Federal Register Vol. 82, No.120,

On January 28, 2008, the President signed into law the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which created SIGAR to conduct independent and objective audits, investigations and analysis to promote economy and efficiency, and to detect and deter waste, fraud, and abuse in the reconstruction of Afghanistan. The Freedom of Information Act (FOIA), as amended, provides for access by the public to records of executive branch agencies, subject to certain restrictions and exemptions. In order to establish procedures to facilitate public interaction with SIGAR, the agency published 5 CFR part 9301 setting forth SIGAR's regulations governing the access provisions of those statutes and Executive Order 12958. On June 30, 2016 the President signed into law the FOIA Improvement Act of 2016 (Pub. L. 114-185). SIGAR published an interim final rule amending its FOIA regulations based on the changes made in the FOIA Improvements Act of 2016 on January 4th, 2017.

SIGAR received comments on its interim final rule from two government agencies. SIGAR reviewed these comments and is making changes to the interim final rule based on those comments.

This final rule amends portions of SIGAR's existing regulation implementing provisions of the FOIA (5 U.S.C. 552). The provisions of this amendment shall apply to all components of SIGAR. The FOIA provides for the disclosure of agency records and information to the public, unless that information is exempted under delineated statutory exemptions under the FOIA. The procedures established here are intended to ensure that SIGAR fully satisfies its responsibility to the public to disclose agency information, but continues to safeguard sensitive information properly.

This Final Rule amends SIGAR's regulations implementing the FOIA to facilitate the interaction of the public with SIGAR. SIGAR's policy of disclosure follows the Presidential Memorandum of January 21, 2009, “Transparency and Open Government,” 74 FR 4685, and the Attorney General's March 19, 2009 FOIA policy guidance, advising Federal agencies to apply a presumption of disclosure in FOIA decision making. This Final Rule incorporates portions the FOIA Improvement Act of 2016, signed into law by the President on June 30, 2016. This amendment maintains SIGAR's compliance with the FOIA and those amendments to the FOIA adopted in the FOIA Improvement Act of 2016.

Finally, notice of proposed rulemaking is not required, because the provisions of the Regulatory Flexibility Act (5 U.S.C. Chapter 6) do not apply. It has been determined that this rulemaking is not a significant regulatory action for the purposes of Executive Order 12866. Accordingly, a regulatory impact analysis is not required.

Accordingly, as stated in the preamble, SIGAR is adopting the interim rule published January 4, 2017, at 82 FR 711, as final with the following changes:

This rule is issued under Marketing Agreement No. 98 and Order No. 945, both as amended (7 CFR part 945), regulating the handling of Irish potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866, 13771, 13563, and 13175.

This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Idaho-Eastern Oregon potato handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as established herein will be applicable to all assessable potatoes beginning August 1, 2017, and continue until amended, suspended, or terminated.

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

This rule decreases the assessment rate established for the Committee for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes handled.

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

For the 2014-2015 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.0025 per hundredweight of potatoes that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on November 9, 2016, to consider the Committee's projected 2017-2018 financial requirements, the size of the Committee's operating reserve, and the order's continuing assessment rate. The Committee unanimously recommended an assessment rate of $0.002 per hundredweight of potatoes for the 2017-2018 fiscal period. The assessment rate of $0.002 is $0.0005 lower than the rate currently in effect. The assessment rate decrease is necessary to reduce the funds held in reserve to less than approximately one fiscal period's budgeted expenses, the maximum level allowed by the order.

The Committee adopted a budget of $119,075 for the 2016-2017 fiscal period. It expects to recommend a similar level of budgeted expenditures for the 2017-2018 fiscal period at its next scheduled meeting in June 2017. The Committee expects its budget for major expenditures for the 2017-2018 fiscal period to be close to the budgeted amounts for the 2016-2017 fiscal period. These expenditures include $68,638 for administrative expenses, $35,437 for travel/office expenses, and $15,000 for marketing order contingency.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Idaho-Eastern Oregon potatoes. Potato shipments for 2017-2018 are estimated at 32 million hundredweight which should provide $64,000 in assessment income at the proposed assessment rate. Income derived from handler assessments, along with other income, interest earned, and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. Funds in the reserve (projected to be $158,275 on July 31, 2017) are expected to be reduced to comply with the maximum permitted by the order of approximately one fiscal period's expenses.

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

Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2017-2018 budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 450 producers of potatoes in the production area and approximately 32 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000.

During the 2015-2016 fiscal period, the most recent full year of statistics available, 33,606,000 hundredweight of Idaho-Eastern Oregon potatoes were inspected under the order and sold into the fresh market. Based on information provided by the National Agricultural Statistics Service, the average producer price for the 2015 Idaho potato crop (the most recent full marketing year recorded) was $7.00 per hundredweight. Multiplying $7.00 by the shipment quantity of 33,606,000 hundredweight yields an annual crop revenue estimate of $235,242,000. The average annual fresh potato revenue for each of the 450 producers is therefore calculated to be $522,760 ($235,242,000 divided by 450), which is less than the Small Business Administration threshold of $750,000. Consequently, on average, a majority of the Idaho-Eastern Oregon potato producers may be classified as small entities.

In addition, based on information reported by USDA's Market News Service, the average free-on-board (f.o.b.) shipping point price for the 2015 Idaho potato crop was $7.47 per hundredweight. Multiplying $7.47 by the shipment quantity of 33,606,000 hundredweight yields an annual crop revenue estimate of $251,036,820. The average annual fresh potato revenue for each of the 32 handlers is therefore calculated to be $7,844,900 ($251,036,820 divided by 32), which is slightly more than the Small Business Administration threshold of $7,500,000. Given the likelihood that there may be several large handlers, some of the Idaho-Eastern Oregon potato handlers may be classified as small entities.

This rule decreases the assessment rate established for the Committee and collected from handlers for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes handled. The Committee unanimously recommended an assessment rate of $0.002 per hundredweight of potatoes for the 2017-2018 fiscal period. The assessment rate of $0.002 per hundredweight is $0.0005 lower than the rate for the 2016-2017 fiscal period. The quantity of assessable potatoes for the 2017-2018 fiscal period is estimated at 32 million hundredweight. Thus, the $0.002 rate should provide $64,000 in assessment income. Income derived from handler assessments, along with other income, interest earned, and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses.

The Committee adopted a budget of $119,075 for the 2016-2017 fiscal period and expects to recommend a similar amount in budgeted expenditures for the 2017-2018 fiscal period at its next scheduled meeting in June 2017. The major budgeted expenditures for the 2016-2017 year include $68,638 for administrative expenses, $35,437 for travel/office expenses, and $15,000 for marketing order contingency. Budgeted expenses for these items in 2015-2016 were $64,901, $37,340, and $15,000, respectively.

The lower assessment rate is necessary to reduce the reserve balance to less than approximately one fiscal period's budgeted expenses. The reserve balance on July 31, 2017, is projected to be $158,275. Assessment income for the 2017-2018 fiscal period is estimated at $64,000, while expenses are estimated to be $119,075. The Committee anticipates compensating for the reduced assessment revenue with $5,100 from miscellaneous income, $100 from interest income, and $49,875 from its reserve fund. The reserve fund is projected to be under the maximum authorized level at the end of the 2017-2018 fiscal period.

The Committee discussed alternatives to this change, including suspending assessments for one year, recommending other assessment rate levels, and leaving the current rate in place. Prior to arriving at this assessment rate recommendation, the Committee considered information from the Board's Executive Committee on the cost savings resulting from recent administrative changes in the Committee office and the level of anticipated Committee expenses moving forward. The Committee debated between suspending assessments for one year and recommending the assessment rate be lowered to $0.002 per hundredweight of potatoes. Based on the market and shipping quantities, the Committee recommended the rate of $0.002 per hundredweight. The Committee believes this assessment rate, in combination with other income, interest earned, and funds utilized from the Committee's financial reserve, will provide sufficient funds to meet its expenses.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the producer price for the 2017 crop could range between $6.00 and $9.00 per hundredweight of potatoes. Therefore, the estimated assessment revenue for the 2017-2018 fiscal period as a percentage of total producer revenue could range between 0.022 and 0.033 percent.

This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate will reduce the burden on handlers, and may reduce the burden on producers. In addition, the Committee's meeting was widely publicized throughout the Idaho-Eastern Oregon potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the November 9, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178 (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Idaho-Eastern Oregon potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

A proposed rule concerning this action was published in the Federal Register on March 21, 2017 (82 FR 14485). Copies of the proposed rule were also mailed or sent via facsimile to all Idaho-E. Oregon potato handlers. Finally, the proposal was made available through the internet by USDA and the Office of the Federal Register. A 30-day comment period ending April 20, 2017, was provided for interested persons to respond to the proposal.

Two comments were received during the comment period in response to the proposal. Both comments were received from outside of the regulated production area. One comment supported the proposed assessment decrease. The other comment did not support the proposal, however, it did not address the merits of the proposed rule. Accordingly, no changes have been made to the rule as proposed, based on the comments received.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 945 is amended as follows:

Amtrak, the owner of the bridge, requested a temporary deviation in order to facilitate installation of a lift span emergency generator. The Amtrak Bridge across the Thames River, mile 3.0 at New London, Connecticut has a horizontal clearance of 150 feet and a vertical clearance of 29 feet at mean high water and 31 feet at mean low water in the closed position. The bridge has a vertical clearance of 75 feet in the intermediate raised position and 135 feet in the fully open position at mean high water. The existing drawbridge operating regulations are listed at 33 CFR 117.224.

This temporary deviation will allow the Amtrak Bridge to require a 2 hour advance notice between 9 p.m. and 7 a.m. from July 31, 2017 to September 12, 2017, while a crane barge is present next to the lift span. The presence of the crane barge reduces the horizontal clearance to 70 feet. Additionally, between July 31, 2017 and September 10, 2017 the lift span will be in the down position during daytime hours but will be able to open when requested.

The waterway is transited by recreational traffic, commercial vessels, ferries, and military vessels. Vessels that can pass under the bridge without an opening may do so at all times. When the barge is located next to the lift span, the bridge will not be able to open immediately for emergencies. There is no alternate route for vessels unable to pass through the bridge when in the closed position.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are impracticable, unnecessary, or contrary to the public interest. Under 5 U.S.C. 553(b) (B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impractical and contrary to the public interest. Final details for the dredging operation were not received by the Coast Guard until June 15, 2017. Vessels transiting through New Castle Range, Deepwater Point Range, Marcus Hook Range or attempting to enter the waters of Marcus Hook Anchorage No. 7 and Pea Patch Island Anchorage No. 5 during pipe-laying or dredging operations may be at risk. Delaying this rule for the purpose of providing a notice and comment period would be contrary to the public interest as it would inhibit the Coast Guard's ability to protect the public from the hazards associated with pipe-laying and dredging operations. We are issuing this rule, and, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register because doing so would be contrary to the public interest. Allowing this dredging and pipe laying operation to go forward without safety zones in place would expose mariners and the public to unnecessary dangers.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231; 33 CFR 1.05-1 and 160.5; and Department of Homeland Security Delegation No. 0170.1. The Captain of the Port (COTP), Delaware Bay, has determined that potential hazards associated with dredging and pipe laying operations, beginning June 17, 2017, will be a safety concern for vessels attempting to transit the Delaware River, along New Castle Range, Deepwater Point Range, Marcus Hook Range or attempting to enter the waters of Marcus Hook Anchorage No. 7 and Pea Patch Island Anchorage No. 5. This rule is needed to protect personnel, vessels, and the marine environment on the navigable waters within the safety zones while dredging is being conducted.

The Coast Guard Captain of the Port is temporarily establishing safety zones on portions of the Delaware River from June 17, 2017 until September 1, 2017, unless cancelled earlier by the Captain of the Port, to facilitate maintenance dredging being conducted in New Castle Range, Deepwater Point Range and Marcus Hook Range. Maintenance dredging in the channel will be conducted with the cutter suction dredge ILLINOIS and associated pipeline. Pipeline will be a combination of floating hoses immediately behind the dredge and submerged pipeline leading to upland disposal areas. Due to the hazards related to cutter suction dredging, the associated pipeline, and the location of the submerged pipeline, safety zones will be established in the following areas:

(1) Safety zone one includes all waters within 150 yards of the dredge and all related dredge equipment. The safety zone will be established for the duration of the maintenance project. Vessels requesting to transit shall contact the dredge ILLINOIS on VHF channel 13 or 16, at least 1 hour, as well as 30 minutes, prior to arrival.

(2) Safety zone two includes all the waters of Pea Patch Island Anchorage No. 5 found in 33 CFR 110.157(a)(6), where submerged pipeline will be located which poses a risk to anchored vessels. The safety zone will be in place only during the time in which the dredge ILLINOIS is conducting dredging operations in New Castle Range. Vessels requesting to transit shall contact the dredge ILLINOIS on VHF channel 13 or 16, at least 1 hour, as well as 30 minutes, prior to arrival.

(3) Safety zone three includes all the waters of Marcus Hook Anchorage No. 7 found in 33 CFR 110.157(a)(8). Vessels requesting to transit Marcus Hook Range shall contact the dredge ILLINOIS on VHF channel 13 or 16, at least 1 hour, as well as 30 minutes, prior to arrival. Vessels shall then transit around the dredge project area, utilizing Marcus Hook Anchorage, while operating at the minimum safe speed necessary to maintain steerage and reduced wake. Vessels wishing to anchor in Marcus Hook Anchorage No. 7 must obtain permission from the COTP at least 24 hours in advance by calling 215-271-4807. The COTP will permit one vessel at a time to anchor on a “first-come, first-served” basis. Vessels will only be allowed to anchor for a 12 hour period. Vessels that require an examination by the Public Health Service, Customs or Immigration authorities will be directed to an anchorage for the required inspection by the COTP. Vessels are encouraged to use Mantua Creek Anchorage No.9, Naval Base Philadelphia Anchorage No. 10, and Deepwater Point Anchorage No. 6 as alternative anchorages.

Entry into, transiting, or anchoring within the safety zones is prohibited unless vessels obtain permission from the Captain of the Port or make satisfactory passing arrangements with the dredge ILLINOIS per this rule and the Rules of the Road (33 CFR chapter I, subchapter E).

The Captain of the Port will implement and terminate the safety zones individually once all submerged pipeline has been recovered and dredging operations are completed in each range respectively. Notice of the implementation and the termination of the safety zone will be made in accordance with 33 CFR 165.7.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, and duration of the safety zones. Although this regulation will restrict access to regulated areas, the effect of this rule will not be significant because there are a number of alternate anchorages available for vessels to anchor. Furthermore, vessels may be permitted to transit through the safety zone with the permission of the Captain of the Port or make satisfactory passing arrangements with the dredge ILLINOIS in accordance with this rule and the Rules of the Road (33 CFR chapter I, subchapter E). Extensive notification of the safety zones to the maritime public will be made via maritime advisories allowing mariners to alter their plans accordingly.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that it is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule adjusts rates in accordance with applicable statutory and regulatory mandates. It is categorically excluded under section 2.B.2, figure 2-1, paragraph 34(g) of the Instruction, which pertains to minor regulatory changes that are editorial or procedural in nature. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated in the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is establishing five new fireworks displays to be conducted during the 2017 season. These new safety zones are listed in existing 33 CFR 164.1315. Additionally, the Coast Guard is consolidating two fireworks display safety zones into the table in § 165.1315.

On April 7, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled, “Safety Zone; Annual Fireworks Displays within the Sector Columbia River Captain of the Port Zone” (82 FR 16976). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended May 8, 2017, we received one comment. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register, due to the first newly added fireworks display covered under this rule being conducted on July 4, 2017. Delaying this rule would be impractical as it would prevent the Coast Guard from ensuring the safety of spectators and vessels during the fireworks displays and immediate action is necessary to prevent possible loss of life and property.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Sector Columbia River has determined that fireworks displays create hazardous conditions for the maritime public because of the large number of vessels near the displays, as well as the noise, falling debris, and explosions that occur during the event. Because firework discharge sites pose a potential hazard to the maritime public, these safety zones are necessary in order to restrict vessel movement and reduce vessel congregation in the proximity of the firework discharge sites.

As noted above, we received one comment stating, “The Coast Guard should establish five new fireworks display safety zones at various locations in the Sector Columbia River Captain of the Port zone. In addition to adding new fireworks display safety zones, this proposed rule making would consolidate existing safety zones into one regulation and eliminate one safety zone listed in two regulations.” In essence, this comment restates what the rule is seeking to accomplish. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

The rule establishes five new fireworks display safety zones to revise 33 CFR 165.1315 to include multiple locations in the Sector Columbia River COTP Zone. The added safety zones would cover all waters of the Oregon coast, Tillamook Bay, the Columbia River and its tributaries, and the Clatskanie River, within a 450 yard radius of the launch site at the approximate locations listed in the table located in 33 CFR 165.1315. The safety zones will be enforced at least 1 hour before and 1 hour after the duration of the scheduled event. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zones. Vessel traffic would be able to safely transit around these safety zones which would impact small designated areas of the Oregon coast, Tillamook Bay, the Columbia River and its tributaries, and the Clatskanie River for less than 1 hour during the evening when commercial vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves safety zones that are approximately 3 hours in duration and would prohibit entry within 450 yards of the launch sites. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

(a) Safety zones. The following areas are designated safety zones: Waters of the Columbia River and its tributaries, waters of the Siuslaw River, Yaquina River, Umpqua River, Clatskanie River, Tillamook Bay and waters of the Washington and Oregon Coasts, within a 450 yard radius of the launch site at the approximate locations listed in the following table:

The most recent issue of the Domestic Mail Manual (DMM) is dated January 22, 2017. This issue of the DMM contains all Postal Service domestic mailing standards, and continues to: (1) Increase the user's ability to find information; (2) increase confidence that users have found all the information they need; and (3) reduce the need to consult multiple chapters of the Manual to locate necessary information. The issue dated January 22, 2017, sets forth specific changes, including new standards throughout the DMM to support the standards and mail preparation changes implemented since the version issued on July 11, 2016.

Changes to mailing standards will continue to be published through Federal Register notices and the Postal Bulletin, and will appear in the next online version available via the Postal Explorer® Web site at: http://pe.usps.com.

In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 111 as follows:

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

On March 9, 2017, the EPA proposed to approve, under section 110(k)(3) of the Clean Air Act (CAA or the Act), the initial six-year 15 percent rate of progress (ROP) demonstration to address requirements for the 1997 8-hour ozone national ambient air quality standards (NAAQS) for the Western Mojave Desert (WMD) nonattainment area. 82 FR 13086. This demonstration is contained in a state implementation plan (SIP) submittal from the California Air Resources Board entitled “Proposed Updates to the 1997 8-Hour Ozone Standard, State Implementation Plans: Coachella Valley and Western Mojave Desert 8-hour Ozone Nonattainment Areas” (“2014 SIP Update”).1 As explained in the proposal, the ROP demonstration is an element of the reasonable further progress demonstration contained at Table C-2 of the 2014 SIP Update and discussed at page 10 of the 2014 SIP Update. It is supported by a detailed VOC emissions inventory at Table A-2 of the 2014 SIP Update.

The WMD is classified as Severe-15 with an attainment date no later than June 15, 2019.2 The relevant CAA requirements appear at Title I, Part D of the CAA, under which states must implement the primary and secondary 1997 8-hour ozone standards. For areas classified as Moderate or above—including the WMD—CAA section 182(b)(1) requires a SIP revision providing for ROP, defined as a one time, 15 percent actual VOC emission reduction during the six years following the baseline year 1990, for an average reduction of 3 percent per year. As discussed further in the March 9, 2017 proposal, although the EPA revoked the 1997 8-hour ozone NAAQS in 2015,3 the ROP demonstration requirement is a continuing applicable requirement for the WMD under the EPA's anti-backsliding rules that apply once a NAAQS has been revoked. Thus, the WMD remains subject to the requirement to make the ROP demonstration. See 40 CFR 51.1105(a)(1) and 51.1100(o)(4). In the proposal, the EPA proposed to find that the 2014 SIP Update fulfills the ROP demonstration requirement because it meets the requirements of CAA section 182(b)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(4).4

The EPA's proposed action provided a 30-day public comment period. We received one comment, which was submitted anonymously. The comment did not address the EPA's proposed action and did not provide specific information relevant to the basis for EPA's proposed approval. We are not revising any portion of the proposed rule based on this comment.

For the reasons discussed in our March 9, 2017 proposal and summarized above, the EPA is approving, under CAA section 110(k)(3), the ROP demonstration contained in the 2014 SIP Update as meeting the requirements of CAA section 182(b)(1) and 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

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 August 22, 2017. 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)).

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

This action corrects paragraph ordering errors in 40 CFR 60.17(h) as highlighted in the editorial note at the end of § 60.17. The editorial note mentions that amendments could not be incorporated into § 60.17(h) as requested in a final rule published August 30, 2016 (Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources (81 FR 59799)), because paragraph (h)(207) already existed as of the effective date. This issue occurred when two rules that both added incorporation by reference paragraphs in § 60.17(h) published out of order.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this technical amendment final without prior proposal and opportunity for public amendment because only simple publication errors are being corrected that do not substantially change the agency actions taken in the final rule. Thus, notice and public procedure are unnecessary. (See also the final sentence of section 307(d)(1) of the Clean Air Act (CAA), 42 U.S.C. 307(d)(1)), indicating that the good cause provisions in subsection 553(b) of the APA continue to apply to this type of rulemaking under section 307(d) of the CAA.)

For the reasons stated in the preamble, the Environmental Protection Agency amends title 40, chapter I of the Code of Federal Regulations as follows:

Organization of This Document. The information in this preamble is organized as follows:

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and do not anticipate significant adverse comment. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to amend the National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry, if the EPA receives significant adverse comments on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If the EPA receives significant adverse comment on all or a distinct portion of this direct final rule, we will publish a timely withdrawal in the Federal Register informing the public that some or all of this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

Categories and entities potentially regulated by this direct final rule include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this direct final rule. To determine whether your facility is affected, you should examine the applicability criteria in 40 CFR 63.1340. If you have questions regarding the applicability of any aspect of this action to a particular entity, consult either the air permitting authority for the entity or your EPA Regional representative as listed in 40 CFR 63.13.

Do not submit information containing CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, a copy of the comments that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2016-0442.

Under the rule published in 2013 (78 FR 10006, February 12, 2013), the owner or operator of a kiln subject to the emission limits for HCl in 40 CFR 63.1343 may demonstrate compliance by one of the following methods:

• Option 1—An owner or operator of a kiln may demonstrate compliance by operating a CEMS meeting the requirements of performance specification (PS) 15, PS-18, or any other PS for HCl CEMS in appendix B to part 60, with compliance based on a 30-kiln operating day rolling average.

• Option 2—If the kiln is controlled using a wet scrubber, tray tower, or dry scrubber, the owner or operator, as an alternative to using a CEMS, may demonstrate compliance with the HCl limit using one of two options, described below.

Under Option 2, a performance test must be conducted by the owner or operator using Method 321. While conducting the Method 321 performance test (note Method 321 is the HCl stack testing performance method required by this rule), the owner or operator must simultaneously measure a control device parameter in order to establishe a site-specific parameter limit that must be continuously monitored to determine compliance. If the kiln is controlled using a wet scrubber or tray tower, the owner or operator must also monitor the pressure drop across the scrubber and/or liquid flow rate and pH during the HCl performance test. If the kiln is controlled using a dry scrubber, the sorbent injection rate must be monitored during the performance test. As an alternative under Option 2, the owner or operator may establish sulfur dioxide (SO2) as the operating parameter by measuring SO2 emissions using a CEMS simultaneously with the Method 321 test and establishing the site-specific SO2 limit that must then be continuously monitored to determine compliance with the HCl limit.

The 2013 rule requires that if a source chooses to (or is required to) monitor HCl emissions using a CEMS (Option 1), they must do so in accordance with PS-15, PS-18, or any other PS for HCl CEMS in appendix B to part 60 of this chapter. (See 40 CFR part 60, appendix B.) Quality assurance procedures for HCl CEMS require that they be capable of reading HCl concentrations that span a range of possible emission levels below as well as above expected HCl emission concentrations. These quality assurance procedures require the use of National Institute of Standards and Technology (NIST)-traceable calibration gases for HCl.

Following our decision to create PS-18 and Procedure 6 for HCl continuous monitoring in 2012, the EPA worked with NIST and commercial gas vendors on development of NIST-traceable HCl gas standards to support the PS-18 in the 2013 rulemaking. While some of the low HCl concentration (<10 parts per million, or ppm) NIST-traceable gases have been available on a limited basis since 2013, the full range of HCl concentrations required to support all HCl emissions monitoring technologies (including integrated path that requires concentrations 100 times higher) are not widely available at this time.

The approach used by NIST in 2013 was to certify the Research Gas Material (RGM) cylinders as primary gas standards. These cylinders contain HCl gas and are provided to NIST by vendors for NIST certification, and subsequently used by the vendors as transfer standards to prepare the Gas Manufacturer Intermediate Standards (GMIS). The GMIS cylinders are then used to produce NIST-traceable gas cylinders that are sold commercially.1 The initial approach used by NIST to certify the RGM cylinders was not viable in the long term as the instrumentation used by NIST largely depleted the HCl RGM gas volume, leaving little gas in the cylinder for the vendors to use in preparing GMIS materials. Because of this concern, NIST initiated development of an improved RGM certification procedure. The development has been hampered by the challenges presented in handling HCl gas. HCl gas is extremely reactive and difficult to handle in both gas cylinders and analytically. As such, it has taken considerable time for NIST to optimize the analytical equipment and approach to achieve the necessary uncertainty requirements (e.g., <1 percent uncertainty).

In addition, the commercial establishment of NIST-traceable gases is dependent on collaboration between NIST and the specialty gas vendors. There are a limited number of vendors providing the stable, accurate, low and high concentration cylinder gases to NIST to certify as RGMs. Once the RGMs are available, the specialty gas vendors must complete a series of procedures to establish the certainty of their products which adds to the time to achieve wide commercial availability.

As a result, on July 25, 2016 (81 FR 48356), the EPA provided an additional compliance alternative for sources that would otherwise be required to use an HCl CEMS (Option 1). The alternative was provided for a period of 1 year. In the alternative, the HCl CEMS was still required to be installed and operated, but actual compliance with the HCl emissions limit was determined by a three-run stack test. The HCl CEMS still provided a continuous readout of HCl emissions, but because the CEMS was not calibrated with the required NIST-traceable calibration gases, the HCl measurement was not considered to be sufficiently accurate on an absolute basis for compliance. However, it was found to be sufficient to indicate any relative change in HCl emissions occurring subsequent to the compliance test. Therefore, the HCl CEMS under the compliance alternative functioned as a continuous parameter monitoring system (CPMS), as in the case of the particulate matter (PM) CPMS requirement (see 78 FR 10014-10015, 10019-10020, February 12, 2013).

It is the EPA's understanding that the availability of NIST-traceable calibration gases for HCl has not changed since the compliance alternative approval in 2016. Thus, the EPA intends to extend the use of this compliance alternative until such time as the NIST-traceable calibration gases for HCl become readily available.

Under this extension of the compliance alternative, the owner or operator will demonstrate initial compliance by conducting a performance test using Method 321 and will monitor compliance with an operating parameter limit through use of the HCl CEMS operating as a HCl CPMS. For the HCl CPMS, the owner or operator will use the average HCl CPMS indicated output, typically displayed as parts per million by volume (ppmv), wet basis HCl recorded at in-stack oxygen concentration during the HCl performance test to establish the operating limit. To determine continuous compliance with the operating limit, the owner or operator will record the indicated HCl CPMS output data for all periods when the process is operating and use all the HCl CPMS data, except data obtained during times of monitor malfunctions. Thus, continuous compliance with the operating limit will be demonstrated by using all valid hourly average data collected by the HCl CPMS for all operating hours to calculate the arithmetic average operating parameter in units of the operating limit (indicated ppm) on a 30-kiln operating day rolling average basis, updated at the end of each new kiln operating day. An exceedance of the kiln 30-day operating limit would trigger evaluation of the control system operation and resetting the operating limit based on a new correlation with performance testing. For kilns with inline raw mills, performance testing and monitoring HCl to establish the site specific operating limit must be conducted during both raw mill on and raw mill off conditions.

As is the case for the PM CPMS requirements (see 40 CFR 63.1349(b)(1)(i)), this alternative for HCl compliance monitoring includes a scaling factor of 75 percent of the emission standard as a benchmark (2.25 ppmv, dry basis at 7-percent oxygen). Sources that choose this option will conduct a Method 321 test to determine compliance with the HCl emissions standard and during this testing will also monitor their HCl CPMS output in indicated ppm to determine where their HCl CPMS output would intersect 75 percent of their allowed HCl emissions, and set their operating level at that ppm output. This scaling procedure alleviates re-testing concerns for sources that operate well below the emission limit and provides greater operational flexibility while assuring continuous compliance with the HCl emission standard. For sources whose Method 321 compliance tests place them at or above 75 percent of the emission standard, their operating limit is determined by the average of three Method 321 test runs (for sources with no inline raw mill) or the time weighted average of six Method 321 test runs (for kilns with inline raw mills). By adopting a scaling factor as well as the use of 30 days of averaged HCl CPMS measurements, the parametric limit in no way imposes a stringency level higher than the level of the HCl emissions standard and will avoid triggering unnecessary retests for many facilities, especially for the lower-emitting sources.

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

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

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulation (40 CFR part 63, subpart LLL) and has assigned OMB control number 2060-0416. This action does not change the information collection requirements.

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. This action does not create any new requirements or burdens and no costs are associated with this direct final action.

This action does not contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

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.

This action does not have tribal implications, as specified in Executive Order 13175. It will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA is aware of one tribally owned Portland cement facility currently subject to 40 CFR part 63, subpart LLL that will be subject to this direct final rule. However, the provisions of this direct final rule are not expected to impose new or substantial direct compliance costs on tribal governments since the provisions in this direct final rule are extending the use of an alternative to the HCl monitoring provisions, including an option which provides operational flexibility. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying 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 concern an environmental health risk or safety risk.

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

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action does not affect the level of protection provided to human health or the environment.

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).

For the reasons stated in the preamble, the Environmental Protection Agency is amending title 40, chapter I, part 63 of the Code of Federal Regulations (CFR), as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. FEMA has determined that the community suspension(s) included in this rule is a non-discretionary action and therefore the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

We listed the Oregon silverspot butterfly as a threatened species under the Act (16 U.S.C. 1531 et seq.) on October 15, 1980 (45 FR 44935, July 2, 1980). We designated critical habitat for the Oregon silverspot butterfly at the time of listing (45 FR 44935, July 2, 1980). On December 23, 2016, we published in the Federal Register a proposed rule to establish a nonessential experimental population of the Oregon silverspot butterfly in northwestern Oregon (81 FR 94296). The comment period on the proposed rule was open for 60 days, through February 21, 2017. Comments on the proposed rule are addressed below, under Summary of Comments and Recommendations.

Species listed as endangered or threatened are afforded protection primarily through the prohibitions of section 9 of the Act and the requirements of section 7 of the Act. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Our regulations in title 50 of the Code of Federal Regulations (50 CFR 17.31) generally extend the prohibition of take to threatened wildlife species. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also states that Federal agencies must, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included the addition of section 10(j), which allows for the designation of reintroduced populations of listed species as “experimental populations.” The provisions of section 10(j) were enacted to ameliorate concerns that reintroduced populations will negatively impact landowners and other private parties, by giving the Secretary greater regulatory flexibility and discretion in managing the reintroduction of listed species to encourage recovery in collaboration with partners, especially private landowners. Under section 10(j) of the Act and our regulations at 50 CFR 17.81, the Service may designate an endangered or threatened species that has been or will be released into suitable natural habitat outside the species' current natural range (but within its probable historical range, absent a finding by the Director of the Service in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed) as an experimental population.

As discussed below (see Relationship of the NEP to Recovery Efforts), we intend to reintroduce the Oregon silverspot butterfly into areas of suitable habitat within its historical range for the purpose of restoring populations to meet recovery goals. Oregon silverspot butterfly populations have been reduced from at least 20 formerly known locations to only 5, thus reintroductions are important to achieve biological redundancy in populations and to broaden the distribution of populations within the geographic range of the subspecies. The restoration of multiple populations of the Oregon silverspot butterfly distributed across its range is one of the recovery criteria identified for the subspecies (USFWS 2001, pp. 39-41).

When we establish experimental populations under section 10(j) of the Act, we must determine whether such a population is essential or nonessential to the continued existence of the species. This determination is based solely on the best scientific and commercial data available. Our regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We find the experimental population of Oregon silverspot butterfly in northwestern Oregon to be nonessential for the following reasons:

(1) Oregon silverspot butterflies are currently found at five locations, from the central Oregon coast to northern California (see Biological Information, below).

(2) There are ongoing management efforts, including captive rearing and release, to maintain or expand Oregon silverspot butterfly populations at these five locations (VanBuskirk 2010, entire; USFWS 2012, entire).

(3) The experimental population will not provide demographic support to the existing wild populations (see Location and Boundaries of the NEP, below).

(4) The experimental population will not possess any unique genetic or adaptive traits that differ from those in the wild populations because it will be established using donor stock from extant wild populations of Oregon silverspot butterflies (see Donor Stock Assessment and Effects on Donor Populations, below).

(5) Loss of the experimental population will not preclude other recovery options, including future efforts to reestablish Oregon silverspot butterfly populations elsewhere. Therefore, we conclude the reintroduced populations of Oregon silverspot butterfly at two sites in northwest Oregon are appropriately established as a nonessential experimental population (NEP) under section 10(j) of the Act.

With the NEP designation, the relevant population is treated as if it were listed as a threatened species for the purposes of establishing protective regulations, regardless of the species' designation elsewhere in its range. This approach allows us to develop tailored take prohibitions that are necessary and advisable to provide for the conservation of the species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species. The protective regulations adopted for an experimental population in a section 10(j) rule contain the applicable prohibitions and exceptions for that population. These section 9 prohibitions and exceptions apply on all lands within the NEP.

For the purposes of section 7 of the Act, which addresses Federal cooperation, we treat an NEP as a threatened species when the NEP is located within a National Wildlife Refuge or unit of the National Park Service, and Federal agency conservation requirements under section 7(a)(1) and the Federal agency consultation requirements of section 7(a)(2) of the Act apply. Section 7(a)(1) of the Act requires all Federal agencies to use their authorities to carry out programs for the conservation of listed species. Section 7(a)(2) requires that Federal agencies, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) of the Act apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional to the agencies carrying out, funding, or authorizing activities. In this case, the NEP area within Nestucca Bay NWR will still be subject to the provisions of section 7(a)(2), and intra-agency consultation would be required on the refuge. Section 7(a)(2) consultation would not be required outside of the refuge.

Before authorizing the release as an experimental population (including eggs, propagules, or individuals) of an endangered or threatened species, and before authorizing any necessary transportation to conduct the release, the Service must find, by regulation, that such release will further the conservation of the species. In making such a finding, the Service uses the best scientific and commercial data available to consider the following factors (see 49 FR 33893, August 27, 1984): (1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere (see Donor Stock Assessment and Effects on Donor Populations, below); (2) the likelihood that any such experimental population will become established and survive in the foreseeable future (see Likelihood of Population Establishment and Survival, below); (3) the relative effects that establishment of an experimental population will have on the recovery of the species (see Relationship of the NEP to Recovery Efforts, below); and (4) the extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area (see Extent to Which the Reintroduced Population May Be Affected by Land Management Within the NEP, below).

Furthermore, as set forth at 50 CFR 17.81(c), all regulations designating experimental populations under section 10(j) must provide: (1) Appropriate means to identify the experimental population, including, but not limited to, its actual or proposed location, actual or anticipated migration, number of specimens released or to be released, and other criteria appropriate to identify the experimental population(s) (see Location and Boundaries of the NEP, below); (2) a finding, based solely on the best scientific and commercial data available, and the supporting factual basis, on whether the experimental population is, or is not, essential to the continued existence of the species in the wild (see discussion in this section, above); (3) management restrictions, protective measures, or other special management concerns of that population, which may include but are not limited to, measures to isolate and/or contain the experimental population designated in the regulation from natural populations (see Extent to Which the Reintroduced Population May Be Affected by Land Management Within the NEP, below); and (4) a process for periodic review and evaluation of the success or failure of the release and the effect of the release on the conservation and recovery of the species (see Reintroduction Effectiveness Monitoring and Donor Population Monitoring, below).

Under 50 CFR 17.81(d), the Service must consult with appropriate State fish and wildlife agencies, local governmental entities, affected Federal agencies, and affected private landowners in developing and implementing experimental population rules. To the maximum extent practicable, section 10(j) rules represent an agreement between the Service, the affected State and Federal agencies, and persons holding any interest in land that may be affected by the establishment of an experimental population.

Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.

The Oregon silverspot butterfly is a small, darkly marked coastal subspecies of the Zerene fritillary, a widespread butterfly species in montane western North America (USFWS 2001, p. 1). Historically, the Oregon silverspot butterfly was documented at 20 locations, from the border of northern California to the southern coast of Washington (McCorkle et al. 1980, p. 7). Its current distribution is limited to five locations, one near Lake Earl, along the coast of Del Norte County, California; two on the central Oregon coast in Lane County, Oregon; and two in Tillamook County, Oregon. With the exception of the two populations on the central Oregon coast that are only about 5 miles (mi) (8 kilometers (km)) apart, all remaining populations are geographically isolated from one another (USFWS 2001, pp. 8-10).

The Oregon silverspot butterfly has a 1-year life cycle, which begins when female adults lay eggs on or near early blue violets (Viola adunca) during their flight period from mid-August through September. The eggs hatch within 10 days. The tiny first-instar caterpillars eat their eggshells and then go into diapause, a hibernation-like state, until late spring the following year when violets begin growing. Caterpillars are cryptic in habits and feed on early blue violets and a few other Viola species until pupation in the summer. Adult emergence starts in July and extends into September.

The Oregon silverspot butterfly occupies three types of grassland habitat: marine terrace and coastal headland meadows, stabilized dunes, and montane grasslands. Key resources needed by the Oregon silverspot butterfly in all of these habitats include: (1) The early blue violet, which is the primary host plant for Oregon silverspot caterpillars; (2) a variety of nectar plants that bloom during the butterfly flight period, including, but not limited to, yarrow (Achillea millefolium), pearly everlasting (Anaphalis margaritacea), Pacific aster (Symphyotrichum chilense), Canada goldenrod (Solidago canadensis), tansy ragwort (Senecio jacobaea), and edible thistle (Cirsium edule); (3) grasses and forbs in which the larvae find shelter; and (4) trees surrounding occupied meadows, which provide shelter for adult butterflies (45 FR 44935, July 2, 1980, p. 44939; USFWS 2001, p. 12).

Habitat quality is largely determined by violet densities and the abundance and availability of nectar plants during the flight season. Field studies have demonstrated that female Oregon silverspot butterflies select areas with high violet densities for egg-laying (Damiani 2011, p. 7). Based on laboratory studies, from 200 to 300 violet leaves are needed to allow an Oregon silverspot butterfly to develop from caterpillar to pupae (Andersen et al. 2009, p. 7). The caterpillars have limited foraging ability beyond a 3.3-foot (ft) (1-meter (m)) distance (Bierzychudek et al. 2009, p. 636). In the wild, a caterpillar would require a clump of approximately 16 violet plants for development, assuming each violet could provide about 12 to 20 leaves (USFWS 2012, p. 8). Based on studies of other butterflies, nectar abundance and quality are also important to adult survival and particularly fecundity (Boggs and Ross 1993, p. 436; Schultz and Dlugosch 1999, p. 231; Mevi-Schutz and Erhard 2005, p. 411). Therefore, we consider high-quality Oregon silverspot butterfly habitat to have large numbers of violets distributed in dense patches for caterpillar forging and an abundance of nectar plants of differing species, blooming throughout the butterfly flight period (USFWS 2012, p. 8).

Historically, habitats with these key resources were likely widely distributed along the Oregon and Washington coasts (Hammond and McCorkle 1983, p. 222). Loss of habitat and key resources occurred as a result of human development and due to ecological succession and invasion of shrubs, trees, and tall introduced grasses, which crowd-out the subspecies' host plants and nectar resources (Hammond and McCorkle 1983, p. 222). Loss of habitat was the primary threat to the subspecies identified in our 2001 Revised Recovery Plan for the Oregon Silverspot Butterfly (USFWS 2001, entire). More recently, during a periodic review of the subspecies' status, we identified the reduced size, number, and isolation of Oregon silverspot butterfly populations as additional severe and imminent threats to the subspecies (USFWS 2012, pp. 24-25).

Additional information on the biology, habitat, and life history of the butterfly can be found in our Revised Recovery Plan for the Oregon Silverspot Butterfly (Speyeria zerene hippolyta) (USFWS 2001, pp. 11-19), which is available online at http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under FOR FURTHER INFORMATION CONTACT, above.

We are establishing an NEP to promote the conservation and recovery of the Oregon silverspot butterfly. The recovery strategy for the Oregon silverspot butterfly, as detailed in our 2001 revised recovery plan, is to protect and manage habitat, and to augment and restore populations (USFWS 2001, pp. 39-41). Recovery criteria for the Oregon silverspot butterfly are (USFWS 2001, p. 42):

1. At least two viable Oregon silverspot butterfly populations exist in protected habitat in each of the following areas: Coastal Mountains, Cascade Head, and Central coast in Oregon; and Del Norte County in California; and at least one viable Oregon silverspot butterfly population exists in protected habitat in each of the following areas: Long Beach Peninsula, Washington, and Clatsop Plains, Oregon. This criterion includes the development of comprehensive management plans.

2. Habitats are managed long term to maintain native, early successional grassland communities. Habitat management maintains and enhances early blue violet abundance, provides a minimum of five native nectar species dispersed abundantly throughout the habitat and flowering throughout the entire flight-period, and reduces the abundance of invasive, nonnative plant species.

3. Managed habitat at each population site supports a minimum viable population of 200 to 500 butterflies for at least 10 years.

The reintroduction of Oregon silverspot butterflies within the NEP area will help address the limited number of populations and the subspecies' diminished geographic range. In addition, it is likely to contribute to meeting recovery criteria, as both NEP areas have the biological attributes to support a viable population of butterflies and will be managed consistent with the subspecies' biological needs.

Section 10(j) of the Act requires that an experimental population be geographically separate from other populations of the same species. We identified the boundary of the NEP as those Public Land Survey System sections intersecting with a 4.25-mi (6.8-km) radius around the release locations. This boundary was selected to encompass all likely movements of Oregon silverspot butterflies away from the release areas while maintaining geographic separation from existing populations. This 4.25-mi (6.8-km) radius is greater than the longest known flight distance of the Oregon silverspot butterfly (4.1 mi (6.6 km)) (VanBuskirk and Pickering 1999, pp. 3-4, Appendix 1). Although this flight distance had previously been reported as “5 miles” (VanBuskirk and Pickering 1999, p. 4; USFWS 2010, p. 10), a more precise measurement using the locations where the individual butterfly in question was marked and recaptured (rather than the general distance between the populations) resulted in a distance of 4.1 mi (6.8 km).

The NEP areas are geographically isolated from existing Oregon silverspot butterfly populations by a sufficient distance to preclude significant contact between populations. There is an extremely small potential that butterflies dispersing 4.1 mi (6.8 km) from the release site on Nestucca Bay NWR may interact with butterflies dispersing 4.1 mi (6.8 km) from Cascade Head, because these locations are 8 mi (13 km) apart. Nevertheless, the likelihood of butterflies from these two sites interbreeding is remote because of the distance between the sites and the fact that there is little or no suitable habitat with appropriate larval host plants and adult nectar sources between Nestucca Bay NWR and Cascade Head. Even if butterflies dispersed and were present within the same area, we do not believe the occasional presence of a few individual butterflies meets a minimal biological definition of a population.

As with definitions of “population” used in other experimental population rules (e.g., 59 FR 60252, November 22, 1994; 71 FR 42298, July 26, 2006), we believe that a determination that a population is not geographically separate from the NEP area would require the presence of sufficient suitable habitat in the intervening area to support successfully reproducing Oregon silverspot butterflies over multiple years. Because there is little to no suitable habitat between Nestucca Bay NWR and Cascade Head, we conclude that although an occasional individual may move into this area, population establishment is unlikely to occur. Biologically, the term “population” is not normally applied to dispersing individuals, and any individual butterflies would be considered emigrants from the Cascade Head population. Finally, a few butterflies would not be considered a self-sustaining population. Self-sustaining populations need a sufficient number of individuals to avoid inbreeding depression and occurrences of chance local extinction; a general rule of thumb is that the effective population size needs to be at least 50 to reduce the likelihood of extinction in the short term because of harmful effects of inbreeding depression on demographic rates, and at least 500 to retain sufficient genetic variation to allow for future adaptive change (Jamieson and Allendorf 2012, p. 578).

Saddle Mountain SNA, managed by OPRD, is located in central Clatsop County, in northwest Oregon. Saddle Mountain was historically occupied by the Oregon silverspot butterfly, which was last documented at this site in 1973 (McCorkle et al. 1980, p. 8). Butterfly surveys in 1980 and more recent surveys during the butterfly flight period—in 2003, 2006, and 2010—did not document the species at Saddle Mountain (Mike Patterson, pers. comm. 2016), and the population there is presumed to be extirpated (VanBuskirk 2010, p. 27). The nearest extant Oregon silverspot butterfly population is 50 miles (80 km) south at Mount Hebo.

Saddle Mountain SNA is a 3,225-acre (ac) (1,305-hectare (ha)) park known for its unique botanical community, which thrives on the thin rocky soils, with few invasive weeds. Habitat suitable for the Oregon silverspot butterfly consists of approximately 60 ac (24 ha) of meadows on the slopes of Saddle Mountain near its upper peaks at 3,288 ft (1,002 m) above sea-level. Based on recent plant surveys (OPRD 2012, p. 2), the release site contains high-quality butterfly habitat with sufficient densities of the requisite species (Viola adunca and native nectar plants) to support an Oregon silverspot butterfly population (USFWS 2001, pp. 13-14). Habitat quality has been maintained through natural processes including vertical drainage patterns associated with steep ridges, thin rocky soils, elevation, and winter snow cover within the forb-rich Roemer fescue (Festuca roemeri) montane grassland community (ONHIC 2004, p. 2). In a letter to the Service dated October 15, 2011, and a follow up letter dated February 12, 2016, OPRD expressed their desire to have an NEP of Oregon silverspot butterfly and to return this native pollinator to the ecosystem (OPRD in litt., 2011; OPRD in litt., 2016).

We will reintroduce the Oregon silverspot butterfly at the Saddle Mountain NEP area, centered on the coastal prairie habitat on top of Saddle Mountain. The NEP encompasses all the Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the release area. The subspecies is generally sedentary within habitat areas, and the reintroduced butterflies are expected to stay in or near meadows on top of Saddle Mountain, which have an abundance of the plant species they need to survive. The Saddle Mountain butterfly population will be released into permanently protected suitable habitat. Reintroduction of the Oregon silverspot butterfly as an NEP in this area will address OPRD's concerns regarding potential impacts to park management activities, such as trail maintenance, and potential opposition from surrounding landowners to the reintroduction of a federally listed species without an NEP. Surrounding land cover is primarily forest (OPRD 2014, pers. comm.) and is not suitable Oregon silverspot butterfly habitat; therefore, we do not expect butterflies to use areas outside of Saddle Mountain SNA.

The Nestucca Bay NWR, managed by the Service, is located in the southwest corner of Tillamook County, along the northern Oregon coast. Although the Oregon silverspot butterfly was never documented at this site, it is within the historical range of the subspecies along the coast, and a small amount of remnant coastal prairie occurred on the site prior to commencement of restoration efforts in 2011. Therefore, it is reasonable to assume that the Oregon silverspot butterfly once inhabited the area, but no surveys were conducted to document its presence. Currently occupied Oregon silverspot butterfly sites nearest to the NEP area are 10 mi (16 km) to the east at Mount Hebo and 8 mi (13 km) south at Cascade Head, with little or no suitable habitat in between. There are currently no known extant Oregon silverspot butterfly populations to the north of the release site, but the subspecies was historically documented near Cape Meares, 20 mi (32 km) to the north of Nestucca Bay NWR, where it was last observed in 1968 (McCorkle et al. 1980, p. 7).

The Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan includes a goal to promote the recovery of the Oregon silverspot butterfly by establishing an NEP on the refuge (USFWS 2013, p. 2-4). The approximately 1,203-ac (487-ha) refuge has 25 to 30 ac (10 to 12 ha) of coastal prairie habitat in varying stages of restoration, including the conversion of degraded grasslands on the Cannery Hill Unit from nonnative pasture grasses to native coastal grasses and forbs with an emphasis on the plant species and structure required to support the Oregon silverspot butterfly. Since 2011, invasive weed abundance has been minimized, and thousands of violet and nectar plants have been planted to enhance and restore the coastal prairie ecosystem. Funding acquired by the refuge in 2015 is now being used to complete habitat restoration on the remaining acreage prior to the release of Oregon silverspot butterflies.

The NEP area is centered on coastal prairie habitat on the Cannery Hill Unit of the refuge, where we will release Oregon silverspot butterflies. The NEP encompasses all Public Land Survey System sections that intersect with a 4.25-mi (6.8-km) radius around the release area. We will release Oregon silverspot butterflies into permanently protected suitable habitat at Nestucca Bay NWR, which will be managed to provide the plant community needed for the butterfly to become established and to support a population. Reintroduction of the Oregon silverspot butterfly as an NEP in this area will address adjacent landowner concerns regarding the impact a federally listed species might have on the sale or development of their property. As little or no suitable habitat is currently available on adjacent properties, and Oregon silverspot butterflies are sedentary and non-migratory, we consider the likelihood of butterflies moving on to these adjacent lands to be low. Despite a few adjacent properties through which Oregon silverspot butterflies might occasionally move, the primary surrounding land cover is agriculture and forest (USFWS 2013, p. 4-3), which are not suitable habitat for the subspecies; therefore, occurrence of Oregon silverspot butterflies in surrounding areas, if any, is expected to be limited.

The best available scientific data indicate that the reintroduction of Oregon silverspot butterflies into suitable habitat is biologically feasible and would promote the conservation of the species. Oregon silverspot butterfly population augmentations have been conducted on the central Oregon coast from 2000 through 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 4). Based on the knowledge gained from these efforts, we anticipate the NEP areas will become successfully established. Butterflies will be released into high-quality habitat in sufficient amounts to support large butterfly populations, and no unaddressed threats to the species are known to exist at these sites.

The coastal headland meadows of the Nestucca Bay NWR are being restored with the specific intent of providing high densities of the plant species needed by the Oregon silverspot butterfly. Ongoing habitat enhancement and management will maintain suitable habitat and minimize the abundance and distribution of invasive, nonnative plant species, which degrade habitat quality. The Nestucca Bay NWR has committed to the management required to restore and maintain suitable habitat specifically for a population of the Oregon silverspot butterfly. The upper meadows of the Saddle Mountain SNA have an abundance of the key resources, including an intact plant community with an abundance of plants needed to support the Oregon silverspot butterfly. Habitat quality has been maintained through natural processes, including vertical drainage patterns associated with steep ridges, thin rocky soils, elevation, and winter snow cover within the forb-rich Roemer fescue montane grassland community (ONHIC 2004, p. 2). The habitat at Saddle Mountain is self-sustaining, does not require active management (see Addressing Causes of Extirpation, below), and is adequately protected. Additionally, within both NEP areas, large trees surrounding the meadows provide needed cover for sheltering Oregon silverspot butterflies.

Based on all of these considerations, we anticipate that reintroduced Oregon silverspot butterflies are likely to become established and persist at Nestucca Bay NWR and Saddle Mountain SNA.

The largest threat to Oregon silverspot butterfly populations is a lack of suitable habitat. Without regular disturbance, coastal prairie habitat is vulnerable to plant community succession, resulting in loss of prairie habitat to brush and tree invasion. Invasive, nonnative plants also play a significant role in the degradation of habitat quality and quantity for this butterfly.

The reasons for the extirpation of the original population of Oregon silverspot butterflies on Saddle Mountain between 1973 and 1980 are unknown. The habitat on top of Saddle Mountain is currently suitable for supporting a population of the butterfly. The grassland habitat at this location has been self-sustaining likely due to the 3,000-ft (914-m) elevation, thin rocky soil type, steep slopes, primarily native composition of the plant community, and lack of human disturbance to the ecosystem. The Saddle Mountain SNA, protected as a special botanical area, has an annual day-use rate of 68,928 visitors per year. OPRD maintains a trail, accessible only by foot, which leads to the top of the mountain. The extremely steep grade on either side of the trail discourages visitors from straying off trail and into the adjacent meadow areas. Park rules do not allow collection of plants or animals (OPRD 2010). Continuance of this management regime is expected to protect the reintroduced population and contribute to its successful establishment. We acknowledge there is some uncertainty regarding population establishment and long-term viability at this site given that we have not identified the original cause of local extirpation. Nevertheless, this site has been identified as one of the most promising for a reintroduction effort given the lack of identifiable threats, density of host plants, and overall quality of habitat (VanBuskirk 2010, p. 27).

The Nestucca Bay NWR will address habitat threats by monitoring and maintaining habitat quality for the benefit of the Oregon silverspot butterfly, in accordance with the Nestucca Bay National Wildlife Refuge Comprehensive Conservation Plan, which sets specific targets for abundance of violet and nectar species. All management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). As described above, the Nestucca Bay NWR is actively working to restore habitat specifically for the benefit of the Oregon silverspot butterfly in anticipation of a potential reintroduction. Restoration efforts have proven successful in establishing high-quality habitat that is likely to support all life stages of the subspecies. Nestucca Bay NWR's demonstrated commitment to reestablishing and maintaining high-quality habitat suitable for the Oregon silverspot butterfly is expected to contribute to the successful establishment of the NEP at this site.

We will use captive-reared butterflies to populate the NEP areas using proven release methods developed by the Oregon silverspot butterfly population augmentation program from 2000 to 2015 (USFWS 2012, p. 10; Engelmeyer 2015, p. 2). We will release captive-reared caterpillars or pupae into suitable habitat within the NEP areas, following the guidance in the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire). We will determine the number of individuals to release based on the number of available healthy offspring and the amount of suitable habitat available, with violet densities as the primary measure of habitat suitability. The ultimate goal is the establishment of self-sustaining populations of between 200 to 500 butterflies for 10 years at each NEP area, similar to the recovery criteria for the other habitat conservation areas.

Based on guidance from the Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire), we will establish populations in each NEP area from offspring of at least 50 mated females. Because the number of female butterflies available for collection for the captive-rearing program is limited to 5 percent of the donor population per year, it may be necessary to release caterpillars or pupae incrementally over a period of a few years. We will use annual butterfly counts during the flight period to monitor population establishment success. Butterfly survey methods used at the occupied sites (Pollard 1977, p. 116; Pickering 1992, p. 3) will also be used to assess population establishment success in the NEP areas.

Individual Oregon silverspot butterflies used to establish populations at both NEP areas will most likely come from the offspring of the Mount Hebo population. Additional genetic research on the subspecies is in progress and may suggest that butterflies from other populations should be included in the captive-rearing program to enhance genetic diversity. If populations other than the Mount Hebo population are used as donor stock, we will evaluate the impact of taking females from those populations on the survival and recovery of the subspecies prior to issuing a recovery permit for such take.

The Mount Hebo Oregon silverspot butterfly population has historically been the largest and most stable population, averaging an annual index count of 1,457 butterflies per year between 2000 to 2014 (USFWS 2012, p. 10; Patterson 2014, p. 11); therefore, it is the least likely to be impacted by the removal of up to 5 percent of the population. Demographic modeling indicates that the optimal strategy for captive-rearing of Oregon silverspot butterflies to increase the probability of persistence is to take females from larger donor populations (Crone et al. 2007, p. 108). Regional persistence can be increased with captive-rearing, with negligible effects on the donor population (Crone et al. 2007, pp. 107-108). Measurable increases in regional persistence are predicted when one assumes each donor female produces four adult butterflies for release to the wild (i.e., four adults/female). In reality, the number of adult butterflies produced per female captured from the donor population has been much higher in recent years. For example, during 2007-2009, between 24 and 29 females were captured, producing between 875 and 2,391 adults for release (31-83 adults/female) (VanBuskirk 2010, p. 12). In 2015, 14 females produced 815 adults for release (58 adults/female) (Engelmeyer 2015, p. 5). These rates of production far exceed what is needed to have a positive impact on regional persistence, even if all the females were removed from small donor populations (see Crone et al. 2007, p. 109). As an additional protective measure, we will release some caterpillars and pupae from the captive-rearing program back into the donor population each year, concurrent with the reintroductions to the NEP areas. This process will further minimize any potential effects from the removal of a small number of adult females in the prior year.

The Mount Hebo population occurs in an environment similar to the Saddle Mountain NEP area (i.e., similar elevation, native plant community, and distance from the coast). Therefore, offspring of butterflies from Mount Hebo will likely be well-adapted to the environment in the meadows on top of Saddle Mountain. The Mount Hebo population may also serve as the best donor population for the Nestucca Bay NEP area because it is genetically most similar to the existing population closest to the refuge (i.e., the Cascade Head population) (VanBuskirk 2000, p. 27; McHugh et al. 2013, p. 8). We will consider all new scientific information when making annual decisions on an appropriate donor population; therefore, it is possible that we will use donor populations other than Mount Hebo.

The Captive Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire) contains further information on the captive-rearing program, release procedures, genetic considerations, population dynamics, effects of releases on population viability of the Oregon silverspot butterfly, and the potential for reintroduction to Saddle Mountain SNA and Nestucca Bay NWR (copies of this document are available online at http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under FOR FURTHER INFORMATION CONTACT, above).

Based on the current legal and biological status of the subspecies and the need for management flexibility, and in accordance with section 10(j) of the Act, we are designating all Oregon silverspot butterflies released within the boundaries of the NEP areas as members of the NEP. Such designation allows us to establish special protective regulations for management of Oregon silverspot butterflies.

With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Treating the experimental population as threatened allows us the discretion to devise management programs and specific regulations for such a population. When designating an experimental population, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the section 10(j) rule contains the prohibitions and exemptions necessary and advisable to conserve that species.

The 10(j) rule will further the conservation of the subspecies by facilitating its reintroduction into two areas of suitable habitat within its historical range. The rule provides assurances to landowners and development interests that the reintroduction of Oregon silverspot butterflies will not interfere with natural resource developments or with human activities (although the Act's section 7(a)(2) consultation requirements would still apply on Nestucca Bay NWR). Without such assurances, some landowners and developers, as well as the State, would object to the reintroduction of Oregon silverspot butterflies to these two areas. Except as described in this NEP rule, take of any member of the Oregon silverspot butterfly NEP will continue to be prohibited under the Act.

We conclude that the effects of Federal, State, or private actions and activities will not pose a threat to Oregon silverspot butterfly establishment and persistence at Saddle Mountain SNA or the Nestucca Bay NWR because the best information, including activities currently occurring in Oregon silverspot butterfly populations rangewide, indicates that activities currently occurring, or likely to occur, at prospective reintroduction sites within NEP areas are compatible with the species' recovery. The reintroduced Oregon silverspot butterfly populations will be managed by OPRD and the Service, and protected from major development activities through the following mechanisms:

(1) Development activities and timber harvests are not expected to occur in the Saddle Mountain SNA, which is protected as a special botanical area. Trail maintenance and other park maintenance activities will continue to occur within the NEP area, but are expected to have minimal impact on the butterfly meadow habitat areas due to the terrain and steepness of the slopes. Because of the rugged nature of the area, and also to protect the important botanical resources at this site, maintenance activities in this area are generally limited to trail maintenance by hand crews, with minimal impacts on the meadow areas. Additionally, the Oregon silverspot butterfly NEP area at Saddle Mountain SNA will be protected by the Oregon State regulations prohibiting collection of animals on State lands (Oregon Administrative Rule (OAR) 736-010-0055(2)(d)). Private timberlands surrounding the SNA do not contain suitable butterfly habitat, and, therefore, activities on adjacent lands are not expected to impact the butterfly.

(2) In accordance with the Nestucca Bay NWR Comprehensive Conservation Plan, all refuge management actions taken in the vicinity of the reintroduced population will defer to the habitat needs of the butterfly (USFWS 2013, pp. 4-37-4-43). In addition, the refuge must complete section 7(a)(2) consultation on all actions that may affect the butterfly. Oregon silverspot butterflies may occasionally visit or fly within adjacent properties near the NEP area, which may be subject to future development. However, given the lack of suitable habitat for this subspecies on adjacent properties, as well as the butterfly's sedentary and non-migratory nature, we consider negative impacts to the Oregon silverspot butterfly from development on adjacent sites to be unlikely, as there is little likelihood of individuals moving to these sites.

Management issues related to the Oregon silverspot butterfly NEP that have been considered include:

(a) Incidental take: The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity (50 CFR 17.3), such as agricultural activities and other rural development, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. Experimental population rules contain specific prohibitions and exceptions regarding the taking of individual animals. Under this 10(j) rule, take of the Oregon silverspot butterfly anywhere within the NEP areas is not prohibited, provided that the take is unintentional, not due to negligent conduct, and is in accordance with this 10(j) rule; however, the section 7(a)(2) consultation requirement still applies on refuge lands. We expect levels of incidental take to be low because the reintroduction is compatible with ongoing activities and anticipated future actions in the NEP areas.

(b) Special handling: In accordance with 50 CFR 17.32, any person with a valid permit issued by the Service may take the Oregon silverspot butterfly for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act. Additionally, any employee or agent of the Service, any other Federal land management agency, or a State conservation agency, who is designated by the agency for such purposes, may, when acting in the course of official duties, take an Oregon silverspot butterfly in the wild in the NEP area without a permit if such action is necessary for scientific purposes, to aid a law enforcement investigation, to euthanize an injured individual, to dispose of or salvage a dead individual for scientific purposes, or to relocate an Oregon silverspot butterfly to avoid conflict with human activities, to improve Oregon silverspot butterfly survival and recovery prospects or for genetic purposes, to move individuals into captivity or from one population in the NEP to the other, or to retrieve an Oregon silverspot butterfly that has moved outside the NEP area. Non-Service or other non-authorized personnel need a permit from the Service for these activities.

(c) Coordination with landowners and land managers: We have coordinated with landowners likely to be affected by the reintroduction. During this coordination we identified issues and concerns associated with reintroducing Oregon silverspot butterflies in the absence of an NEP designation. We also discussed the possibility of NEP designation. Affected State agencies, landowners, and land managers indicated support for, or no opposition to, the reintroduction if the reintroduced populations were designated an NEP and if the 10(j) rule allowed incidental take of Oregon silverspot butterflies in the NEP areas.

(d) Public awareness and cooperation: The NEP designation is necessary to secure needed cooperation of the States, landowners, agencies, and other interests in the affected area. We will work with our partners to continue public outreach on our effort to restore Oregon silverspot butterflies to parts of their historical range and the importance of these restoration efforts to the overall recovery of the subspecies.

(e) Potential impacts to other federally listed species: No federally listed species occur in the NEP areas that would be affected by the reintroductions.

(f) Monitoring and evaluation: Annual monitoring will be performed by qualified personnel with the cooperation of the OPRD Saddle Mountain SNA and Nestucca Bay NWR. Oregon silverspot butterflies will be counted on designated survey transects or public trails. We do not anticipate that surveys will disrupt or hamper public use and would likely be perceived by the public as normal activities in the context of a natural area.

Oregon silverspot butterfly surveys will be conducted annually within Oregon silverspot butterfly habitat at Nestucca Bay NWR and Saddle Mountain SNA using a modified Pollard walk methodology (Pickering et al. 1992, p. 7). This survey method is currently used at all occupied Oregon silverspot butterfly sites. The surveys will be conducted weekly during the butterfly flight period, July through September, on designated survey transects or public trails. The surveys produce an index of Oregon silverspot butterfly relative abundance that will be used to assess annual population trends to provide information on reintroduction effectiveness. We will prepare annual progress reports.

Habitat quality monitoring will also be conducted to ensure the resources needed by an Oregon silverspot butterfly population are maintained in large enough quantities to sustain the reintroduced populations. Violet density counts and other habitat quality parameters will be measured periodically, in conjunction with the butterfly population counts. Reintroduction efforts will be fully evaluated after 5 years to determine whether to continue or terminate the reintroduction efforts.

We will conduct annual Oregon silverspot butterfly surveys within the populations where donor stock is obtained using a modified Pollard walk methodology (Pickering et al. 1992, p. 7). Our annual monitoring will be used to adaptively manage the captive-rearing program to ensure that the removal of donor stock will not jeopardize the continued existence of the population or the species as a whole.

We do not anticipate impacts to other listed species by the reintroduction of the Oregon silverspot butterfly.

In the proposed rule published on December 23, 2016 (81 FR 94296), we requested that all interested parties submit written comments on the proposal by February 21, 2017. 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 Daily Astorian, Lincoln County News Guard, and the Tillamook Headlight Herald. During the public comment period, we received public comments from six individuals or organizations, including three submissions by individuals asked to serve as peer reviewers. We did not receive any comments from Federal or State agencies or Tribes. We did not receive any requests for a public meeting.

We reviewed all comments received from the public and peer reviewers for substantive issues and new information regarding the establishment of an experimental population of Oregon silverspot butterfly in northwestern Oregon. Substantive comments are addressed in the following summary, and have been incorporated into the final rule as appropriate. Any substantive changes incorporated into the final rule are summarized in the Summary of Changes from the Proposed Rule section, below.

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

All three peer reviewers expressed strong support for the reintroduction with an associated 10(j) rule and agreed the action is likely to contribute to the conservation of the subspecies. Two peer reviewers specifically stated that, in their judgment, we used the best available science. We incorporated specific updated information, comments, and suggestions from peer reviewers into the final rule as described in our responses, below.

(1) Comment: One peer reviewer suggested we change our description of the Oregon silverspot butterfly as being “territorial” to “sedentary” to convey the species as being unlikely to move away from areas of suitable habitat.

Our Response: We agree this terminology more accurately depicts the life history of the butterfly and have changed all references in the document from territorial to sedentary.

(2) Comment: Two peer reviewers suggested we monitor not only the butterfly populations following the reintroductions, but that we monitor habitat quality in conjunction with our population counts.

Our Response: We agree and we will monitor vegetation components needed by the butterfly in conjunction with our population counts following the reintroduction, with violet densities and blooming nectar plant abundance as our primary measures of habitat quality.

(3) Comment: One peer reviewer suggested we describe in greater detail how we define high-quality habitat for the Oregon silverspot butterfly.

Our Response: We agree and have updated the Biological Information section, above, to more clearly define what we mean by “high-quality habitat.” High-quality Oregon silverspot butterfly habitat has large numbers of violets distributed in dense patches for caterpillar forging and an abundance of nectar plants of differing species, blooming throughout the butterfly flight period (USFWS 2012, p. 8).

(4) Comment: One peer reviewer commented that we should not remove nonnative species such as tansy ragwort, which is also a nectar source for the Oregon silverspot butterfly, unless alternative native nectar sources are available.

Our Response: We agree and will assess the availability of alternative nectar sources prior to initiating the removal of nonnative nectar plants used by the Oregon silverspot butterfly.

(5) Comment: One peer reviewer commented that we should add stochastic weather and climatic events as a threat to the species and suggested the additional 10(j) populations may provide a “survival cushion” for the taxon.

Our Response: We agree that climatic events impact butterfly populations and additional populations may help to reduce the risk of extinction; increasing the redundancy of populations to ensure the persistence of the Oregon silverspot butterfly in the face of such events is one of the primary reasons for undertaking the establishment of this NEP of the subspecies.

(6) Comment: One nongovernmental organization commented that they support the reintroductions to achieve redundancy in populations and to broaden the butterfly's geographic range. The organization also urged the Service to establish protective rules that treat these populations as if they were listed.

Our Response: Please see the Legal Status of Reintroduced Populations section above, where section 10(j) of the Act is discussed in detail. Also see the section Extent to Which the Reintroduced Population May Be Affected by Land Management within the NEP, where the Saddle Mountain SNA is discussed as a protected site. An NEP designation allows us to tailor ESA protections in specific areas to increase public acceptance of a reintroduction effort that might not otherwise be achievable without such a designation. While the NEP rules are generally not as stringent as the protections afforded to threatened or endangered species, they are designed to ensure the effort will contribute to conservation of the species. Ultimately, the establishment of an NEP allows us to take important steps toward the recovery of a listed species while encouraging the support and engagement of the public and our conservation partners, and, as described above, this NEP will continue to receive legal protections in both of the NEP areas slated for reintroductions.

(7) Comment: One commenter expressed concern that the proposed reintroduction program may place the subspecies at risk.

Our Response: We carefully considered whether the removal of individuals from the potential source population (most likely Mount Hebo) might have a negative effect on that population, and by extension, the subspecies as a whole. We adhere to a strict limit on the number of individuals that may be removed, based on population monitoring (restricted to a maximum of 5 percent of the population), and our data from past years of removals for captive-propagation purposes indicate the small proportion of individuals removed is sustainable (see Donor Stock Assessment and Effects on Donor Populations, above). Our peer reviewers specifically considered this question as well and agreed with our conclusion that the limited removal of individuals, under the restrictions and protocol described here, are unlikely to result in a negative impact to the donor population.

(8) Comment: One commenter questioned whether it was wise to expend resources on the recovery of a nonessential species.

Our Response: We did not determine that the Oregon silverspot butterfly is a nonessential species. Our determination is that the populations proposed for reintroduction are a nonessential experimental population. An NEP is defined in our regulations as an experimental population whose loss is not likely to appreciably reduce the likelihood of the species' survival in the wild. Although we do not consider the experimental population essential to the species' survival in the wild, it is expected to meaningfully contribute to the conservation and recovery of the subspecies.

In response to peer review comments, in this final rule we have:

• Clarified the definition of “high-quality habitat” in our Biological Information section;

• Changed all references of the Oregon silverspot butterfly from being “territorial” to “sedentary;” and

• Clarified our intent to monitor habitat quality as well as Oregon silverspot butterfly population counts, following the reintroductions (see Reintroduction Effectiveness Monitoring, above, and Regulation Promulgation, below).

Based on the above information, and using the best scientific and commercial data available (in accordance with 50 CFR 17.81), we find that reintroducing the Oregon silverspot butterfly into the Saddle Mountain SNA and the Nestucca Bay NWR and the associated protective measures and management practices under this rulemaking will further the conservation of the subspecies. The nonessential experimental population status is appropriate for the reintroduction areas because we have determined that these populations are not essential to the continued existence of the subspecies in the wild.

As set forth above in DATES, this rule is effective upon the date of publication in the Federal Register. We are making this rule effective in less than the 30 days usually required by the Administrative Procedure Act at 5 U.S.C. 553(d) as we have good cause in accordance with 5 U.S.C. 553(d)(3). There is a narrow window of opportunity to implement the provisions of this rule and begin the reintroduction process this year, imposed by the timing of the development of the larvae (caterpillars) that have been raised in captivity and are now nearing the appropriate stage for release. After the caterpillars hatch and begin feeding, development proceeds rapidly and there is a short 2-week window during which maximum survivorship is anticipated for released individuals. A date later in the summer would require release during the pupation stage, which significantly reduces the chances of survival.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 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. E.O. 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.

Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), signed on January 30, 2017 (82 FR 9339, February 3, 2017), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Office of Management and Budget (OMB) guidance clarifies that Executive Order 13771 only applies to rules designated by OMB as significant pursuant to Executive Order 12866. OMB has not designated this final rule a significant regulatory action under section 3(f) of Executive Order 12866. As this rule is not a significant regulatory action, the requirements of Executive Order 13771 are not applicable to it. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled Reducing Regulation and Controlling Regulatory Costs'” (February 2, 2017).

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 60 et seq.), whenever a Federal 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 effect of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We are certifying that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

The area that would be affected under this rule includes the release areas at Saddle Mountain SNA and Nestucca Bay NWR and adjacent areas into which individual Oregon silverspot butterflies may disperse. Because of the regulatory flexibility for Federal agency actions provided by the NEP designation and the exemption for incidental take in the rule, we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the NEP. In regard to section 7(a)(2) of the Act, the population would be treated as proposed for listing, and Federal action agencies are not required to consult on their activities, except on National Wildlife Refuge and National Park land where the subspecies is managed as a threatened species. Section 7(a)(4) of the Act requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, because the NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the Oregon silverspot butterfly populations within the NEP areas. Furthermore, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) of the Act requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP areas. Within the boundaries of the Nestucca Bay NWR, the subspecies would be treated as a threatened species for the purposes of section 7(a)(2) of the Act. As a result, and in accordance with these regulations, some modifications to proposed Federal actions within Nestucca Bay NWR may occur to benefit the Oregon silverspot butterfly, but we do not expect projects to be substantially modified because these lands are already being administered in a manner that is compatible with Oregon silverspot butterfly recovery.

This rule broadly authorizes incidental take of the Oregon silverspot butterfly within the NEP areas. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity such as, agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP areas that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes would not be authorized. Intentional take for research or recovery purposes would require a section 10(a)(1)(A) recovery permit under the Act.

The principal activities on private property near the NEP areas are timber production, agriculture, and activities associated with private residences. We believe the presence of the Oregon silverspot butterfly will not affect the use of lands for these purposes because there will be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or private landowners due to the presence of the Oregon silverspot butterfly, and Federal agencies would have to comply with sections 7(a)(1) and 7(a)(4) of the Act only in these areas, except on Nestucca Bay NWR lands where section 7(a)(2) of the Act applies. Therefore, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the NEP areas.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.):

(1) This rule will not “significantly or uniquely” affect small governments. We have determined and certify under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking would not impose a cost of $100 million or more in any given year on local or State governments or private entities. A Small Government Agency Plan is not required. As explained above, small governments would not be affected because the NEP designation would not place additional requirements on any city, county, or other local municipalities.

(2) This rule will not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). The NEP area designations for the Oregon silverspot butterfly would not impose any additional management or protection requirements on the States or other entities.

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule allows for the take of reintroduced Oregon silverspot butterflies when such take is incidental to an otherwise legal activity, such as recreation (e.g., hiking, birdwatching), forestry, agriculture, and other activities that are in accordance with Federal, State, and local laws and regulations. Therefore, we do not believe that the NEP will conflict with existing or proposed human activities.

A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property, and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of a listed species) and will not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with Executive Order 13132, we have considered whether this rule has significant Federalism effects and have determined that a federalism summary impact statement is not required. This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from and coordinated development of this rule with the affected resource agencies in Oregon. Achieving the recovery goals for this subspecies will contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. The rule maintains the existing relationship between the State and the Federal Government, and is undertaken in coordination with the State of Oregon. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a federalism summary impact statement under the provisions of Executive Order 13132.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and meets the requirements of sections (3)(a) and (3)(b)(2) of the Order.

This rule does not contain any new collection of information that requires approval by OMB under the PRA of 1995. OMB has previously approved the information collection requirements associated with Service permit application forms and activities associated with native endangered and threatened species and assigned OMB Control Number 1018-0094. That approval expired May 31, 2017; however, the Service is currently seeking new approval. In accordance with 5 CFR 1320.10, the agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB. We estimate the annual burden associated with this information collection to be 17,166 hours per year. 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.

The reintroduction of native species into suitable habitat within their historical or established range is categorically excluded from NEPA documentation requirements consistent with the Department of Interior's Department Manual (516 DM 8.5B(6)).

In accordance with the presidential memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951; May 4, 1994), Executive Order 13175 (65 FR 67249; November 9, 2000), and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no tribal lands affected by this rule.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, or use. Because this action is not a significant energy action, no Statement of Energy Effects is required.

A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R1-ES-2016-0102 or upon request from the Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this rule are staff members of the Service's Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

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

Under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), we administer the Federal Lists of Endangered and Threatened Wildlife and Plants, which are set forth in title 50 of the Code of Federal Regulations at part 17 (50 CFR 17.11 and 17.12). The factors for listing, delisting, or reclassifying species are described at 50 CFR 424.11. According to section 3(16) of the Act, we may list any of three categories of vertebrate animals: A species, subspecies, or a distinct population segment of a vertebrate species of wildlife. We refer to each of these categories as a “listable entity.” If we determine that there is a species, or “listable entity,” for the purposes of the Act, our status review next evaluates whether the species meets the definitions of an “endangered species” or a “threatened species” because of any of the five listing factors established under section 4(a)(1) of the Act. Delisting may be warranted as a result of: (1) Extinction; (2) recovery; or (3) a determination that the original scientific data used at the time the species was listed, or interpretation of that data, were in error. We examine whether the Hualapai Mexican vole is a valid subspecies, and thus a “species” (or listable entity) as defined in section 3 of the Act.

We listed the Hualapai Mexican vole as an endangered subspecies on October 1, 1987, without critical habitat (52 FR 36776). At the time of listing, the primary threats to the Hualapai Mexican vole were degraded habitat due to drought, elimination of ground cover from grazing by livestock and elk (Cervus elaphus), and human recreation. A recovery plan for the Hualapai Mexican vole was completed in August 1991 (Service 1991, pp. 1-28). At that time, grazing, mining, road construction, recreational uses, erosion, and nonnative wildlife were attributed as the reasons for the decline in Hualapai Mexican vole populations (Service 1991, pp. iv-6). The recovery plan outlined recovery objectives and dictated management and research priorities, but did not contain recovery criteria for changing the subspecies' status from endangered to threatened (i.e., downlisting) or for removing the subspecies from the List of Endangered and Threatened Wildlife (i.e., delisting) because of lack of biological information in order to develop objective, measurable criteria (Service 1991, p. iv).

On August 23, 2004, we received a petition dated August 18, 2004, from the Arizona Game and Fish Department (AGFD) requesting that the Hualapai Mexican vole be removed from the Federal List of Endangered and Threatened Wildlife (List) under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required at 50 CFR 424.14(a). Included in the petition was information in support of delisting the Hualapai Mexican vole based on an error in original classification due to evidence that the Hualapai Mexican vole is not a valid subspecies.

The petition asserts that the original scientific data used at the time the subspecies was classified were in error and that the best available scientific data do not support the taxonomic recognition of the Hualapai Mexican vole as a distinguishable subspecies (AGFD 2004, p. 4). The petition's assertions are primarily based on the results of an unpublished genetic analysis (Busch et al. 2001) and on taxonomic and genetic reviews of Busch et al.'s 2001 report. The petition did not claim that the Hualapai Mexican vole is extinct or has been recovered (no longer an endangered or threatened species), nor do we have information in our files indicating such. However, the petition did indicate that “fieldwork and genetic analyses have documented at least seven, but likely 14, populations (including one in Utah) of M. m. hualpaiensis.” Only one population was known at the time of listing.

On May 15, 2008, we announced a 90-day finding in the Federal Register (73 FR 28094) that the petition presented substantial information to indicate that the petitioned action may be warranted. On June 4, 2015, we published a warranted 12-month finding on the petition and a proposed rule to remove the Hualapai Mexican vole from the List because the original scientific classification is no longer the appropriate determination for the subspecies (80 FR 31875), meaning that current data indicate that the original classification is now erroneous. On December 22, 2016, we reopened the comment period on the proposed rule to remove the Hualapai Mexican vole from the List (81 FR 93879). We published a summary of the proposed rule in the Kingman Daily Miner newspaper on January 29, 2017.

Goldman (1938, pp. 493-494) described and named the Hualapai Mexican vole as Microtus mexicanus hualapaiensis in 1938 based on four specimens. Cockrum (1960, p. 210), Hall (1981, p. 481), and Hoffmeister (1986, pp. 444-445) all recognized Goldman's description of the subspecies, and Hoffmeister (1986, pp. 444-445) further recognized the Microtus mexicanus hualapaiensis subspecies based on an examination of morphological characteristics from seven additional specimens collected in two areas (i.e., Hualapai Mountains and the lower end of Prospect Valley).

Based on morphological measurements, the Hualapai Mexican vole was previously considered one of three subspecies of Mexican voles (Microtus mexicanus) in Arizona (Kime et al. 1995, p. 1). The three subspecies of Mexican voles were the Hualapai Mexican vole (M. m. hualapaiensis), Navajo Mexican vole (M. m. navaho), and Mogollon Mexican vole (M. m. mogollonensis). The Hualapai Mexican vole differed from the Navajo Mexican vole subspecies by a slightly longer body, longer tail, and longer and broader skull (Hoffmeister 1986, p. 443). Additionally, the Navajo Mexican vole's range was farther to the northeast. The Hualapai Mexican vole was also differentiated from the Mogollon Mexican vole subspecies, located farther to the east, by a longer body, shorter tail, and longer and narrower skull (Hoffmeister 1986, p. 443).

The final rule listing the Hualapai Mexican vole as an endangered species (52 FR 36776; October 1, 1987) stated that this subspecies occupied the Hualapai Mountains, but also acknowledged that Spicer et al. (1985, p. 10) had found similar voles from the Music Mountains, which are located farther to the north in Arizona. The final listing rule (52 FR 36776; October 1, 1987) also stated that Hoffmeister (1986, p. 445) had tentatively assigned specimens from Prospect Valley to the Hualapai Mexican vole subspecies, pending a larger sample size. In addition, the final listing rule (52 FR 36776; October 1, 1987) stated that if future taxonomic evaluation of voles from the Music Mountains and Prospect Valley should confirm that they are indeed the Hualapai Mexican vole subspecies, then they would be considered part of the federally listed entity. However, we never recognized Hualapai Mexican voles outside of the Hualapai Mountains. Mountains due to insufficient data to support recognition of additional populations.

In May 1998, we reviewed Frey and Yates' 1995 unpublished report, “Hualapai Vole (Microtus mexicanus hualapaiensis) Genetic Study,” to determine if Hualapai Mexican voles occur in additional areas outside of the Hualapai Mountains. We found that the report did not provide sufficient data for us to conclude that populations outside the Hualapai Mountains were Hualapai Mexican voles. On May 29, 1998, the Southwest Regional Director's Office issued a memo to the Arizona Ecological Services Field Office stating that the Service would only consult on voles in the Hualapai Mountains until further investigations result in data definitive enough to establish that the Hualapai Mexican vole has a wider distribution than recognized at the time of listing. Thus, we referenced the memo in all requests for consultations on Federal projects outside the Hualapai Mountains. For these reasons, we have only considered the Hualapai Mexican vole's range to be the Hualapai Mountains.

Since the Hualapai Mexican vole was listed in 1987 (52 FR 36776; October 1, 1987), several focused surveys of the subspecies' distribution, habitat requirements, and genetic relationships to other Mexican vole subspecies were undertaken. We briefly describe these studies below. Researchers did not collect or analyze samples from the same locations, so locations and analyses across studies do not necessarily correlate fully. These studies represent the best scientific information available for the Service to analyze the Hualapai Mexican vole's distribution and taxonomic classification.

At the time of listing, we recognized the Hualapai Mexican vole as one of three subspecies of Mexican voles in Arizona based on Goldman (1938, pp. 493-494), Hall (1981, p. 481), and Hoffmeister (1986, p. 443). Since that time, Frey and LaRue (1993, pp. 176-177) referred to voles in Arizona, New Mexico, and Texas as Microtus mogollonensis rather than Microtus mexicanus. In an unpublished genetic analysis study on the Hualapai Mexican vole, Frey and Yates (1995) referred to the Hualapai Mexican vole subspecies as Microtus mogollonensis hualpaiensis. Also, in a study of montane voles, Frey (2009, p. 219) supported the earlier study conducted by Frey and LaRue (1993, pp. 176-177), which separated the vole species Microtus mogollonensis and Microtus mexicanus. The Integrated Taxonomic Information System 1 (ITIS) indicates that Microtus mexicanus hualpaiensis (Goldman, 1938) is an invalid taxon and indicates that the valid taxon is Microtus mexicanus for the Hualapai Mexican vole (http://www.itis.gov/servlet/SingleRpt/SingleRpt?search_topic=TSN&search_value=202377). For consistency with all previous Federal actions, including the scientific name that appears on the Federal List of Endangered and Threatened Wildlife, we refer to the Hualapai Mexican vole subspecies as Microtus mexicanus hualpaiensis in this rule because that is the entity we listed in 1987. However, many of the reviewers and documents that are referenced refer to voles in Arizona as Microtus mogollonensis. The ITIS indicates that Microtus mogollonensis (Frey and LaRue 1993, pp. 176-177) is an invalid taxon; and indicates that the valid taxon is Microtus mexicanus for the Hualapai Mexican vole (http://www.itis.gov/servlet/SingleRpt/SingleRpt?search_topic=TSN&search_value=202377).

In a 1989 unpublished Master's thesis, Frey conducted an extensive study of geographic variation of specimens from throughout the range of the Microtus mexicanus group, which included populations in the United States and Mexico. Frey (1989) analyzed 44 external and 19 cranial characters from 1,775 vole specimens. Based on morphological analysis, Frey (1989, p. 50) recommended that specimens from the Bradshaw Mountains (Coconino County, AZ), which was formerly considered the Mogollon Mexican vole subspecies, be reassigned to the Hualapai Mexican vole subspecies. Frey (1989, p. 50) concluded that two specimens that had been discovered from the Music Mountains (Mohave County, AZ) were morphologically distinct from other recognized subspecies, and these two specimens represented a previously unrecognized taxonomy. Frey's (1989) study did not include specimens from Prospect Valley.

Frey and Yates (1993, pp. 1-23) conducted a genetic analyses of Hualapai Mexican vole tissue samples taken from 83 specimens across 13 populations using electrophoresis and mitochondrial DNA. The 13 populations represented all 3 subspecies in Arizona and 1 population from Mexico (Frey and Yates 1993, p. 20). Their results showed that three populations (i.e., Hualapai Mountains, Hualapai Indian Reservation, and Music Mountains) form a closely related group distinct from other populations in Arizona (Frey and Yates 1993, p. 10). According to their analysis, populations in the Hualapai Mountains, Hualapai Indian Reservation, and Music Mountains could be regarded as the Hualapai Mexican vole subspecies. Further, Frey and Yates (1993, p. 10) found that the Navajo Mexican vole subspecies populations for San Francisco Peaks and the Grand Canyon occurred in a clade (i.e., related by a common ancestor) with the Mogollon Mexican vole subspecies populations along the Mogollon Rim. Frey and Yates (1993, p. 10) suggested that this grouping questions the validity of Navajo Mexican vole as a separate subspecies. However, in order to verify this suggestion, specimens would need to be examined from the type locality of the Navajo Mexican vole subspecies, which is Navajo Mountain, Utah (Frey and Yates 1993, p. 10). The authors recommended additional analyses, including larger sample sizes, to clarify the arrangement in three separate subspecies (Frey and Yates 1993, p. 10). At that time, we continued to recognize the Hualapai Mexican vole subspecies as occurring in the Hualapai Mountains.

Frey and Yates (1995) continued their genetic work on Mexican vole subspecies and analyzed 173 specimens from 28 populations (16 from Arizona, 10 from New Mexico, 1 from Utah, and 1 from Mexico) using protein electrophoresis and mitochondrial DNA. They found that six populations (Hualapai Mountains, Hualapai Indian Reservation, Music Mountains, Aubrey Cliffs/Chino Wash, Santa Maria Mountains, and Bradshaw Mountains) could be the Hualapai Mexican vole subspecies (Frey and Yates 1995, p. 9). The authors found unique alleles at two loci in these six populations, which identified them as being closely related (Frey and Yates 1995, p. 9). Based on geographic proximity, Frey and Yates (1995, p. 8) suspected that two other populations (Round Mountain and Sierra Prieta) could also be the Hualapai Mexican vole subspecies, but they did not have adequate samples for genetic verification.

Additional genetic analyses were conducted by Busch et al. (2001). Busch et al. (2001, p. 4) examined nuclear genetic markers from 42 specimens across 6 populations in northwestern Arizona (Hualapai Mountains, Prospect Valley, Bradshaw Mountains, Sierra Prieta, Prescott, and Mingus Mountains) using Amplified Fragment Length Polymorphis (AFLP). Additionally, they examined mitochondrial (D-Loop) DNA from 83 specimens across 13 populations in Arizona (Hualapai Mountains, Prospect Valley, Bradshaw Mountains, Sierra Prieta, Prescott, Mingus Mountains, South Rim Grand Canyon, San Francisco Mountain, Mogollon Rim, White Mountains, Chuska Mountains, Aubrey Cliffs, and Navajo Mountain). Results from their study did not support the separation of Mexican voles into three distinct subspecies based on nuclear and mitochondrial genetic analyses (Busch et al. 2001, p. 12). Populations referred to as the Navajo Mexican vole subspecies from Navajo Mountain, Mingus Mountain, San Francisco Peaks, and the Grand Canyon South Rim and populations referred to as the Mogollon Mexican vole subspecies from the Mogollon Rim, Chuska Mountains, and White Mountains were genetically similar to Mexican voles in the Hualapai Mountains, Hualapai Indian Reservation, Aubrey Cliffs, Bradshaw Mountains, Watson Woods, and Sierra Prieta (Busch et al. 2001, p. 12). In summary, the analyses conducted by Busch et al. (2001, p. 12) did not support the separation of Arizona populations of M. mogollonensis into three subspecies (i.e., M. m. mogollonensis, M. m. navajo, and M. m. hualapaiensis) as recognized by Frey and Yates (1993, 1995). According to Busch et al. (2001), populations of M. mogollonensis and M. m. navajo were not clearly differentiated from M. m. hualapaiensis (i.e., the Hualapai Mexican vole).

Busch et al. (2001, p. 12) suggested that only one subspecies of Mexican vole occurs in Arizona, but they did not suggest a new subspecies name to which the currently named subspecies of Mexican voles should be reclassified as. Further, Busch et al. (2001, p. 12) suggested that voles from the White Mountains and Chuska Mountains could be a different subspecies or may simply show some genetic differentiation due to geographic separation; however, their analysis was inconclusive. Even though Busch et al. (2001, p. 12) did not suggest a name to assign to the only subspecies of Mexican voles in Arizona, the AGFD's petition (2004, p. 4) referred to Busch et al.'s (2001) single subspecies as Microtus mexicanus hualpaiensis.

In 2003, AGFD sent the Busch et al. (2001) report to five genetic experts representing the U.S. Geological Survey's Arizona Cooperative Fish and Wildlife Research Unit, the Conservation Breeding Specialist Group, the University of Colorado at Boulder, Oklahoma State University, and New Mexico State University for peer review. Four of the five reviewers concurred with the conclusions of Busch et al. (2001) that all populations in Arizona could be referred to as M. m. hualpaiensis. One of the five reviewers concluded that populations from the Hualapai Mountains, Music Mountains, and Hualapai Reservation form a closely related group distinct from other populations in Arizona based on the reviewer's work in 1993 and 1995. This reviewer further stated that M. m. hualpaiensis is a valid subspecies based on morphologic, genetic, and biogeographical data.

Busch et al.'s (2001) genetic report and reviews by the genetic experts were then sent to two mammalian taxonomy experts familiar with the research surrounding voles for additional review. One of the taxonomic reviewers agreed with the one dissenting genetic reviewer from 2003, who believed the data supported M. m. hualpaiensis in five locations. The other taxonomic reviewer concluded that there is no basis to consider the three subspecies of Mexican voles (Hualapai, Navajo, and Mogollon) separately. This second taxonomic reviewer stated that data used by Hoffmeister (1986) were insufficient to recognize three subspecies based on morphology, and that the genetic analyses conducted by Frey and Yates (1993; 1995) and Busch et al. (2001) were subject to methodological problems (AGFD 2004, p. 4). The second taxonomic reviewer asserted that all three subspecies should be considered as one subspecies, Microtus mogollonensis mogollonensis (common name not suggested).

According to AGFD, the field and laboratory studies concluded that M. m. hualaiensis exists in at least seven populations and perhaps as many as 14 populations (one is in Utah), whereas only one population was known prior to listing. Field surveys demonstrated that the Hualapai Mexican vole is not as rare as it was once thought to be. Prior to listing, only 15 specimens from seven locations (all within the Hualapai Mountains) were known. The genetic studies mentioned above, in conjunction with trapping success, demonstrate that M. m. hualpaiensis populations are widespread and not restricted to a single mountain range (AGFD 2004, p. 9).

The AGFD provided a summary of factors affecting the Hualapai Mexican vole in their 2004 status assessment and petition. AGFD stated that the species is found in more xeric and mesic habitats than other vole species, so trampling of seeps and spring areas by cattle is no longer considered a threat to Hualapai Mexican voles as previously thought when the subspecies was listed (AGFD 2004, pp. 5-6). Further, AGFD stated that because the Hualapai Mexican voles' range is not as restricted as once thought, grazing and recreational uses are no longer threats to the subspecies (AGFD 2004, p 7). Finally, based on five genetic and two taxonomic reviews, the AGFD stated that all 14 populations analyzed by Busch et al. (2001) could be considered a single species, rather than three subspecies (AGFD 2004; p. 4).

In summary, the various analyses and reviews present multiple interpretations of the taxonomy and distribution of Hualapai Mexican voles in Arizona, none of which correlates to that of our original listing. The 1987 final listing rule for the Hualapai Mexican vole (52 FR 36776; October 1, 1987) relied on the best available information at the time, and only included Hualapai Mexican voles found in the Hualapai Mountains. The various published and unpublished reports all offer different conclusions about which populations may or may not be Hualapai Mexican voles. At this time, the best available scientific information presents conflicting information on the taxonomy of Mexican voles in general. The majority (i.e., five out of seven) of scientists who reviewed the “Hualapai vole (Microtus mogollonensis hualapaiensis) Genetic Analysis” report by Busch et al. (2001) determined that Hualapai Mexican voles (Microtus mexicanus hualpaiensis) are not genetically distinct from other vole subspecies in Arizona. The best available science no longer supports the recognition of a separate Hualapai Mexican vole subspecies. Although the Hualapai Mexican vole subspecies is no longer considered a valid taxonomic entity, the scientific community agrees that the populations that were previously identified as the Hualapai Mexican vole subspecies are part of the larger Mexican vole species (Microtus mexicanus).

The Mexican vole is recognized by the scientific community as a species, including the International Union for Conservation of Nature (IUCN) and ITIS. The Mexican vole is listed as least concern by IUCN in view of its wide distribution, presumed large population, occurrence in a number of protected areas, and because it is unlikely to be declining at nearly the rate required to qualify for listing in a threatened category (Álvarez-Castañeda, S.T. & Reid, F. 2016). The Mexican vole species occurs from the southern Rocky Mountains southward in the Sierra Madre of Mexico to central Oaxaca Mexico (Tamarin 1985 p. 99). The existence of several populations improves the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years); the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes); and the ability of the species to withstand catastrophic events (for example, droughts, hurricanes). In general, the more populations there are, the more likely the species is to sustain populations over time, even under changing environmental conditions. The distribution of the Mexican vole populations allows for sustained populations into the future. Based on the best available scientific and commercial data at this time, we find that the original data for classification were in error, and we are removing the Hualapai Mexican vole (Microtus mexicanus hualpaiensis) from the List under the Act.

In our June 4, 2015, combined 12-month finding and proposed rule (80 FR 31875), we requested that all interested parties submit comments or information concerning the proposed delisting of the Hualapai Mexican vole. We provided notification of this document through email, letters, and news releases to the appropriate Federal, State, and local agencies; county governments; elected officials; media outlets; local jurisdictions; scientific organizations; interested groups; and other interested parties. We also posted the document on our Web site (https://www.fws.gov/news/ShowNews.cfm?ref=service-proposes-delisting-the-hualapai-mexcian-vole&_ID=35074).

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included genetics, conservation biology, and ecology of voles and the ecosystems upon which they depend. We received comments from two peer reviewers associated with academic research institutions. One researcher noted that the data gathered and analyzed to date do not appear to support an integrative approach to taxonomy. For example, using a current genome-side marker like single nucleotide polymorphisms (or SNPs) would be preferable. The same researcher stated that there is a strong reliance on mitochondrial DNA and lack of a thorough study of morphology, behavior, and ecology of this subspecies. The other peer reviewer noted that in the case of M. m. hualpaiensis, there is little morphologic and genetic evidence to distinguish it from its nearby conspecifics (i.e., other vole subspecies). This reviewer concluded that the current data are not sufficient to support the subspecific recognition of M. m. hualpaiensis. Both reviewers recommended continued studies.

We reviewed all comments we received from the peer reviewers and the public for substantive issues and new informative regarding the proposed delisting of the Hualapai Mexican vole. We received four comments on the proposed rule. Two were in favor of delisting the Hualapai Mexican vole. One commenter provided a conservation status review to support the proposed delisting by documenting the current conservation status of the Hualapai Mexican vole and its likely synonymous populations, as well as an evaluation of potential threats to the larger, taxonomically valid subspecies. One commenter opposed the delisting of the Hualapai Mexican vole. Substantive comments we received during the comment period are addressed below.

(1) Comment: There is a concern that delisting the vole is based on conflicting scientific information instead of a peer review based on the five delisting factors (see section 4(a)(1) of the Act). In order to delist the subspecies, the Service must evaluate this erroneous classification by seeking a peer review pursuant to the five factors.

Our Response: The removal of the vole from the Federal List of Endangered and Threatened Wildlife is based on recent peer reviewed data indicating the original data for classification were in error. Our June 4, 2015, proposed rule (80 FR 31875) was based on peer reviewed studies and has separately undergone peer review, as explained below. The regulations at 50 CFR 424.11(d) state that a species may be delisted if (1) it becomes extinct, (2) it recovers, or (3) the original classification data were in error. Our finding is that the original classification data were in error. Further, it is the policy of the Service to incorporate independent peer review in listing (and recovery) activities by soliciting the expert opinions relating to taxonomy, population models, and supportive biological and ecological information for species or subspecies under consideration of a listing decision (59 FR 34270; July 1, 1994). We sought the expert opinions of five appropriate independent specialists regarding the science in the June 4, 2015, proposed rule to delist the Hualapai Mexican vole. The purpose of peer review was to ensure that our delisting decision is based on scientifically sound data, assumptions, and analyses. We sent copies of the proposed rule and supporting documents to the peer reviewers immediately following publication in the Federal Register.

We received reviews from two peer reviewers. One of the peer reviewers stated that although it is still unclear exactly what the numbers are, it is clear that the numbers of these voles in the mountains of western Arizona are larger than was earlier suspected. Kime et al. (1995) found 21 locations harboring voles. The species is not tied to rare, moist habitats the way other species of Microtus are, and thus gene flow may be greater than expected earlier. The other peer reviewer stated that in the case of M. m. hualpaiensis, there is little morphologic and genetic evidence to distinguish it from its nearby conspecifics (i.e., other species of voles). Also, the 12-month finding found no natural history or biologically significant information on M. m. hualpaiensis to distinguish individuals from the Hualapai Mountains from other populations in the region. Although voles from the Hualapai Mountains may be on an evolutionary trajectory in the direction of a “subspecies,” this trajectory is mostly likely very recent and insufficient to warrant description as an independent subspecies at this time. Given our review of the scientific and commercial data available for the Hualapai Mexican vole subspecies (M. m. hualpaiensis), we conclude that it is not a valid taxonomic entity for listing.

(2) Comment: The Service should conduct a detailed study and analysis on the vole's genetics prior to taking any action to reclassify the subspecies. Conflicting data on genetics should be resolved prior to agency action and should not be used as a justification to delist. Further the Service must rationally explain why the uncertainty counsels in favor of delisting now, rather than, for example, more study.

Our Response: While we recognize that more studies are always beneficial, our action is based on a thorough review of the best available scientific and commercial data, which indicates that the currently listed subspecies was listed in error as it is not a valid taxonomic entity. One of the peer reviewers stated that both AFLP and D-loop sequences are appropriate genetic markers for the level of taxonomy in question, and both markers lack support for individuals from the Hualapai Mountains forming an independent, genetic lineage. Further, the peer reviewer also stated that the current data are not sufficient to support the subspecific recognition of voles from the Hualapai Mountains, M. m. hualpaiensis. While both peer reviewers suggested that more genetic studies be conducted, the Service has relied on the best available scientific and commercial data at this time, as required under the Act.

(3) Comment: The Service is unable to show by the best scientific or commercial data available that classifying the Hualapai Mexican vole as an endangered subspecies of the greater Mexican vole species was in error.

Our Response: According to our regulations at 50 CFR 424.11(d), we may delist a species if the best available scientific and commercial data indicate that the species is neither endangered or threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error. We determine that the original classification is in error because there is sufficient evidence that the currently listed entity for the Hualapai Mexican vole is not a valid taxonomic subspecies. This evidence was not available to the Service at the time we listed the subspecies in 1987. The various analyses and reviews present multiple interpretations of the taxonomy and distribution of Mexican voles in Arizona, none of which correlates to that of our original listing. The final listing rule for the Hualapai Mexican vole (52 FR 36776; October 1, 1987) relied on the best available information at the time, and only included Mexican voles found in the Hualapai Mountains. The various published and unpublished reports we have used to make this decision all offer different conclusions about which populations may or may not be Hualapai Mexican voles. At this time, the best available scientific information presents conflicting information on the taxonomy of Mexican voles in general, and no longer supports the recognition of a separate Hualapai Mexican vole subspecies. Although reviews of the published and unpublished reports have inconsistent conclusions because of differences in data sets and genetic analyses, the Service and each of the peer reviewers agreed that the currently listed entity for the Hualapai Mexican vole is no longer a valid taxonomic subspecies. However, the populations that were previously identified as the Hualapai Mexican vole subspecies are recognized by the majority of the scientific community, including IUCN and ITIS, as part of a larger taxonomic species level of Mexican voles (Microtus mexicanus). Therefore, the original scientific data used at the time the subspecies was classified as an endangered subspecies were in error.

The petition asserts that the Hualapai Mexican vole should be delisted. Working within the framework of the regulations for making delisting determinations, as discussed above, the petition asserts that the original data we used in our recognition of the Hualapai Mexican vole as a subspecies, and thus a listable entity under the Act, were in error. In determining whether to recognize the Hualapai Mexican vole as a valid (distinguishable) subspecies, we must base our decision on the best available scientific and commercial data. Additionally, we must provide transparency in application of the Act's definition of a species through careful review and analyses of all the relevant data.

Under section 3 of the Act and our implementing regulations at 50 CFR 424.02, a “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature. As such, a “species” under the Act may include any taxonomically defined species of fish, wildlife, or plant; any taxonomically defined subspecies of fish, wildlife, or plant; or any distinct population segment of any vertebrate species as determined by us per our Policy Regarding the Recognition of District Vertebrate Population Segments [DPSs] Under the Endangered Species Act (61 FR 4722; February 7, 1996). We note that Congress has instructed the Secretary to exercise this authority with regard to DPS's “* * * sparingly and only when the biological evidence indicates that such action is warranted.”

Our implementing regulations provide further guidance on determining whether a particular taxon or population is a species or subspecies for the purposes of the Act: “the Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group” (50 CFR 424.11(a)). For each species, section 4(b)(1)(A) of the Act mandates that we use the best scientific and commercial data available for each individual species under consideration. Given the wide range of taxa and the multitude of situations and types of data that apply to species under review, the application of a single set of criteria that would be applicable to all taxa is not practical or useful. In addition, because of the wide variation in kinds of available data for a given circumstance, we do not assign a priority or weight to any particular type of data, but must consider it in the context of all the available data for a given species.

For purposes of being able to determine what is a listable entity under the Act, we must necessarily follow a more operational approach and evaluate and consider all available types of data, which may or may not include genetic information, to determine whether a taxon is a distinguishable species or subspecies. As a matter of practice, and in accordance with our regulations, in deciding which alternative taxonomic interpretations to recognize, the Service will rely on the professional judgment available within the Service and the scientific community to evaluate the most recent taxonomic studies and other relevant information available for the subject species. Therefore, we continue to make listing decisions based solely on the basis of the best scientific and commercial data available for each species under consideration on a case-specific basis.

In making our determination whether we recognize the Hualapai Mexican vole as a distinguishable subspecies and, thus, whether the petitioned action is warranted, we considered all available data that may inform the taxonomy of the Hualapai Mexican vole, such as ecology, morphology, and genetics.

In determining whether to recognize the Hualapai Mexican vole as a distinguishable subspecies, we must first define the criteria used to make this decision given the available information. Within the taxonomic literature, there are no universally agreed-upon criteria for delineating, defining, or diagnosing subspecies boundaries. Each possible subspecies has been subject to unique evolutionary forces, different methods of selection will act on each subspecies (genetic drift versus allopatric speciation), and the potential divergence time (recent versus more distant) will, therefore, lead to different signals, particularly genetically; as such, the methods for detecting each will be different (Amec 2015, pp. 101-102). Therefore, we conclude that the best scientific and commercial information available indicate that the Hualapai Mexican vole is not a distinguishable subspecies, and we, therefore, do not recognize it as a listable entity under the Act. (A “listable entity” is one that qualifies as a “species” under the definition in section 3 of the Act and is thus eligible to be listed as an endangered species or a threatened species.) Because we found that the Hualapai Mexican vole is not a valid listable entity, conducting a distinct population segment (DPS) analysis would be inappropriate.

After a review of all information available, we are removing the Hualapai Mexican vole from the List of Endangered and Threatened Wildlife (List). Section 4(a)(1) of the Act and regulations (50 CFR part 424) issued to implement the listing provisions of the Act set forth the procedures for adding species to or removing them from the List. The regulations at 50 CFR 424.11(d) state that a species may be delisted if (1) it becomes extinct, (2) it recovers, or (3) the original classification data were in error.

At this time, the best available scientific information presents conflicting information on the taxonomy of Mexican voles in general, and no longer supports the recognition of a separate Hualapai Mexican vole subspecies. Reviews of the published and unpublished reports have inconsistent conclusions because of different genetic analyses and data sets. However, there is sufficient evidence to indicate that the currently listed entity for the Hualapai Mexican vole is no longer a valid taxonomic subspecies. Additionally, the Mexican vole is listed as least concern by IUCN in view of its wide distribution, presumed large population, occurrence in a number of protected areas, and because it is unlikely to be declining at nearly the rate required to qualify for listing in a threatened category (Álvarez-Castañeda, S.T. & Reid, F. 2016). We consider the entity that was previously described as Hualapai Mexican vole (Microtus mexicanus hualpaiensis) to be part of the Mexican vole species (Microtus mexicanus). The Mexican vole species ranges from the southern Rocky Mountains in southern Utah and Colorado, through central Arizona and New Mexico, and throughout the interior of north and central México in the Sierra Madre Mountains, as far south as central Oaxaca, Mexico (Tamarin 1985, p. 99).

Based on the best available scientific and commercial data, we have determined that the Hualapai Mexican vole is not a valid taxonomic subspecies, and therefore, is not a listable entity under the Act. In conclusion, we find that the Hualapai Mexican vole (Microtus mexicanus hualpaiensis) must be removed as a listed subspecies under the Act because the original scientific data used at the time the subspecies was classified were in error.

This final rule revises 50 CFR 17.11(h) to remove the Hualapai Mexican vole from the Federal List of Endangered and Threatened Wildlife. Because no critical habitat was ever designated for this subspecies, this rule will not affect 50 CFR 17.95.

On the effective date of this rule (see DATES, above), the prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this subspecies. Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Hualapai Mexican vole.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

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, and the Department of 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. Therefore, we solicited information from Native American Tribes during the proposed rule's comment periods to determine potential effects on them or their resources that may result from the delisting of the Hualapai Mexican vole. No comments were received from Native American Tribes.

A complete list of all references cited in this rule is available on http://www.regulations.gov, or upon request from the Field Supervisor, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this rule are the staff members of the Arizona Ecological Services Field Office, U.S. Fish and Wildlife Service (see ADDRESSES).

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