain uncertain, the number (77) of captive-bred Louisiana pinesnakes released into the wild since 2010 demonstrates that captive-propagation efforts are successful, and provides the opportunity for reintroduction/augmentation to benefit the conservation of the species.

    The Louisiana pinesnake is likely to become endangered in the foreseeable future because the remaining populations are small, isolated, subject to ongoing natural and unnatural mortality pressure, and to date have not shown a definitive positive response to habitat restoration. The species currently has almost no potential for natural recolonization between populations, and multiple significantly affected populations may be unable to recover even with the restoration of appropriate habitat. Half (three) of the known natural extant populations (i.e., Kisatchie, Scrappin' Valley, and Angelina EOHAs) have had no captures in several years and it is likely that they will be considered extirpated in 7 years or less based on our population determination criteria, unless occurrences are documented in those areas before then.

    Future conservation of the two extant populations on private lands, which can change ownership and management practice, is uncertain. Portions of the occupied habitat on these private lands are being managed beneficially for Louisiana pinesnake, but there is no permanent commitment from the current landowners to continue such efforts; the other portions with suitable or preferable soils are generally unsuitable habitat because of the current vegetation structure. The Scrappin' Valley population is at risk of being considered extirpated, as discussed immediately above. The Bienville population is one of the two largest populations; should the ownership of those lands change or the commitment to current habitat management efforts on lands supporting the population cease, it is likely that this large population would decline and could become extirpated within the foreseeable future.

    Significant Portion of the Range

    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 Louisiana pinesnake 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 37578; July 1, 2014).

    Conclusion

    Therefore, on the basis of the best available scientific and commercial information, we propose to list the Louisiana pinesnake as threatened in accordance with sections 3(20) and 4(a)(1) of the Act. The six known extant populations are all relatively small, and all are subject to one or more of the continuing threats discussed above, making them all vulnerable to extirpation. We find that an endangered species status is not appropriate for the Louisiana pinesnake because while we find the threats to the species to be significant, ongoing, and occurring mostly range-wide, multiple populations continue to occur within the species' range, and all of the populations' occupied habitat or portions of it (including two of the largest populations) are currently being managed to provide more suitable habitat for the species. The two largest populations also have had relatively consistent numbers of detections of individuals in the last 12 years. Captive-propagation efforts have been demonstrated to be successful, and while still unproven at this point, reintroduction pilot efforts provide the opportunity for efforts to re-establish new populations or augment existing populations to benefit the conservation of the species.

    Critical Habitat

    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. As discussed above (see Factor B discussion), there is currently no imminent threat of take attributed to collection or vandalism 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 Louisiana pinesnake.

    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 at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist: (i) Information sufficient to perform required analyses 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 this species is located. On the basis of a review of available information, we find that critical habitat for Louisiana pinesnake 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.

    Available Conservation Measures

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

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. 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 Louisiana 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 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 ranges may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Louisiana and Texas would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Louisiana pinesnake. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the Louisiana pinesnake 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 and the Department of Defense.

    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, 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, for economic hardship, for zoological exhibition, 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 activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

    (1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the Louisiana pinesnake, including interstate transportation across State lines and import or export across international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.

    (2) Introduction of nonnative animal species that compete with or prey upon the Louisiana pinesnake.

    (3) Introduction of invasive plant species that contribute to the degradation of the natural habitat of the Louisiana pinesnake.

    (4) Unauthorized destruction or modification of suitable occupied Louisiana pinesnake habitat that results in long-term damage to or alteration of desirable herbaceous vegetation or the destruction of Baird's pocket gopher burrow systems used as refugia by the Louisiana pinesnake, or that impairs in other ways the species' essential behaviors such as breeding, feeding, or sheltering.

    (5) Unauthorized use of insecticides and rodenticides that could impact small mammal prey populations, through either unintended or direct impacts within habitat occupied by Louisiana pinesnakes.

    (6) Unauthorized actions that would result in the destruction of eggs or cause mortality or injury to hatchling, juvenile, or adult Louisiana pinesnakes.

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

    Required Determinations Clarity of the Rule

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

    (1) Be logically organized;

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

    (3) Use clear language rather than jargon;

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

    (5) Use lists and tables wherever possible.

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

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

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, 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).

    References Cited

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

    Authors

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

    List of Subjects in 50 CFR Part 17

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

    Proposed Regulation Promulgation

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

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

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

    2. Amend § 17.11 paragraph (h) by adding an entry for “Pinesnake, Louisiana” to the List of Endangered and Threatened Wildlife in alphabetical order under REPTILES to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Reptiles *         *         *         *         *         *         * Pinesnake, Louisiana Pituophis ruthveni Wherever found T [Federal Register citation of the final rule] *         *         *         *         *         *         *
    Dated: September 26, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-24113 Filed 10-5-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2016-0031; 4500030113] RIN 1018-BA79 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Black Warrior Waterdog AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Black Warrior waterdog (Necturus alabamensis) under the Endangered Species Act (Act). In total, approximately 1,073 river kilometers (669 river miles) in Blount, Cullman, Etowah, Fayette, Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston Counties, Alabama, fall within the boundaries of the proposed critical habitat designation. We also announce the availability of a draft economic analysis (DEA) of the proposed critical habitat designation. Elsewhere in this issue of the Federal Register, we propose to list the Black Warrior waterdog as an endangered species under the Act.

    DATES:

    We will accept comments received or postmarked on or before December 5, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 21, 2016.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R4-ES-2016-0031, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2016-0031, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information).

    Document availability: The draft economic analysis is available on the Service's Web site at http://www.fws.gov/Daphne, on the Federal eRulemaking Portal at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0031, and at the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    The coordinates or plot points or both from which the maps are generated are included in the administrative record for this proposed rule and are available on the Service's Web site at http://www.fws.gov/Daphne, on the Federal eRulemaking Portal at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0031, and at the Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for this critical habitat designation will also be available at the Service's Web site and Field Office identified above, and may also be available at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    William Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5184; or facsimile 251-441-6222. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act (Act), if we determine that any species is an endangered or threatened species we must designate critical habitat, to the maximum extent prudent and determinable. Designations and revisions of critical habitat can only be completed by issuing a rule.

    This rule is a proposed rule to designate critical habitat for the Black Warrior waterdog under the Act.

    The basis for our action. Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

    We prepared an economic analysis of the proposed designation of critical habitat. We prepared an analysis of the economic impacts of the proposed critical habitat designation and related factors. We hereby announce the availability of the draft economic analysis (DEA) and seek public review and comment.

    We will seek peer review. We are seeking comments from independent specialists to ensure that our critical habitat proposal is based on scientifically sound data and analyses. Because we will consider all comments and information we receive during the comment period, our final designation may differ from this proposal.

    Information Requested

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

    (1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

    (2) Specific information on:

    (a) The amount and distribution of Black Warrior waterdog habitat;

    (b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;

    (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

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

    (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

    (4) Information on the projected and reasonably likely impacts of climate change on the Black Warrior waterdog and proposed critical habitat.

    (5) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation and the benefits of including or excluding areas that exhibit these impacts.

    (6) Information on the extent to which the description of economic impacts in the DEA is a reasonable estimate of the likely economic impacts.

    (7) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the associated documents of the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

    (8) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments.

    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.

    All comments submitted electronically via http://www.regulations.gov will be presented on the Web site in their entirety as submitted. For comments submitted via hard copy, we will post your entire comment—including your personal identifying information—on http://www.regulations.gov. You may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

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

    Previous Federal Actions

    All previous Federal actions regarding the Black Warrior waterdog are described in the proposal to list the species as an endangered species under the Act, published elsewhere in this issue of the Federal Register.

    Background

    The Black Warrior waterdog is a species of salamander that inhabits, and is endemic to, streams above the fall line in the Black Warrior River Basin (Basin) in Alabama. The Black Warrior waterdog is a large, aquatic, nocturnal salamander that permanently retains a larval form and external gills throughout its life (Conant and Collins 1998, pp. 419-420). The Black Warrior waterdog inhabits the same areas as the flattened musk turtle (Sternotherus depressus), a species listed as threatened under the Act (52 FR 22418; June 11, 1987). According to Mount (1981, p. 23), optimal habitat for the flattened musk turtle consists of “segment[s] of a free flowing large creek or small river having the following characteristics: (1) Drainage area between 50 and 500 square miles, (2) depth averaging 2 feet, with vegetated shallows alternating with pools at least 3 to 4 feet deep, (3) pools with detectable current, (4) abundance of submerged rocks with crevices, overlapping flat rocks, or accumulations of boulders, (5) abundant molluscan fauna, (6) low silt load and minimal silt deposits, (7) relatively low nutrient content and bacterial count, (8) moderate temperatures (maximum 85 [degrees Fahrenheit (°F)], and (9) minimal pollution by synthetic chemicals and toxic inorganic materials” (Bailey 2014, p. 1). We find that the optimal habitat for the flattened musk turtle, as described by Mount, reflects the optimal habitat for the Black Warrior waterdog with two differences: the Black Warrior waterdog's prey preference is insect larva instead of molluscan fauna, and it uses leaf packs (leaves that accumulate in streams and form leaf bundles behind branches, rocks, and other objects) as shelter and foraging habitat.

    Critical Habitat

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Our regulations at 50 CFR 424.02 define “geographical area occupied by the species” as an area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

    Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the specific features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

    Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific and commercial data available. They require our staff, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

    Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

    Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the 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 human activity, and identification of critical habitat can be expected to increase the degree of threat to the species; or

    (2) designation of critical habitat would not be beneficial to the species. In determining whether a designation would not be beneficial, the factors the Service may consider include, but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.”

    As discussed under Factor B in the proposed listing rule, which is published elsewhere in this issue of the Federal Register, there is currently no imminent threat of take attributed to collection or vandalism 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, we consider whether such designation of critical habitat would not be beneficial to the species. As discussed in our proposed listing rule, we determined that the present or threatened destruction, modification, or curtailment of a species' habitat or range is a threat to the Black Warrior waterdog. We have also identified, in this proposed rule, areas that meet the definition of critical habitat.

    Therefore, because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and would be beneficial, we find that designation of critical habitat is prudent for the Black Warrior waterdog.

    Critical Habitat Determinability

    Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the Black Warrior waterdog is determinable. Our regulations at 50 CFR 424.12(a)(2) state that critical habitat is not determinable when one or both of the following situations exist:

    (i) Information sufficient to perform required analyses 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.

    We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where this species is located. We have determined that this information is sufficient for us to analyze the impacts of designation, and includes sufficient information about the biological needs of the Black Warrior waterdog to allow us to identify areas for inclusion in critical habitat. Therefore, we conclude that critical habitat is determinable for the Black Warrior waterdog.

    Physical or Biological Features

    In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. We define “physical or biological features” at 50 CFR 424.02 as: “The features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.” These include, but are not limited to:

    (1) Space for individual and population growth and for normal behavior;

    (2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

    (3) Cover or shelter;

    (4) Sites for breeding, reproduction, or rearing (or development) of offspring; and

    (5) Habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of a species.

    We derive the specific physical or biological features essential for Black Warrior waterdog from studies of this species' habitat, ecology, and life history as described below. We have determined that the following physical or biological features are essential for Black Warrior waterdog.

    Space for Individual and Population Growth and for Normal Behavior

    The Black Warrior waterdog is found in the Black Warrior Basin above the fall line (rocky habitat with little sand). According to Mount (1981, p. 23), the Black Warrior waterdog's optimal habitat consists of a “segment of a free flowing large creek or small river having the following characteristics: (1) Drainage area between 50 and 500 square miles, (2) depth averaging two feet, with vegetated shallows alternating with pools at least three to four feet deep, (3) pools with detectable current, (4) abundance of submerged rocks with crevices, overlapping flat rocks, or accumulations of boulders, (5) abundant molluscan fauna, (6) low silt load and minimal silt deposits, (7) relatively low nutrient content and bacterial count, (8) moderate temperatures (maximum 85 °F), and (9) minimal pollution by synthetic chemicals and toxic inorganic materials.” The Black Warrior waterdog finds refuge under boulders or rocks and in crevices, lays its eggs on the underside of boulders, feeds on insect larva, and has permeable skin.

    Because much is unknown about the spatial habitat requirements of the Black Warrior waterdog, we considered the Neuse River waterdog (Necturus lewisi), a closely related species that occurs in the North Carolina piedmont plateau region, as a surrogate species. The Neuse River waterdog inhabits similar microhabitat, has similar feeding requirements, and occurs in the Piedmont plateau region. The tributaries of the Neuse River are characterized with gradients similar to the habitat found in the Black Warrior River Basin. According to Ashton (1985, pp. 103-104), adult and juvenile Neuse River waterdogs utilize microhabitats characterized by moderate stream flow and relatively high dissolved oxygen concentrations, which is consistent with other Necturus species found in southern States. Studies of the Neuse River waterdog indicate that adult waterdogs utilize areas with large bedrock outcrops, large boulders with sandy-gravel bottoms, and stream banks with rock outcroppings.

    We note that although the Gulf Coast waterdog (Necturus beyeri) is also found in the Black Warrior Basin, we did not consider the species as a surrogate for the Black Warrior waterdog because it utilizes a different microhabitat; the Gulf Coast waterdog is usually found below the fall line (sandy habitat). Streams utilized by the Gulf Coast waterdog usually have sandy substrate, flow through flatter terrain, and have broader flood plains than the Black Warrior waterdog's habitat.

    Therefore, based on the information above, we identify geomorphically stable streams with substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices, rock slabs, and leaf packs to be essential physical or biological features for the Black Warrior waterdog. The connectivity of these stream microhabitats is essential in accommodating growth and other normal behaviors of the Black Warrior waterdog and in promoting gene flow within the species.

    Food, Water, Air, Light, Minerals, or Other Nutritional or Physiological Requirements Food

    Feeding habits of the Black Warrior waterdog are unknown but are likely similar to the feeding habits of Neuse River waterdog. Both adult and juvenile Neuse River waterdogs appear to be opportunistic feeders. Braswell and Ashton (1985, pp. 22-27) found that larval waterdog diets consist primarily of a variety of aquatic arthropods (Ostracoda, Copepoda, Isopoda, and Amphipoda) with some insect larvae (Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and Coleoptera). The adult waterdog diet was more expansive than the juvenile diet and included aquatic arthropods, other aquatic and terrestrial invertebrates (earthworms, centipedes, beetles, grubs), and aquatic and terrestrial vertebrates (fish and salamanders) (Braswell and Ashton 1985, pp. 13, 24-25).

    Since aquatic invertebrates are an important component of the Black Warrior waterdog's diet—specifically, the prey base of aquatic arthropods, insect larvae (Odonata, Ephemeroptera, Plecoptera, Trichoptera, Diptera, and Coleoptera), aquatic and terrestrial invertebrates, and aquatic and terrestrial vertebrates—it is essential to also take into consideration the aquatic insects' specific habitat requirements. Merrit and Cummins (1996) described caddisfly and mayfly habitat as a wide variety of standing and flowing water habitats, with the greatest diversity being found in rocky-bottom streams with an abundance of oxygen. As a result, they further identify the food sources as a variety of detritus (leaf packs), algae, diatoms, and macrophytes for the aquatic insects.

    Water

    As little is known about the specific water quality needs of the Black Warrior waterdog, we evaluated and based the water quality parameters on various factors, specifically Mount's description of optimal habitat, Neuse River waterdog literature, prey species requirements (insect larva), Alabama Department of Environmental Management (ADEM) water quality standards, and water quality requirements for currently listed aquatic species found in the Basin, as follows: rush darter (Etheostoma phytophilum), Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), ovate clubshell (Pleurobema perovatum), triangular kidneyshell (Ptychobranchus greenii), upland combshell (Epioblasma metastriata), and southern acornshell (Epioblasma othcaloogensis).

    Appropriate water quality parameters to support the Black Warrior waterdog's primary prey base and other listed species in the Basin include:

    • Water that lacks harmful levels of pollutants, including inorganic contaminates such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 12-15);

    • Water temperature not exceeding 85 °F;

    • Dissolved oxygen 5.5 milligrams per liter (mg/L) or greater;

    • Turbidity of an average monthly reading of 15 nephelometric turbidity units (NTUs; units to measure sediment discharge) above background readings;

    • 115 mg/L of total suspended solids (TSS; measured as mg/L of sediment in water) or less; and

    • A specific conductance (ability of water to conduct an electrical current, based on dissolved solids in the water) of no greater than 225 microsiemens (µS) per centimeter at 80 °F (October 10, 2012; 77 FR 61664).

    These water quality parameters are very similar to those identified as the primary constituent elements for the rush darter (Etheostoma phytophilum) and the Alabama pearlshell (Margaritifera marrianae). The Black Warrior waterdog benefits from instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regimes (the pathway along the entire length of a stream). The benefits are inclusive of both surface runoff and ground water sources and exclusive of flushing flows caused by stormwater runoff.

    The Black Warrior waterdog has similar hydrologic requirements as those of the Neuse River waterdog, which are usually found in streams greater than 15 meters (m) (50 feet (ft)) wide and deeper than 100 centimeters (cm) (3 ft), and are not found in streams where water flow ceases under normal summer dry weather conditions (Braswell and Aston 1985, pp. 26-30). However, based on recent environmental deoxyribonucleic acid (eDNA) research, conducted by Godwin (2014, pers. comm.), the Black Warrior waterdog could be utilizing streams as narrow as 4 m (13 ft) wide.

    The quality of the chemical and physical environment of the streams in the upper Black Warrior River Basin is essential to the survival of the Black Warrior waterdog. Optimal water quality lacks harmful levels of pollutants, including inorganic contaminates such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates (ADEM 2014, pp. 13-15). Factors that can potentially alter water quality include droughts and periods of low seasonal flow, precipitation events, nonpoint source runoff, human activities within the watershed, random spills (oil, chemicals, pesticides, fertilizer, etc.), and unregulated stormwater discharge events. A decrease in water quality and instream flow would correspondingly cause a decline in the major food species for the Black Warrior waterdog. Excessive high water flows can wash away or cover (with sediment) leaf packs that are essential for juvenile and adult waterdog foraging and feeding.

    Natural variations of instream flows maintain the stream bottom substrates, providing oxygen and other attributes to various invertebrate life stages. Sedimentation contributes to turbidity of the water and has been shown to reduce photosynthesis in aquatic plants, suffocate aquatic insects, smother aquatic eggs, clog gills, and fill in essential interstitial spaces used by aquatic organisms for spawning and foraging. Sedimentation has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater) and disrupt aquatic insect communities (Waters 1995, pp. 53-86; Knight and Welch 2004, pp. 132-135).

    Therefore, based on the information above, we identify medium to larger streams (typically 4 m (13 ft) wide or greater), containing hard substrate (clay or bedrock with little sand) and abundant rock crevices and rock slabs; cool, clean, flowing water having a dissolved oxygen level of 5.5 mg/L or greater; moderate water velocity; aquatic macroinvertabrate prey items; and leaf packs to be essential physical or biological features for the Black Warrior waterdog.

    Cover or Shelter

    Preferred substrates for the Black Warrior waterdog are dominated by clay or bedrock with little sand, and also contain abundant rock crevices and rock slabs for retreats (shelter) and areas for egg laying. Based on capture data, the Black Warrior waterdog utilizes leaf pack for shelter from predators and as foraging areas for prey species. We identify hard bottom substrate with a combination of boulders, rock slabs, and rock outcrops for shelter and reproduction and leaf packs to be essential physical and biological features for the Black Warrior waterdog.

    Sites for Breeding, Reproduction, or Rearing (or Development) of Offspring

    Little is known about the specific requirements of Black Warrior waterdog's reproduction. Based on Neuse River waterdog research, breeding sites are large bedrock outcrops or large boulders with sand and gravel beneath them (Ashton 1985, p. 95). Data collected from the Cincinnati Zoo show that the Black Warrior waterdog deposits eggs under rock slabs or in rock crevices, and the female guards the eggs. Juvenile Black Warrior waterdogs are often found in leaf packs in the stream.

    Sedimentation can be destructive to Black Warrior waterdogs and their habitat when it contains toxicants and is excessive. Bailey (2000, p. 2) reported that Black Warrior waterdogs are virtually in constant contact with the substrate and; therefore, also with any toxic chemicals present. He also reported that juveniles and adults are impacted by the exposure. Further, excessive sedimentation of the crevices and leaf packs removes foraging, feeding, breeding, and retreat areas for the Black Warrior waterdog (Laschet 2014, pers. obs.).

    Therefore, based on the information above, we identify medium to larger streams (4 m wide or greater), with hard substrate (clay or bedrock with little sand, also containing abundant rock crevices and rock slabs) and moderate water velocity; aquatic macroinvertabrate prey items; leaf packs; with adequate water, as defined above, quality to be essential physical and biological features for the Black Warrior waterdog.

    Habitats Protected From Disturbance or Representative of the Historical Geographical and Ecological Distributions of the Species

    Currently, there are no areas that are undisturbed or that are representative of the historical geographical and ecological distribution of the species that the Black Warrior waterdog typically inhabits. The Bankhead National Forest is an area that can reveal a glimpse of a representative of the historic geographical and ecological features of the species' habitat, and is currently considered the stronghold of the species. Streams in this area typically consisted of geomorphically stable streams with substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices and rock slabs. These streams also contain cool, clean, flowing water having a dissolved oxygen levels of 5.5 mg/L or higher; moderate water velocity; aquatic macroinvertabrate prey items; leaf packs; and adequate water quality (ADEM 2010, pp. 1-3).

    Therefore, based on the habitat found on Bankhead National Forest, we identify medium to larger streams (4 m (13 ft) wide or greater) with hard substrate (clay or bedrock with little sand, also containing abundant rock crevices and rock slabs) to be essential physical and biological features for the Black Warrior waterdog.

    In summary, based on the information described above we identify the physical or biological features essential to the conservation of the Black Warrior waterdog consists of a riverine system with habitat to support all life-history stages of the Black Warrior waterdog, which consists of the following components:

    1. Geomorphically stable, medium to large streams (typically 4 m (13 ft) wide or greater) with:

    a. Substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices, rock slabs, and leaf packs;

    b. Moderate water velocity; and

    c. Prey base of aquatic macroinvertebrates.

    2. Water that lacks harmful levels of pollutants, including inorganic contaminants such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

    3. Appropriate water quality parameters to support Black Warrior waterdog and primary prey base, including:

    a. Water temperature not exceeding 85 °F;

    b. Dissolved oxygen 5.5 mg/L or greater;

    c. Turbidity of an average monthly reading of 15 NTUs above background readings;

    d. 115 mg/L of total suspended solids or less; and

    e. A specific conductance of no greater than 225 µS per centimeter at 80 °F.

    Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features which are essential to the conservation of the species and which may require special management considerations or protection.

    The features essential to the conservation of the Black Warrior waterdog may require special management considerations or protections to reduce the following threats: (1) Urbanization activities and inadequate stormwater management (such as stream channel modification for flood control or gravel extraction) that could cause an increase in bank erosion; (2) significant changes in the existing flow regime within the streams due to water diversion or withdrawal; (3) significant alteration of water quality; (4) significant alteration in quantity of groundwater, prevention of water percolating into the aquifer recharge zone, and alteration of spring discharge sites; (5) significant changes in stream bed material composition and quality due to changes in stream flow characteristics, construction projects, and maintenance activities; (6) off-road vehicle use; (7) sewer, gas, and water easements; (8) bridge construction; (9) culvert and pipe installation; and (10) other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Management activities that could ameliorate these threats include, but are not limited to: Use of best management practices (BMPs) designed to reduce sedimentation, erosion, and bank side destruction; select harvest of trees along banks, and leaving 50 percent canopy cover (of deciduous trees) along banks; moderation of surface and ground water withdrawals to maintain natural flow regimes; increased use of stormwater management and reduction of stormwater flows into the systems; preservation of headwater springs, and spring runs; regulation of off-road vehicle use; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water.

    In summary, we find that the occupied areas we are proposing to designate as critical habitat for the Black Warrior waterdog contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to eliminate, or to reduce to negligible levels, the threats affecting the physical and biological features of each unit. The major threats to the Black Warrior waterdog are sedimentation (loss of habitat), water quality (nutrients, turbidity and toxins), and fragmentation from impoundments.

    Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we used the best scientific data available to designate critical habitat. We reviewed available information pertaining to the habitat requirements of the species and surrogates. Based on our review, we are proposing to designate critical habitat in areas within the geographical area occupied by the species at the time of listing (in this case, currently occupied). In accordance with the Act and its implementing regulation at 50 CFR 424.12, we also considered whether designating additional areas—outside those currently occupied—are essential for the conservation of the species. As a result, we also are proposing to designate specific areas outside the geographical area occupied by the Black Warrior waterdog at the time of listing that are within the historical range of the species, but are currently unoccupied, because we have determined that such areas are essential for the conservation of the species.

    Areas Occupied at the Time of Listing

    For the purpose of proposing critical habitat for the Black Warrior waterdog, we defined the geographical area currently occupied by the species as required by section 3(5)(A)(i) of the Act. We used information from surveys and reports prepared by the Alabama Department of Conservation and Natural Resources, Alabama Geological Survey, Alabama Natural Heritage Program, Auburn University, Alabama Power Company, the U.S. Forest Service, the Natural Resources Conservation Service, and the Service to identify the specific locations occupied by the Black Warrior waterdog. Currently, occupied habitat for the species is isolated and limited to four units. Within these four units, the species is located within seven tributaries in the Black Warrior River Basin. Three of the tributaries are on Bankhead National Forest (Winston County) and include Sipsey Fork, Brushy Creek, and Rush Creek. The other four tributaries are Locust Fork; Gurley Creek, which feeds into Locust Fork (Blount and Jefferson Counties); Blackwater/Browns Creek in Winston County; and Yellow Creek in Tuscaloosa County (Godwin 2014). We have determined that these four units (which include all seven tributaries)—Sipsey Fork, Locust Fork, Browns Creek, and Yellow Creek—meet the criteria for designation as critical habitat. As discussed below, some of these units contain all of the identified elements of physical or biological features and support multiple life-history processes. Some units contain only some elements of the physical or biological features necessary to support the Black Warrior waterdog's particular use of that habitat.

    Areas Not Occupied at the Time of Listing

    To include areas not occupied by the species at the time of listing in our critical habitat designation, we must demonstrate that these areas are essential to the conservation of the subspecies. To determine if these areas are essential for the conservation of the Black Warrior waterdog, we considered: (1) The importance of the stream to the overall status of the species and the contribution to the future recovery of the Black Warrior waterdog; (2) whether the area could be restored to contain the necessary habitat to support the Black Warrior waterdog; (3) whether the site provides connectivity between occupied sites for genetic exchange; and (4) whether a population of the species could potentially be reestablished in the area. Lye Branch, Lake Tuscaloosa, Lost Creek, and Mulberry Fork meet these criteria. These areas were formerly occupied by the Black Warrior waterdog and are important in its future recovery, still contain suitable habitat for the species, and can support reestablished populations because they formerly supported the species and continue to support the flattened musk turtle, which has similar habitat requirements as the Black Warrior waterdog. In addition, the Lye Branch unit occurs below the fall line for the Basin, which is a unique location for the Black Warrior waterdog. Due to their separation from the other units, these units have the potential to provide genetic material essential to the recovery of the waterdog.

    Mapping Black Warrior Waterdog Critical Habitat

    In identifying proposed critical habitat units for the Black Warrior waterdog, we proceeded through a multi-step process. We obtained and reviewed historical records for the Black Warrior waterdog's distribution from Bankhead National Forest and Alabama Natural Heritage, as well as both published and unpublished documentation from our files. Once the historical range was determined, we looked at whether the physical and biological features were present at these historical sites. Then, we reviewed surveys conducted over the last 8 years, including surveys currently being undertaken. We conducted present and absent surveys of known and historical sites and sampled and observed the habitat. Since the Black Warrior waterdog is difficult to detect and capture, we contracted with Alabama Natural Heritage and Auburn University to conduct sampling surveys including the use of eDNA. With the survey results, we confirmed the Black Warrior waterdog's distribution in the Black Warrior River Basin. We determined occupied areas with data collected from surveys conducted over the last 8 years to present. We considered areas that do not have recent capture or sighting data, but that do have historical records prior to the mid-1990s, to be unoccupied by the species.

    Our approach to delineating critical habitat units was applied in the following manner:

    (1) We overlaid Black Warrior waterdog locations into a GIS database. This provided us with the ability to examine slope, elevation, geologic type, hydrologic factors, vegetation community, and topographic features. These data points verified the previously recorded elevation ranges for Black Warrior waterdog.

    (2) In addition to the GIS layers listed above, we then excluded impoundments and dams as barriers for the species, as described in Physical or Biological Features, above.

    (3) We then drew critical habitat boundaries that captured the locations as discussed above. The proposed critical habitat designation was then mapped using Projected Coordinate System, NAD 1983 UTM Zone 16N with a Projection of Transverse Mercator.

    The proposed critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the proposed critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2016-0031, on the Service's Web site at http://www.fws.gov/daphne/, and at the field office responsible for the designation (see FOR FURTHER INFORMATION CONTACT, above).

    When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the Black Warrior waterdog. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat.

    Proposed Critical Habitat Designation

    We are proposing to designate approximately 1,073 river kilometers (669 river miles) in eight units as critical habitat for the Black Warrior waterdog. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for the Black Warrior waterdog. The areas we propose as critical habitat are:

    (1) Lye Branch: approximately 16 river kilometers (rkm) (10 river miles (rmi)) of stream and river habitat. The unit consists of the headwaters of Lye Branch to the confluence of Big Sandy Creek.

    (2) Lake Tuscaloosa: approximately 108 rkm (67 rmi) of stream and river habitat. The unit consists of the headwaters of North River to Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa Lake.

    (3) Yellow Creek: approximately 30 rkm (19 rmi) of stream and river habitat. This unit is from the headwaters of Yellow Creek to Holt Lake.

    (4) Lost Creek: approximately 93 rkm (58 rmi) of stream and river habitat. This unit is from the headwaters of Lost Creek to Bankhead Lake.

    (5) Locust Fork: approximately 391 rkm (243 rmi) of stream and river habitat. This unit is from the headwaters of Locust Fork to Bankhead Lake, from the headwaters of Slab Creek to the confluence of Locust Fork, from the headwaters of Blackburn Fork to the confluence of Locust Fork, and from the headwaters of Gurley Creek to the confluence of Locust Fork.

    (6) Mulberry Fork: approximately 183 rkm (114 rmi) of stream and river habitat. This unit consists of the headwaters of Mulberry Fork to Bankhead Lake, and from Little Blackwater Creek to the confluence of Blackwater Creek.

    (7) Blackwater Creek: approximately 128 rkm (80 rmi) of stream and river habitat. This unit consists of the headwaters of Blackwater Creek to the confluence of Mulberry Fork, from the headwaters of Brown Creek to the confluence of Blackwater Creek.

    (8) Sipsey Fork: approximately 124 rkm (78 rmi) of stream and river habitat. The unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake, from the headwaters of Brushy Creek to Lewis Smith Lake, from the headwaters of Rush Creek to the confluence of Brushy Creek, and from the headwaters of Capsey Creek to the confluence of Brushy Creek.

    All of the areas proposed for designation as critical habitat for the Black Warrior waterdog include stream and river channels within the normal high water line.

    Table 1 shows the occupancy status of each proposed unit and proposed units that overlap with existing critical habitat units for other federally listed species.

    Table 1—Occupancy of Black Warrior Waterdog by Proposed Critical Habitat Units and Existing Overlapping Critical Habitat Designation for Federally Listed Species Unit Location Occupied Private
  • ownership
  • rkm/rmi
  • Federal
  • ownership
  • rkm/rmi
  • Existing
  • critical
  • habitat
  • rkm/rmi
  • Total length
  • rkm/rmi
  • 1 Lye Branch No 16/10 16/10 2 Lake Tuscaloosa No 108/67 * 61/38 108/67 3 Yellow Creek Yes 30/19 30/19 4 Lost Creek No 93/58 93/58 5 Locust Fork Yes 391/243 ** 101/63 391/243 6 Mulberry Fork No 183/114 183/114 7 Blackwater Creek Yes 128/80 128/80 8 Sipsey Fork Yes 11/7 113/71 *** 103/64 124/78 TOTALS 960/598 113/71 265/165 1,073/669 * Alabama moccasinshell (Medionidus acutissimus), dark pigtoe (Pleurobema furvum), orangenacre mucket (Lampsilis perovalis), ovate clubshell (Pleurobema perovatum), triangular kidneyshell (Ptychobranchus greenii). ** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, upland combshell (Epioblasma metastriata), triangular kidneyshell. *** Alabama moccasinshell, dark pigtoe, orangenacre mucket, ovate clubshell, southern acornshell (Epioblasma othcaloogensis), triangular kidneyshell.

    We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the Black Warrior waterdog, below. All units are within private ownership, except Unit 8, which also includes Federal ownership.

    Unit 1: Lye Branch, Tuscaloosa County

    Unit 1 includes 16 rkm (10 rmi) of stream and river habitat consisting of the headwaters of Lye Branch to the confluence of Big Sandy Creek, and is below the fall line. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), specimens were historically collected from this area. This location is the only historical site below the fall line, which makes it unique for the species. If any waterdogs still persist in this area, the genetic material would be essential in the recovery of the Black Warrior waterdog. Lye Branch contains leaf litter and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime. The instream flow consists of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog in that it provides shelter, breeding, and foraging habitat that would allow for reintroduction and recovery activities for the Black Warrior waterdog.

    Unit 2: Lake Tuscaloosa, Fayette and Tuscaloosa Counties, Alabama

    Unit 2 includes 108 rkm (67 rmi) of stream and river habitat. The unit consists of the headwaters of North River to Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa Lake. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), specimens were historically collected from this area. North River and Carroll Creek contain abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. This unit would provide habitat for reintroduction and recovery activities of the Black Warrior waterdog.

    Unit 3: Yellow Creek, Tuscaloosa County, Alabama

    Unit 3 includes 30 rkm (19 rmi) of stream and river habitat. The unit consists of the headwaters of Yellow Creek to Holt Lake. This area is occupied at the time of listing (i.e., currently occupied). Godwin (2016, pers. comm.) reported a capture of a Black Warrior waterdog in this area. This area contains the following physical or biological features that are essential for the Black Warrior waterdog: Abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime inclusive of both surface runoff and ground water sources and exclusive of flushing flows caused by stormwater runoff.

    Threats to the physical and biological features in proposed Unit 3 that may require special management considerations or protection include:

    • Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

    • Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

    • Significant alteration of water quality; and

    • Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Unit 4: Lost Creek, Walker County, Alabama

    Unit 4 includes 93 rkm (58 rmi) of stream and river habitat. The unit consists of headwaters of Lost Creek downstream to Bankhead Lake. This area is unoccupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdogs were historically captured in this area. This area contains abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. It would provide habitat for reintroduction and recovery activities for the Black Warrior waterdog.

    Unit 5: Locust Fork, Blount, Etowah, Jefferson, and Marshall Counties, Alabama

    Unit 5 includes 391 rkm (243 rmi) of stream and river habitat. The unit consists of the headwaters of Locust Fork to Bankhead Lake, from the headwaters of Slab Creek to the confluence of Locust Fork, from the headwaters of Blackburn Fork to the confluence of Locust Fork, and from the headwaters of Gurley Creek to the confluence of Locust Fork. This area is occupied at the time of listing (i.e., currently occupied). Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdog specimens have been collected from the Locust Fork area. This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for a longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

    Threats to the physical and biological features in proposed Unit 5 that may require special management considerations or protection include:

    • Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

    • Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

    • Significant alteration of water quality; and

    • Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Unit 6: Mulberry Fork, Blount, Cullman, Marshall, and Walker Counties, Alabama

    Unit 6 includes 183 rkm (114 rmi) of stream and river habitat consisting of the headwaters of Mulberry Fork to Bankhead Lake, and from Little Blackwater Creek to the confluence of Blackwater Creek. This area is not occupied at the time of listing, but is considered essential for the conservation of the species. Based on a literature review by Bailey (2000, p. 1), Black Warrior waterdog specimens were historically collected here. This area contains abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog. This unit would provide habitat for reintroduction and recovery activities of the Black Warrior waterdog.

    Unit 7: Blackwater Creek, Walker and Winston Counties, Alabama

    Unit 7 includes 128 rkm (80 rmi) of stream and river habitat. The unit consists of the headwaters of Blackwater Creek to the confluence of Mulberry Fork, and from the headwaters of Brown Creek to the confluence of Blackwater Creek. This area is occupied at the time of listing based on a literature review by Bailey (2000, p. 1). Godwin (2014, pers. comm.) reported that Black Warrior waterdogs were still present based on eDNA results. This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

    Threats to the physical and biological features in proposed Unit 7 that may require special management considerations or protection include:

    • Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

    • Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

    • Significant alteration of water quality; and

    • Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Unit 8: Sipsey Fork, Lawrence and Winston Counties, Alabama

    Unit 8 includes 124 rkm (78 rmi) of stream and river habitat. The unit consists of the headwaters of Sipsey Fork to Lewis Smith Lake, from the headwaters of Brushy Creek Lewis Smith Lake, from the headwaters of Rush Creek to the confluence of Brushy Creek, and from the headwaters of Capsey Creek to the confluence of Brushy Creek. This area falls within the boundary of Bankhead National Forest, although some areas are private inholdings.

    This area is occupied at the time of listing, based on recent captures (Godwin 2016, pers. comm.). This area contains the following physical or biological features: abundant rock crevices and rock slabs, leaf litter, and instream flow with moderate velocity and continuous daily discharge that allows for longitudinal connectivity regime consisting of both surface runoff and ground water sources, exclusive of flushing flows caused by stormwater runoff, that are essential for the Black Warrior waterdog.

    Threats to the physical and biological features in proposed Unit 8 that may require special management considerations or protection include:

    • Agriculture and silviculture activities, and urbanization activities, that could result in increased bank erosion;

    • Significant changes in the existing flow regime due to inadequate stormwater management, water diversion, or water withdrawal;

    • Significant alteration of water quality; and

    • Significant changes in stream bed material composition and quality as of result of construction projects and maintenance activities; off-road vehicle use; sewer, gas, and water easements; bridge and road construction and maintenance; culvert and pipe installation; and other watershed and floodplain disturbances that release sediments or nutrients into the water.

    Effects of Critical Habitat Designation Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat.

    On February 11, 2016 (81 FR 7214), we published a final rule setting forth a new definition of destruction or adverse modification, which became effective on March 14, 2016. “Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features.

    If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat, and actions on State, tribal, local, or private lands that are not federally funded or authorized, do not require section 7 consultation.

    As a result of section 7 consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:

    (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or

    (2) A biological opinion for Federal actions that may affect and are likely to adversely affect, listed species or critical habitat.

    When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define “reasonable and prudent alternatives” (at 50 CFR 402.02) as alternative actions identified during consultation that:

    (1) Can be implemented in a manner consistent with the intended purpose of the action,

    (2) Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction,

    (3) Are economically and technologically feasible, and

    (4) Would, in the Director's opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat.

    Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies sometimes may need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

    Application of the “Adverse Modification” Standard

    Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may affect critical habitat, when carried out, funded, or authorized by a Federal agency, should result in consultation for the Black Warrior waterdog. These activities include, but are not limited to:

    (1) Actions that would significantly alter water chemistry or temperature. Such activities could include, but are not limited to, release of chemicals, biological pollutants, or heated effluents into the surface water or connected groundwater at a point source or by dispersed release (non-point source). These activities could alter water conditions to levels that are beyond the tolerances of the species' prey items and result in direct or cumulative adverse effects to the Black Warrior waterdog and its lifecycle.

    (2) Actions that would significantly increase sediment deposition within the stream channel. Such activities could include, but are not limited to, excessive sedimentation from livestock grazing, road construction, channel alteration, timber harvest, off-road vehicle use, and other watershed and floodplain disturbances. These activities could eliminate or reduce the habitat necessary for the growth and reproduction of the Black Warrior waterdog by increasing the sediment deposition to levels that would adversely affect its ability to complete its lifecycle.

    (3) Actions that would significantly alter channel morphology or geometry. Such activities could include, but are not limited to, channelization, impoundment, road and bridge construction, mining, dredging, and destruction of riparian vegetation. These activities may lead to changes in water flows and levels that would degrade or eliminate the Black Warrior waterdog and/or its habitat. These actions can also lead to increased sedimentation and degradation in water quality to levels that are beyond the tolerances of the Black Warrior waterdog or its prey items.

    Exemptions Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan [INRMP] prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands with a completed INRMP within the proposed critical habitat designation.

    Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute, as well as the legislative history, is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In this proposed rule, we have not considered any areas for exclusion from critical habitat.

    Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, which includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). The baseline, therefore, represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct an optional 4(b)(2) exclusion analysis.

    For this designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the Black Warrior waterdog and draft Waterdog Screening Memorandum, dated June 30, 2015. The purpose of the screening analysis is to filter out the geographic areas in which the critical habitat designation is unlikely to result in probable incremental economic impacts. In particular, the screening analysis considers baseline costs (i.e., absent critical habitat designation) and includes probable economic impacts where land and water use may be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. The screening analysis filters out particular areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. The screening analysis also assesses whether units are unoccupied by the species and may require additional management or conservation efforts as a result of the critical habitat designation for the species which may incur incremental economic impacts. This screening analysis, combined with the information contained in our IEM, constitutes our draft economic analysis of the proposed critical habitat designation for the Black Warrior waterdog and is summarized in the narrative below.

    Executive Orders (E.O.) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with these requirements, our effects analysis may take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. First we identified, in the draft Waterdog Screening Memorandum, probable incremental economic impacts associated with the following categories of activities: (1) Federal lands management (U.S. Forest Service, U.S. Bureau of Reclamation); (2) roadway and bridge construction; (3) agriculture; (4) grazing; (5) conservation/restoration; (6) instream dams and diversions; (7) storage and distribution of chemical pollutants; (8) dredging; (9) commercial or residential development; (10) timber harvest; (11) recreation (including sport fishing and sportfish stocking, off-road vehicle activity); (12) mining; (13) in-water construction; (14) utilities; (15) water quality; and (16) water quanity/supply. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement, because critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Black Warrior waterdog is present, if the species is listed, then Federal agencies would already be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would merely be incorporated into that consultation process. Therefore, for occupied and unoccupied habitat disproportionate impacts to any geographic area or sector are not likely as a result of this critical habitat designation.

    In our IEM, we attempted to clarify the distinction between the effects that will result from the species being listed and those attributable to the critical habitat designation (i.e., difference between the jeopardy and adverse modification standards) for the Black Warrior waterdog's critical habitat. Because the designation of critical habitat for the Black Warrior waterdog was proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which will result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical and biological features identified for critical habitat are the same features essential for the life requisites of the species; and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the Black Warrior waterdog would also likely adversely affect the essential physical and biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation in turn has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat.

    The proposed critical habitat designation for the Black Warrior waterdog is likely to result, annually, in less than two formal consultations, 23 informal consultations, and 206 technical assistance efforts related to silviculture, mining, impoundments, commercial and residential development, pipelines, agriculture and other activities that impact water quality. According to the finding in the draft screening analysis, the administrative cost of addressing adverse modification in the consultations will cost between about $410 to $9,000 per consultation. The incremental administrative cost is not likely to exceed $150,000 annually. This designation of critical habitat is not likely to cause more requirements under State or local regulations, nor is the designation expected to have perceptional effects on the markets.

    Exclusions Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. As discussed above, we prepared an analysis of the probable economic impacts of the proposed critical habitat designation and related factors (DEA).

    As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.

    Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are lands within the proposed critical habitat designation where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for Black Warrior waterdog are not owned or managed by the Department of Defense or Department of Homeland Security, and, therefore, we anticipate no impact on national security. Consequently, the Secretary does not intend to exercise her discretion to exclude any areas from the final designation based on impacts on national security.

    Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors, including whether the landowners have developed any habitat conservation plans (HCPs) or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any tribal issues, and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

    In preparing this proposal, we have determined that there are currently no HCPs or other management plans for the Black Warrior waterdog, and the proposed designation does not include any tribal lands or trust resources. We anticipate no impact on tribal lands, partnerships, or HCPs from this proposed critical habitat designation. Accordingly, the Secretary does not intend to exercise her discretion to exclude any areas from the final designation based on other relevant impacts.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek 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 critical habitat designation is based on scientifically sound data and analyses. We have invited these peer reviewers to comment during this public comment period.

    We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, the final decision may differ from this proposal.

    Public Hearings

    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 (see DATES, above). 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.

    Required Determinations Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

    According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

    The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and, therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if adopted, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

    For the above reasons and based on currently available information, we certify that, if adopted, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

    Energy Supply, Distribution, or Use—Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. We do not expect this proposed designation of critical habitat to significantly affect energy supplies, distribution, or use. Oil and gas pipelines crossing the proposed critical habitat can be buried under the river channel (directional bored) and the contours of the channel bed returned to their natural state. Also, there are existing impoundments for power generation within the Basin but outside the proposed critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

    Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

    (1) This rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

    The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, and critical habitat would not shift the costs of the large entitlement programs listed above onto State governments.

    (2) We do not believe that this rule would significantly or uniquely affect small governments because the lands adjacent to the river and streams being proposed for critical habitat are primarily owned by private landowners, which do not fit the description of “small governmental jurisdiction.” Therefore, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted.

    Takings—Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Black Warrior waterdog in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, nor does it establish any closures or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed and concludes that this proposed designation of critical habitat for the Black Warrior waterdog would not pose significant takings implications for lands within or affected by the designation.

    Federalism—Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of this proposed critical habitat designation with, appropriate State resource agencies in Alabama. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, this proposed rule would not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

    Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

    Civil Justice Reform—Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the proposed rule identifies the elements of physical or biological features essential to the conservation of the species. The proposed areas of critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired.

    Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

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

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

    Government-to-Government Relationship With Tribes

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

    As discussed above, we have determined that there are no tribal lands that meet the criteria under the Act for inclusion in critical habitat.

    Clarity of the Rule

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

    (1) Be logically organized;

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

    (3) Use clear language rather than jargon;

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

    (5) Use lists and tables wherever possible.

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

    References Cited

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

    Authors

    The primary authors of this proposed rulemaking are the staff members of the Alabama Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

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

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

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

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

    2. In § 17.95, amend paragraph (d) by adding an entry for “Black Warrior Waterdog (Necturus alabamensis)” immediately following the entry for “Houston Toad (Bufo houstonensis)” to read as follows:
    § 17.95 Critical habitat—fish and wildlife.

    (d) Amphibians.

    Black Warrior Waterdog (Necturus alabamensis)

    (1) Critical habitat units are depicted for Blount, Cullman, Etowah, Fayette, Jefferson, Lawrence, Marshall, Tuscaloosa, Walker, and Winston Counties, Alabama, on the maps in this entry.

    (2) Within these areas, the physical or biological features essential to the conservation of the Black Warrior waterdog consists of a riverine system with habitat to support all life-history stages of the Black Warrior waterdog, which consists of the following components:

    (i) Geomorphically stable, medium to large streams (typically 4 meters (m) (13 feet (ft)) wide or greater) with:

    (A) Substrate consisting of clay or bedrock with little sand, and containing abundant rock crevices, rock slabs, and leaf packs;

    (B) Moderate water velocity; and

    (C) Prey base of aquatic macroinvertebrates.

    (ii) Water that lacks harmful levels of pollutants, including inorganic contaminants such as copper, arsenic, mercury, and cadmium; organic contaminates such as human and animal waste products; endocrine-disrupting chemicals; pesticides; nitrogen, potassium, and phosphorus fertilizers; and petroleum distillates.

    (iii) Appropriate water quality parameters to support Black Warrior waterdog and primary prey base, including:

    (A) Water temperature not exceeding 85 °F;

    (B) Dissolved oxygen 5.5 milligrams per liter (mg/L) or greater;

    (C) Turbidity of an average monthly reading of 15 nephelometric turbidity units (NTUs) above background readings;

    (D) 115 mg/L of total suspended solids or less; and

    (E) A specific conductance of no greater than 225 microsiemens (µS) per centimeter at 80 °F.

    (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.

    (4) Critical habitat map units. Data layers defining map units were created from the USGS National Hydrography Datasets High Resolution Flowline layer using Universal Transverse Mercator (UTM) Zone 16N coordinates. Segments were mapped using 1983 UTM Zone 16 projection. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service's Internet site at http://www.fws.gov/daphne/, at http://www.regulations.gov under Docket No. FWS-R4-ES-2016-0031, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

    (5) Note: Index map follows:

    BILLING CODE 4333-15-P EP06OC16.006

    (6) Unit 1: Lye Branch.

    (i) General description: Unit 1 consists of approximately 16 river kilometers (rkm) (10 river miles (rmi)) of stream and river habitat from the headwaters of Lye Branch to the confluence of Big Sandy Creek.

    (ii) Map of Unit 1 follows:

    EP06OC16.007

    (7) Unit 2: Lake Tuscaloosa.

    (i) General description: Unit 2 consists of approximately 108 rkm (67 rmi) of stream and river habitat from the headwaters of North River to Tuscaloosa Lake, and from the headwaters of Carroll Creek to Tuscaloosa Lake.

    (ii) Map of Unit 2 follows:

    EP06OC16.008

    (8) Unit 3: Yellow Creek.

    (i) General description: Unit 3 is approximately 30 rkm (19 rmi) of stream and river habitat from the headwaters of Yellow Creek to Holt Lake.

    (ii) Map of Unit 3 follows:

    EP06OC16.009

    (9) Unit 4: Lost Creek.

    (i) General description: Unit 4 is approximately 93 rkm (58 rmi) of stream and river habitat from the headwaters of Lost Creek to Bankhead Lake.

    (ii) Map of Unit 4 follows:

    EP06OC16.010

    (10) Unit 5: Locust Fork.

    (i) General description: Unit 5 is approximately 391 rkm (243 rmi) of stream and river habitat from the headwaters of Locust Fork to Bankhead Lake, from the headwaters of Slab Creek to the confluence of Locust Fork, from the headwaters of Blackburn Fork to the confluence of Locust Fork, and from the headwaters of Gurley Creek to the confluence of Locust Fork.

    (ii) Map of Unit 5 follows:

    EP06OC16.011

    (11) Unit 6: Mulberry Fork.

    (i) General description: Unit 6 consists of approximately 183 rkm (114 rmi) of stream and river habitat from the headwaters of Mulberry Fork to Bankhead Lake, and from Little Blackwater Creek to the confluence of Blackwater Creek.

    (ii) Map of Unit 6 follows:

    EP06OC16.012

    (12) Unit 7: Blackwater Creek/Browns Creek.

    (i) General description: Unit 7 consists of approximately 128 rkm (80 rmi) of stream and river habitat from the headwaters of Blackwater Creek to the confluence of Mulberry Fork, from the headwaters of Brown Creek to the confluence of Blackwater Creek.

    (ii) Map of Unit 7 follows:

    EP06OC16.013

    (13) Unit 8: Sipsey Fork.

    (i) General description: Unit 8 consists of approximately 124 rkm (78 rmi) of stream and river habitat from the headwaters of Sipsey Fork to Lewis Smith Lake, from the headwaters of Brushy Creek to Lewis Smith Lake, from the headwaters of Rush Creek to the confluence of Brushy Creek, and from the headwaters of Capsey Creek to the confluence of Brushy Creek.

    (ii) Map of Unit 8 follows:

    EP06OC16.014
    Dated: September 26, 2016. Karen Hyun, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-24118 Filed 10-5-16; 8:45 am] BILLING CODE 4333-15-C
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2016-0029; 4500030113] RIN 1018-BA78 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Black Warrior Waterdog AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to list the Black Warrior waterdog (Necturus alabamensis), an aquatic salamander from the Black Warrior River Basin of Alabama, as an endangered species under the Endangered Species Act (Act) because of the severity and immediacy of threats currently impacting the species. If we finalize this rule as proposed, it would extend the Act's protections to this species.

    DATES:

    We will accept comments received or postmarked on or before December 5, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by November 21, 2016.

    ADDRESSES:

    You may submit comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2016-0029, which is the docket number for this rulemaking. Then click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on “Comment Now!”

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R4-ES-2016-0029, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).

    FOR FURTHER INFORMATION CONTACT:

    William Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; by telephone 251-441-5184; or by facsimile 251-441-6222. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Information Requested Public Comments

    We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other 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 Black Warrior waterdog'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 (16 U.S.C. 1531 et seq.) 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, Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Public Hearing

    Section 4(b)(5) of the Act requires us to hold 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 (see DATES, above). Such requests must be sent to the address shown in the FOR FURTHER INFORMATION CONTACT section. 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.

    Peer Review

    In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek 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 will inform our determination. We invite comments from the peer reviewers during this public comment period.

    Previous Federal Actions

    The Black Warrior waterdog (then known as the Sipsey Fork waterdog) was first identified as a Category 2 species in our 1982 Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454, December 30, 1982). Category 2 candidates were defined as taxa for which we had information that proposed listing was possibly appropriate, but for which substantial data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained on subsequent annual candidate notices of review (CNORs) (56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the Black Warrior waterdog was no longer a candidate species.

    In 1999, the Black Warrior waterdog was again added to the candidate list (64 FR 57534, October 25, 1999). At present, 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 rule is precluded by other higher priority listing activities. The Black Warrior waterdog 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; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015). On May 11, 2004, we were petitioned to list the Black Warrior waterdog. The petitioner provided information the Service already had in its files and had used to identify the species as warranted for listing. As a result, no further action was taken on the petition. The Black Warrior waterdog has a listing priority number of 2, which means that the candidate is a species with threats that are both imminent and high in magnitude.

    Species Information Taxonomy and Species Description

    The Black Warrior waterdog is a large, aquatic, nocturnal salamander that permanently retains a larval form and external gills throughout its life (Conant and Collins 1998, pp. 419-420). Its head and body are depressed; its tail is compressed laterally, and each of its four legs has a foot with four toes. Larval Black Warrior waterdogs (28 to 48 millimeters (mm) (1 to 2 inches (in) total length)) are dark brown or black on their dorsum (upper surfaces) and have two light stripes running along their sides (Bailey 2000, p. 1). Adults may reach a maximum of 240 mm (9.5 in) total length; subadults (40 to 100 mm (1.5 to 4 in) total length) do not have the stripes that are present on larvae and are not conspicuously marked, although they do have a dark stripe extending from the nostril through the eye to the gills. Adults are usually brown, may be spotted or unspotted, and retain the dark eye stripe (Bailey 2000, p. 1). The ventral surface of all age classes is plain white.

    In 1937, Viosca (1937, pp. 120-138) described the Black Warrior waterdog as Necturus alabamensis. In subsequent years, the name N. alabamensis was mistakenly applied to other waterdogs within the peer-reviewed literature. The taxonomy of the Black Warrior waterdog was clarified by Bart et al. (1997, pp. 192-201), and the original description by Viosca (1937, pp. 120-138) remains valid. The available taxonomic information on N. alabamensis has been carefully reviewed, and we conclude that this species is a valid taxon.

    Distribution

    The Black Warrior waterdog (waterdog) is found only within streams within the Black Warrior River Basin (Basin) in Alabama. The waterdog inhabits streams above the Piedmont Fall Line (the contact between the Coastal Plain and the adjacent Upland provinces) within the Basin in Alabama, including parts of the North River, Locust Fork, Mulberry Fork, and Sipsey Fork drainages and their tributaries.

    Waterdog habitat is similar to that of the flattened musk turtle (Sternotherus depressus), a species listed as threatened under the Act (52 FR 22418; June 11, 1987) and which is restricted to permanent streams above the Fall Line in the Black Warrior Basin (Mount 1975, p. 303). The waterdog received little attention between the time it was described in 1937 and the mid-1980s, when it was found during surveys in the Tennessee-Tombigbee Waterway (Ashton and Peavy 1985, pp. 1-15). During this time, reference to the species, beyond field guides and summary descriptions, could be found in only three scientific publications and one unpublished doctoral dissertation (Hecht 1958, pp. 4, 17; Neil 1963, pp. 166-174; Gunter and Brode 1964, pp. 114-126; Brode 1969, pp. 21-22, 62-64, 132).

    There are a total of 11 historical records from sites in Blount, Tuscaloosa, Walker, and Winston Counties, Alabama. The historical waterdog records are sites from 10 streams or major segments: Sipsey Fork (two sites) of the Black Warrior River and Brushy Creek (a tributary to Sipsey Fork) in Winston County; Locust Fork and Blackburn Fork of the Little Warrior River in Blount County; Mulberry Fork, Lost Creek, and Blackwater Creek in Walker County; and Yellow Creek, North River, and Black Warrior River in Tuscaloosa County (Viosca 1937, pp. 120-122, 137-138; Ashton and Peavy 1985, pp. 1-15; Bailey 1992, pp. 7-9, 16-27; Bailey 1995, pp. 16-27; Bart et al. 1997, pp. 194-195, 198-200; Guyer 1997, p. 9; Bailey 2000, pp. 3-5). Only two of these records (Black Warrior River “near Tuscaloosa” in 1914 and 1937, and Mulberry Fork “at Cordova” in 1938) were documented prior to the mid-1980s. These localities have since been inundated by impoundments.

    Bailey (2000, pp. 1-24) conducted a habitat assessment of the 11 sites verified as Black Warrior waterdog localities prior to 1993. Bailey assessed the sites using subjective impressions of habitat suitability using parameters such as stream width and depth, water quality, substrate, structure (crevices, logs, etc.), and invertebrate fauna. Sites were stratified into four categories: Good to excellent, moderate, poor to unsuitable, and impounded. Bailey concluded that one (9 percent) of the sites was good to excellent, four (36 percent) were of moderate quality, two (18 percent) were poor to unsuitable, and four (36 percent) were in impoundments.

    Current Range and Distribution

    At least 112 sites have been sampled for the Black Warrior waterdogs since 1990 (1990, 1991, 1992, 1994, 1996, 1997, 1998, 2008, 2009, 2011, 2012, and 2013) (Bailey 1995, pp. 16-27; Guyer 1997, pp. 19-21 and 1998, pp. 6-7; Durflinger-Moreno et al. 2006, pp. 73-74; Stoops et al. 2010, p. 6; Alabama Natural Heritage Program 2011, p. 4; 78 FR 70104, November 22, 2013, p. 70125; Godwin 2014, pers. comm.; Godwin 2013b, p. 1). Survey sites included all stream localities within the range of the species that approached or intersected roads and had appropriate habitat. Since 1990, the species has been reported from only 14 sites. These sites are in Blount (Blackburn Fork of the Little Warrior River), Marshall (Slab Creek, tributary to Locust Fork), Tuscaloosa (Yellow Creek, North River, Carroll Creek, Lye Branch, Mulberry Fork), Walker (Lost Creek, Little Blackwater Creek), and Winston (Sipsey Fork, Blackwater Creek, Browns Creek, Brushy Creek, Capsey Creek) Counties, Alabama. Guyer (1997, pp. 3-4) did a statistical analysis of all waterdog field survey data. The relationship between cumulative number of site visits and the cumulative number of sites containing waterdogs indicated that 200 additional surveys would be needed to discover a single new locality for the species (Guyer 1997, p. 4).

    No waterdogs were recently captured at any historic localities outside of William Bankhead National Forest (BNF). Therefore, we believe the populations are in decline outside of BNF. Only through the use of environmental DNA (eDNA) have we been able to determine that the species is still present at some historic locations. Environmental DNA is a surveillance tool used to monitor for the genetic presence of an aquatic species. According to Strickler (2015, p. 1),”Environmental DNA has proven to be a sensitive, accurate, and cost-efficient tool for species detection in aquatic environments and is especially attractive because it's non-invasive and poses no risk to aquatic animals. Even when an aquatic animal can't be seen or heard, it leaves traces of itself in the water by shedding skin, excreting waste, releasing gametes and decomposing. Investigators collect a water sample to detect the target species' DNA and determine whether the species has recently been in the water body.” Field surveys conducted between 2008 and 2012 at historical localities indicated only one population was still persisting in the BNF, Winston County (Stoops et al. 2010, p. 1-6; Godwin 2014, pers. comm.; Godwin 2013a, p. 1 and 2013b, p. 1). Additionally, the use of eDNA in 2013 and 2014 indicated that Black Warrior waterdogs were still present in Locust Fork, Gurley Creek, Rush Creek (BNF property), and Yellow Creek (Godwin 2014, pers. comm.), although no waterdogs were captured at the time.

    Population Estimates and Status

    Each of the 14 sites verified as a Black Warrior waterdog locality (see above) represented individual populations. Very little is known about the status of these populations. Only one or two animals were captured at survey sites with the exception of Sipsey Fork, which was chosen for an indepth study because waterdogs were most common there (Durflinger-Moreno et al. 2006, pp. 70-71). Fifty-two waterdogs were captured at the Sipsey Fork site over a 3-year period representing 173,160 trap hours (1 waterdog/3,330 trap hours). Thirty-five (67 percent) animals were adults, 5 (10 percent) were subadults, and 12 (23 percent) were larvae. The number of adult males and females captured was not significantly different from an expected 1:1 sex ratio (Durflinger-Moreno et al. 2006, p. 79). In the Sipsey Fork, the high number of sexually mature individuals indicates that recruitment and survival rates of the young age classes may be low (Durflinger-Moreno et al. 2006, p. 79).

    The viability of any Black Warrior waterdog population, including Sipsey Fork population, is unknown.

    Habitat

    Rocks, submerged ledges, and other cover play important roles in determining habitat suitability for the Black Warrior waterdog (Ashton and Peavy 1986, p. 64). Semi-permanent leaf beds (where they exist) are visited frequently (Ashton and Peavy 1986, p. 64). Larvae and adult waterdogs are reliably found only in these submerged leaf beds, and they may use them for both shelter and foraging habitat (Bailey 2000, p. 3). Guyer (1997, pp. 1-21) analyzed habitats to distinguish sites with waterdogs from those lacking the species. He found that Black Warrior waterdogs were associated with clay substrates lacking silt, wide and shallow stream morphology, increased snail and dusky salamander (Desmognathus spp.) abundance, and decreased Asiatic clam (Corbicula fluminea) occurrence. Durflinger-Moreno et al. (2006, pp. 70-80) completed an additional assessment of 112 localities surveyed for waterdogs. At a regional scale, Black Warrior waterdogs were associated with stream depths of 1 to 4 meters (m) (3.3 to 13.1 feet (ft)), reduced sedimentation, and large leaf packs (leaves that fall into streams accumulate in packs usually behind branches, rocks, and other obstructions) supporting mayfly (Ephemeroptera spp.) and caddisfly (Trichoptera spp.) larvae.

    Biology

    Very little is known about the life history of the Black Warrior waterdog. Additionally, data are generally limited for other species of the southeastern Necturus waterdogs, as well.

    Reproduction in the Black Warrior waterdog is aquatic. Egg disposition sites and clutch sizes are unknown. However, in the closely related Gulf Coast waterdog (Necturus beyeri), females attach their eggs singly to the undersides of underwater substrate (summarized in Guyer 2005, p. 868). Sexually active Black Warrior waterdog adults have been found in rock crevices (Bailey 2005, p. 867), and thus egg deposition may occur at these sites. Clutch sizes ranging from 4 to 40 eggs were reported in a summary of research conducted on the Gulf Coast waterdog (Guyer 2005, p. 868). Ashton and Peavy (1986, p. 64) collected post hatchling Black Warrior waterdog larvae in December; this suggests that nesting may occur in late spring or summer. Reproductive maturity is probably attained in the third winter or at 2.5 years of age (Bailey 2005, p. 867).

    Aestivation (spending the summer in a state of inactivity) in Black Warrior waterdogs is suspected, as no specimens have been collected during the summer (Bailey 2005, p. 867). A similar seasonal pattern of activity primarily in winter and spring is also seen in other species of Necturus (Dundee 2005, p. 872; Guyer 2005, p. 868).

    Larval and adult Black Warrior waterdogs are assumed to be opportunistic carnivores, but prey taken in the wild has not been described. Adults are attracted to traps baited with fish-flavored cat food (Bailey 2005, p. 867). Captive Black Warrior waterdogs have eaten small fish and earthworms (Bailey 2005, p. 867). Crayfish, isopods, amphipods, freshwater clams, and insects (including mayflies, caddisflies, dragonfly naiads, dytiscid beetles, and midges) have been reported as prey items in Gulf Coast waterdogs (Guyer 2005, p. 868).

    Home ranges of Black Warrior waterdogs are likely small as in other species of the southeastern Necturus. As much more is known about the Gulf Coast waterdog, we are basing our analysis on its mark-recapture study where all recaptures were within 64 m (210 ft) of the original capture and release site (summarized in Guyer 2005, p. 868).

    Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), 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(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.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    Water quality degradation is the primary threat to the continued existence of the Black Warrior waterdog. Bailey (2000, pp. 19-20) considered water quality degradation to be the primary reason for the extirpation of this species over much of its historical range in the upper Black Warrior River system. Changes in water chemistry and flow patterns, resulting in a decrease in water quality and quantity have detrimental effects on salamander ecology because they can render aquatic habitat unsuitable for salamanders. Substrate modification is also a major concern for aquatic salamander species (Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34). Unobstructed interstitial space (pertaining to being between things, especially between things that are normally close) is a critical component of the habitat for the Black Warrior waterdog, because it provides cover from predators and habitat for their macroinvertebrate prey items within the sites. When the interstitial spaces become compacted or filled with fine sediment, the amount of available foraging habitat and protective cover for salamanders with these behaviors is reduced, resulting in population declines (Welsh and Ollivier 1998, pp. 1, 128; Geismar 2005, p. 2; O'Donnell et al. 2006, p. 34). Most streams surveyed for the Black Warrior waterdog showed evidence of water quality degradation, and many appeared biologically depauperate (limited aquatic species diversity) (Bailey 1992, p. 2 and 1995, p. 11; Durflinger-Moreno et al. 2006, p. 78).

    Discharges

    Sources of point (point source discharge) and nonpoint (land surface runoff) pollution in the Basin have been numerous and widespread. Point pollution is generated from inadequately treated effluent from industrial plants, sanitary landfills, sewage treatment plants, and drain fields from individual private homes (Service 2000, pp. 12-13). Nonpoint pollution originates from agricultural activities, poultry and cattle feedlots, abandoned mine runoff, construction, silviculture, failing septic tanks, and contaminated runoff from urban areas (Deutsch et al. 1990, pp. 1-62, Upper Black Warrior Technical Task Force 1991, p. 1; O'Neil and Sheppard 2001, p. 2). These sources contribute pollution to the Basin via sediments, fertilizers, herbicides, pesticides, animal wastes, septic tank and gray water leakage, and oils and greases. Water quality and native aquatic fauna have declined as a result of this pollution, which causes nitrification, decreases in dissolved oxygen concentration, and increases in acidity and conductivity. These alterations have a direct effect on the survival of Black Warrior waterdogs, which, due to their highly permeable skin (Duellman and Trueb 1986, p. 197) and external gills, are very sensitive to declines in water quality and oxygen concentration.

    Urbanization is a significant source of water quality degradation that can reduce the survival of aquatic organisms, such as the Black warrior waterdog (Bowles et al. 2006, p. 119; Chippindale and Price 2005, pp. 196-197). Urban development leads to various stressors on aquatic systems, including increased frequency and magnitude of high flows in streams, increased sedimentation, increased contamination and toxicity, and changes in stream morphology and water chemistry (Coles et al. 2012, pp. 1-3, 24, 38, 50-51). Urbanization can also impact aquatic species by negatively affecting their invertebrate prey base (Coles et al. 2012, p. 4). Urbanization also increases the sources and risks of an acute or catastrophic contamination event, such as a leak from an underground storage tank or a hazardous materials spill on a highway. Several researchers have examined the negative impact of urbanization on stream salamander habitat by making connections between salamander abundances and levels of development within the watershed. In a 1972 study on the dusky salamander (Desmognathus fuscus) in Georgia, Orser and Shure (p. 1,150) found a decrease in stream salamander density with increasing urban development. A similar relationship between salamander populations and urbanization was found in another study on the dusky salamander, two-lined salamander (Eurycea bislineata), southern two-lined salamander (Eurycea cirrigera), and other species in North Carolina (Price et al. 2006, pp. 437-439; Price et al. 2012a, p. 198), Maryland, and Virginia (Grant et al. 2009, pp. 1,372-1,375). Willson and Dorcas (2003, pp. 768-770) demonstrated the importance of examining disturbance within the entire watershed as opposed to areas just adjacent to the stream by showing that salamander abundance in the dusky and two-lined salamanders is most closely related to the amount and type of habitat within the entire watershed.

    The large population centers such as Birmingham, Tuscaloosa, and Jasper contribute substantial runoff to the Basin. The watershed occupied by these three cities contains more industrial and residential land area than other river basins in Alabama. Streams draining these areas have a history of serious water quality problems, as described above. Species of fish, mussels, and snails (Mettee et al. 1989, pp. 14-16; Hartfield 1990, pp. 1-8), and populations of the flattened musk turtle (Service 1990, p. 3), have been extirpated from large areas of the watershed primarily due to water quality degradation. For example, Mettee et al. (1989, pp. 14-16) noted the absence of at least nine fish species from streams draining the Birmingham metropolitan area where they had previously been common, and Hartfield (1990, pp. 1-8) documented the extirpation of 39 to 40 species of mussels from individual tributaries of the Black Warrior River. In addition, highway construction may reroute streams or change their shape.

    Forest Management

    Forestry operations and road construction are also sources of nonpoint pollution when best management practices (BMPs) are not followed to protect streamside management zones (Hartfield 1990, pp. 4-6; Service 2000, p. 13). Logging can cause erosion, siltation, and streambed structural changes from the introduction of tree slash. Forestry road construction, stream crossings, and bridge replacements can also result in increased sedimentation, and runoff may introduce toxic chemicals into streams. According to Alabama's BMPs for forestry, stream management zones (SMZs) should be 35 ft (50 ft for sensitive areas). Recently, the forest industry has begun to self-regulate SMZs through a certification program in which mills will not accept timber from foresters who do not comply with SMZs.

    Surface Mining

    Surface mining represents another threat to the biological integrity of streams in the Basin and has undoubtedly, in the past, affected the distribution of the Black Warrior waterdog (Bailey 1995, p. 10). Strip mining for coal results in hydrologic problems (i.e., erosion, sedimentation, decline in groundwater levels, and general degradation of water quality) that affect many aquatic organisms (Service 2000, p. 12). Runoff from coal surface mining generates pollution through acidification, increased mineralization, and sediment loading. Impacts are generally associated with past activities and abandoned mines, since presently operating mines are required to employ environmental safeguards established by the Federal Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) and the Clean Water Act of 1972 (33 U.S.C. 1251 et seq.) (Service 2000, p. 12). Old, abandoned mines will continue to contribute pollutants to streams into the future.

    Recently, new coal mines, which have the potential of discharging additional pollutants into the waters within the range of the Black Warrior waterdog, have been proposed in the Sipsey Fork and the Mulberry Fork (Dillard 2011, pers. comm.; Alabama Surface Mining Commission 2012, pp. 1-4).

    Sedimentation

    Sedimentation has probably caused similar declines for Black Warrior waterdogs as it has for the flattened musk turtle, which also occurs in the upper Basin. Sedimentation in this system has negatively affected the flattened musk turtle by: (1) Reduction of mollusks and other invertebrates used as food; (2) physical alteration of rocky habitats where animals forage and take cover, and (3) accumulation of substrate in which chemicals toxic to animals and their prey persist (Dodd et al. 1988, pp. 1-61). The Sipsey Fork of the Black Warrior River is the best remaining locality for the Black Warrior waterdog (Guyer 1998, p. 2). Bailey and Guyer (1998, pp. 77-83) completed a study of the flattened musk turtle at this site. They found that the turtle population was declining and suggested that habitat quality is also deteriorating. Because of similar habitat use, deteriorating habitat quality may likewise affect the Black Warrior waterdog.

    Black Warrior waterdogs are vulnerable to sedimentation, and the associated pollution concentrated in sediments, as they spend virtually all of their lives at the stream bottom and would be in almost constant contact with any toxic substances that may be present (Bailey 1995, p. 10). The skin of amphibians is highly permeable, and water is exchanged readily with the environment. As a result, the respiration (breathing) and osmoregulation (balance of body fluids) of Black Warrior waterdogs would be negatively affected by toxic sediments. Excessive sediments also impact the hard stream and river bottoms by making the habitat unsuitable for feeding or reproduction of Black Warrior waterdogs. For example, sediments have been shown to affect respiration, growth, reproductive success, and survival of aquatic insects and fish (Waters 1995, pp. 173-175) that serve as food sources for the waterdog (Bailey 2005, p. 867). Potential sources of pollution and associated sedimentation within a watershed include virtually all activities that disturb the land surface, and all localities currently occupied by the Black Warrior waterdog are affected by varying degrees by sedimentation (O'Neil and Sheppard 2001, Appendix B, p. 5). Sedimentation or siltation is one of the most severe threats to the Black Warrior River (Black Warrior Riverkeeper 2012, p. 1). The Black Warrior River watershed receives significant pollutant loading from activities related to the human population and land-use activities, including sedimentation from construction, forestry, mining, agriculture, and channelization of stream segments (Black Warrior River Watershed Management Plan n.d., p. 4.3).

    Impoundments

    Creation of large impoundments, behind Bankhead, Lewis, and Holt dams, within the Basin has flooded thousands of square hectares (acres) of habitat previously considered appropriate for the Black Warrior waterdog. Hartfield (1990, p. 7) summarized the number of miles of streams affected by impoundments in the Basin. He found that the entire main channel of the Black Warrior River, over 272 kilometers (km) (170 miles (mi)), has been affected. Impoundments do not have the shallow, flowing water preferred by the species. As a result, they are likely marginal or unsuitable habitat for the salamander. The abundance of predatory fish in impoundments further renders these lakes unsuitable for the Black Warrior waterdog. Impoundments have been entrapments for waterdogs.

    Two historical populations of the Black Warrior waterdog have been lost due to impoundments. Of the remaining historical populations, only one appears to be holding on in numbers sufficient enough to be captured regularly (Sipsey Fork on BNF). A second population is present on Locust Fork, but the numbers of waterdogs present appears low, based on the erratic capture success at the site. Through the use of eDNA, Godwin (2014, pers. comm.) identified a historical site on Yellow Creek as having Black Warrior waterdogs present. A couple years later, in 2016, a Black Warrior waterdog was indeed captured in Yellow Creek. Further, Godwin also identified two new sites in the Basin through the eDNA method, but as of yet, no waterdogs have been captured (recently) at any of the eDNA sites. Based on evolution biology, the current known and suspected populations are isolated and fragmented by human-made barriers, further compounding the effects of inbreeding and contributing to the species' decline.

    Summary of Factor A

    The historical loss of habitat is currently, and projected to continue to be, a threat to the Black Warrior waterdog. Habitat loss also amplifies the threat from point and nonpoint source water and habitat quality degradation, accidental spills, and violation of permitted discharges. Due to the limited extent of the habitat currently occupied by the species and the severity and magnitude of this threat, we consider that the present or threatened destruction, modification, or curtailment of habitat and range represents a threat to the Black Warrior waterdog. While changes to management and operating procedures have reduced impacts to the river system, ongoing activities continue to impact water quality.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Based on best available data, there is no evidence that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the Black Warrior waterdog.

    Factor C. Disease or Predation

    No diseases or incidences of predation have been reported for the Black Warrior waterdog. Also, Bart and Holzenthal (1985, p. 406) found that there is no natural evidence of predation on Necturus spp. by fish in creeks and streams. Therefore, the best available data do not indicate that disease or predation is a threat to the Black Warrior waterdog.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the Black Warrior waterdog discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account, “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws and regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. An example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

    The Federal Surface Mining Control and Reclamation Act of 1977, as amended December 22, 1987, requires all permitted mining operations to minimize disturbances and adverse impacts to fish, wildlife, and related environmental values, as well as implement enhancement measures where practicable. It further recognizes the importance of land and water resources restoration as a high priority in reclamation planning. The continued decline of many species, including the flattened musk turtle, fish, and a number of mussels in the Black Warrior Basin (Dodd et al. 1988, pp. 55-61; Mettee et al. 1989, pp. 12-13; Hartfield 1990, pp. 1-8; Bailey and Guyer 1998, pp. 77-83; Service 2000, pp. 12-13), is often attributed to mining activities, even though this law in effect.

    The Alabama Department of Conservation and Natural Resources (ADCNR) recently added the Black Warrior waterdog to its list of non-game State protected species (ADCNR 2012, pp. 1-4). Although this change will make it more difficult to obtain a collecting permit for the species, it does not offer any additional protection for habitat loss and degradation. The ADCNR also recognizes the Black Warrior waterdog as a Priority 2 species of high conservation concern in its State Wildlife Action Plan due to its rarity and restricted distribution (ADCNR 2005, p. 298). However, this designation also does not offer any regulatory protections.

    Stream segments within the Black Warrior River drainage currently occupied by the Black Warrior waterdog have been assigned water-use classifications of fish and wildlife (F&W) by the Alabama Department of Environmental Management (ADEM) under the authority of the Clean Water Act of 1972. The F&W designation establishes minimum water quality standards that are believed to be protective of aquatic species. In the Locust Fork, Mulberry Fork, and other tributaries of the Black Warrior River occupied by the Black Warrior waterdog, a combined total of 275 km (171 mi) have been identified on the Alabama 303(d) List (a list of water bodies failing to meet their designated water-use classifications) as impaired by siltation and nutrients (ADEM 2010, pp. 1-3). The sources of these impairments have been identified as runoff from agricultural fields, abandoned surface mines, and industrial or municipal sites. Multiple stream reaches within the occupied habitat of the Black Warrior waterdog (Locust Fork, Mulberry Fork, Yellow Creek, and North River) fail to meet current regulatory standards.

    Similarly, even with current regulations, surviving populations are negatively affected by discharges, highway construction, mining (current and unreclaimed sites), and other activities with a Federal nexus (see discussion under Factor A, above).

    Summary of Factor D

    Black Warrior waterdogs and their habitats are partially protected by Federal and State laws and regulations. However, after evaluating the information available on the implementation of these authorities, we determined that these regulatory mechanisms do not address the threats to the species.

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The remaining Black Warrior waterdog populations are isolated from each other by unsuitable habitat created by impoundments, pollution, and other factors as described under the Factor A discussion, above. Waterdog population densities are low even in the best localities, and factors related to low population compound these threats.

    Inbreeding

    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 (Soule 1980, pp. 157-158; Hunter 2002, pp. 97-101; Allendorf and Luikart 2007, pp. 117-146). It is likely that some of the Black Warrior waterdog populations are below the effective population size required to maintain long-term genetic and population viability (Soule 1980, pp. 162-164; Hunter 2002, pp. 105-107). The long-term viability of a species is based on the conservation of numerous local populations throughout its geographic range (Harris 1984, pp. 93-104). These separate populations are essential for the species to recover and adapt to environmental change (Noss and Cooperrider 1994, pp. 264-297; Harris 1984, pp. 93-104). The level of isolation and fragmentation seen in this species makes natural repopulation following localized extirpations virtually impossible without human intervention.

    Drought

    Droughts cause decreases in water flow and dissolved oxygen levels and increases in temperature in the river system. Studies of other aquatic salamander species have reported decreased occupancy, loss of eggs, decreased egg-laying, and extirpation from sites during periods of drought (Camp et al. 2000, p. 166; Miller et al. 2007, pp. 82-83; Price et al. 2012b, pp. 317-319).

    Spills

    Associated with urbanization is the development of transportation system, including roads, rails, airports, locks, and docks. Accidents, crashes, and derailments, resulting in spills, occur along these transportation corridors. Since 1990, there have been over 1,200 spills reported, to the U.S. Coast Guard National Response Center, in the Basin area. One of several spills that have occurred in the Blackwater Basin was an event in the Black Warrior River in 2013. Approximately 164 gallons of crude oil were accidently pumped into the river. Emergency response teams cleaned the river, but a sheen of crude oil remained visible (Taylor 2013, pers. comm.) (http://www.tuscaloosanews.com/article/20130617/NEWS/130619792). Today, the threat from spills remains unchanged.

    Climate Change

    Our analyses under the Act include consideration of ongoing and projected changes in climate.

    According to the IPCC (2013, p. 4), “Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.” Average Northern Hemisphere temperatures during the second half of the 20th century were very likely higher than during any other 50-year period in the last 500 years and likely the highest in at least the past 1,300 years (IPCC 2007b, p. 1). It is very likely that from 1950 to 2012, cold days and nights have become less frequent and hot days and hot nights have become more frequent on a global scale (IPCC 2013, p. 4). It is likely that the frequency and intensity of heavy precipitation events has increased over North America (IPCC 2013, p. 4).

    The IPCC (2013, pp. 15-16) predicts that changes in the global climate system during the 21st century are very likely to be larger than those observed during the 20th century. For the next two decades (2016 to 2035), a warming of 0.3 degrees Celsius (°C) (0.5 degrees Fahrenheit (°F)) to 0.7 °C (1.3 °F) per decade is projected (IPCC 2013, p. 15). Afterwards, temperature projections increasingly depend on specific emission scenarios (IPCC 2007b, p. 6). Various emissions scenarios suggest that by the end of the 21st century, average global temperatures are expected to increase 0.3 °C to 4.8 °C (0.5 °F to 8.6 °F), relative to 1986 to 2005 (IPCC 2013, p. 15). By the end of 2100, it is virtually certain that there will be more frequent hot and fewer cold temperature extremes over most land areas on daily and seasonal timescales, and it is very likely that heat waves and extreme precipitation events will occur with a higher frequency and intensity (IPCC 2013, pp. 15-16).

    Climate change has the potential to increase the vulnerability of the Black Warrior waterdog to random catastrophic events (e.g., McLaughlin et al. 2002; Thomas et al. 2004). Climate change is expected to result in increased frequency and duration of droughts and the strength of storms (e.g., Cook et al. 2004). Thomas et al. (2009, p. 112) report that the frequency, duration, and intensity of droughts are likely to increase in the Southeast as a result of global climate change.

    Summary of Factor E

    We consider the Black Warrior waterdog vulnerable to other natural or manmade factors, because low population densities combined with fragmentation of habitat renders the Black Warrior waterdog populations extremely vulnerable to inbreeding depression (negative genetic effects of small populations) (Wright et al. 2008, p. 833) and catastrophic events such as flood, drought, or chemical spills (Black Warrior River Watershed Management Plan n.d., p. 4.4).

    Cumulative Effects of Threats

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Black Warrior waterdog. Threats to the remaining Black Warrior waterdog populations exist primarily from two of the five threat factors (Factors A and E), and existing laws and regulations provide only minimal protection against habitat loss (Factor D). Threats also occur in combination, resulting in synergistically greater effects. For instance, in combination with the other threats identified in this proposed rule, a catastrophic hazardous materials spill could increase the species' risk of extinction by reducing its overall probability of persistence. Therefore, we consider hazardous material spills to be an ongoing significant threat to the Black Warrior waterdog due to the species' limited distribution, the abundance of potential sources of spills, and the number of salamanders that could be killed during a single spill event (Factor E).

    Proposed Determination

    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 Black Warrior waterdog 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, and the remaining habitat and populations face threats from a variety of factors (Factors A and E) acting in combination to reduce the overall viability of the species. The risks of extinction are high because the remaining populations are small, isolated, and have limited potential for recolonization (Factor E). Therefore, on the basis of the best available scientific and commercial information, we propose to list the Black Warrior waterdog as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act.

    We find that a threatened species status is not appropriate for the Black Warrior waterdog because of the species' contracted range, loss of habitat due to water quality degradation (sedimentation, toxins, and nutrients), fragmentation of the populations caused by impoundments, rangewide (not localized) threats, and ongoing threats expected to continue into the future.

    Significant Portion of the Range

    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 Black Warrior waterdog 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 37578, July 1, 2014).

    Available Conservation Measures

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

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

    Recovery planning 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 this species is listed, 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 Alabama 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 Alabama would be eligible for Federal funds to implement management actions that promote the protection or recovery of the Black Warrior waterdog. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Although the Black Warrior waterdog 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 Service, U.S. Forest Service, and Bureau of Land Management; issuance of section 404 Clean Water Act permits by the U.S. Army Corps of Engineers; construction and maintenance of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways by the Federal Highway Administration; land management practices supported by programs administered by the U.S. Department of Agriculture; Environmental Protection Agency pesticide registration; and projects funded through Federal loan programs which include, but are not limited to, roads and bridges, utilities, recreation sites, and other forms of development.

    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 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 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 any existing regulations, permit, and label requirements, and best management practices; and

    (2) Normal residential development and landscape activities, which are carried out in accordance with any existing regulations, permit requirements, and best management practices.

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

    (1) Unauthorized introduction of nonnative species that compete with or prey upon the Black Warrior waterdog;

    (2) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of this taxa, as defined by section 10(h)(1) of the Act;

    (3) Unauthorized destruction or alteration of Black Warrior waterdog habitat that results in destruction or loss of leaf packs and rocky substrate (rock crevices in the creek or stream);

    (4) Unauthorized discharge of chemicals or fill material into any waters in which the Black Warrior waterdog is known to occur; and

    (5) Actions, intentional or otherwise, that would result in the destruction of eggs or cause mortality or injury to hatchling, juvenile, or adult Black Warrior waterdogs.

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

    Section 4(a)(3) of the Act requires the Secretary, at the time a species is listed as endangered or threatened, to designate critical habitat to the maximum extent prudent and determinable. Elsewhere in this issue of the Federal Register, we propose to designate critical habitat for the Black Warrior waterdog.

    Required Determinations Clarity of the Rule

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

    (1) Be logically organized;

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

    (3) Use clear language rather than jargon;

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

    (5) Use lists and tables wherever possible.

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

    National Environmental Policy Act

    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).

    References Cited

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

    Authors

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

    List of Subjects in 50 CFR Part 17

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

    Proposed Regulation Promulgation

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

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

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

    2. Amend § 17.11(h) by adding an entry for “Waterdog, Black Warrior” to the List of Endangered and Threatened Wildlife in alphabetical order under AMPHIBIANS to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules *         *         *         *         *         *         * Amphibians *         *         *         *         *         *         * Waterdog, Black Warrior Necturus alabamensis Wherever found E [Federal Register citation of the final rule] *         *         *         *         *         *         *
    Dated: September 26, 2016. Stephen Guertin Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-24119 Filed 10-5-16; 8:45 am] BILLING CODE 4333-15-P
    81 194 Thursday, October 6, 2016 Notices DEPARTMENT OF AGRICULTURE Office of the Secretary Meeting Notice of the National Agricultural Research, Extension, Education, and Economics Advisory Board AGENCY:

    Research, Education, and Economics, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, 5 U.S.C. App 2, Section 1408 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3123), and the Agricultural Act of 2014, the United States Department of Agriculture (USDA) announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board.

    DATES:

    October 19-21, 2016. The public may file written comments before or up to November 4, 2016.

    ADDRESSES:

    The Lory Student Center at Colorado State University, 1101 Center Avenue Mall, The Grey Rock Room, Fort Collins, Colorado.

    Written comments may be sent to: The National Agricultural Research, Extension, Education, and Economics Advisory Board Office, Room 332A, Whitten Building, United States Department of Agriculture, STOP 0321, 1400 Independence Avenue SW., Washington, DC 20250-0321.

    FOR FURTHER INFORMATION CONTACT:

    Michele Esch, Executive Director/Designated Federal Official, or Shirley Morgan-Jordan, Program Support Coordinator, National Agricultural Research, Extension, Education, and Economics Advisory Board; telephone: (202) 720-3684; fax: (202)720-6199; or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose of the meeting: To provide advice and recommendations on the top priorities and policies for food and agricultural research, education, extension, and economics. The main focus of this meeting will be on the review of the relevance and adequacy of the climate and energy needs programs of the USDA Research, Education, and Extension mission area. The Board will also receive updates and information pertinent to the research, education, and economics activities in USDA. A detailed agenda may be received from the contact person identified in this notice or at https://nareeeab.ree.usda.gov/meetings/general-meetings.

    Tentative Agenda: On Wednesday, October 19, 2016, an orientation session for new members and interested incumbent members will be held from 9:00 a.m. MDT-12:00 (noon) p.m. MDT. The full Advisory Board will convene at 12:00 p.m. (noon) MDT and end by 6:00 p.m. MDT.

    On Thursday, October 20, 2016, the full Advisory Board will convene at 8:30 a.m. MDT. The Board will depart for a tour to the Grasslands Range Experiment Station at 12:30 p.m. MDT and return to Fort Collins at 5:00 p.m. MDT.

    On Friday, October 21, 2016, the Board will reconvene at 8:00 a.m. MDT and will adjourn by 12:00 p.m. (noon) MDT.

    Public Participation: This meeting is open to the public and any interested individuals wishing to attend. Opportunity for public comment will be offered each day of the meeting. To attend the meeting and/or make oral statements regarding any items on the agenda, you must contact Michele Esch or Shirley Morgan-Jordan at 202-720-3684; email: [email protected] at least 5 business days prior to the meeting. Members of the public will be heard in the order in which they sign up at the beginning of the meeting. The Chair will conduct the meeting to facilitate the orderly conduct of business. Written comments by attendees or other interested stakeholders will be welcomed for the public record before and up to two weeks following the Board meeting (or by close of business Friday, November 4, 2016). All written statements must be sent to Michele Esch, Designated Federal Officer and Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, U.S. Department of Agriculture, Room 332A, Jamie L. Whitten Building, Mail Stop 0321,1400 Independence Avenue SW., Washington, DC 20250-0321; or email: [email protected] All statements will become a part of the official record of the National Agricultural Research, Extension, Education, and Economics Advisory Board and will be kept on file for public review in the Research, Education, and Economics Advisory Board Office.

    Done at Washington, DC this 28th day of September 2016. Ann Bartuska, Deputy Under Secretary, Research, Education, and Economics.
    [FR Doc. 2016-24235 Filed 10-5-16; 8:45 am] BILLING CODE 3410-03-P
    DEPARTMENT OF AGRICULTURE Forest Service Sabine-Angelina Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Sabine-Angelina Resource Advisory Committee (RAC) will meet in Hemphill, Texas. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following Web site: http://cloudapps-usda-gov.force.com/FSSRS/RAC_Page?id=001t0000002JcvCAAS.

    DATES:

    The meeting will be held on Thursday, November 3, 2016, at 3:00 p.m.

    All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

    ADDRESSES:

    The meeting will be held at Sabine Ranger District, 5050 State Highway 21 East, Hemphill, Texas.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Sabine Ranger District. Please call ahead at 409-625-1940 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Becky Nix, RAC Coordinator,by phone at 409-625-1940 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Approve minutes from August 18, 2016 meeting; and

    2. Discuss, recommend, and approve new projects.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by Friday, October 28, 2016, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Becky Nix, RAC Coordinator, Sabine-Angelina Resource Advisory Committee, 5050 State Highway 21 E, Hemphill, Texas 75948; by email to [email protected], or via facsimile to 409-625-1953.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: September 29, 2016. James T. Sowell, Proxy Designated Federal Officer, Sabine-Angelina RAC.
    [FR Doc. 2016-24190 Filed 10-5-16; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and Opportunity for Public Comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [9/24/2016 through 9/30/2016] Firm name Firm address Date
  • accepted for
  • investigation
  • Product(s)
    Northern Crescent Iron, Inc 16 Kay Road, Flat Rock, NC 28731 9/28/2016 The firm produces knives, bottle openers, cabinet & door hardware and custom ironwork. Dynamic Design and Manufacturing, Inc 6321 Monarch Park Place, Niwot, CO 80503 9/29/2016 The firm manufactures metal mountings, fittings, and similar components for use in a wide range of industries. Lovell Designs, Inc 26 Exchange Street Portland, ME 4101 9/29/2016 The firm manufactures cast jewelry and ornaments.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Miriam Kearse, Lead Program Analyst.
    [FR Doc. 2016-24151 Filed 10-5-16; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Russell Henderson Marshall, Currently Incarcerated at: Inmate Number—96646-004, McCrae, Correctional Institution, P.O. Drawer 55030, McCrae Helena, GA 31055, and With an Address at: 14883 64th CT, North Loxahatchee, FL 33470; Order Denying Export Privileges.

    On April 24, 2015, in the U.S. District Court for the Southern District of Florida, Russell Henderson Marshall (“Marshall”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)) (“IEEPA”). Specifically, Marshall was convicted of violating IEEPA and a U.S. Department of Commerce denial order by engaging in negotiations concerning selling, delivering, or otherwise servicing transactions involving items exported from the United States and subject to the Regulations, to wit: Three temperature transmitters used on F-16 fighter jets to Thailand, and a saddle part for the J-69 engine used on 737 military trainer aircraft to Pakistan. Marshall was sentenced to 41 months of imprisonment, two years of supervised release, a $200 assessment and ordered to surrender to U.S. Immigration and Customs Enforcement for removal from the United States upon completion of incarceration.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations” 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the Export Administration Act (“EAA”), the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

    1 50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 4, 2016 (81 FR 52,587 (Aug. 8, 2016)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Marshall's conviction for violating IEEPA, and in accordance with Section 766.25 of the Regulations, BIS has provided notice and an opportunity for Marshall to make a written submission to BIS. BIS has not received a submission from Marshall.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Marshall's export privileges under the Regulations for a period of 10 years from the date of Marshall's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Marshall had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until April 24, 2025, Russell Henderson Marshall, currently incarcerated at: Inmate Number—96646-004, McCrae, Correctional Institution, P.O. Drawer 55030, McCrae Helena, GA 31055, and with a last known address of 14883 64th CT, North Loxahatchee, FL 33470, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, License Exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Marshall by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Marshall may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Marshall. This Order shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until April 24, 2025.

    Dated: September 30, 2016. Thomas Ankrukonis, Acting Director, Office of Exporter Services.
    [FR Doc. 2016-24175 Filed 10-5-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-826] Certain Paper Clips From the People's Republic of China: Final Results of Expedited Fourth Sunset Review of Antidumping Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of this sunset review, the Department of Commerce (the Department) finds that revocation of the antidumping duty order on certain paper clips (paper clips) from the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping at the levels identified in the “Final Results of Review” section of this notice.

    DATES:

    Effective September 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Maliha Khan, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0895.

    SUPPLEMENTARY INFORMATION:

    On November 25, 1994, the Department published the notice of the antidumping duty order on paper clips from the PRC.1 On June 1, 2016, the Department published the notice of initiation of the fourth sunset review of the AD Order, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 On June 16, 2016, the Department received a notice of intent to participate in this review from ACCO Brands USA LLC (ACCO), a domestic interested party, within the deadline specified in 19 CFR 351.218(d)(1)(i).3 ACCO claimed interested party status under section 771(9)(C) of the Act as a manufacturer in the United States of a domestic like product. On July 1, 2016, the Department received a complete and adequate substantive response from ACCO within 30-day deadline specified in 19 CFR 351.218(d)(3)(i).4 The Department received no substantive responses from respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of the AD Order.

    1See Antidumping Duty Order: Certain Paper Clips From the People's Republic of China, 59 FR 60606 (November 25, 1994) (AD Order).

    2See Initiation of Five-Year (“Sunset”) Review, 81 FR 34974 (June 1, 2016).

    3See Letter from ACCO to the Department, “Paper Clips from the People's Republic of China: Five-Year (“Sunset”) Review of Antidumping Duty Order (4th Review): Notice of Intent to Participate” (June 16, 2016).

    4See Letter from ACCO to the Department, “Paper Clips from the People's Republic of China: Five-Year Review of Antidumping Duty Order (4th Sunset Review), Case No. A-570-826; Substantive Response of ACCO Brands USA LLC” (July 1, 2016).

    Scope of the Order

    The products covered by the order are certain paper clips, wholly of wire of base metal, whether or not galvanized, whether or not plated with nickel or other base metal (e.g., copper), with a wire diameter between 0.025 inches and 0.075 inches (0.64 to 1.91 millimeters), regardless of physical configuration, except as specifically excluded. The products subject to the order may have a rectangular or ring-like shape and include, but are not limited to, clips commercially referred to as No. 1 clips, No. 3 clips, Jumbo or Giant clips, Gem clips, Frictioned clips, Perfect Gems, Marcel Gems, Universal clips, Nifty clips, Peerless clips, Ring clips, and Glide-On clips. The products subject to the order are currently classifiable under subheading 8305.90.3010 of the Harmonized Tariff Schedule of the United States (HTSUS).

    Specifically excluded from the scope of the order are plastic and vinyl covered paper clips, butterfly clips, binder clips, or other paper fasteners that are not made wholly of wire of base metal and are covered under a separate subheading of the HTSUS.

    Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

    Analysis of Comments Received

    A complete discussion of all issues raised in this review, including the likelihood of continuation or recurrence of dumping in the event of revocation of the AD Order and the magnitude of the margins likely to prevail if the order were revoked, is provided in the accompanying Issues and Decision Memorandum,5 which is hereby adopted by this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    5See Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Issues and Decision Memorandum for the Expedited Sunset Review of the Antidumping Duty Order on Paper Clips from the People's Republic of China,” dated concurrently with this notice (Issues and Decision Memorandum).

    Final Results of Sunset Review

    Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, the Department determines that revocation of the AD Order would be likely to lead to continuation or recurrence of dumping, and that the magnitude of the dumping margins likely to prevail would be weighted-average margins up to 126.94 percent.

    Notification to Interested Parties

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, 19 CFR 351.218, and 19 CFR 351.221(c)(5)(ii).

    Dated: September 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Order IV. History of the Order V. Legal Framework VI. Discussion of the Issues 1. Likelihood of Continuation or Recurrence of Dumping 2. Magnitude of the Margins Likely To Prevail VII. Final Results of Sunset Review VIII. Recommendation
    [FR Doc. 2016-24245 Filed 10-5-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-827] Certain Cased Pencils From the People's Republic of China: Final Results of Expedited Sunset Review of the Antidumping Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the Department) finds that revocation of the antidumping duty order (AD) order on certain cased pencils from the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping at the level indicated in the “Final Results of Review” section of this notice.

    DATES:

    Effective October 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mary Kolberg, Office I, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1785.

    SUPPLEMENTARY INFORMATION: Background

    On June 1, 2016, the Department initiated a sunset review of the AD Order1 on certain cased pencils from the PRC pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 The Dixon Ticonderoga Company (Dixon), as well as the General Pencil Co., Inc., Musgrave Pencil Co., and RoseMoon, Inc., notified the Department of their intent to participate in the sunset review as domestic interested parties on June 7, 2016, and June 14, 2016, respectively, pursuant to 19 CFR 351.218(d)(1)(i).3 Each of these companies claimed interested party status under section 771(9)(C) of the Act, as domestic producers of the domestic like product.

    1See Antidumping Duty Order: Certain Cased Pencils from the People's Republic of China, 59 FR 66909 (December 28, 1994) (AD Order).

    2See Initiation of Five-Year (“Sunset”) Review, 81 FR 34974 (June 1, 2016).

    3See letter from Dixon to the Department, re: “Five-Year Sunset Review of Certain Cased Pencils from the People's Republic of China: Dixon Notice of Intent to Participate,” dated June 7, 2016; see also letter from General Pencil Co., Inc., Musgrave Pencil Co. and RoseMoon, Inc., to the Department, re: “§ 751(c) Five-Year Sunset Review of the Antidumping Duty Order Against Cased Pencils from the People's Republic of China; Notice of Appearance and Intent to Participate,” dated June 14, 2016.

    On July 1, 2016, the Department received a collective substantive response from General Pencil Co., Inc., Musgrave Pencil Co., and RoseMoon, Inc., within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).4 The Department did not receive a substantive response from Dixon or any respondent interested party to the sunset proceeding. Because the Department received no response from the respondent interested parties, the Department conducted an expedited review of this AD Order, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(l)(ii)(C)(2).

    4See letter from General Pencil Co., Inc., Musgrave Pencil Co. and RoseMoon, Inc. to the Department, re: “§ 751(c) Five-Year Sunset Review of the Antidumping Duty Order Against Cased Pencils from the People's Republic of China; Substantive Response of Domestic Interested Parties,” dated July 1, 2016.

    Scope of the Order

    Imports covered by the order are shipments of certain cased pencils of any shape or dimension (except as described below) which are writing and/or drawing instruments that feature cores of graphite or other materials, encased in wood and/or man-made materials, whether or not decorated and whether or not tipped (e.g., with erasers, etc.) in any fashion, and either sharpened or unsharpened. The pencils subject to the order are currently classifiable under subheading 9609.10.00 of the Harmonized Tariff Schedule of the United States (`HTSUS'). Specifically excluded from the scope of the order are mechanical pencils, cosmetic pencils, pens, noncased crayons (wax), pastels, charcoals, chalks, and pencils produced under U.S. patent number 6,217,242, from paper infused with scents by the means covered in the above-referenced patent, thereby having odors distinct from those that may emanate from pencils lacking the scent infusion. Also excluded from the scope of the order are pencils with all of the following physical characteristics: (1) Length: 13.5 or more inches; (2) sheath diameter: not less than one-and-one quarter inches at any point (before sharpening); and (3) core length: Not more than 15 percent of the length of the pencil. In addition, pencils with all of the following physical characteristics are excluded from the scope of the order: Novelty jumbo pencils that are octagonal in shape, approximately ten inches long, one inch in diameter before sharpening, and three-and-one eighth inches circumference, composed of turned wood encasing one-and-one half inches of sharpened lead on one end and a rubber eraser on the other end. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

    Analysis of Comments Received

    All issues raised in this review are addressed in the Issues and Decision Memorandum, which is dated concurrently with this notice.5 The issues discussed in the Issues and Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail if the AD Order were revoked. Parties can find a complete discussion of all issues raised in this expedited sunset review and the corresponding recommendations in this public memorandum, which is on file electronically via the Enforcement and Compliance Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and in the Central Records Unit, room B8024 of the main Department of Commerce building. A list of topics discussed in the Issues and Decision Memorandum is included as an Appendix to this notice. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn/index.html. The signed Issues and Decision Memorandum and the electronic versions of the Issues and Decision Memorandum are identical in content.

    5See Memorandum to Paul Piquado, Assistant Secretary for Enforcement and Compliance, from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, “Issues and Decision Memorandum for the Final Results of the Expedited Five-Year Sunset Review of the Antidumping Duty Order on Certain Cased Pencils from the People's Republic of China,” dated September 29, 2016.

    Final Results of Review

    Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, we determine that revocation of the AD Order on certain cased pencils from the PRC would be likely to lead to continuation or recurrence of dumping at weighted-average percent margins up to 53.65 percent.

    Notification Regarding Administrative Protective Order

    This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    We are issuing and publishing these final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, and 19 CFR 351.218.

    Dated: September 29, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix—List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. History of the Order III. Background IV. Scope of the Order V. Discussion of the Issues 1. Likelihood of Continuation or Recurrence of Dumping 2. Magnitude of the Margins Likely To Prevail VI. Final Results of Review VII. Recommendation
    [FR Doc. 2016-24248 Filed 10-5-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Renewable Energy and Energy Efficiency Advisory Committee AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of an open meeting.

    SUMMARY:

    The Renewable Energy and Energy Efficiency Advisory Committee (REEEAC) will hold a meeting on Thursday, December 1, 2016 at the U.S. Department of Commerce Herbert C. Hoover Building in Washington, DC. The meeting is open to the public with registration instructions provided below.

    DATES:

    December 1, 2016, from approximately 8:30 a.m. to 5:00 p.m. Eastern Standard Time (EST). Members of the public wishing to participate must register in advance with Victoria Gunderson at the contact information below by 5:00 p.m. EST on Friday, November 24, 2016, in order to pre-register, including any requests to make comments during the meeting or for accommodations or auxiliary aids.

    For All Further Information, Please Contact:

    Victoria Gunderson, Designated Federal Officer, Office of Energy and Environmental Industries (OEEI), International Trade Administration, U.S. Department of Commerce at (202) 482-7890; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Secretary of Commerce established the REEEAC pursuant to discretionary authority and in accordance with the Federal Advisory Committee Act, as amended (5 U.S.C. App.), on July 14, 2010. The REEEAC was re-chartered on June 18, 2012, June 12, 2014, and June 9, 2016. The REEEAC provides the Secretary of Commerce with consensus advice from the private sector on the development and administration of programs and policies to enhance the export competitiveness of the U.S. renewable energy and energy efficiency industries.

    During the December 1st meeting of the REEEAC, committee members will hold the first meeting of its new charter term and discuss REEEAC operational structure, hear from Department of Commerce officials and interagency partners on major issues impacting the competitiveness of the U.S. renewable energy and energy efficiency industries, recommend the Sub-Committee structure, and select their recommendations for Committee Chair and Sub-Committee leadership.

    The meeting will be open to the public and will be accessible to people with disabilities. All guests are required to register in advance by the deadline identified under the DATES caption. Requests for auxiliary aids must be submitted by the registration deadline. Last minute requests will be accepted, but may be impossible to fill.

    A limited amount of time before the close of the meeting will be available for pertinent oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two to five minutes per person (depending on number of public participants). Individuals wishing to reserve speaking time during the meeting must contact Ms. Gunderson and submit a brief statement of the general nature of the comments, as well as the name and address of the proposed participant by 5:00 p.m. EST on Monday, November 21, 2016. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers. Speakers are requested to submit a copy of their oral comments by email to Ms. Gunderson for distribution to the participants in advance of the meeting.

    Any member of the public may submit pertinent written comments concerning the REEEAC's affairs at any time before or after the meeting. Comments may be submitted to the Renewable Energy and Energy Efficiency Advisory Committee, c/o: Victoria Gunderson, Designated Federal Officer, Office of Energy and Environmental Industries, U.S. Department of Commerce; 1401 Constitution Avenue NW.; Mail Stop: 4053; Washington, DC 20230. To be considered during the meeting, written comments must be received no later than 5:00 p.m. EST on Monday, November 21, 2016, to ensure transmission to the Committee prior to the meeting. Comments received after that date will be distributed to the members but may not be considered at the meeting.

    Copies of RE&EEAC meeting minutes will be available within 30 days following the meeting.

    Dated: October 3, 2016. Edward A. O'Malley, Director, Office of Energy and Environmental Industries.
    [FR Doc. 2016-24252 Filed 10-5-16; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: National Oceanic and Atmospheric Administration (NOAA).

    Title: Electronic Monitoring Systems for Atlantic Highly Migratory Species (HMS) Fisheries.

    OMB Control Number: 0648-0372.

    Form Number(s): None.

    Type of Request: Regular (revision and extension of a currently approved information collection).

    Number of Respondents: 194.

    Average Hours per Response: Four hours for initial VMS installation; 5 minutes per VMS initial activation checklist; 2 minutes per VMS hail-out/hail-in declaration; 6 hours for electronic monitoring installation; 5 minutes for VMS pelagic longline bluefin tuna catch reporting; 15 minutes for VMS purse seine bluefin tuna catch records; 1 minute for dockside review of bluefin tuna catch records previously submitted via VMS; 2 hours for electronic monitoring data retrieval.

    Burden Hours: 6,420.

    Needs and Uses: This request is for revision and extension of a currently approved information collection.

    VMS and electronic monitoring systems collect important information on fishing effort, catch, and the geographic location of fishing effort and catch for certain sectors of the Atlantic HMS fleet. Data collected through these programs are used in both domestic and international fisheries management, including for law enforcement, stock assessments, and quota management purposes. Atlantic HMS vessels required to use VMS are pelagic longline, purse seine, bottom longline (directed shark permit holders in North Carolina, South Carolina, and Virginia), and gillnet (directed shark permit holders consistent with the requirements of the Atlantic large whale take reduction plan requirements at 50 CFR 229.39.(h)) vessels. In addition to VMS, pelagic longline vessels are also required to have electronic monitoring systems to monitor catch and account for bluefin tuna harvest and discards. Revision: NMFS will now pay EM electronic data retrieval and review costs.

    The National Marine Fisheries Service (NMFS) Office of Law Enforcement (OLE) monitors fleet adherence to gear- and time-area restrictions with VMS position location data. Gear restricted areas and time-area closures are important tools for Atlantic HMS management that have been implemented to reduce bycatch of juvenile swordfish, sea turtles, and bluefin tuna, among other species. Electronic monitoring data from the pelagic longline fleet includes bluefin tuna discard and harvest information. These data are used by NMFS to accurately monitor bluefin tuna catch by the pelagic longline fleet, to ensure compliance with Individual Bluefin Quota (IBQ) limits and requirements, and to ensure that the Longline category bluefin tuna quota is not over-harvested. VMS reporting of bluefin tuna catch is used to monitor the status of IBQ allocations in real-time. Atlantic HMS fisheries are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Conservation Act (ATCA). Under the MSA, management measures must be consistent with ten National Standards, and fisheries must be managed to maintain optimum yield, rebuild overfished fisheries, and prevent overfishing. Under ATCA, the Secretary of Commerce shall promulgate regulations, as necessary and appropriate, to implement measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT).

    Affected Public: Business and other for-profit organizations.

    Frequency: Daily and on occasion.

    Respondent's Obligation: Mandatory.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Dated: October 3, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-24207 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Southeast Region Gulf of Mexico Mandatory Shrimp Vessel and Gear Characterization Survey AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted by December 5, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Adam Bailey, National Marine Fisheries Service, Southeast Regional Office, Sustainable Fisheries Division, 263 13th Ave S, St. Petersburg, FL 33701, (727) 824-8305, or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a current information collection.

    The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes the Gulf of Mexico Fishery Management Council (Council) to prepare and amend fishery management plans (FMPs) for any fishery in Federal waters under its jurisdiction. NMFS and the Council manage the shrimp fishery in the Federal waters of the Gulf of Mexico (Gulf) under the FMP for the Shrimp Fishery of the Gulf. The regulations for the Gulf Shrimp Vessel and Gear Characterization Form may be found at 50 CFR 622.51(a)(3).

    Owners or operators of vessels applying for or renewing a commercial vessel permit for Gulf shrimp must complete an annual Gulf Shrimp Vessel and Gear Characterization Form. NMFS provides the form at the time of permit application and renewal. Compliance with this reporting requirement is required for permit issuance and renewal.

    Through this form, NMFS collects census-level information on fishing vessel and gear characteristics in the Gulf shrimp fishery to conduct analyses that will improve management decision-making in this fishery. In addition, these analyses ensure that national goals, objectives, and requirements of the Magnuson-Stevens Act, National Environmental Policy Act, Regulatory Flexibility Act, Endangered Species Act, and Executive Order 12866 are met; and quantify achievement of the performance measures in the NMFS' Operating Plans. This information is vital in assessing the economic, social, and environmental effects of fishery management decisions and regulations on individual shrimp fishing enterprises, fishing communities, and the nation as a whole.

    There have been minor adjustments to responses and burden. As of August 26, 2016, there are approximately 1,445 vessels with valid or renewable permits in the Gulf shrimp fishery. The slightly fewer number of vessels has resulted in adjusted estimates of total burden hours and costs as noted below in Section III.

    II. Method of Collection

    Respondents are mailed hard copies of the form. Permit applicants must complete and mail the form back to NMFS before permits expire and before NMFS will issue permits.

    III. Data

    OMB Control Number: 0648-0542.

    Form Number(s): None.

    Type of Review: Regular submission—renewal of a current information collection.

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 1,445.

    Estimated Time per Response: 20 minutes.

    Estimated Total Annual Burden Hours: 482.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: October 3, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-24194 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE933 New England Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a public meeting of its Herring Committee on Thursday, October 20, 2016 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Thursday, October 20, 2016 at 10 a.m.

    ADDRESSES:

    The meeting will be held at the DoubleTree by Hilton, 363 Maine Mall Road, South Portland, ME 04106; phone: (207) 775-6161; fax: (207) 756-6622.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION:

    Agenda

    The Herring Committee will discuss next steps for Management Strategy Evaluation of Atlantic Herring Acceptable Biological Catch control rules being considered in Amendment 8 to the Atlantic Herring Fishery Management Plan (FMP), including review of draft goals and agenda for a public workshop. Review additional Plan Development Team analysis and continue development of measures related to localized depletion to be considered in Amendment 8 to the Atlantic Herring FMP. The committee will also review progress and provide input on Framework Adjustment 5 to the Atlantic Herring FMP, an action considering modification of accountability measures (AMs) that trigger if the sub-ACL of Georges Bank haddock is exceeded by the midwater trawl herring fishery. Other business will be discussed as necessary. The Committee will also have a closed session to review 2018-20 Herring Advisory Panel applications and make recommendations for approval to the Council's Executive Committee.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 3, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24172 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE934 North Pacific Fishery Management Council; Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The North Pacific Fishery Management Council (Council) Charter Implementation Committee will meet telephonically on October 24, 2016.

    DATES:

    The meeting will be held on Monday, October 24, 2016, from 10 a.m. to 5 p.m.

    ADDRESSES:

    The meeting will be held at the North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252. Teleconference line is (907) 271-2896.

    Council address: North Pacific Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK 99501-2252; telephone: (907) 271-2809.

    FOR FURTHER INFORMATION CONTACT:

    Steve MacLean, Council staff; telephone: (907) 271-2809.

    SUPPLEMENTARY INFORMATION:

    Agenda Monday, October 24, 2016

    The agenda is to identify a range of potential management measures for the Area 2C and Area 3A charter halibut fisheries in 2017, using the management measures in place for 2016 as a baseline. For Area 2C, the baseline management measure is a daily limit of one fish less than or equal to 43 inches or greater than or equal to 80 inches in length. For Area 3A, the baseline management measure is an annual limit of four fish, a daily limit of two fish, one fish of any size, and a second fish which must be 28 inches or less in length and a Wednesday closure. Committee recommendations will be incorporated into an analysis for Council review in December 2016. The Council will recommend preferred management measures for consideration by the International Pacific Halibut Commission at its January 2017 meeting, for implementation in 2017.

    The Agenda is subject to change, and the latest version will be posted at http://www.npfmc.org/

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271-2809 at least 7 working days prior to the meeting date.

    Dated: October 3, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-24170 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Southeast Region Gulf of Mexico Electronic Logbook Program AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted by December 5, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Adam Bailey, National Marine Fisheries Service, Southeast Regional Office, Sustainable Fisheries Division, 263 13th Ave S, St. Petersburg, FL 33701, (727) 824-8305, or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a current information collection.

    The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes the Gulf of Mexico Fishery Management Council (Council) to prepare and amend fishery management plans for any fishery in waters under its jurisdiction. NMFS manages the shrimp fishery in the waters of the Gulf of Mexico (Gulf) under the Fishery Management Plan for the Shrimp Fishery of the Gulf. The electronic logbook (ELB) regulations for the Gulf shrimp fishery may be found at 50 CFR 622.51(a)(2).

    As of August 25, 2016, there are approximately 1,445 valid or renewable Federal permits to harvest shrimp from the exclusive economic zone (EEZ) in the Gulf. Monitoring shrimp vessels, operating together with many other fishing vessels of differing sizes, gears types used, and fishing capabilities, is made even more challenging by seasonal variability in shrimp abundance and price, and the broad geographic distribution of the fleet. ELBs provide a precise means of estimating the amount of shrimp fishing effort. Using ELBs to estimate fishing effort serves an important role to help estimate bycatch in the Gulf shrimp fleet.

    II. Method of Collection

    The current electronic logbook unit automatically collects fishing effort data and transmits those data via a cellular phone connection activated when the vessel is within non-roaming cellular range.

    III. Data

    OMB Control Number: 0648-0543.

    Form Number(s): None.

    Type of Review: Regular (extension of a current information collection).

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 1,445.

    Estimated Time per Response: 6 hours.

    Estimated Total Annual Burden Hours: 3,132.

    Estimated Total Annual Cost to Public: $404,600.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: October 3, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-24195 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Statement of Financial Interests, Regional Fishery Management Councils AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before December 5, 2016.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Brian Fredieu, (301) 427-8505 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for revision and extension of a current information collection. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Stevens Act) authorizes the establishment of Regional Fishery Management Councils to exercise sound judgment in the stewardship of fishery resources through the preparation, monitoring, and revision of such fishery management plans under circumstances (a) which will enable the States, the fishing industry, consumers, environmental organizations, and other interested persons to participate in the development of such plans, and (b) which take into account the social and economic needs of fishermen and dependent communities.

    Section 302(j) of the Magnuson-Stevens Act requires that Council members appointed by the Secretary, Scientific and Statistical Committee (SSC) members appointed by a Council under Section 302(g)(1), or individuals nominated by the Governor of a State for possible appointment as a Council member, disclose their financial interest in any Council fishery. These interests include harvesting, processing, lobbying, advocacy, or marketing activity that is being, or will be, undertaken within any fishery over which the Council concerned has jurisdiction, or with respect to an individual or organization with a financial interest in such activity. The authority to require this information and reporting and filing requirements has not changed. Revision: NOAA Fisheries is in the process of conducting minor revisions to the form by adding clearer instructions and clarifying some of the questions asked to ensure the questions are consistent with the regulatory requirements. Revisions will also include a specific check box to indicate that a Council nominee, and not a member, is completing the form.

    The Secretary is required to submit an annual report to Congress on action taken by the Secretary and the Councils to implement the disclosure of financial interest and recusal requirements, including identification of any conflict of interest problems with respect to the Councils and SSCs and recommendations for addressing any such problems.

    The Act further provides that a member shall not vote on a Council decision that would have a significant and predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interest of other participants in the same gear type or sector of the fishery. However, an affected individual who is declared ineligible to vote on a Council action may participate in Council deliberations relating to the decision after notifying the Council of his/her recusal and identifying the financial interest that would be affected.

    II. Method of Collection

    Respondents submit paper forms. The forms and related instructions are available to the public on the Internet and can be completed online and printed. Seated Council members appointed by the Secretary, including the Tribal Government appointee and SSC members, must file a financial interest form within 45 days of taking office and must provide updates of their statements at any time any such financial interest is acquired, or substantially changed.

    III. Data

    OMB Number: 0648-0192.

    Form Number: NOAA Form 88-195.

    Type of Review: Regular submission (request for revision and extension of a current information collection).

    Affected Public: Individuals or households.

    Estimated Number of Respondents: 330.

    Estimated Time per Response: 45 minutes.

    Estimated Total Annual Burden Hours: 247.

    Estimated Total Annual Cost to Public: $353.10 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: September 30, 2016. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2016-24193 Filed 10-5-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2016-OS-0005] Submission for OMB Review; Comment Request ACTION:

    Notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by November 7, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493.

    SUPPLEMENTARY INFORMATION:

    Title, Associated Form and OMB Number: Family Member Travel Screening; DD Form X678 TEST, Screening Verification, DD Form X678-1TEST, Medical and Education Information, DD Form X678-2TEST, Dental Health Information, and DD Form X678-3TEST, Patient Care Review, DD Form X678-4 TEST, Administrative Review Checklist; OMB Control Number 0704-XXXX.

    Type of Request: New.

    Number of Respondents: 17,943.

    Responses per Respondent: 1.

    Annual Responses: 17,943.

    Average Burden per Response: 15 minutes.

    Annual Burden Hours: 4,617 hours.

    Needs and Uses: The DD Forms DD Form X678 TEST X678-1 TEST, X678-2 TEST, X678-3 TEST, and DD Form X678-4 TEST are to be used during the Family Member Travel Screening (FMTS) process when active duty Service members with Permanent Change of Station (PCS) orders to OCONUS or remote installations request Command sponsorship for accompanied travel. These forms assist in determining the availability of care at a gaining installation by documenting any special medical, dental, and/or educational needs of dependents accompanying the Service member. Throughout the process, form respondents include: (1) Active duty Service members and/or dependents over the age of majority who provide demographic information; (2) medical and dental providers who provide information about dependent medical and dental needs; (3) losing FMTS Office staff who document any special medical, dental, and/or educational needs; and (4) gaining FMTS Office staff who document the availability of special needs support services at a gaining location.

    Affected Public: Individuals or households; medical and dental providers.

    Frequency: On occasion.

    Respondent's Obligation: Mandatory.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Instructions: All submissions received must include the agency name, Docket ID number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    DOD Clearance Officer: Mr. Frederick Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Dated: October 3, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-24199 Filed 10-5-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Navy [Docket ID: USN-2016-HQ-0005] Proposed Collection; Comment Request AGENCY:

    Commander Navy Installation Command, DoD.

    ACTION:

    Notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Commander Navy Installation Command (CNIC) announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by December 5, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at http://www.regulations.gov for submitting comments. Please submit comments on any given form identified by docket number, form number, and title.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Commander Navy Installations Command, 716 Sicard Street SE., Suite 1000, Washington Navy Yard, DC 20374-5140, or call the Family Readiness Lead at 202-433-3165.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Navy Ombudsman Registry; DD Form 2793; OMB 0703-XXXX.

    Needs and Uses: The information collection requirement is necessary to identify all Navy ombudsmen; provide them with program information; communicate during natural disasters and crisis; collect program contact numbers and workload data; and maintain records of program training received. Numbers provided from the collection help identify the issues and concern of the families, trends during deployment and identify training which may be beneficial to the command families.

    Affected Public: Individuals or Households.

    Annual Burden Hours: 1,050.

    Number of Respondents: 2,100.

    Responses per Respondent: 1.

    Annual Responses: 2,100.

    Average Burden per Response: 30 minutes.

    Frequency: Monthly, Quarterly, and on Occasion.

    Respondents are the spouses of active duty members of the command or selected reserves of the command. They may also be the parent or family member of a single service member or retired service members of the command that meet certain requirements. The information obtained from the worksheets assists CNIC in identifying resources and/or trainings to assist ombudsmen in supporting and maintaining family readiness, which enables commands to focus on mission readiness. Statistics provided from collection shows commanding officers the issues and concerns of command families, trends during deployment versus non-deployment periods, and training which may be beneficial to the command and families. The worksheet information shows Navy leadership the cost avoidance benefit to the Navy for having ombudsmen perform the types of services that they deliver.

    Dated: October 3, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2016-24188 Filed 10-5-16; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER16-2713-000.

    Applicants: Public Service Company of New Mexico.

    Description: § 205(d) Rate Filing: Filing to Revise Depreciation Rates in PNM's Transmission Formula Rate to be effective 10/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5165.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2714-000.

    Applicants: Idaho Power Company.

    Description: § 205(d) Rate Filing: Attachment K—2016 Requirement and Process Clarifications to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5167.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2715-000.

    Applicants: NorthWestern Corporation.

    Description: § 205(d) Rate Filing: Northern Tier Transmission Group Attachment K Revisions to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5168.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2716-000.

    Applicants: NextEra Energy Transmission MidAtlantic, LLC.

    Description: Baseline eTariff Filing: NextEra Energy Transmission MidAtlantic, LLC Filing to Establish a Formula Rate to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5169.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2717-000.

    Applicants: NextEra Energy Transmission Midwest, LLC.

    Description: Baseline eTariff Filing: NextEra Energy Transmission Midwest, LLC Filing to Establish a Formula Rate to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5170.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2718-000.

    Applicants: Portland General Electric Company.

    Description: § 205(d) Rate Filing: Att K Update Filing to be effective 11/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5180.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2719-000.

    Applicants: NextEra Energy Transmission New York, Inc.

    Description: Baseline eTariff Filing: NextEra Energy Transmission New York, Inc. Filing to Establish a Formula Rate to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5183.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2720-000.

    Applicants: NextEra Energy Transmission Southwest, LLC.

    Description: Baseline eTariff Filing: NextEra Energy Transmission Southwest, LLC Filing to Establish a Formula Rate to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5190.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2721-000.

    Applicants: New England Power Pool Participants Committee.

    Description: § 205(d) Rate Filing: Oct 2016 Membership Filing to be effective 10/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5199.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2722-000.

    Applicants: Arizona Public Service Company.

    Description: § 205(d) Rate Filing: EIM OATT Flexible Ramping Product REvisions to be effective 10/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5209.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2723-000.

    Applicants: Connecticut Yankee Atomic Power Company.

    Description: § 205(d) Rate Filing: Connecticut Yankee Application to Update Decommissioning Estimate to be effective 12/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5259.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2724-000.

    Applicants: Duke Energy Carolinas, LLC.

    Description: § 205(d) Rate Filing: Amendments to Duke Cities NITSAs to be effective 9/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5268.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2725-000.

    Applicants: PSEG Energy Solutions LLC.

    Description: Baseline eTariff Filing: PSEG Energy Solutions LLC Market Based Rate Tariff to be effective 12/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5269.

    Comments Due: 5 p.m. ET 10/21/16.

    Take notice that the Commission received the following electric securities filings:

    Docket Numbers: ES16-56-000.

    Applicants: Kingsport Power Company.

    Description: Application Under Section 204 of the Federal Power Act for Authorization to Issue Securities of Kingsport Power Company.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5189.

    Comments Due: 5 p.m. ET 10/21/16.

    Take notice that the Commission received the following public utility holding company filings:

    Docket Numbers: PH16-15-000.

    Applicants: Energy Future Holdings Corp.

    Description: Energy Future Holdings Corp. submits FERC 65-B Waiver Notification, et al.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5181.

    Comments Due: 5 p.m. ET 10/21/16.

    Take notice that the Commission received the following electric reliability filings:

    Docket Numbers: RR16-7-000.

    Applicants: North American Electric Reliability Corporation.

    Description: Petition of North American Electric Reliability Corporation for approval of amendments to the Western Electricity Coordinating Council bylaws.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5220.

    Comments Due: 5 p.m. ET 10/20/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 30, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24204 Filed 10-5-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER10-2464-011; ER13-1585-010; ER13-1139-016; ER11-2657-010; ER10-2465-009; ER10-2464-011.

    Applicants: First Wind Energy Marketing, LLC, Imperial Valley Solar 1, LLC, Longfellow Wind, LLC, Milford Wind Corridor Phase I, LLC, Milford Wind Corridor Phase II, LLC, Regulus Solar, LLC.

    Description: Supplement to June 30, 2016 Market Power Update for the Southwest Region of First Wind Energy Marketing, LLC, et al.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5210.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER15-1510-002.

    Applicants: FirstEnergy Solutions Corp.

    Description: Compliance filing: Compliance to 51 to be effective 11/16/2015.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5128.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2048-001.

    Applicants: Exelon West Medway II, LLC.

    Description: Compliance filing: Amended Certificate of Concurrence Filing to be effective 10/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5087.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2509-002.

    Applicants: Rutherford Farm, LLC.

    Description: Tariff Amendment: Additional Amendment to Application and Initial Baseline Tariff Filing to be effective 10/29/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5040.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2566-001.

    Applicants: Dynegy Midwest Generation, LLC.

    Description: Tariff Amendment: Superseded Revised Rate Schedule to be effective 10/17/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5157.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2698-001.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Amendment: Errata to Amendment to Service Agreement No. 3153, Queue No. W1-029 to be effective 11/4/2011.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5175.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2703-000.

    Applicants: Deerfield Wind Energy, LLC.

    Description: Baseline eTariff Filing: Application for MBR Filing to be effective 10/7/2016.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5174.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2704-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: Kitching Street 115 kV Intx Project Wholesale Distribution Load IFA to be effective 10/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5002.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2705-000.

    Applicants: Orange and Rockland Utilities, Inc.

    Description: § 205(d) Rate Filing: Filing of Integrated ESA to be effective 9/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5019.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2706-000.

    Applicants: Idaho Power Company.

    Description: Compliance filing: LGIA/SGIA Modifications—Order Nos. 827 and 828 Combined Compliance Filing to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5073.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2707-000.

    Applicants: California Independent System Operator Corporation.

    Description: Petition for Approval of Disposition of Proceeds of Penalty Assessments and Non-Refundable Interconnection Financial Security of California Independent System Operator Corporation.

    Filed Date: 9/29/16.

    Accession Number: 20160929-5212.

    Comments Due: 5 p.m. ET 10/20/16.

    Docket Numbers: ER16-2709-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Cancellation: Service Agreement No. 4489, Queue No. AA1-116/AA1-117 Cancellation to be effective 12/1/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5124.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2710-000.

    Applicants: MATL LLP.

    Description: § 205(d) Rate Filing: MATL K clean up filing to be effective 11/23/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5133.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2711-000.

    Applicants: Talen Energy Marketing, LLC.

    Description: § 205(d) Rate Filing: Reactive Revenue Adjustment Filing to be effective 11/17/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5142.

    Comments Due: 5 p.m. ET 10/21/16.

    Docket Numbers: ER16-2712-000.

    Applicants: PacifiCorp.

    Description: § 205(d) Rate Filing: OATT Revised Attachment K—1st planning cycle modifications to be effective 11/30/2016.

    Filed Date: 9/30/16.

    Accession Number: 20160930-5162.

    Comments Due: 5 p.m. ET 10/21/16.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: September 30, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2016-24203 Filed 10-5-16; 8:45 am] BILLING CODE 6717-01-P
    FARM CREDIT ADMINISTRATION Farm Credit Administration Board; Sunshine Act; Regular Meeting AGENCY:

    Farm Credit Administration.

    SUMMARY:

    Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).

    DATES:

    The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 13, 2016, from 9:00 a.m. until such time as the Board concludes its business.

    ADDRESSES:

    Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090. Submit attendance requests via email to [email protected] See SUPPLEMENTARY INFORMATION for further information about attendance requests.

    FOR FURTHER INFORMATION CONTACT:

    Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056.

    SUPPLEMENTARY INFORMATION:

    This meeting of the Board will be open to the public (limited space available). Please send an email to [email protected] at least 24 hours before the meeting. In your email include: name, postal address, entity you are representing (if applicable), and telephone number. You will receive an email confirmation from us. Please be prepared to show a photo identification when you arrive. If you need assistance for accessibility reasons, or if you have any questions, contact Dale L. Aultman, Secretary to the Farm Credit Administration Board, at (703) 883-4009. The matters to be considered at the meeting are:

    Open Session A. Approval of Minutes • September 8, 2016 B. New Business • Profit Outlook for the 2016 Corn, Soybean and Wheat Crops Dale L. Aultman, Secretary, Farm Credit Administration Board.
    [FR Doc. 2016-24296 Filed 10-4-16; 11:15 am] BILLING CODE 6705-01-P
    FEDERAL ACCOUNTING STANDARDS ADVISORY BOARD Notice of Request for Comment on the Exposure Draft Titled Leases: An Amendment of SFFAS 5, Accounting for Liabilities of the Federal Government and SFFAS 6, Accounting for Property, Plant, and Equipment AGENCY:

    Federal Accounting Standards Advisory Board.

    ACTION:

    Notice.

    Board Action: Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued an exposure draft titled Leases: An Amendment of SFFAS 5, Accounting for Liabilities of the Federal Government and SFFAS 6, Accounting for Property, Plant, and Equipment.

    The exposure draft is available on the FASAB Web site at http://www.fasab.gov/documents-for-comment/. Copies can be obtained by contacting FASAB at (202) 512-7350.

    Respondents are encouraged to comment on any part of the exposure draft. Written comments are requested by January 6, 2017, and should be sent to [email protected] or Wendy M. Payne, Executive Director, Federal Accounting Standards Advisory Board, 441 G Street NW., Suite 6814, Mail Stop 6H19, Washington, DC 20548.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mail Stop 6H19, Washington, DC 20548, or call (202) 512-7350.

    Authority:

    Federal Advisory Committee Act, Public Law 92-463.

    Dated: September 30, 2016. Wendy M. Payne, Executive Director.
    [FR Doc. 2016-24135 Filed 10-5-16; 8:45 am] BILLING CODE 1610-02-P
    FEDERAL ACCOUNTING STANDARDS ADVISORY BOARD Notice of Request for Comment on the Exposure Draft Titled Federal Financial Reporting AGENCY:

    Federal Accounting Standards Advisory Board.

    ACTION:

    Notice.

    Board Action: Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued an exposure draft titled Federal Financial Reporting.

    The exposure draft is available on the FASAB Web site at http://www.fasab.gov/documents-for-comment/. Copies can be obtained by contacting FASAB at (202) 512-7350.

    Respondents are encouraged to comment on any part of the exposure draft. Written comments are requested by January 6, 2017, and should be sent to [email protected] or Wendy M. Payne, Executive Director, Federal Accounting Standards Advisory Board, 441 G Street NW., Suite 6814, Mail Stop 6H19, Washington, DC 20548.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Wendy M. Payne, Executive Director, 441 G Street NW., Mail Stop 6H19, Washington, DC 20548, or call (202) 512-7350.

    Authority:

    Federal Advisory Committee Act, Pub. L. 92-463.

    Dated: September 30, 2016. Wendy M. Payne, Executive Director.
    [FR Doc. 2016-24137 Filed 10-5-16; 8:45 am] BILLING CODE 1610-02-P
    FEDERAL COMMUNICATIONS COMMISSION Privacy Act System of Records. AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice; one new Privacy Act system of records; three deleted systems of records.

    SUMMARY:

    The Federal Communication Commission (FCC or Commission, or the Agency) proposes to add one new, consolidated system of records, FCC/OMD-25, Financial Operations Information System (FOIS) to its inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a) as amended. This action is necessary to meet the requirements of the Privacy Act to publish in the Federal Register notice of the existence and character of records maintained by the agency (5 U.S.C. 552a(e)(4)). FCC/OMD-25 will consolidate the three system of records, FCC/OMD-6, Financial Accounting Systems (FAS), FCC/OMD-9, Commission Registration System (CORES), and FCC/OMD-19, Denial of Federal Benefits (Drug Debarment List), and also add new and/or updated information that pertains to the mission and activities of the FCC's Financial Operations (FO) organization in the Office of Managing Director, which are associated with the Commission's financial and budgetary operations, programs, activities, and transactions, and the related telecommunications functions. Upon approval of FCC/OMD-25, the Commission will cancel FCC/OMD-6, FCC/OMD-9, and FCC/OMD-19.

    DATES:

    Written comments are due on or before November 7, 2016. This action will become effective on November 15, 2016 unless comments are received that require a contrary determination.

    ADDRESSES:

    Send comments to Leslie F. Smith, Privacy Analyst, Information Technology (IT), Room 1-C216, Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554, (202) 418-0217, or via the Internet at [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Leslie F. Smith, (202) 418-0217, or [email protected], and to obtain a copy of the Narrative Statement, which includes details of this proposed new system of records.

    SUPPLEMENTARY INFORMATION:

    The FCC previously gave notice of the three systems of records, FCC/OMD-6, Financial Accounting Systems (FAS), FCC/OMD-9, Commission Registration System (CORES), and FCC/OMD-19, Denial of Federal Benefits (Drug Debarment List), which it intends to cancel upon approval of FCC/OMD-25, Financial Operations Information System (FOIS), by publication in the Federal Register on April 5, 2006 (71 FR 17234, 17250, 17253, and 17264 respectively). The Financial Operations Information System (FOIS) consolidates the three separate systems of records: FCC/OMD-6, Financial Accounting Systems (FAS),1 FCC/OMD-9, Commission Registration System (CORES),2 and FCC/OMD-19, Denial of Federal Benefits (Drug Debarment List),3 and extends coverage to all other related FO financial and budgetary information systems, subsystems, databases, records, and paper document files, which include but are not limited to Genesis, Fee Filer, Red Light Display System, Accounts Payable and Accounts Receivable, Research Reconciliation and Reporting, Budget Center, Electronic Form 159/Remittance Over Secure Internet E-Commerce (ROSIE) system, Pay Fees system, Commission Registration System (CORES), Historical Collections system, Historical Loans system, International Telecommunications Settlements invoicing systems, FO-Administration, system-to-system integrations, databases, and related FO documents and forms. This consolidation will create a single, organization-wide, and consistently-defined system of records that also provides various improvements, which include, but are not limited to, increased efficiency in the Commission's reporting capabilities and enhanced reliability and consistency in the Commission's financial and budgetary data and related management and oversight of these telecommunications programs, functions, and activities.

    1 FCC/OMD-6, Financial Accounting Systems (FAS), includes the Genesis, Fee Filer, Red Light Display System, Accounts Payable and Accounts Receivable, Research Reconciliation and Reporting, Budget Center, Electronic Form 159/Remittance Over Secure Internet E-Commerce (ROSIE) system, Pay Fees system, Historical Collections system, Historical Loans system, and International Telecommunications Settlements invoicing systems and all these data.

    2 FCC/OMD-9, Commission Registration System (CORES), includes only the Commission Registration System data.

    3 FCC/OMD-19, Denial of Federal Benefits (Drug Debarment List), includes only the Drug Debarment List data.

    FCC/OMD-25 SYSTEM NAME:

    Financial Operations Information System (FOIS).

    SECURITY CLASSIFICATION:

    The FCC's CIO will develop a security classification to this system of records based on NIST FIPS-199 standards.

    SYSTEM LOCATION:

    Financial Operations (FO), Office of Managing Director (OMD), Federal Communications Commission (FCC), 445 12th Street SW., Washington, DC 20554.

    CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

    The categories of individuals in FOIS include, but are not limited to:

    1. FCC staff, including but not limited to employees (including interns), and contractors and vendors, who handle information in the FCC's financial and budgetary operations, which include but are not limited to the FO organization's programs, processes, activities, and related telecommunications functions;

    2. Individuals who register with the FCC to receive a FCC Registration Number (FRN) to conduct business with the Commission; and

    3. Individuals who intend to or do conduct business with the FCC as a regulatee, licensee, contractor, or vendor and who are listed on the Drug Debarment Roster (as a result of drug convictions for the distribution or possession of controlled substances) who have been denied all Federal benefits as part of their sentence pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, and who have filed application(s) for any FCC professional or commercial license(s) and/or authorization(s).

    CATEGORIES OF RECORDS IN THE SYSTEM:

    The categories of records in the Financial Operations Information System (FOIS) include, but are not limited to information pertaining to:

    1. FCC employees (including interns)—individual's name, Social Security Number (SSN), home address, phone number, bank account data, and miscellaneous monies received by the Commission (including, but not limited to reimbursement(s) authorized under the Travel Reimbursement Program covered by the government-wide system of records GSA/GOVT-3 and GSA/GOVT-4,4 and related financial requirements);

    4 The PII contained in the FCC's Travel and Reimbursement Program is covered by one or the other of the two government-wide systems of records maintained by the General Services Administration (GSA): GSA/GOV-3, “Travel Charge Card Program,” see 78 FR 20108; or GSA/GOVT-4, “Contracted Travel Services Program,” see 64 FR 20108.

    2. Independent contractors—individual's name and Social Security Number (SSN) (required when the fee exceeds the minimum $600.00 threshold authorized by IRS Form 1099);

    3. Individuals who register to do business with the FCC and receive a FCC Registration Number (FRN)—individual's name, address(es), Social Security Number (SSN), Individual Taxpayer Identification Number (ITIN), home telephone number(s), personal fax number(s), personal email address(es), records of services rendered, loan payment information, forfeitures assessed and collected, billing and collection of bad checks, bank deposit information, transaction type information, United States Treasury deposit data (notification of completion of FCC financial transactions with the US Treasury), and information substantiating fees collected, refunds issues, and interest, penalties, and administrative charges assessed to individuals.

    4. Individuals on the DOJ's Drug Debarment List—individual's name, DOJ identification number (ID) (for the person denied Federal benefits), Individual Taxpayer Identification Number (ITIN), starting and ending date of the denial of Federal benefits, address, zip code, and (if required by the FCC application) birthdate, and confirmation report for DOJ matching; (Upon such a match, the FCC will initiate correspondence with the applicant, which will also be associated with the application. The confirmation report and any correspondence with the applicant will be among the records found in this system.); and

    5. FCC Forms which include, but are not limited to, Forms 44 and 45; 159 series; 160 and 161; 1064, and other related financial and/or budgetary forms, assessments, and related documents.

    AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

    5 U.S.C. Chapter 57; 31 U.S.C. 525, 3302(e); 44 U.S.C. 3101, 3102, 3309; Debt Collection Act as amended by the Debt Collection Improvement Act of 1996; Section 639 of the Consolidated Appropriations Act of 2005 (P.L. 108-447); Federal Financial Management Improvement Act of 1996; Chief Financial Officers Act of 1990; Federal Managers Financial Integrity Act of 1982; Executive Order 9397; Budget and Accounting Act of 1921; Budget and Accounting Procedures Act of 1950; and Federal Communications Authorization Act of 1989; Section 5301 of the Anti-Drug Abuse Act of 1988 (Pub. L. 100-690), as amended by Section 1002(d) of the Crime Control Act of 1990 (Pub. L. 100-647); and 47 U.S.C. 154(i) and 154(j).

    PURPOSE(S):

    The Financial Operations Information System (FOIS) SORN will cover the PII that is collected, used, and stored in the electronic records and paper document files contained in the FO organization's information systems, subsystems, databases, and paper document files,5 which are associated with the Commission's financial and budgetary operations, programs, functions, and transactions, and related telecommunications activities. These various systems include, but are not limited to Genesis, Fee Filer, Red Light Display System, Accounts Payable and Accounts Receivable, Research Reconciliation and Reporting, Budget Center, Electronic Form 159/Remittance Over Secure Internet E-Commerce (ROSIE) system, Pay Fees system, Commission Registration System (CORES), Historical Collections system, Historical Loans system, International Telecommunications Settlements invoicing systems, FO-Administration, system-to-system integrations, databases, and related FO documents and forms. Authorized FCC personnel (including authorized contract employees and sole proprietors) use these records on a need-to-know basis to conduct the Commission financial and budgetary operations, programs, transactions, and statements, and related telecommunications activities, which include but are not limited to:

    5 The FCC's Financial Operations maintains the FCC's Registration Number (FRN) system, the Commission-wide method for identifying and interacting with those individuals who have registered to do business with the FCC under 31 U.S.C. 7701(c)(2) and who incur application and/or regulatory fee obligations. (The FRN collaterally allows that monies paid are properly matched with debts and obligations.)

    1. Processing and tracking payments made and monies owed from or to individuals (including FCC employees and authorized contract employees and authorized sole proprietor contractors), FCC regulatees and licensees, and the FCC, and to ensure that payments by the FCC are based on a lawful official commitment and obligation of government funds, including but not limited to payments to cover administrative charges, penalties, forfeitures assessed, fees collected, services rendered, and direct loans;

    2. Establishing records of “receivables” and tracking repayment status for any amount(s) claimed in the event of a debt owed to the FCC, which include but are not limited to repayment of overpayments and excess disbursements (including reimbursements and/or refunds for incorrect payments or overpayments), and other debts, advance payments, including but not limited to application processing fees, travel advances (including reimbursements authorized under the Travel Reimbursement Program covered by GSA/GOVT-3 and GSA/GOVT-4),6 advanced sick leave, and advanced annual leave, and withholding services from individuals who owe delinquent debt to the FCC or an FCC component, including billing and collection of bad checks;

    6 Travel Reimbursement Program, Op. cit.

    3. Developing reports of taxable income using the records of payments and uncollectible debts that are provided to the Internal Revenue Service (IRS) and applicable state and local taxing officials;

    4. Tracking overdue and delinquent federal debts for debt collection purposes;

    5. Initiating and completing computer matching to verify benefit and payment eligibility under relevant related Federal Government systems such as, but not limited to Treasury's “Do Not Pay” portal verification system, the GSA Excluded Parties and Debarment List, and the Department of Justice Drug Debarment Roster in connection with implementation of Section 5301 of the Anti-Drug Abuse Act of 1998;

    6. Populating FCC forms, which include but are not limited to Forms 44 and 45, 159 series, 160 and 161, and 1064, and other financial and budgetary forms and related documents and records, which are used to carry out these various financial, accounting, and budgetary activities, functions, and purposes, and related telecommunications activities;

    7. Providing the viewing function for images of auction loans that the FCC has made to customers, to provide them access to their loan payment history (retained for historical purposes); and

    8. Storing the information that the Department of Justice (DOJ) exchanges with the FCC in connection with the implementation of Section 5301 of the Anti-Drug Abuse Act of 1988. 7

    7 This permits the FCC to perform the General Services Administration (GSA) Debarment List check as provided for in the Office of National Drug Control Policy plan for implementation of Section 5301 through use of information generated by DOJ. The FCC will only use the automated records obtained from DOJ to make an initial determination of whether an individual applicant is subject to a denial of all Federal benefits or FCC benefits imposed under Section 5301 of the Anti-Drug Abuse Act of 1988.

    ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:

    In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed to authorized entities, as is determined to be relevant and necessary, outside the FCC as a routine use pursuant to 5 U.S.C. 552a(b)(3). In each of these cases, however, the FCC will determine whether disclosure of the records is compatible with the purpose(s) for which the records were collected:

    1. Public Access—After registering at the CORES Web site at: http://www.fcc.gov to obtain their FCC Registration Number (FRN) and a password, individuals can use the Commission's automated reporting tools of Electronic Form 159/ROSIE, Fee Filer, Pay Fees, and the Red Light Display System to conduct business with the FCC, including to access information, which includes but is not limited to Regulatory Fees, fines, forfeitures, penalties, Debt Collection Improvement Act and other administrative changes, and related payments and assessments, and to determine the amount(s) owed.

    2. Drug Debarment List—Any report resulting from any matching program activities between a FCC applicant and an individual on the Department of Justice (DOJ) Drug Disbarment List (not including the DOJ ID Number) and any correspondence with the applicant regarding this match will be associated with the applicant's application, and thus, be made routinely available (with redactions for date of birth and Social Security Number) for public inspection as part of the FCC application file.

    3. “Pay.gov” System—To disclose the name and address of individuals to the Department of the Treasury to facilitate the collection of any fees owed to the FCC when an individual chooses to pay online using the Treasury's Pay.gov system.

    4. Audits and Oversight—To disclose information to auditors, officials of the Office of Inspector General, for the purpose of conducting financial or compliance audits.

    5. Compliance with Welfare Reform Requirements—Names, Social Security Numbers, home addresses, dates of birth, dates of hire, quarterly earnings, employer identifying information, and state of hire of employees may be disclosed to the Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services for the purposes of locating individuals to establish paternity, establishing and modifying orders of child support, identifying sources of income, and for other child support enforcement actions as required by the Personal Responsibility and Work Opportunity Reconciliation Act.

    6. Financial Obligations under the Debt Collection Acts—To other Federal agencies for the purpose of collecting and reporting on delinquent debts as authorized by the Debt Collection Improvement Act of 1996. A record from this system may be disclosed to any Federal, state, or local agency to conduct an authorized computer matching program in compliance with the Privacy Act of 1974, as amended, to identify and locate individuals who are delinquent in their repayment of certain debts owed to the U.S. Government. A record from this system may be used to prepare information on items included, but not limited to income assessments required for taxation or other purposes to be disclosed to Federal (i.e., IRS), state, and local governments.

    7. “Do Not Pay” System—To the Treasury Department, Bureau of Public Debt and its authorized contractors and representatives for compliance with collection laws and to prevent improper payment and for purposes of verifying payment eligibility using Treasury's “Do Not Pay” (DNP) system and effecting payments. Records may also be disclosed to Treasury pursuant to a DNP computer matching agreement between the FCC and Treasury for purposes authorized by 31 U.S.C. 3321, if the matching program requires data from this system of records. Additionally, records will be routinely disclosed to the Treasury and to other Federal agencies for the purpose of collecting and reporting on delinquent debts as authorized by the Debt Collection Improvement Act of 1996, as amended. Records may be disclosed to any Federal, state, or local agency to conduct an authorized computer matching program in compliance with the Privacy Act of 1974, as amended, to identify and locate individuals who are delinquent in their repayment of certain debts owed to the U.S. Government. Finally, records may be disclosed to the Treasury Department and its authorized representatives and the Department of Justice for purposes of reporting the results of debt collection or debt compromise to prepare necessary federal, state, or local income and tax reporting records and reports, e.g., IRS Form 1099.

    8. Financial Obligations as required by the National Finance Center (USDA), et al.—To the National Finance Center (the FCC's authorized payroll office), the Department of the Treasury Debt Management Services, and/or a current employer for financial obligations that include, but are not limited to those that effect a salary, IRS tax refund, tax or other debt liabilities of State, Municipality or other government agencies and entities, or administrative offsets necessary to satisfy an indebtedness; and to Federal agencies to identify and locate former employees for the purposes of collecting such indebtedness, including through administrative, salary, or tax refund offsets. Identifying and locating former employees, and the subsequent referral to such agencies for offset purposes, may be accomplished through authorized computer matching programs. Disclosures will be made only when all procedural steps established by the Debt Collection Act of 1982 and the Debt Collection Improvement Act of 1996 or the Computer Matching and Privacy Protection Act of 1988, as appropriate, have been taken.

    9. Adjudication and Litigation—To the Department of Justice (DOJ), in a proceeding before a court, or other administrative or adjudicative body before which the FCC is authorized to appear, when: (a) The FCC or any component thereof; (b) any employee of the FCC in his or her official capacity; (c) any employee of