Federal Register Vol. 82, No.4,

Table of Contents I. Introduction A. Authority B. Background II. Proposed Standards 1. Benefits and Burdens of TSLs Considered for Central Air Conditioner and Heat Pump Standards 2. Summary of Benefits and Costs (Annualized) of the Proposed Amended Standards III. Public Participation A. Submission of Comments IV. Procedural Issues and Regulatory Review V. Approval of the Office of the Secretary I. Introduction A. Authority

Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes the consumer central air conditioners and heat pumps that are the subject of this rulemaking. (42 U.S.C. 6292(a)(3))

Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product prior to the adoption of a new or amended energy conservation standard. (42 U.S.C. 6295(o)(3)(A) and (r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) The DOE test procedures for central air conditioners and heat pumps appear at title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix M and M1.

The National Appliance Energy Conservation Act of 1987 (NAECA; Pub. L. 100-12) included amendments to EPCA that established the original energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(1)-(2)) EPCA, as amended, also requires DOE to conduct two cycles of rulemakings to determine whether to amend the energy conservation standards for central air conditioners and heat pumps. (42 U.S.C. 6295(d)(3)) The first cycle culminated in a final rule published in the Federal Register on August 17, 2004 (the August 2004 Rule), which prescribed energy conservation standards for central air conditioners and heat pumps manufactured or imported on and after January 23, 2006. 69 FR 50997. DOE completed the second of the two rulemaking cycles by issuing a direct final rule on June 6, 2011 (2011 Direct Final Rule), which was published in the Federal Register on June 27, 2011. 76 FR 37408. The 2011 Direct Final Rule (June 2011 DFR) amended standards for central air conditioners and heat pumps manufactured on or after January 1, 2015.

EPCA requires DOE to periodically review its already established energy conservation standards for a covered product. Not later than six years after issuance of any final rule establishing or amending a standard, DOE must publish a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed standards. (42 U.S.C. 6295(m)(1)) Pursuant to this requirement, the next review that DOE would need to conduct must occur no later than six years from the issuance of the 2011 direct final rule. This direct final rule fulfills that requirement.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including consumer central air conditioners and heat pumps. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including consumer central air conditioners and heat pumps, if no test procedure has been established for the product, or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a proposed standard is economically justified, after receiving comments on the proposed standard, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination by, to the greatest extent practicable, considering the following seven factors:

(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;

(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary of Energy (Secretary) considers relevant.

(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))

DOE notes that the current energy conservation standards for central air conditioners and heat pumps (set forth at 10 CFR 430.32(c)) contain requirements for seasonal energy efficiency ratio (SEER), heating seasonal performance factor (HSPF), energy efficiency ratio (EER), and average off mode power consumption. Standards based upon the latter two metrics were newly adopted in the June 27, 2011 DFR for the reasons stated in that rulemaking. 76 FR 37408. As discussed in section II.B.1 and section II.B.3 of this proposed rule, DOE has chosen to specify performance standards based on EER and SEER for only the southwest region of the country. Pursuant to its mandate under 42 U.S.C. 6295(m)(1), this DOE rulemaking has considered amending the existing energy conservation standards for central air conditioners and heat pumps, and DOE is adopting the amended standards contained in this direct final rule.

EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) or performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) DOE generally considers these criteria as part of its analysis but consistently conducts a more thorough analysis of a given standard's projected impacts that extends beyond this presumption.

Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. In this case, DOE must specify a different standard level for a type or class of covered product that has the same function or intended use, if DOE determines that products within such group: (A) Consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature that other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

Under 42 U.S.C. 6295(o)(6), which was added to EPCA by section 306(a) of the Energy Independence and Security Act of 2007 (EISA 2007; Pub. L. 110-140), DOE may consider the establishment of regional standards for central air conditioners and heat pumps. Specifically, in addition to a base national standard for a product, DOE may for central air conditioners and heat pumps, establish one or two more-restrictive regional standards. (42 U.S.C. 6295(o)(6)(B)) The regions must include only contiguous States (with the exception of Alaska and Hawaii, which may be included in regions with which they are not contiguous), and each State may be placed in only one region (i.e., an entire State cannot simultaneously be placed in two regions, nor can it be divided between two regions). (42 U.S.C. 6295(o)(6)(C)) Further, DOE can establish the additional regional standards only: (1) Where doing so would produce significant energy savings in comparison to a single national standard, (2) if the regional standards are economically justified, and (3) after considering the impact of these standards on consumers, manufacturers, and other market participants, including product distributors, dealers, contractors, and installers. (42 U.S.C. 6295(o)(6)(D))

Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).

Pursuant to further amendments to EPCA contained in EISA 2007, Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) The SEER and HSPF metrics for central air conditioners and heat pumps already account for standby mode energy use, and the current standards include limits on off mode energy use.

As mentioned previously, EISA 2007 amended EPCA, in relevant part, to grant DOE authority to issue a final rule (hereinafter referred to as a “direct final rule”) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates), as determined by the Secretary, that contains recommendations with respect to an energy or water conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)) Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly-submitted recommendation for an energy or water conservation standard satisfies 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable.

A notice of proposed rulemaking (NOPR) that proposes an identical energy efficiency standard must be published simultaneously with the direct final rule, and DOE must provide a public comment period of at least 110 days on this proposal. (42 U.S.C. 6295(p)(4)(A)-(B)) While DOE typically provides a comment period of 60 days on proposed standards, in this case, DOE provides a comment period of the same length as the comment period on the direct final rule—i.e. 110 days. Based on the comments received during this period, the direct final rule will either become effective, or DOE will withdraw it not later than 120 days after its issuance if (1) one or more adverse comments is received, and (2) DOE determines that those comments, when viewed in light of the rulemaking record related to the direct final rule, provide a reasonable basis for withdrawal of the direct final rule under 42 U.S.C. 6295(o) and for DOE to continue this rulemaking under the NOPR. (42 U.S.C. 6295(p)(4)(C)) Receipt of an alternative joint recommendation may also trigger a DOE withdrawal of the direct final rule in the same manner. Id.

Typical of other rulemakings, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, the substance of any adverse comment(s) received will be weighed against the anticipated benefits of the jointly-submitted recommendations and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that, to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule. Nevertheless, if the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously-published NOPR. DOE must publish in the Federal Register the reason why the direct final rule was withdrawn. Id.

According to the Energy Policy and Conservation Act's 6-year review requirement (42 U.S.C. 6295(m)(1)), DOE must publish a notice of proposed rulemaking to propose new standards for consumer central air conditioner and heat pump products or a notice of determination that the existing standards do not need to be amended by June 6, 2017. On November 5, 2014, DOE initiated efforts pursuant to the 6-year lookback requirement by publishing a request for information (RFI) regarding central air conditioners and heat pumps to solicit comments on whether to amend the current energy conservation standards for consumer central air conditioner and heat pump products. 79 FR 65603. The November 2014 RFI also described the procedural and analytical approaches that DOE anticipated to use in order to evaluate potential amended energy conservation standards for central air conditioners and heat pumps.

On August 28, 2015, DOE published a notice of data availability (NODA) describing analysis to be used in support of the central air conditioners and heat pumps standards rulemaking. 80 FR 52206. The analysis for this notice provided the results of a series of DOE provisional analyses regarding potential energy savings and economic impacts of amending the central air conditioner and heat pump energy conservation standards. These analyses were conducted for the following categories: Engineering, consumer impacts, national impacts, and manufacturer impacts.

In response to the November 2014 RFI, Lennox formally requested that DOE convene a negotiated rulemaking to address potential amendments to the current standards, which would help ensure that all stakeholders have input into the discussion, analysis, and outcome of the rulemaking. (Lennox, No. 22) Other key industry stakeholders made similar suggestions. (American Council for an Energy-Efficient Economy, No. 23; Air Conditioning Contractors of America, No. 25; Heating, Air Conditioning & Refrigeration Distributors International, No. 26) ASRAC carefully evaluated this request, and the Committee voted to charter a working group to support the negotiated rulemaking effort requested by these parties.

Subsequently, DOE determined that the complexity of the CAC/HP rulemaking necessitated a combined effort to address these equipment types to ensure a comprehensive vetting of all issues and related analyses to support any final rule setting standards. To this end, DOE solicited the public for membership nominations to the CAC/HP Working Group that would be formed under the ASRAC charter by issuing a Notice of Intent to Establish the Central Air Conditioners and Heat Pumps Working Group To Negotiate a Notice of Proposed Rulemaking for Energy Conservation Standards. 80 FR 40938 (July 14, 2015). The CAC/HP Working Group was established under ASRAC in accordance with the Federal Advisory Committee Act (FACA) and the Negotiated Rulemaking Act—with the purpose of discussing and, if possible, reaching consensus on a set of energy conservation standards to propose/finalize for CACs and HPs. The CAC/HP Working Group was to consist of fairly representative parties having a defined stake in the outcome of the proposed standards, and would consult, as appropriate, with a range of experts on technical issues.

DOE received 26 nominations for membership. Ultimately, the CAC/HP Working Group consisted of 15 members, including one member from ASRAC and one DOE representative.1 The CAC/HP Working Group met ten times (nine times in-person and once by teleconference). The meetings were held on August 26, 2015, September 10, 2015, September 28-29, 2015, October 13-14, 2015, October 26-27, 2015. November 18-19, 2015, December 1-2, 2015, December 16-17, 2015, January 11-12, 2016, and a webinar on January 19, 2016.

During the CAC/HP Working Group discussions, participants discussed setting new standards for single-package air conditioners. Specifically, arguments were made against raising the standard level for single-package systems due to the unavailability of full product lines, which span the entire range of cooling capacities, with efficiencies that are only modestly greater (i.e., 15 SEER) than the current standard level (i.e., 14 SEER). (ASRAC Public Meeting, No. 80 at pp. 75-6) After being informed that the national energy savings from a 15 SEER standard for single-package systems would be small (i.e., approximately 0.1 quads), the Working Group agreed not to recommend raising the standards for these product classes. (ASRAC Public Meeting, No. 80 at pp. 90-91). In addition, some parties wanted the Group to recommend a level for standards for split-system heat pumps that would encourage use of two-speed equipment (i.e., greater than 15 SEER), but the manufacturer representatives objected to this proposal due to two primary concerns: (1) Only a single compressor manufacturer supplies two-stage compressors, thereby creating the possibility of a limited or constrained supply of the most critical component of a two-speed system and (2) the likelihood, in replacement installations, that the utilization of existing thermostat control wiring could result in the use of only high-speed, thereby eliminating the efficiency gain resulting from low-speed operation during part-load conditions.

The CAC/HP Working Group successfully reached consensus on recommended energy conservation standards, as well as test procedure amendments for CACs and HPs. On January 19, 2016, the CAC/HP Working Group submitted the Term Sheet to ASRAC outlining its recommendations, which ASRAC subsequently adopted.2

After carefully considering the consensus recommendations for amending the energy conservation standards for CACs and HPs submitted by the CAC/HP Working Group and adopted by ASRAC, DOE has determined that these recommendations are in accordance with the statutory requirements of 42 U.S.C. 6295(p)(4) for the issuance of a direct final rule.

More specifically, these recommendations comprise a statement submitted by interested persons who are fairly representative of relevant points of view on this matter. In reaching this determination, DOE took into consideration the fact that the CAC/HP Working Group, in conjunction with ASRAC members who approved the recommendations, consisted of representatives of manufacturers of the covered equipment at issue, States, and efficiency advocates—all of which are groups specifically identified by Congress as relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the Term Sheet was signed and submitted by a broad cross-section of interests, including the manufacturers who produce the subject products, trade associations representing these manufacturers and installation contractors, environmental and energy-efficiency advocacy organizations, and electric utility companies. Although States were not direct signatories to the Term Sheet, the ASRAC Committee approving the CAC/HP Working Group's recommendations included at least two members representing States—one representing the National Association of State Energy Officials (NASEO) and one representing the State of California.3 Moreover, DOE does not read the statute as requiring a statement submitted by all interested parties before the Department may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has the discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e., “as determined by the Secretary”). Id.

DOE also evaluated whether the recommendation satisfies 42 U.S.C. 6295(o), as applicable. In making this determination, DOE conducted an analysis to evaluate whether the potential energy conservation standards under consideration achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified and result in significant energy conservation. The evaluation is the same comprehensive approach that DOE typically conducts whenever it considers potential energy conservation standards for a given type of product or equipment.

DOE has considered the recommended energy conservation standards and believes that they meet the EPCA requirements for issuance of a direct final rule. As a result, DOE published a direct final rule establishing energy conservation standards for consumer central air conditioners and heat pumps elsewhere in this Federal Register. If DOE receives adverse comments that may provide a reasonable basis for withdrawal and withdraws the direct final rule, DOE will consider those comments and any other comments received in determining how to proceed with this proposed rule.

For further background information on the proposed standards and the supporting analyses, please see the direct final rule published elsewhere in this Federal Register. That document includes additional discussion of the EPCA requirements for promulgation of energy conservation standards; the current standards for consumer central air conditioners and heat pumps; the history of the standards rulemakings establishing such standards; and information on the test procedures used to measure the energy efficiency of consumer central air conditioners and heat pumps. The document also contains an in-depth discussion of the analyses conducted in support of this rulemaking, the methodologies DOE used in conducting those analyses, and the analytical results.

When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

For this proposed rule, DOE considered the impacts of amended standards for central air conditioners and heat pumps at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next-most-efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.

To aid the reader in understanding the benefits and/or burdens of each TSL, tables in this section summarize the quantitative analytical results for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a standard and impacts on employment.

Table II-1 and Table II-2 summarize the quantitative impacts estimated for each TSL for central air conditioners and heat pumps. The national impacts are measured over the lifetime of central air conditioners and heat pumps purchased in the 30-year period that begins in the anticipated first year of compliance with any amended standards (2021-2050 or, in the case of the recommended TSL, 2023-2052). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of the direct final rule.

First, DOE considered TSL 4, which would save an estimated total of 14.2 quads of energy, an amount DOE considers significant. TSL 4 has an estimated NPV of consumer benefit of −$31.4 billion using a 7-percent discount rate, and −$28.1 billion using a 3-percent discount rate.

The cumulative emissions reductions at TSL 4 are 841 Mt of CO2, 452.4 thousand tons of SO2, 1,559 thousand tons of NOX, 1.669 tons of Hg, 3,738 thousand tons of CH4, and 9.481 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions at TSL 4 ranges from $5.298 billion to $76.950 billion.

At TSL 4, the average LCC savings is −$304 for split air conditioners, −$425 for split heat pumps, −$80 for package air conditioners, $115 for package heat pumps, $58 for space-constrained air conditioners, and −$540 for small-duct high-velocity air conditioners. The simple PBP is 19.2 years for split air conditioners, 14.9 years for split heat pumps, 12.3 years for package air conditioners, 5.2 years for package heat pumps, 11.6 years for space-constrained air conditioners, and 34.3 years for small-duct high-velocity air conditioners. The share of consumers experiencing a net LCC cost is 75 percent for split air conditioners, 79 percent for split heat pumps, 69 percent for package air conditioners, 39 percent for package heat pumps, 60 percent for space-constrained air conditioners, and 90 percent for small-duct high-velocity air conditioners.

At TSL 4, the projected change in INPV ranges from a decrease of $1,135.6 million to an increase of $393.5 million. If the more severe range of impacts is reached, TSL 4 could result in a net loss of up to 25.3 percent of INPV for manufacturers.

After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that, at TSL 4 for central air conditioner and heat pump standards, the benefits of energy savings and emissions reductions would be outweighed by the negative NPV of total consumer benefits at a 3-percent and 7-percent discount rate, negative average consumer LCC savings for most product classes, and the reduction in industry value.

Next, DOE considered TSL 3, which would save an estimated total of 8.6 quads of energy, an amount DOE considers significant. TSL 3 has an estimated NPV of consumer benefit of −$10 billion using a 7-percent discount rate, and $1.1 billion using a 3-percent discount rate.

The cumulative emissions reductions at TSL 3 are 508.7 Mt of CO2, 272.4 thousand tons of SO2, 944.2 thousand tons of NOX, 1.005 tons of Hg, 2,264 thousand tons of CH4, and 5.711 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions at TSL 3 ranges from $3.190 billion to $46.375 billion.

At TSL 3, the average LCC savings is −$122 for split air conditioners, −$25 for split heat pumps, $43 for package air conditioners, and $115 for package heat pumps. The simple PBP is 15.2 years for split air conditioners, 9.4 years for split heat pumps, 8.9 years for package air conditioners, and 5.2 years for package heat pumps. The share of consumers experiencing a net LCC cost is 63 percent for split air conditioners, 54 percent for split heat pumps, 53 percent for package air conditioners, and 39 percent for package heat pumps. There are no impacts on space-constrained air conditioners or small-duct high-velocity air conditioners at TSL 3.

At TSL 3, the projected change in INPV ranges from a decrease of $1,114.2 million to an increase of $16.1 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 24.8 percent of INPV for manufacturers.

After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that at TSL 3 for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit at a 3-percent discount rate, and emissions reductions would be outweighed by the negative NPV of consumer benefit at a 7-percent discount rate, negative average LCC savings for most product classes, and the potential reduction in INPV for manufacturers.

Next, DOE considered the Recommended TSL, which would save an estimated total of 3.2 quads of energy, an amount DOE considers significant. The Recommended TSL has an estimated NPV of consumer benefit of $2.5 billion using a 7-percent discount rate, and $12.2 billion using a 3-percent discount rate.

The cumulative emissions reductions under the Recommended TSL are 188.3 Mt of CO2, 100.8 thousand tons of SO2, 350.3 thousand tons of NOX, 0.372 tons of Hg, 842.4 thousand tons of CH4, and 2.114 thousand tons of N2O. The estimated monetary value of the CO2 emissions reductions ranges from $1.143 billion to $16.855 billion.

Under the Recommended TSL, the average LCC savings for split air conditioners is $43 in the north region, $150 in the hot dry region, $39 in the hot humid region, and $131 for split heat pumps. The simple payback period for split air conditioners is 10.5 years in the north region, 7.6 years in the hot dry region, 7.7 years in the hot humid region, and 4.9 years for split heat pumps. The share of consumers experiencing a net LCC cost for split air conditioners is 25 percent in the north region, 42 percent in the hot dry region, 45 percent in the hot humid region, and 20 percent for split heat pumps. There are no impacts to packaged air conditioners, packaged heat pumps, space-constrained air conditioners, and small-duct high-velocity air conditioners under the Recommended TSL.

Under the Recommended TSL, the projected change in INPV ranges from a decrease of $692.3 million to a decrease of $114.2 million. If the more severe range of impacts is reached, TSL 3 could result in a net loss of up to 15.4 percent of INPV for manufacturers.

After considering the analysis and weighing the benefits and the burdens, the Secretary has tentatively concluded that under the Recommended TSL for central air conditioner and heat pump standards, the benefits of energy savings, positive NPV of consumer benefit, positive impacts on consumers (as indicated by positive average LCC savings and favorable PBPs), and emission reductions, would outweigh the negative impacts on some consumers and the potential reduction in INPV for manufacturers.

Under the authority provided by 42 U.S.C. 6295(p)(4), DOE is issuing this notice of proposed rulemaking that proposes amended energy conservation standards for central air conditioners and heat pumps at the Recommended TSL. The proposed amended energy conservation standards for central air conditioners and heat pumps as determined by the DOE test procedure at the time of the 2015-2016 ASRAC negotiations are presented in Table II-3.

Table II-4 shows the amended energy conservation standards for central air conditioners and heat pumps as determined by the test procedure final rule issued by DOE on November 30, 2016, hereinafter referred to as the “November 2016 test procedure final rule”.4 (Docket No. EERE-2016-BT-TP-0029)

The following paragraph describes how DOE translated the energy conservation standards in Table II-3—which are in terms of SEER, HSPF, and EER as determined by the DOE test procedure at the time of the 2015-2016 ASRAC Negotiations—to the energy conservation standard levels in Table II-4—which are in terms of SEER2, HSPF2, and EER2 as determined by the November 2016 test procedure final rule. DOE used a methodology consistent with the recommendations of the CAC/HP Working Group to translate the SEER standard levels to SEER2 standard levels for the split-system and single-package product classes. Note that the heating load line slope factor established by the November 2016 test procedure final rule is different than the heating load line slope factors used by the CAC/HP Working Group in their Term Sheet recommendation #9. DOE translated the HSPF standard levels to HSPF2 standard levels for split-system and single-package heat pumps by adjusting for the intermediate heating load line slope factor established by the November 2016 test procedure final rule using interpolation. (November 2016 Test Procedure Final Rule, pp. 127-130)

Comments in response to the provisional translations for HSPF2 for split system and single-package heat pumps are summarized in the November 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 127-130). Commenters agreed with the translation for split-system heat pumps, but industry commenters felt that the 6.8 value was too high for single-package heat pumps. Alternative HSPF2 values that were suggested in comments ranged from 6.5 (Docket No. EERE-2016-BT-TP-0029, Lennox, No. 25 at p. 10) to 6.7 (Docket No. EERE-2016-BT-TP-0029, Goodman, No. 39 at p. 10) Data provided under confidentiality supports the range suggested in comments. DOE combined that data with the data it used to validate its interpolated value of 6.8. DOE found that the combined data shows that 6.7 HSPF2 is an appropriate translation. For this reason, DOE is proposing 6.7 HSPF2 for single-package heat pumps in this notice.

The August 2016 test procedure SNOPR and November 2016 test procedure final rule did not include translated levels for small-duct high velocity (SDHV) and space-constrained products. Neither did Recommendation #9 of the Term Sheet. Recommendation #9 did, however, state that the energy conservation standards for those product classes should remain unchanged from current levels (i.e. that there would be no change in stringency). (ASRAC Term Sheet, No. 76 at pp. 4-5) On October 27, 2016, DOE published a notice of data availability (NODA) that provided provisional translations of the CAC/HP Working Group's recommended energy conservation standard levels for small-duct high velocity and space constrained products (which are in terms of the test procedure at the time of the 2015-2016 Negotiations) into levels consistent with the test procedure proposed in the August 2016 test procedure SNOPR. Table II-5 presents the provisional translations included in the October 2016 NODA. Note that multiple provisional translations from SEER to SEER2 are included for space-constrained air conditioners and heat pumps because, at the time of the NODA publication, DOE had not finalized the test procedure which would establish the minimum external static pressure requirements.

In developing its provisional translations for space-constrained air conditioners published in the NODA, DOE reviewed existing test data, adjusted relevant measurements based on blower performance data, and translated the levels based on the average impact. For the space-constrained and SDHV heat pump translations published in the NODA, DOE also reviewed test data and confirmed that the 15% reduction from HSPF to HSPF2 that DOE observed for split-system and single-package heat pumps was appropriate also for space-constrained and SDHV heat pumps.

In written comments, manufacturers and AHRI expressed support for DOE's provisional translations for SDHV products. Unico stated that it reviewed all of its test reports from the previous two years and found its range of results validated DOE's translations for SDHV products. (Unico, No. 95 at p. 2). AHRI and Lennox also expressed support for DOE's SEER and HPSF to SEER2 and HSPF2 levels for SDHV products. (AHRI, No. 94 at p. 1; Lennox, No. 97 at p. 1) EEI commented that it did not agree with DOE's translation because the HSPF appears to drop by approximately 15.3%, even though there has been no change to the product. (EEI, No. 96 at p. 2).

Regarding the concern expressed by EEI, DOE's translations do not assume nor reflect any change to product design. EPCA requires DOE to consider changes in energy conservation standards if a test procedure change alters the measurement, but does not prohibit a test procedure change that alters the measurement. (42 U.S.C. 6293(e)) In the November 2016 test procedure final rule, DOE adopted provisions that amend the test procedure required to determine representations for CAC/HP, including SDHV products. These provisions impact the value of the test procedure results. For instance, the November 2016 test procedure final rule assumes higher heating loads for heat pumps in colder outdoor conditions, which will typically result in lower HSPF2 ratings. (November 2016 Test Procedure Final Rule, pp. 110-127) Simply stated, an SDHV product tested in accordance with the test procedure at the time of the 2015-2016 ASRAC Negotiations will get a different rating than the same SDHV product (without design changes) tested in accordance with the test procedure adopted in the November 2016 test procedure final rule. DOE's translations are intended to reflect these differences. DOE is using “SEER2”, “HSPF2”, and “EER2” to distinguish ratings determined by the November 2016 test procedure from the SEER, HSPF and EER ratings determined by past test procedures to mitigate confusion that may result from the possibility that products available before and after the November 2016 test procedure may have a different SEER2/HSPF2/EER2 than SEER/HSPF/EER rating despite no changes to design.

Unico's SDHV data validate DOE's translations, which are also supported by AHRI and Lennox. DOE did not receive any other comments or data suggesting that its translations for SDHV products are inappropriate. For these reasons, DOE is proposing the SDHV translations presented in the October 2016 NODA in this NOPR.

AHRI is concerned that the SEER2 translation DOE presented for space-constrained air conditioners is too high by 0.1. AHRI calculated SEER2 to be 11.7 at 0.30 in. wc. rather than 11.8. AHRI provided data for 4 space-constrained products to illustrate its results. (AHRI, No. 94 at p. 2). Lennox also commented that DOE's SEER2 translation for space-constrained air conditioners is too high by 0.1. (Lennox, No. 97 at p. 2) AHRI and Lennox also commented that DOE should adopt the same SEER2 standard for space-constrained air conditioners and heat pumps (AHRI, No. 94 at p.2; Lennox, No. 97 at p. 2) First Co. strongly disagrees with DOE's proposed translation of SEER to SEER2 values for space-constrained air conditioners because DOE's methodology for determining SEER2 fails to account for the significant SEER reduction resulting from what they claim to be “new” coil-only testing requirements for space-constrained air conditioners. First Co. is referring to amendments to the certification requirements of 10 CFR 429 adopted for CAC/HP in the June 2016 test procedure final rule, which became effective in July 2016 and are required for representations starting December 5, 2016. (10 CFR 429.16(a)(1)) First Co. stated that prior to the June 2016 test procedure final rule, space constrained units, which are manufactured and sold only for installation with blower coil indoor units, have been tested with blower coil units with high-efficiency motors (ECMs). The high-efficiency motors average 200W/1000 scfm or less for indoor power compared with the default fan power value of 365W/1000 scfm applied under the “coil- only” test. First Co. claims that the impact of the “coil-only” test alone is approximately a 10% reduction in SEER of these products from 12 SEER to 10.8 SEER, and that DOE's methodology is flawed because it uses a starting point of 365W/1000 (i.e., the “coil-only” default fan power value of the current test procedure) and only considers the change in energy usage from 365W/1000 scfm to 441 W/1000 scfm. They claim that this ignores the increase in energy usage from 200W/1000 scfm to 365W/1000 scfm, and the resulting SEER reduction, caused by the imposition of the “coil-only” test. First Co. submits that SEER2 should be calculated by applying the following methodology, which takes into account the new “coil-only” test and the changes in the August 2016 test procedure SNOPR: Replace 200W/1000 scfm (test data using ECM) with 411 W/1000 scfm and recalculate the SEER. First Co. indicates that applying this methodology, SEER will be reduced by approximately 10% for the coil only test and by an additional 4% to account for the suggested 411 W/1000 scfm number, resulting in a 10.4 SEER2 rating for space constrained air conditioners. (First Co., No. 93 at pp. 1, 2)

DOE appreciates the space-constrained air conditioner translation data provided by AHRI. DOE combined AHRI's data with the data DOE used to develop DOE's provisional translations. Note that after the October 2016 NODA, DOE issued the November 2016 test procedure final rule in which it adopted a minimum external static pressure requirement of 0.3 in. wc. for space-constrained air conditioners and heat pumps. (November 2016 Test Procedure Final Rule, pp. 97-99) Consequently, DOE combined AHRI's data with DOE's data reflective of performance at that operating condition. Once combined, the data validates AHRI's assertion that 11.7 is the appropriate SEER2 level for space-constrained air conditioners at 0.3 in. wc. Thus, DOE is adopting 11.7 SEER2 as the standard level for space-constrained air conditioners in this final rule. DOE disagrees with AHRI and Lennox that 11.7 SEER2 should also be used for space-constrained heat pumps. While space-constrained air conditioners are required to certify at least one coil-only combination that is representative of the least efficient coil-only combination distributed in commerce, space-constrained heat pumps have no coil-only requirement. (10 CFR 429.16(a)(1)) AHRI derived 11.7 SEER2 using 406 W/1000 scfm (the default fan power at 0.3 in. wc.) for indoor fan power consumption. As discussed in the November 2015 test procedure SNOPR and subsequently referenced in the November 2016 test procedure final rule, this default fan power value is reflective of the weighted-average performance of indoor fan by motor type distribution projected for the effective date of this standard, which includes a significant majority of lower-efficiency PSC motors. 80 FR 69319-20 and (November 2016 Test Procedure Final Rule, p. 104) First Co. states that most space-constrained blower-coil systems currently sold include a high-efficiency ECM motor. (First Co., No 93 at pp. 1-2) Brushless permanent magnet motors (often referred to as “ECM”) are more efficient than PSC motors. Thus, 406 W/1000 scfm is not representative of the field operation of space-constrained blower-coil systems being sold. DOE's provisional analysis presented in the October 2016 NODA is consistent with First Co.'s claims, showing that higher-efficiency motors typically used in space-constrained blower-coil systems sold today consume less than 406 W/1000 scfm, resulting in a higher SEER2 level for space-constrained blower-coil systems compared to space-constrained coil-only systems. DOE did not receive any additional comments or data regarding the SEER2 level for space-constrained heat pumps. For these reasons, DOE finds that a higher SEER2 level for space-constrained heat pumps—which is based on blower-coil performance—compared to space-constrained air-conditioners—which is based on coil-only performance—is appropriate. DOE adopts its provisional translation of 11.9 SEER2 for space-constrained heat pumps for these reasons.

DOE provided a response to First Co.'s comment regarding the required coil-only test for testing of space constrained products in the November 30, 2016 test procedure final rule. (November 2016 Test Procedure Final Rule, pp. 146-148)

The benefits and costs of the proposed amended standards can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The annualized national economic value (expressed in 2015$) of the benefits from operation of products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the annualized monetary value of the benefits of emission reductions, including CO2 emission reductions.5

Estimates of annualized benefits and costs of the proposed amended standards for central air conditioners and heat pumps, expressed in 2015$, are shown in Table II-6. The results under the primary estimate are as follows.

Using a 7-percent discount rate for benefits and costs other than CO2 reduction, (for which DOE used a 3-percent discount rate along with the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015)), the estimated cost of the proposed standards is $741 million per year in increased product costs, while the estimated benefits are $1,041 million per year in reduced product operating costs, $337 million per year in CO2 reductions, and $22 million per year in reduced NOX emissions. In this case, the net benefit would amount to $659 million per year.

Using a 3-percent discount rate for all benefits and costs and the average SCC series that uses a 3-percent discount rate ($40.6/t in 2015), the estimated cost of the proposed standards is $747 million per year in increased product costs, while the estimated benefits are $1,488 million per year in reduced product operating costs, $337 million per year in CO2 reductions, and $32 million per year in reduced NOX emissions. In this case, the net benefit would amount to $1,110 million per year.

DOE also notes that, using a 7-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $300 million per year. Using a 3-percent discount rate for only the increased product costs and the reduced product operating costs, the net benefit would amount to $741 million per year.

DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this proposed rule.

Submitting comments via www.regulations.gov. The www.regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery/courier, or mail. Comments and documents submitted via email, hand delivery/courier, or mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery/courier two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

The regulatory reviews conducted for this proposed rule are identical to those conducted for the direct final rule published elsewhere in this Federal Register. Please see the direct final rule for further details.

The Secretary of Energy has approved publication of this proposed rule.

For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9569; Directorate Identifier 2016-NM-052-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On February 1, 2013, we issued AD 2013-03-12, Amendment 39-17347 (78 FR 9798, February 12, 2013) (“AD 2013-03-12”). AD 2013-03-12 requires actions intended to address an unsafe condition on all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. Since we issued AD 2013-03-12, the manufacturer has issued a revision to the AMM that introduces new or more restrictive maintenance requirements and/or airworthiness limitations.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2016-0067, dated April 7, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE-FALCON 50 airplanes. The MCAI states:

This proposed AD would require revising the maintenance or inspection program, as applicable, to incorporate new or revised maintenance requirements and airworthiness limitations. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9569.

Dassault Aviation has issued Section 05-40/00, Airworthiness Limitations, of Chapter 5-40, Airworthiness Limitations, of the Dassault Falcon 50/50EX Maintenance Manual, Revision 23, dated July 2015. The service information describes maintenance requirements and/or airworthiness limitations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

This AD requires revisions to certain operator maintenance documents to include new actions (e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (l)(1) of this proposed AD. The request should include a description of changes to the required actions that will ensure the continued damage tolerance of the affected structure.

We estimate that this proposed AD affects 249 airplanes of U.S. registry.

The actions required by AD 2013-03-12, and retained in this proposed AD, take about 1 work-hour per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2013-03-12 is $85 per product.

We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $21,165, or $85 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9567; Directorate Identifier 2016-NM-147-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On June 12, 2007, we issued AD 2007-13-08, Amendment 39-15112 (72 FR 33877, June 20, 2007) (“AD 2007-13-08”), for certain Airbus Model A318, A319, A320, and A321 series airplanes. AD 2007-13-08 was prompted by mandatory continuing airworthiness information issued by an airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. AD 2007-13-08 currently requires repetitive inspections of the APU starter motor, APU inlet plenum, and APU air intake for discrepancies; repetitive cleaning of the APU air intake, and applicable corrective actions. We issued AD 2007-13-08 to detect and correct reverse flow during APU startup, leading to flame propagation in the APU air inlet and intake duct. Such conditions could result in an in-flight fire in the APU area.

Since we issued AD 2007-13-08, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0176, dated August 31, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 airplanes. The MCAI states:

Discrepancies include a defective APU starter motor, misaligned brush wear indicator-pin, oil contamination of the brush wear indicator, and dirt, debris, dust, sand, oil, combustible residues, grease and other contaminations of the APU inlet plenum. Corrective actions include replacement of the APU starter motor and cleaning the APU air intake, if necessary. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9567.

Airbus has issued Service Bulletin A320-49-1068, Revision 01, dated February 2, 2006. The service information describes procedures for repetitive inspections for discrepancies of the APU starter motor, APU inlet plenum, and APU air intake, as well as repetitive cleaning of the APU air intake and applicable corrective actions.

Airbus has also issued the following service information, which describes procedures for replacing the ECB. These documents are distinct since they apply to different airplane models in different configurations.

• Airbus Service Bulletin A320-49-1070, dated July 28, 2006.

• Airbus Service Bulletin A320-49-1075, Revision 01, dated December 1, 2006.

• Airbus Service Bulletin A320-49-1077, Revision 04, dated February 27, 2013.

• Airbus Service Bulletin A320-49-1098, dated June 21, 2011.

• Airbus Service Bulletin A320-49-1102, dated January 3, 2012.

• Airbus Service Bulletin A320-49-1107, Revision 02, dated May 10, 2016.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We estimate that this proposed AD affects 1,182 airplanes of U.S. registry.

The actions required by AD 2007-13-08, and retained in this proposed AD, take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2007-13-08 is $340 per product.

We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $401,880, or $340 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9570; Directorate Identifier 2016-NM-185-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have determined that undetected web fatigue cracking caused by oil canning may exist in the station 1440 aft pressure bulkhead Web. Oil canning is defined as a locally buckled forward area of the aft pressure bulkhead web between the radial stiffeners and the circumferential tear straps, which can pop outward when the fuselage is pressurized, causing a stress reversal cycle during each flight that may lead to fatigue cracking of the aft pressure bulkhead web. Oil canning may lead to cracking and related damage (including sharp creases; gouges; cracks; deformation to a radial stiffener, circumferential tear strap, Y-chord, or terminal fitting splice plate; or damaged holes) or irregularity (including loose or missing fasteners, pressure leakage, fasteners within 1 inch of any oil canning location, or an oil canning location within 2 inches of another oil canning location). This condition, if not corrected, could result in an undetected fatigue crack in the aft pressure bulkhead web growing to a length that could result in reduced structural integrity of the web and lead to rapid decompression of the airplane.

We reviewed Boeing 707 Alert Service Bulletin A3543, dated September 15, 2016 (“ASB A3543, Revision 0”). The service information describes procedures for repetitive detailed inspections for any oil canning or cracking of the station 1440 aft pressure bulkhead web, and related corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9570.

The phrase “related investigative actions” is used in this proposed AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

ASB A3543, Revision 0, specifies to contact the manufacturer for certain instructions, but this proposed AD would require using repair methods, modification deviations, and alteration deviations in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

We estimate that this proposed AD affects 12 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any additional inspections that would be required based on the results of the initial proposed inspection. These cost estimates are for one canning location. We have no way of determining the number of aircraft that might need these actions:

We have received no definitive data that would enable us to provide cost estimates for certain corrective actions specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have 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.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Background I. In General A. Chapter 4

Sections 1471 through 1474 under chapter 4 of Subtitle A (chapter 4) were added to the Code on March 18, 2010, as part of the Hiring Incentives to Restore Employment Act of 2010, Public Law 111-147. Chapter 4 (commonly known as the Foreign Account Tax Compliance Act, or FATCA) generally requires withholding agents to withhold tax on certain payments to foreign financial institutions (FFIs) that do not agree to report certain information to the IRS regarding their U.S. accounts under section 1471(b)(1). Chapter 4 also generally requires withholding agents to withhold tax on certain payments to certain non-financial foreign entities (NFFEs) that do not provide to the withholding agent information on their substantial United States owners (substantial U.S. owners) or a certification that they have no such owners. On January 28, 2013, final regulations (TD 9610) under chapter 4 were published in the Federal Register (78 FR 5874), and on September 10, 2013, corrections to the final regulations were published in the Federal Register (78 FR 55202). TD 9610 and the September 2013 corrections are referred to collectively in this preamble as the 2013 final regulations. On March 6, 2014, temporary regulations (TD 9657) under chapter 4 were published in the Federal Register (79 FR 12812) and corrections to the temporary regulations were published in the Federal Register on July 1, 2014, and November 18, 2014 (79 FR 37175 and 78 FR 68619, respectively). In this preamble, TD 9657 and the corrections thereto are referred to collectively as the 2014 temporary regulations, and together with the 2013 final regulations, as the chapter 4 regulations. A notice of proposed rulemaking cross-referencing the 2014 temporary regulations was published in the Federal Register on March 6, 2014 (79 FR 12868).

To address situations where foreign law would prevent an FFI from reporting directly to the IRS the information required by chapter 4, the Treasury Department, in collaboration with certain foreign governments, developed two alternative model intergovernmental agreements, known as the Model 1 IGA and the Model 2 IGA. Under the Model 1 IGA, an FFI that is treated as a reporting Model 1 FFI is treated as complying with and not subject to withholding under section 1471 provided that the FFI complies with the requirements specified in the Model 1 IGA and reports information about its U.S. accounts to the Model 1 IGA jurisdiction, which is followed by the automatic exchange of that information on a government-to-government basis with the United States. Under the Model 2 IGA, an FFI that is treated as a reporting Model 2 FFI follows the terms of the FFI agreement and reports information about U.S. accounts directly to the IRS. See Revenue Procedure 2014-38, 2014-29 I.R.B. 131, as may be amended, for the FFI agreement. An FFI identified as a nonreporting financial institution pursuant to a Model 1 or Model 2 IGA is not required to report information on U.S. accounts unless specifically required as a condition of its applicable chapter 4 status.

The chapter 4 regulations permit certain FFIs and NFFEs to be sponsored by other entities for purposes of satisfying their chapter 4 requirements. Under the 2013 final regulations, an FFI treated as complying with the requirements of section 1471(b)(1) (a deemed-compliant FFI) includes a sponsored FFI. In addition, the 2014 temporary regulations provide that a NFFE excepted from providing information regarding its substantial U.S. owners to a withholding agent (an excepted NFFE) includes a NFFE that is a direct reporting NFFE or a sponsored direct reporting NFFE. In the preamble to the 2014 temporary regulations, the Treasury Department and IRS announced that regulations describing the verification requirements of a sponsoring entity of a sponsored FFI or sponsored direct reporting NFFE (sponsored entities) would be proposed and issued separately from the 2014 temporary regulations.

The chapter 4 regulations provide two general categories of deemed-compliant FFIs: Registered deemed-compliant FFIs and certified deemed-compliant FFIs. A registered deemed-compliant FFI includes an FFI that satisfies the requirements of § 1.1471-5(f)(1)(i)(F)(1) or (2) to qualify as either a sponsored investment entity or a sponsored controlled foreign corporation. A certified deemed-compliant FFI includes an FFI that satisfies the requirements of § 1.1471-5(f)(2)(iii) to qualify as a sponsored, closely-held investment vehicle. The chapter 4 regulations provide that a sponsored FFI under any of the foregoing sections must have an agreement with a sponsoring entity under which the sponsoring entity performs, on behalf of the sponsored FFI, all of the due diligence, withholding, reporting, and other requirements that the FFI would have been required to perform if it were a participating FFI. A sponsoring entity of a sponsored FFI must register with the IRS as a sponsoring entity on Form 8957, FATCA Registration, via the FATCA registration Web site available at http://www.irs.gov/fatca, and must also register any sponsored investment entity or sponsored controlled foreign corporation within the time specified in § 1.1471-5(f)(1)(i)(F)(3)(iii). The 2014 temporary regulations reserve on the rules for verification of compliance and the events of default for a sponsoring entity of a sponsored FFI.

The Model 1 and Model 2 IGAs treat certain financial institutions as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a nonreporting financial institution that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle is treated as a deemed-compliant FFI for purposes of section 1471. A sponsoring entity of a sponsored entity subject to a Model 1 IGA agrees to perform, on behalf of the sponsored entity, all of the due diligence, withholding, reporting, and other requirements that the sponsored entity would have been required to perform if it were a reporting Model 1 financial institution. As a result, a sponsoring entity of a sponsored entity subject to a Model 1 IGA reports to the applicable Model 1 IGA jurisdiction with respect to the financial accounts maintained by the sponsored entity.

Under the Model 1 and Model 2 IGAs, a nonreporting financial institution includes a financial institution that “otherwise qualifies as a deemed-compliant FFI . . . under relevant U.S. Treasury Regulations.” Thus, a financial institution covered by a Model 1 or Model 2 IGA may choose to qualify as a sponsored investment entity, controlled foreign corporation, or closely held investment vehicle pursuant to § 1.1471-5(f) instead of Annex II of the Model 1 or Model 2 IGA. In such a case, the financial institution must satisfy all of the requirements applicable to such an entity in the regulations, including the requirement for the sponsoring entity to report information directly to the IRS, even in the case of a financial institution covered by a Model 1 IGA.

Under Annex II of the Model 2 IGA, a financial institution that is a sponsored investment entity or sponsored controlled foreign corporation is treated as a registered deemed-compliant FFI, and a financial institution that is a sponsored, closely held investment vehicle is treated as a certified deemed-compliant FFI. A sponsoring entity of a sponsored entity subject to a Model 2 IGA agrees to perform, on behalf of the sponsored entity, all of the due diligence, withholding, reporting, and other requirements that the sponsored entity would have been required to perform if it were a reporting Model 2 FFI. As a result, the sponsoring entity of a sponsored entity subject to a Model 2 IGA registers with the IRS and reports to the IRS with respect to financial accounts of the sponsored entity. Annex II of the Model 2 IGA also provides that a registered deemed-compliant FFI must register with the IRS on the FATCA registration Web site and have its responsible officer certify every three years to the IRS that all of the requirements for the deemed-compliant category claimed by the financial institution have been satisfied since July 1, 2014.

The Model 1 and Model 2 IGAs treat certain FFIs that are trusts as nonreporting financial institutions. Under Annex II of the Model 1 IGA, a financial institution that is a trustee-documented trust is treated as a deemed-compliant FFI. Under Annex II of the Model 2 IGA, a financial institution that is a trustee-documented trust is treated as a certified deemed-compliant FFI. Under both the Model 1 IGA and the Model 2 IGA, a trust qualifies as a trustee-documented trust provided that the trustee of the trust is a U.S. financial institution, reporting Model 1 FFI, or participating FFI that reports all of the information required to be reported pursuant to the IGA with respect to U.S. accounts or U.S. reportable accounts (as applicable) of the trust. A trustee of a trustee-documented trust subject to a Model 1 or Model 2 IGA should register with the IRS. A trustee of a trustee-documented trust subject to a Model 2 IGA reports to the IRS with respect to the trust, whereas a trustee of a trustee-documented trust subject to a Model 1 IGA reports to the applicable Model 1 IGA jurisdiction.

Section 1472(c)(1)(G) permits the Treasury Department and IRS to issue regulations exempting withholding agents from withholding or reporting under section 1472(a) with respect to payments beneficially owned by certain persons identified by the Treasury Department and IRS, which are referred to in the chapter 4 regulations as excepted NFFEs. As noted in Part II.A of this Background, the 2014 temporary regulations include direct reporting NFFEs as a class of excepted NFFEs.

A direct reporting NFFE is a NFFE that elects to report information about its substantial U.S. owners directly to the IRS (rather than to the withholding agent) and that meets the requirements of § 1.1472-1(c)(3). A direct reporting NFFE may elect to be treated as a sponsored direct reporting NFFE if another entity, other than a nonparticipating FFI, agrees to act as its sponsoring entity for performing all of the due diligence, reporting, and other requirements that the NFFE would have been required to perform as a direct reporting NFFE. The sponsoring entity of a sponsored direct reporting NFFE must register with the IRS as a sponsoring entity and must also register the NFFE with the IRS as a sponsored direct reporting NFFE as required in the chapter 4 regulations. The sponsoring entity must also comply with the verification procedures and other compliance-related requirements provided in the regulations. The 2014 temporary regulations reserve on the verification procedures and the events of default for a sponsoring entity of a sponsored direct reporting NFFE.

Under section VI(b) of Annex I of the Model 1 and Model 2 IGAs, an active NFFE includes a NFFE that is treated as an excepted NFFE under the chapter 4 regulations. An active NFFE (including a direct reporting NFFE) does not need to be reported as a U.S. account by a reporting Model 1 FFI or reporting Model 2 FFI with which the NFFE holds an account.

Under the chapter 4 regulations, a participating FFI is required to establish and implement a compliance program for satisfying its requirements under § 1.1471-4. The responsible officer of the FFI must periodically certify to the IRS that the FFI maintains effective internal controls or, if the responsible officer cannot make this certification, he or she must make a qualified certification. If there is an event of default, the IRS will notify the FFI and request remediation. The FFI must respond to the notice of default and provide information to the IRS. If the FFI does not provide a response, the IRS may deliver a notice of termination that terminates the FFI's participating FFI status.

The chapter 4 regulations permit a participating FFI that is a member of an expanded affiliated group to elect to be part of a consolidated compliance program under the authority of a participating FFI, reporting Model 1 FFI, or U.S. financial institution that is a member of the same expanded affiliated group (compliance FI). The compliance FI must establish and maintain the consolidated compliance program and perform a consolidated periodic review on behalf of each member FFI that elects to be part of the consolidated compliance program (electing FFI).

An FFI may be a registered deemed-compliant FFI if it meets the requirements of a class of FFIs specified in § 1.1471-5(f)(1). Certain classes of registered deemed-compliant FFIs have compliance obligations as a condition of their status under this section. For example, a registered deemed-compliant FFI that is a nonreporting member of a participating FFI group under § 1.1471-5(f)(1)(i)(B) must monitor its accounts to ensure that it identifies any account that becomes a U.S. account or an account held by a recalcitrant account holder or nonparticipating FFI and meets its requirement to transfer or close such accounts (or become a participating FFI). In order for the IRS to verify that a registered deemed-compliant FFI meets the requirements of its applicable deemed-compliant status and is satisfying any such compliance obligations, the chapter 4 regulations require a registered deemed-compliant FFI to have its responsible officer certify every three years to the IRS that the FFI meets the requirements for its applicable deemed-compliant status.

These proposed regulations provide verification requirements for a sponsoring entity of a sponsored FFI that are generally similar to the verification requirements for a compliance FI. See Part IV of this Explanation of Provisions for the verification requirements for consolidated compliance programs. Under these proposed regulations, a sponsoring entity must maintain a compliance program to oversee its compliance with respect to each sponsored FFI for purposes of satisfying the deemed-compliant status requirements of § 1.1471-5(f)(1)(i)(F) or (f)(2)(iii) or an applicable Model 2 IGA. The deemed-compliant status requirements include: (i) The assumption by the sponsoring entity of due diligence, withholding, and reporting obligations on behalf of each sponsored FFI, and (ii) compliance with the additional requirements for status as a sponsoring entity, such as registering with the IRS.

These proposed regulations consolidate all of the verification requirements for a sponsoring entity. The 2014 temporary regulations, in § 1.1471-5T(f)(1)(i)(F)(3)(vi), (f)(1)(i)(F)(3)(vii), (f)(2)(iii)(D)(4), and (f)(2)(iii)(D)(5), require a sponsoring entity to perform the verification procedures described in § 1.1471-4(f) on behalf of a sponsored FFI and also perform the verification procedures described in § 1.1471-5(j) and (k) on behalf of itself. The 2014 temporary regulations, in § 1.1471-5T(j) and (k), reserved such verification procedures. These proposed regulations include all of the sponsoring entity's verification requirements in proposed § 1.1471-5(j).

These proposed regulations also require that a sponsoring entity appoint a responsible officer (as defined in § 1.1471-1(b)(116) of these proposed regulations) to oversee the compliance of the sponsoring entity with respect to each sponsored FFI for purposes of satisfying the requirements of § 1.1471-5(f)(1)(i)(F) or (f)(2)(iii) or of an applicable Model 2 IGA. The responsible officer must certify to the IRS by July 1 of the calendar year following the end of each certification period that the sponsoring entity is compliant with the requirements to be a sponsoring entity and maintains effective internal controls with respect to all sponsored FFIs for which it acts (or provides a qualified certification) on the form and in the manner prescribed by the IRS. A sponsored FFI is not required to appoint its own responsible officer. Although the preamble to the 2014 temporary regulations states that under proposed regulations a sponsoring entity would be required to make two separate compliance certifications (one on behalf of its sponsored FFI(s) and another on the sponsoring entity's own behalf), the Treasury Department and IRS have determined that a single certification is sufficient for this purpose.

Under these proposed regulations, in general, a sponsoring entity must make a certification regarding its compliance with respect to all sponsored FFIs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is generally not required to certify for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored FFI for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. However, the preceding sentence does not apply with respect to a sponsored FFI that, immediately before the FFI agrees to be sponsored by the sponsoring entity, was a participating FFI, registered deemed-compliant FFI, or sponsored, closely held investment vehicle. The sponsoring entity may certify for a sponsored FFI described in the preceding sentence for the portion of the certification period prior to the date that the FFI first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the FFI (or the FFI's sponsoring entity, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was sponsored by the sponsoring entity. The first certification period begins on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.

The requirements for the certification of compliance may be modified to include additional certifications or information (such as quantitative or factual information related to the sponsoring entity's compliance), provided that such additional information or certifications are published at least 90 days before being made effective in order to allow for public comment. The Treasury Department and IRS intend to coordinate any such modification to the requirements for the certification of compliance for sponsoring entities with any modification to the requirements for the certification of compliance for participating FFIs. See Part IV of this Explanation of Provisions for certifications required by participating FFIs.

These proposed regulations provide that the responsible officer of a sponsoring entity must make the certification described in § 1.1471-4(c)(7) (preexisting account certification of a participating FFI) with respect to each sponsored FFI that enters into the sponsorship agreement with the sponsoring entity during the certification period. However, with respect to a certification period, the preexisting account certification is not required for a sponsored FFI if, immediately before it first agrees to be sponsored by the sponsoring entity, the FFI was a participating FFI, a sponsored FFI, or a registered deemed-compliant FFI that is a local FFI or a restricted fund, and the FFI (or the FFI's former sponsoring entity, if applicable) provides a written certification to the sponsoring entity that the FFI has made the preexisting account certification required of it, provided that the sponsoring entity does not know that such certification is unreliable or incorrect. Furthermore, since a participating FFI could have up to two years to complete the required due diligence on its preexisting accounts under § 1.1471-4(c)(3)(ii) and (c)(5)(i), the preexisting account certification is not required for a sponsored FFI that first agrees to be sponsored by the sponsoring entity during the two year period prior to the end of such certification period, provided that the sponsoring entity makes the preexisting account certification for such FFI for the subsequent certification period. The preexisting account certification for the certification period must be submitted by the due date of the sponsoring entity's certification of compliance for the certification period and on the form and in the manner prescribed by the IRS. With respect to a sponsored FFI for which the sponsoring entity is required to make a preexisting account certification, a preexisting obligation means any account, instrument, or contract (including any debt or equity interest) maintained, executed, or issued by the sponsored FFI that is outstanding on the earlier of the date the FFI is issued a GIIN as a sponsored FFI of the sponsoring entity or the date the FFI or the sponsoring entity first represents to a withholding agent or financial institution that the FFI is a sponsored FFI of the sponsoring entity.

These proposed regulations permit the IRS to make general inquiries to a sponsoring entity regarding its compliance with its applicable requirements, similar to the general inquiries the IRS may make to a participating FFI with respect to its compliance (as provided in final regulations under chapter 4 published together with the temporary chapter 4 regulations). These proposed regulations provide that the IRS may request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored FFI) necessary to determine its compliance with the due diligence, withholding, and reporting requirements of § 1.1471-4 or an applicable Model 2 IGA with respect to each sponsored FFI and to assist the IRS with its review of account holder compliance with tax reporting requirements. These proposed regulations also provide that if the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored FFI for which it acts, the IRS may make inquiries to the sponsoring entity regarding its compliance with the requirements of a sponsoring entity and may request the performance of specified review procedures. Inquiries regarding the compliance of a sponsoring entity with respect to a sponsored FFI subject to the requirements of an applicable Model 2 IGA will be made using the procedures described in these proposed regulations, except as otherwise provided in an applicable Model 2 IGA.

These proposed regulations describe the events of default for a sponsoring entity and the termination procedures following an event of default. The Treasury Department and IRS recognize that some events of default may relate only to a particular sponsored FFI (or several such FFIs) for which the sponsoring entity acts and thus should not affect the statuses of other sponsored FFIs for which the sponsoring entity acts or the status of the sponsoring entity. In other cases, an event of default may relate to a sponsoring entity's failure to comply with its own requirements, such as when it fails to establish and maintain a compliance program or perform a periodic review. Accordingly, these proposed regulations provide IRS the discretion to determine whether, based on facts and circumstances, an event of default should result in the termination of the sponsoring entity's status as a sponsoring entity, the deemed-compliant statuses of one or more sponsored FFIs, or both the status of the sponsoring entity and the statuses of one or more sponsored FFIs. If a sponsoring entity's status is terminated, the sponsoring entity may not reregister as a sponsoring entity for any sponsored FFI or any sponsored entity subject to a Model 1 IGA without prior written approval from the IRS. A sponsored FFI whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a participating FFI or registered deemed-compliant FFI or may be registered on the FATCA registration Web site as a sponsored FFI of a new sponsoring entity (other than an entity that has a relationship to the terminated sponsoring entity described in section 267(b)), as applicable. However, if the sponsored FFI's status is terminated (independent of a termination of the sponsoring entity), the sponsored FFI must obtain prior written approval from the IRS in order to register as a participating FFI or registered deemed-compliant FFI or be registered as a sponsored FFI of a new sponsoring entity.

The definition of sponsored FFI in the 2013 final regulations is limited to an entity that is a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle under § 1.1471-5(f)(1)(i)(F) or § 1.1471-5(f)(2)(iii). These proposed regulations expand the definition of sponsored FFI to also include a sponsored investment entity, sponsored controlled foreign corporation, or sponsored, closely held investment vehicle treated as a deemed-compliant FFI under an applicable Model 2 IGA. These proposed regulations do not impose verification requirements or specify events of default for a sponsoring entity of a sponsored entity subject to an applicable Model 1 IGA. The obligations of such a sponsoring entity are governed by the laws and requirements of the applicable Model 1 IGA jurisdiction. However, the IRS may treat a sponsored entity covered by a Model 1 IGA as a nonparticipating FFI pursuant to Article 5(2)(b) of an applicable Model 1 IGA if the IRS determines that there is significant non-compliance with the obligations of the IGA by the sponsored entity that has not been resolved within 18 months. In addition, pursuant to the termination procedures described in the previous paragraph, the IRS may revoke the status of a sponsoring entity based on an event of default relating to one or more sponsored FFIs. Consistent with Annex II of the Model 1 IGA, such revocation would prevent the sponsoring entity from sponsoring an FFI subject to a Model 1 IGA. The IRS may also notify such Model 1 IGA jurisdiction of the revocation. A sponsored entity subject to a Model 1 IGA whose sponsor's status is terminated would need to become a reporting Model 1 FFI, obtain a new sponsor, or meet the requirements of another deemed-compliant status.

As described in Part II.B of the Background of this preamble, the Model 2 IGA allows certain sponsored FFIs to be treated as deemed-compliant FFIs and provides that the IRS may revoke a sponsoring entity's status if there is a material failure by the sponsoring entity to comply with the obligations described in Annex II of the IGA. Accordingly, the verification requirements and events of default in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA. In addition, the procedures for IRS inquiries specified in these proposed regulations apply to a sponsoring entity of a sponsored FFI subject to an applicable Model 2 IGA except to the extent otherwise provided in the applicable Model 2 IGA. Although Annex II of the Model 2 IGA permits the IRS to revoke a sponsoring entity's status upon a material failure (as described above), because the Treasury Department and IRS believe that a consistent standard for when to terminate a sponsoring entity's status should apply, these proposed regulations provide that the IRS will not revoke the status of a sponsoring entity of a sponsored FFI subject to a Model 2 IGA unless there is an event of default and the procedures for termination described in these proposed regulations have been applied.

These proposed regulations provide that a trustee of a trustee-documented trust subject to a Model 2 IGA shall appoint a responsible officer who will maintain a compliance program and oversee the trustee's compliance with respect to each trustee-documented trust for purposes of satisfying the requirements of an applicable Model 2 IGA. The responsible officer must perform a periodic review of the sufficiency of the trustee's compliance program for each certification period. The responsible officer must also certify to the IRS that the trustee has established a compliance program, performed a periodic review, and reported to the IRS all of the information required to be reported with respect to each trustee-documented trust for each certification period. Certain late-joining trustee-documented trusts may be excluded from a certification under rules similar to those provided in these proposed regulations for sponsored FFIs. The IRS will not unilaterally revoke the status of, or issue a notice of default to, a trustee of such a trust. Instead, subject to the requirements of an applicable Model 2 IGA, these proposed regulations permit the IRS to make inquiries to the trustee regarding its compliance with its applicable requirements and notify the Model 2 IGA jurisdiction if the trustee has not complied with its requirements with respect to one or more trustee-documented trusts established in that jurisdiction. The IRS may also notify an applicable Model 1 IGA jurisdiction of the trustee's non-compliance with respect to its requirements as a trustee of a trustee-documented trust subject to a Model 2 IGA if the trustee also acts on behalf of trustee-documented trusts in the Model 1 IGA jurisdiction or if the trustee is located in the Model 1 IGA jurisdiction.

These proposed regulations include verification requirements and the events of default for a sponsoring entity of a sponsored direct reporting NFFE. These proposed regulations also specify the requirements for a sponsorship agreement between a sponsoring entity and each sponsored direct reporting NFFE for which it acts.

Under these proposed regulations, a sponsoring entity must appoint a responsible officer to oversee the compliance of the sponsoring entity with respect to each sponsored direct reporting NFFE. The responsible officer of the sponsoring entity must make a periodic certification to the IRS on the form and in the manner prescribed by the IRS. The certification requirements of a sponsoring entity of a sponsored direct reporting NFFE are more limited than the certification requirements of a sponsoring entity of a sponsored FFI because the obligations of a sponsoring entity of a sponsored direct reporting NFFE are more limited than those of a sponsoring entity of a sponsored FFI. A sponsoring entity of a sponsored direct reporting NFFE must certify that it meets the requirements of a sponsoring entity, that it has a written sponsorship agreement that meets the requirements in these proposed regulations in effect with each sponsored direct reporting NFFE, that there have been no events of default (or that such events have been remediated), and that the sponsoring entity has corrected any failures to report on Form 8966, “FATCA Report,” with respect to any sponsored direct reporting NFFE.

In general, a sponsoring entity must make the periodic certification with respect to all sponsored direct reporting NFFEs for which it acts during the certification period. However, with respect to a certification period, a sponsoring entity is not required to certify for a sponsored direct reporting NFFE that first agrees to be sponsored by the sponsoring entity during the six month period prior to the end of the certification period, provided that the sponsoring entity makes certifications for such sponsored direct reporting NFFE for subsequent certification periods and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which the sponsored direct reporting NFFE was sponsored by the sponsoring entity. However, the preceding sentence does not apply to a sponsored direct reporting NFFE that, immediately before the NFFE agrees to be sponsored by the sponsoring entity, was a direct reporting NFFE or sponsored direct reporting NFFE of another sponsoring entity. The sponsoring entity may certify for a sponsored direct reporting NFFE described in the preceding sentence for the portion of the certification period prior to the date that the NFFE first agrees to be sponsored by the sponsoring entity if the sponsoring entity obtains from the NFFE (or the NFFE's sponsoring entity, if applicable) a written certification that the NFFE has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The sponsoring entity does not know that such certification is unreliable or incorrect; and (2) the certification for the sponsored direct reporting NFFE for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such NFFE was sponsored by the sponsoring entity. The first certification period will begin on the later of the date the sponsoring entity is issued a GIIN to act as a sponsoring entity or June 30, 2014.

Under these proposed regulations, the IRS may make inquiries to a sponsoring entity to determine the sponsoring entity's compliance with its requirements. The IRS may also request any additional information from the sponsoring entity (including a copy of the sponsorship agreement that the sponsoring entity has entered into with each sponsored direct reporting NFFE). If the IRS determines that the sponsoring entity may not have substantially complied with the requirements of a sponsoring entity with respect to any sponsored direct reporting NFFE for which it acts, the IRS may request additional information to verify the sponsoring entity's compliance with such requirements and may request the performance of specified review procedures.

These proposed regulations also specify the events of default and termination procedures applicable to a sponsoring entity of a sponsored direct reporting NFFE. Consistent with the verification requirements for direct reporting NFFEs in the chapter 4 regulations, a notice of default is triggered by an event of default. An event of default may result in the termination of the sponsoring entity's status as a sponsoring entity, the statuses of one or more sponsored direct reporting NFFEs as such, or both the status of a sponsoring entity and the statuses of one or more sponsored direct reporting NFFEs. A sponsored direct reporting NFFE whose sponsoring entity's status is terminated may register on the FATCA registration Web site as a direct reporting NFFE or sponsored direct reporting NFFE, unless the sponsored direct reporting NFFE's status is also terminated, in which case the sponsored direct reporting NFFE must obtain prior written approval from the IRS in order to register.

These proposed regulations provide that the requirements for a participating FFI's certification of compliance (described in § 1.1471-4(f)(3)) may be modified through an amendment to the FFI agreement to include additional certifications or information (such as quantitative or factual information related to the FFI's compliance with the FFI agreement), provided that any additional information or certifications required are published at least 90 days before being added to the FFI agreement to allow for public comment. See also section 12.02 of the FFI agreement (covering modifications to the FFI agreement imposing additional requirements on participating FFIs). Additionally, any such amendment to the FFI agreement will be published only after these proposed regulations are published as final regulations.

These proposed regulations modify the procedures and timeframes for notices of default and terminations applicable to participating FFIs in the chapter 4 regulations to conform to the procedures and timeframes for sponsoring entities in these proposed regulations. These proposed regulations include a minimum period of 45 days for a participating FFI to respond to a notice of default. Within 30 days of a termination of an FFI's participating FFI status, the FFI must send a notice of termination to each withholding agent from which the FFI receives payments and each financial institution with which it holds an account to which a withholding certificate or other documentation was provided. Requests for reconsideration of a notice of default or a notice of termination must be made within 90 days of the notice of default or notice of termination (as applicable). An FFI that has had its participating FFI status terminated may not reregister on the FATCA registration Web site as a participating FFI or a registered deemed-compliant FFI unless it receives written approval from the IRS.

The chapter 4 regulations provide that when an FFI elects to be part of a consolidated compliance program (electing FFI), each branch that it maintains (including a limited branch or a branch described in § 1.1471-5(f)(1)) must be subject to periodic review as part of such program. These proposed regulations clarify that a branch of an electing FFI located in a Model 1 IGA jurisdiction is excluded from the periodic review. In addition, these proposed regulations clarify that the responsible officer of the compliance FI must make the periodic certification described in § 1.1471-4(f)(3) (or a qualified certification) on the form and in the manner prescribed by the IRS. In general, the certification must be made on behalf of all electing FFIs in the compliance group during the certification period. However, with respect to a certification period, a compliance FI is not required to make a certification for an electing FFI that first elects to be part of the consolidated compliance program of the compliance FI during the six month period prior to the end of the certification period, provided that the compliance FI makes certifications for such electing FFI for subsequent certification periods, and the first such certification covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. However, the preceding sentence does not apply to an electing FFI that, immediately before the electing FFI elects to be part of the consolidated compliance program, was a participating FFI or registered deemed-compliant FFI. The compliance FI may certify for an electing FFI described in the preceding sentence for the portion of the certification period prior to the date that the electing FFI elects to be part of the consolidated compliance program if the compliance FI obtains from the FFI (or the FFI's former compliance FI, if applicable) a written certification that the FFI has complied with its applicable chapter 4 requirements during such portion of the certification period, provided that: (1) The compliance FI does not know that such certification is unreliable or incorrect; and (2) the certification for the electing FFI for the subsequent certification period covers both the subsequent certification period and the portion of the prior certification period during which such FFI was an electing FFI in the consolidated compliance program of the compliance FI. The first certification period for a compliance group begins on the later of the date the compliance FI is issued a GIIN or June 30, 2014, and ends at the close of the third full calendar year following such date. Each subsequent certification period is the three calendar year period following the previous certification period.

These proposed regulations provide that the responsible officer of a compliance FI must make the certification described in § 1.1471-4(c)(7) (preexisting account certification of a participating FFI) with respect to each electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the certification period (as defined in § 1.1471-4(f)(3)(i)). Notwithstanding the preceding sentence, a preexisting account certification is not required for an electing FFI if, immediately before electing to be part of the consolidated compliance program under the compliance FI, the FFI was a participating FFI or a registered deemed-compliant FFI that is a local FFI or restricted fund, and the FFI (or the FFI's former compliance FI, if applicable) provides a written certification to the compliance FI that the FFI has made the preexisting account certification required of it, unless the compliance FI knows that such certification is unreliable or incorrect. In addition, a preexisting account certification is not required for a certification period for an electing FFI that elects to be part of the consolidated compliance program under the compliance FI during the two year period prior to the end of such certification period, provided that the compliance FI makes the preexisting account certification for such FFI by the due date of the certification of compliance for the subsequent certification period. The preexisting account certification, if required for a certification period, must be submitted by the due date of the FFI's periodic certification of compliance for the certification period, on the form and in the manner prescribed by the IRS.

The chapter 4 regulations do not explicitly provide that the IRS may apply verification procedures and make inquiries regarding the certifications provided by registered deemed-compliant FFIs. These proposed regulations provide that the IRS may make inquiries of, and request additional information from and the performance of specified review procedures by, a registered deemed-compliant FFI to verify the FFI's compliance with the requirements of its applicable deemed-compliant status. These requirements are similar to the provisions for the IRS's verification of a participating FFI's compliance with the FFI agreement. If the IRS determines that a registered deemed-compliant FFI has not complied with the requirements of the deemed-compliant status claimed by the FFI, the IRS may terminate the FFI's deemed-compliant status. A registered deemed-compliant FFI that has had its status terminated may request reconsideration of the termination by submitting a written request to the IRS within 90 days of the notice of termination.

These proposed regulations apply on the date of publication of a Treasury decision adopting these rules as final regulations in the Federal Register.

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.

The IRS intends that the information collection requirements in these proposed regulations will be satisfied by submitting certifications to the IRS electronically. For purposes of the Paperwork Reduction Act, the reporting burden associated with the collection of information in these proposed regulations will be reflected in the OMB Form 83-1, Paperwork Reduction Act Submission, associated with the certification.

It is hereby certified that the collection of information requirement in these proposed regulations will not have a significant economic impact on a substantial number of small entities because these proposed regulations affect foreign persons, not domestic entities. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and IRS request comments on all aspects of the proposed rules, including comments on the clarity of the proposed rules and how they could be made easier with which to comply. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

The principal author of these proposed regulations is Kamela Nelan, Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

The revisions and additions read as follows:

The revisions and additions read as follows:

The revisions and additions read as follows:

Background

The temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 1441 of the Internal Revenue Code (Code). The temporary regulations set forth rules relating to withholding and reporting requirements under chapter 3 of the Code, including rules relating to claims for a reduced rate of withholding under an income tax treaty. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations.

Certain IRS regulations, including these, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13653. Therefore, a regulatory assessment is not required.

It is hereby certified that the collection of information in this notice of proposed rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act (5 U.S.C. chapter 6).

The domestic small business entities that are subject to the collections of information in this notice of proposed rulemaking are those domestic business entities that are payors of certain U.S. source income to foreign persons. These domestic small business entities are subject to comprehensive rules under chapter 3 to identify the proper treatment of payees for purposes of that chapter's information reporting and tax withholding purposes. The domestic small business entities subject to the collections of information in this notice of proposed rulemaking are also subject to comprehensive information reporting and tax withholding rules under chapters 4 and 61 with respect to payments of certain U.S. source income subject to information reporting and tax reporting under chapter 3. These payors are also subject to information and reporting rules under section 3406.

Payors of payments that are subject to the information reporting and withholding regimes under chapter 3 play an important role in U.S. tax compliance by providing information about payments made to, and income earned by, U.S. and foreign taxpayers.

Although the Treasury Department and the IRS anticipate that a substantial number of domestic small entities will be affected by the collection of information in this notice of proposed rulemaking, the Treasury Department and the IRS believe that the economic impact to these entities resulting from the information collection requirements will not be significant. The reporting obligations under these proposed regulations flow from the obligations that domestic small entities may have as withholding agents for payments of amounts subject to withholding under sections 1441 or 1442. As withholding agents, these entities have already been subject to the overall framework of these regulations, and the economic burden of complying with any additional requirements will be minimal. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments that are submitted timely to the IRS as prescribed in this preamble under the “ADDRESSES” heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules, including comments on the clarity of the proposed rules and how compliance therewith could be made easier. All comments will be available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

The principal author of these proposed regulations is Leni C. Perkins, Office of Associate Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

The revisions and additions read as follows:

The additions and revision read as follows:

Background General Authority and Jurisdiction

In the National Park Service Organic Act of 1916, Congress granted the National Park Service (NPS) broad authority to regulate the use of areas under its jurisdiction to “conserve the scenery, natural and historic objects, and wild life in [National Park] System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. 100101. The Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751.

The NPS protects park resources and visitors by regulating smoking within park areas. The regulation governing smoking (36 CFR 2.21) was last amended in 1983. This regulation allows the superintendent to designate a portion of a park area, or all or a portion of a building, structure, or facility as closed to smoking when necessary to protect park resources, reduce the risk of fire, or prevent conflicts among visitor use activities. The regulation prohibits smoking in an area or location so designated and within all caves and caverns. The existing definition of “smoking” in section 1.4 is limited to combustible sources such as a tobacco cigarette; it does not include the use of electronic cigarettes and other electronic nicotine delivery systems (ENDS). Since 2009, ENDS have emerged as an alternative means of nicotine delivery, one that does not require the burning of tobacco. Essentially, when a user “draws” on an ENDS, a liquid solution containing nicotine is heated and vaporized, and inhaled by the user. The user then exhales a vapor that mimics the exhalation from a lit tobacco cigarette.

NPS policy with respect to tobacco smoking is found in Director's Order #50D (Smoking Policy), originally issued in 2003, and then revised and reissued in 2009. The purpose of the Order—in conformity with Executive Order 13058 (Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace)—is to “protect employees and park visitors from the health hazards and annoyances associated with” exposure to environmental tobacco smoke, commonly known as “second-hand” smoke, which is a known human carcinogen.

The Director issued Policy Memorandum 15-03 (Use of Electronic Nicotine Delivery Systems) on September 10, 2015. This policy establishes NPS guidance on the use of ENDS within all facilities and vehicles that are Government owned or leased, and within concessions facilities. The purpose of the Policy Memorandum is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for tobacco smoke. Under this policy, use of ENDS is now treated as tobacco smoking and all provisions of Director's Order #50D apply to ENDS use. With regard to concessions facilities, the Policy Memorandum requires that ENDS use be treated the same as smoking for purposes of NPS Management Policies (2006).

Director's Order #50D and Policy Memorandum 15-03 are available online on the NPS Office of Policy Web site at http://www.nps.gov/applications/npspolicy/index.cfm by clicking on the drop-down menu and selecting “Smoking” from the list of policy subjects.

The NPS proposes to apply its smoking regulations at 36 CFR 2.21 to ENDS use the same way they currently apply to tobacco smoking. The basis for this regulatory change is stated below and in Policy Memorandum 15-03 and will make NPS regulations consistent with NPS policy on this subject.

Non-smokers are exposed to nicotine and other potentially harmful components of ENDS vapor at higher than background levels when passively exposed to second hand vapor.1 The vapor exhaled from an ENDS also contains potentially harmful levels of particulate matter in addition to nicotine, as well as potentially toxic compounds such as carbonyls, metals, and organic volatile compounds.2 There has been increased attention in the scientific community to explore the level of potentially harmful constituents in ENDS vapor.3 Despite lower levels of nicotine than in second-hand smoke, exhaled ENDS aerosols result in similar nicotine uptake levels as measured by blood serum cotinine levels in bystanders.4 In the case of particulate matter, epidemiological studies show adverse effects of particulate matter when only slightly elevated above background levels indicating that we should strive to achieve the lowest concentrations possible.5 The Division of Pharmaceutical Analysis of the Food and Drug Administration (FDA) analyzed the ingredients in a sample of cartridges from two leading brands of ENDS, and found the devices emitted (1) tobacco-specific nitrosamines (human carcinogens), and (2) diethylene glycol, a chemical used in antifreeze that is toxic to humans.6 Further research is required before it is known whether second hand exposure to ENDS vapor will result in negative health outcomes as with tobacco smoke.7 According to the World Health Organization (WHO), simply because ENDS exhaled aerosols contain lower levels of toxicants than tobacco smoke it does not mean second hand exposure is acceptable and special consideration is needed for sensitive populations like pregnant women, developing fetuses, and adolescents.8

The Surgeon General's 2014 report The Health Consequences of Smoking- 50 Years of Progress (Report) documents the devastating health consequences of tobacco smoking and also calls for “rigorous surveillance” of ENDS in order to weigh their risks and potential benefits (e.g., their possible efficacy in reducing use of combustible tobacco products).9 (Page 761). The Report concludes that, in light of the links between tobacco product use and ill health, “all products containing tobacco and nicotine should be assumed to be both harmful and addictive.” (Page 780). In 2016, the Surgeon General issued a report entitled “E-Cigarette Use Among Youth and Young Adults.” 10 This Report emphasized that ENDS use among youth and young adults is a public health concern. The Report concluded that aerosol can contain harmful and potentially harmful constituents, including nicotine, which can cause addiction and harm the developing adolescent brain. The Report stated that the use of products containing nicotine, including ENDS, poses dangers to youth, pregnant women, and fetuses. In a report released August 26, 2014, the WHO called for a ban on the indoor use of ENDS, especially in those spaces where smoking is banned.11 (See Item #41, page 11.)

On May 5, 2016, the FDA finalized a rule (81 FR 28973) extending its authority to ENDS under the Family Smoking Prevention and Tobacco Control Act (Pub. L. 111-31; 123 Stat. 1776). The rule brings ENDS in line with regulations that have governed tobacco products since 2009. The rule prohibits the sale of ENDS to minors, requires ENDS to meet applicable product standards and receive marketing authorization from the FDA, requires the reporting of ingredients, and places health warnings on product packages and advertisements. The FDA expressed concerns about the increasing use of ENDS, especially among middle and high school students, and explained that the rule will “help protect Americans from the dangers of tobacco and nicotine.” 12 The FDA stated that nicotine is dangerous and highly addictive, even when it comes from ENDS use, and that research has clearly demonstrated that exposure to nicotine at a young age increases the chance that kids will become addicted. In addition to nicotine exposure, the FDA stated there are numerous other chemicals present in ENDS that can cause disease.13

The General Services Administration (GSA) has advised the managers of all GSA-occupied space—which includes space rented by GSA on behalf of NPS—that ENDS are subject to the same restrictions imposed on smoking tobacco products. The U.S. Fish and Wildlife Service's (FWS) policy found at 242 FW 13 goes even further, and prohibits “vaping”—another name for ENDS use—in all interior spaces of FWS facilities, whether Government owned or leased.14 In addition, vaping is also prohibited “in motor vehicles, heavy equipment, aircraft, and most watercraft” owned, leased, or controlled by the FWS. Similarly, on August 14, 2014, the U.S. Geological Survey (USGS) banned the use of ENDS “in all interior space, courtyards, atriums, balconies and bus stops.” See, USGS Manual 370.792.3.15

In addition to public health risks from the inhalation of vapor, ENDS also pose a risk of explosion and fire. A 2014 Federal Emergency Management Agency (FEMA) report stated that fires or explosions caused by the failure of lithium-ion batteries in ENDS are rare, but possible.16 Between 2009 and August 2014, 25 incidents of explosion and fire involving e-cigarettes were reported in the U.S. Most of the incidents occurred while the battery was charging, but serious burn injuries were also reported from explosions when the device was in the user's mouth. FEMA stated that the shape and construction of e-cigarettes can make them more likely than other products with lithium-ion batteries to behave like “flaming rockets” when a battery fails. FEMA concluded that the number of fires and explosions will likely increase as the number of lithium-ion batteries in use continues to grow.

Acting out of an abundance of caution in light of the scientific findings and uncertainty to date, and in the interest of equity, the purpose of this proposed rule (similar to the purpose of Policy Memorandum 15-03) is to afford all NPS employees and park visitors the same protections from exposure to nicotine and other harmful substances that may be found in ENDS vapor that are currently in place for exposure to tobacco smoke.

The proposed rule would add a new definition to 36 CFR 1.4 that defines “Electronic nicotine delivery system” as an electronic device, such as an electronic cigarette, that a person uses to simulate smoking by inhaling vapor from the device. The proposed rule would revise the definition of “Smoking” in 36 CFR 1.4 to include the direct inhalation of vapor from an electronic nicotine delivery system. The NPS also proposes to add a new basis for which a superintendent may close an area or building, structure, or facility to smoking in 36 CFR 2.21—when necessary to maintain public health and safety. This reflects the health risks associated with smoking tobacco products and using ENDS. An existing basis in the regulations for restricting tobacco smoking—to reduce the risk of fire—also would apply to the use of ENDS for the reasons explained above. After these changes are made, the smoking regulation at 2.21 would apply to the smoking of tobacco and the use of ENDS, consistent with NPS policy.

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 Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the RFA(5 U.S.C. 601 et seq.). This certification is based on information contained in the economic analyses found in the report entitled “Benefit-Cost and Regulatory Flexibility Analyses: Proposed Regulation Revisions for Electronic Nicotine Delivery Systems” which is available online on the NPS Office of Policy Web site at http://www.nps.gov/applications/npspolicy/index.cfm by clicking on the drop-down menu and selecting “E-cigarettes” from the list of policy subjects.

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of administrative, legal, and technical nature (43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

Drafting Information: The primary authors of this rule are Jay Calhoun and Russel J. Wilson, Division of Regulations, Jurisdiction, and Special Park Uses, and Michael M. Shelton, Program Analyst, Office of Policy, National Park Service, Washington, DC.

It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section. All comments must be received by midnight of the close of the comment period. We will not accept comments by fax, email or by any other methods. Bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 1 as set forth below:

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

Entities potentially regulated by this proposed action are those facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases, including facilities that engage in sulfur recovery from natural gas, and which manufacture, process, or otherwise use chemicals listed at 40 CFR 372.65 and meet the reporting requirements of EPCRA section 313, 42 U.S.C. 11023, and PPA section 6607, 42 U.S.C. 13106. These facilities are categorized under Standard Industrial Classification (SIC) code 1321 and North American Industry Classification System (NAICS) code 211112. Note that the TRI regulations currently use the 2012 set of NAICS codes, as discussed further in Units II.D. and IV.C.

1. Submitting CBI. Do not submit this information to 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 in a disk or CD ROM that you mail to 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 comment that includes information claimed as CBI, a copy of the comment 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.

2. Tips for preparing your comments. When preparing and submitting comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

This action is taken under EPCRA sections 313(b) and 328, 42 U.S.C. 11023(b) and 11048.

Specifically, EPCRA section 313(b)(1)(B), 42 U.S.C. 11023(b)(1)(B), states that the Agency may “add or delete Standard Industrial Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Standard Industrial Code is relevant to the purposes of this section.” In addition, Congress granted EPA broad rulemaking authority under EPCRA section 328, 28 U.S.C. 11048, which provides that the “Administrator may prescribe such regulations as may be necessary to carry out this chapter.”

EPCRA section 313, 42 U.S.C. 11023, requires certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their environmental releases and other waste management quantities of such chemicals annually. These facilities must also report pollution prevention and recycling data for such chemicals, pursuant to PPA section 6607, 42 U.S.C. 13106. Congress established the original scope of TRI sectors subject to EPCRA section 313 reporting, requiring reporting by facilities in the manufacturing sectors covered by SIC codes 20 through 39. In 1997, EPA exercised its statutory authority under EPCRA to add SIC Codes to the scope of TRI, adding (with some limitations) metal mining, coal mining, electric utilities, commercial hazardous waste treatment, chemicals and allied products-wholesale, petroleum bulk plants and terminals-wholesale, and solvent recovery services. (62 FR 23834, May 1, 1997).

Regulations at 40 CFR part 372, subpart B, require facilities that meet all of the following criteria to report:

• The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours worked per year or greater; see 40 CFR 372.3); and

• The facility is included in a NAICS Code listed at 40 CFR 372.23, or under Executive Order 13148, Federal facilities regardless of their industry classification; and

• The facility manufactures (defined by statute to include importing), processes, or otherwise uses any EPCRA section 313 (TRI) chemical in quantities greater than the established thresholds for the specific chemical in the course of a calendar year.

Facilities that meet the criteria must file a Form R report or, in some cases, may submit a Form A Certification Statement, for each listed toxic chemical for which the criteria are met. As specified in EPCRA section 313(a), the report for any calendar year must be submitted on or before July 1 of the following year. For example, reporting year 2015 data should have been postmarked on or before July 1, 2016.

The list of toxic chemicals subject to TRI reporting can be found at 40 CFR 372.65. This list is also published every year as Table II in the current version of the Toxics Release Inventory Reporting Forms and Instructions. The current TRI chemical list contains 594 individually listed chemicals and 31 chemical categories.

As described in Units II.A. and II.B., Congress provided EPA with explicit statutory authority to expand the categories of facilities required to report under EPCRA section 313, and EPA exercised that authority to add sectors in 1997. (62 FR 23834, May 1, 1997). When adding these seven sectors, EPA considered three factors:

• Chemical Factor—Whether one or more toxic chemicals are reasonably anticipated to be present at facilities within the candidate industry group.

• Activity Factor—Whether facilities within the candidate industry group “manufacture,” “process,” or “otherwise use” these toxic chemicals.

• Information Factor—Whether facilities within the candidate industry group can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purposes of EPCRA section 313. This factor may include consideration of: (1) Whether the addition of the candidate industry group would lead to reporting by facilities within that candidate industry group (e.g., whether facilities within the candidate industry group would conduct activities that exceed the reporting thresholds in EPCRA section 313(f)); (2) whether facilities within the candidate industry group are likely to be subject to an existing statutory or regulatory exemption from the requirement to file a Form R; (3) whether submitted Form R reports from that industry group could be expected to contain release and waste management data; or (4) whether a significant portion of the facilities in the industry group would be expected to file a Form A. (See 61 FR 33588, 33594, June 27, 1996).

As explained in Units II.D. and III.A. of the 1997 Final Rule, EPA identified these three factors in determining whether the statutory standard in EPCRA section 313(b)(1)(B) would be met by addition of the candidate facilities.

On April 9, 1997, the Office of Management and Budget (OMB) published in the Federal Register a final decision to adopt the NAICS for the U.S. (62 FR 17288.) The NAICS industry classification system replaced the SIC system that government agencies had used for collecting statistical data and for other administrative and regulatory purposes. EPA transitioned to NAICS codes for TRI reporting purposes when it amended its regulations on June 6, 2006, to include NAICS codes in addition to SIC codes. (71 FR 32464.) The list of TRI NAICS codes that appeared in the final rule was developed from the OMB 2002 NAICS revision. OMB revises NAICS Codes every 5 years. Accordingly, EPA updated the list of TRI NAICS codes in 2008 (73 FR 32466, June 9, 2008) (FRL-8577-1) to incorporate changes to the TRI NAICS codes resulting from the OMB 2007 NAICS revision. In 2013, EPA updated the list of TRI NAICS codes to conform to the OMB 2012 NAICS revision (78 FR 42875, July 18, 2013) (FRL-9825-8). On August 8, 2016, OMB published a notice to adopt, with one minor exception, the recommended NAICS revisions for 2017 (81 FR 52584). EPA anticipates promulgating a separate rule to align the list of NAICS codes TRI uses to the OMB NAICS revisions for 2017. An alignment of the NAICS codes used by TRI would not alter the scope of this proposed addition of NGP facilities. Because TRI currently uses the set of NAICS codes for 2012, this action refers to the set of NAICS codes for 2012 unless otherwise stated, as further discussed in Unit IV.C.

Some NGP facilities are already subject to TRI reporting requirements because NGP facilities that primarily recover sulfur from natural gas are part of a manufacturing sector that was originally subjected to reporting by Congress.

Specifically, the scope of TRI sectors subject to reporting includes SIC code 2819 (Industrial Inorganic Chemicals, Not Elsewhere Classified), which was one of the manufacturing sectors in SIC 20-39 originally required to report to TRI by Congress. SIC code 2819 crosswalks to several manufacturing sector NAICS codes, including 211112 (Natural Gas Liquid Extraction), but only to the extent that it includes facilities that primarily engage in sulfur recovery from natural gas.

Thus, when EPA began to use NAICS codes for TRI reporting purposes, the Agency listed NAICS 211112 with a qualifier to limit TRI coverage of the sector to facilities that fit SIC code 2819. See 40 CFR 372.23(b) (211112—Natural Gas Liquid Extraction): “Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)).”

By a letter dated October 24, 2012, the Environmental Integrity Project (EIP), together with 16 other organizations, and later joined by two additional organizations (collectively, Petitioners), submitted a Petition to EPA pursuant to section 553(e) of the Administrative Procedure Act (APA) to add the Oil and Gas Extraction industrial sector (SIC code 13) to the scope of industrial sectors covered by the reporting requirements of the TRI. The Petition and related documents can be found in Docket ID No. EPA-HQ-TRI-2013-0281 at http://www.regulations.gov.

The Petitioners requested that EPA exercise its discretionary TRI sector addition authority to add the Oil and Gas Extraction sector, as defined by SIC code 13. SIC 13 is broad in scope, comprising the following subsectors:

• Crude Petroleum and Natural Gas (SIC 1311);

• Natural Gas Liquids (SIC 1321);

• Drilling Oil and Gas Wells (SIC 1381);

• Oil and Gas Field Exploration Services (SIC 1382); and

• Oil and Gas Field Services, Not Elsewhere Classified (SIC 1389).

These SIC-defined subsectors correspond to the following NAICS sectors, in whole or in part:

• Crude Petroleum and Natural Gas Extraction (NAICS 211111);

• Natural Gas Liquid Extraction (NAICS 211112);

• Drilling Oil and Gas Wells (NAICS 213111);

• Support Activities for Oil and Gas Operations (NAICS 213112);

• Oil and Gas Pipeline and Related Structures Construction (NAICS 237120);

• Site Preparation Contractors (NAICS 238910); and

• Geophysical Surveying and Mapping Services (NAICS 541360).

By requesting that EPA extend the TRI reporting requirements to SIC 13, the Petition requested that EPA add to TRI the SIC codes 1311, 1321, 1381, 1382, and 1389, along with the relevant portion of each corresponding NAICS code.

On October 22, 2015, EPA granted, in part, the Petition insofar as it requested that EPA commence the rulemaking process to propose adding NGP facilities to the scope of TRI. EPA denied the remainder of the Petition. EPA's response to the Petition, including a full explanation of the Agency's rationale, can be found in Docket ID No. EPA-HQ-TRI-2013-0281 and as a reference in the docket for this proposal in Docket ID No. EPA-HQ-TRI-2016-0390 (Reference (Ref.) 1).

According to a triennial survey of NGP facilities by the U.S. Energy Information Administration (EIA-757 survey), described further in an economic analysis EPA prepared for this rulemaking, there were 517 NGP facilities in the lower 48 states as of 2012 (Ref. 2). As explained more fully later in this document, EPA estimates that over half of these facilities would annually meet TRI reporting thresholds for at least one of more than 21 different TRI-listed chemicals and, if covered by the reporting requirements of TRI, would be required to submit TRI information to EPA (Ref. 2). The information likely to be obtained from these facilities is not readily available elsewhere.

As discussed previously, EPA generally considers three factors when deciding whether to add an industrial sector to the scope of the industrial sectors covered by TRI:

1. Chemical Factor—Whether one or more toxic chemicals are reasonably anticipated to be present at facilities within the candidate industry group.

2. Activity Factor—Whether facilities within the candidate industry group “manufacture,” “process,” or “otherwise use” these toxic chemicals.

3. Information Factor—Whether facilities within the candidate industry group can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purposes of EPCRA section 313.

NGP facilities meet these three factors:

• Chemical and Activity factors: TRI-listed chemicals are present at NGP facilities (Ref. 2). Using information from Canada's National Pollutant Release Inventory (NPRI), a program analogous to TRI that already covers NGP facilities, EPA estimates that NGP facilities in the U.S. manufacture, process, or otherwise use more than 21 different TRI-listed chemicals (Ref. 2). These chemicals include n-hexane, hydrogen sulfide, toluene, benzene, xylene, and methanol (Ref. 2).

• Information factor: EPA estimates that between 282 and 444 NGP facilities in the U.S. would meet the TRI employee threshold (10 full-time employees or equivalent) and manufacture, process, or otherwise use at least one TRI-listed chemical in excess of applicable threshold quantities (Ref. 2). Furthermore, based upon information submitted to Canada's NPRI and the 2012 EIA-757 survey of NGP facilities, EPA expects that TRI reporting by U.S. NGP facilities would provide significant release and waste management data (Ref. 2). Therefore, the addition of NGP facilities to TRI would meaningfully increase the information available to the public and further the purposes of EPCRA section 313.

NGP facilities are stationary surface facilities that receive gas from a gathering system that supplies raw natural gas from many nearby wells. These facilities prepare natural gas (composed primarily of methane) to industrial or pipeline specifications and extract heavier liquid hydrocarbons from the raw or field natural gas. During this process, natural gas liquids (NGLs) (i.e., heavier hydrocarbons than methane) and contaminants (e.g., hydrogen sulfide, carbon dioxide, and nitrogen) are separated from the natural gas stream, resulting in processed pipeline quality natural gas. NGLs are fractionated on-site into isolated streams (e.g., ethane, propane, butanes, natural gasoline) or shipped off-site for subsequent fractionation or other processing. Hydrogen sulfide is often either disposed through underground injection or reacted into sulfuric acid or elemental sulfur, while carbon dioxide and nitrogen may be emitted to the atmosphere. The processed pipeline-quality natural gas is then transferred to consumers via intra- and inter-state pipeline networks. NGLs are primarily used as feedstocks by petrochemical manufacturers or refineries.

SIC 1321 (Natural Gas Liquids) and NAICS 211112 (Natural Gas Liquid Extraction) comprise establishments that recover liquid hydrocarbons from oil and gas field gases (see discussion in Unit II.E.). NAICS 211112 includes facilities that primarily recover sulfur from natural gas—such facilities already report TRI data to EPA because they are in SIC 2819 (Industrial Inorganic Chemicals, Not Otherwise Classified), which is a manufacturing sector already covered by TRI.

Current regulations only require NAICS 211112 facilities that recover sulfur from natural gas to report TRI data (i.e., facilities in SIC 2819). Specifically, 40 CFR 372.23(b), which covers NAICS codes that correspond to SIC codes 20 through 39, lists NAICS 211112, but states: “Limited to facilities that recover sulfur from natural gas (previously classified under SIC 2819, Industrial Inorganic chemicals, NEC (recovering sulfur from natural gas)).” Removing that limitation and adding SIC 1321 to the scope of industry sectors covered by TRI would expand TRI coverage to include all NGP facilities that meet TRI-reporting thresholds.

To add the facilities contemplated by this proposed rule to the scope of industrial sectors that TRI covers, EPA is proposing to:

• Add SIC code 1321 to 40 CFR 372.23(a);

• Remove the “Exceptions and/or limitations” language from the Code of Federal Regulations (CFR) text for NAICS code 211112 for NAICs codes that correspond to SIC codes 20 through 39 in 40 CFR 372.23(b); and

• Add NAICS code 211112 to the CFR text for NAICS codes that correspond to SIC codes other than SIC codes 20 through 39 in 40 CFR 372.23(c).

It would be necessary to list NAICS 211112 in both subsections (b) and (c) of 40 CFR 372.23 for two reasons: (1) 40 CFR 372.23(b) lists NAICS codes that crosswalk to SIC codes within the original scope of TRI sectors subject to Section 313 reporting (SIC Codes 20-39), and (2) 40 CFR 372.23(c) lists NAICS codes that crosswalk to SIC codes not within the original scope of TRI sectors. Because NAICS 211112 includes a SIC code in the original scope of TRI sectors (SIC 2819) and a SIC code not in the original scope of TRI sectors (SIC 1321), EPA proposes that NAICS 211112 be listed under both subsections to provide additional clarity for the crosswalk.

This proposal does not seek to add to TRI coverage natural gas field facilities that only recover condensate from a stream of natural gas, lease separation facilities that separate condensate from natural gas, or natural gas pipeline compressor stations that supply energy to move gas through transmission or distribution lines into storage. Additional examples of operations that this proposal does not intend to add to TRI coverage include Joule-Thompson valves, dew point depression valves, and isolated or standalone Joule-Thompson skids. The industrial operations described in this paragraph often occur at or close to extraction sites and are typically classified under NAICS codes other than 211112 (e.g., NAICS 211111 (Crude Petroleum and Natural Gas Extraction)), and thus are not within the scope of the proposed NAICS code addition.

However, the term “facility” is defined by EPCRA section 329(4) as “all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person).” 42 U.S.C. 11049(4). Accordingly, operations described in the previous paragraph could be part of a single “facility” with TRI reporting and recordkeeping requirements if they are contiguous or adjacent to “buildings, equipment, structures, and other stationary items” with a common owner or operator that are in a covered TRI industrial sector.

Every 5 years the OMB updates the NAICS codes to “clarify existing industry definitions and content, recognize new and emerging industries, and correct errors and omissions.” (80 FR 46480, August 4, 2015). EPA updates its TRI regulations to align with OMB revisions to the NAICS codes (see, e.g., 78 FR 42875, July 18, 2013). OMB published a “Notice of Solicitation of Comments on the Economic Classification Policy Committee's Recommendations for the 2017 Revision of the North American Industry Classification System” on August 4, 2015 (80 FR 46480), and published a Notice of Final Decision revising the NAICS codes “for reference years beginning on or after January 1, 2017” on August 8, 2016 (81 FR 52584). As noted in Unit II.D., EPA anticipates promulgating a separate rule to align the list of NAICS codes TRI uses to the OMB NAICS revisions for 2017.

In OMB's revisions for the 2017 NAICS codes, facilities performing activities involving natural gas that currently classify under NAICS 211111 (Crude Petroleum and Natural Gas Extraction) and NAICS 211112 (Natural Gas Liquid Extraction) will classify under a new NAICS code: 211130 (Natural Gas Extraction).

This proposed rule to add NGP facilities to the scope of the TRI proposes to add facilities that primarily engage in the recovery of liquid hydrocarbons from oil and gas field gases (and to retain facilities that primarily engage in sulfur recovery from natural gas, which are already covered facilities), as described in Unit IV.A. This proposed rule would accomplish this, based on the 2012 NAICS codes currently used by the TRI regulations, by adding SIC code 1321 to 40 CFR 372.23(a), removing the “exceptions and/or limitations” from NAICS code 211112 currently found in 40 CFR 372.23(b), and adding NAICS code 211112 to 40 CFR 372.23(c). If EPA updates the NAICS codes used for TRI reporting purposes to align with the OMB revisions for 2017 before EPA issues a final rule adding NGP facilities to TRI, then if EPA issues a final rule adding NGP facilities to TRI, that final rule will reflect the appropriate new NAICS code (i.e., NAICS 211130), qualified by any appropriate “exceptions and/or limitations,” to add NGP facilities, as described in Unit IV.A., and would incorporate changes, if any, to the proposed scope of the addition, as appropriate in light of comments received on the proposal. That is, the actual scope of the addition to TRI here being proposed would not be affected by the 2017 OMB NAICS revision, or by any EPA update of its TRI regulations to align with the 2017 OMB revision.

The following is a listing of the documents that are specifically referenced in this document. For assistance in locating reference documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. USEPA. Formal Response to October, 24, 2012, Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the List of Facilities Required to Report under Section 313 of the Emergency Planning and Community Right-to-Know Act. October 22, 2015.

2. USEPA, OPPT. Economic Analysis of the Proposed Addition of Natural Gas Processing Facilities to the Toxics Release Inventory. August 11, 2016.

3. USEPA, OPPT. Supporting Statement for an Information Collection Request (ICR) Under the Paperwork Reduction Act (PRA). Proposed Rule ICR; Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI). EPA ICR No. 2560.01; OMB Control No. 2070-[NEW]. November 2016.

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 under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). EPA prepared an economic analysis of the potential costs and benefits associated with this action, which is available in the docket (Ref. 2).

The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR No. 2560.01; OMB Control No. 2070-[NEW] (Ref. 3). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

This action would impose an incremental information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2025-0009 and 2050-0078. This proposal would not alter the reporting and recordkeeping requirements for facilities that currently have regulatory requirements related to TRI reporting. However, this proposal would require all facilities that classify under NAICS 211112 to consider TRI reporting requirements regardless of whether or not they primarily recover sulfur from natural gas. Accordingly, if EPA adds this industrial sector to the scope of industries covered by TRI, these facilities would need to adhere to reporting and recordkeeping requirements should they trigger TRI reporting.

Currently, the facilities subject to the reporting requirements under EPCRA 313 and PPA 6607 may use either the EPA Toxic Chemicals Release Inventory Form R (EPA Form 1B9350- 1), or the EPA Toxic Chemicals Release Inventory Form A (EPA Form 1B9350- 2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322, 42 U.S.C. 11042, 40 CFR part 350.

OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control number 2025-0009 (EPA Information Collection Request (ICR) No. 1363) and those related to trade secret designations under OMB Control number 2050-0078 (EPA ICR No. 1428). As provided in 5 CFR 1320.5(b) and 1320.6(a), 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 OMB control numbers relevant to EPA's regulations are listed in 40 CFR part 9, and displayed on the information collection instruments (e.g., forms, instructions).

Respondents/affected entities: Entities potentially affected by this ICR include facilities primarily engaged in natural gas processing.

Respondent's obligation to respond: Respondents are obligated to respond or report to EPA (42 U.S.C. 11023).

Estimated number of respondents: 282-444.

Frequency of response: Annually.

Total estimated burden: Up to 250,034 hours in the first year and up to 119,064 hours every subsequent year. Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: Up to $13,584,347 in the first year and up to $6,468,747 every subsequent year, includes $0 annualized capital or operation & maintenance costs.

Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than February 6, 2017.

EPA will respond to any ICR-related comments in the final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are natural gas processing facilities. The Agency has linked the 282-444 facilities estimated to be impacted by this action to 76-90 parent entities, 32-41 of which qualify as small businesses as defined by the RFA (Ref. 2). No small governments or small organizations are expected to be affected by this action. All 32-41 small businesses that would be affected by this action are estimated to incur annualized cost impacts of less than 1%. EPA's detailed analysis of the impacts on small entities is located in the EPA economic analysis (Ref. 2).

This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. EPA's economic analysis indicates that the total industry reporting and recordkeeping burden for collecting this information would be between $8,624,018 and $13,584,347 in the first year (Ref. 2). In subsequent years, the total industry reporting and recordkeeping burden for collecting this information is estimated to be between $4,106,642 and $6,468,747 (Ref. 2). The total annualized cost of the proposed rule to industry and EPA is estimated to be approximately $4,634,000 to $7,300,000 with a 3% discount rate and approximately $4,721,000 to $7,437,000 with a 7% discount rate (Ref. 2). EPA's analysis shows that no small government owns or operates an NGP facility that would report under EPCRA section 313.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because 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 (65 FR 67249, November 9, 2000), because this action relates to toxic chemical reporting under EPCRA section 313, which primarily affects private sector facilities. No facilities owned or operated by tribal governments are expected to classify under SIC 1321 or NAICS 211112.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that 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 a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. NGP facilities would be subject to the requirements of this proposal; however, this proposal would not impact how these facilities operate but rather would require facilities that trigger TRI reporting requirements to submit annual reports on chemicals for which they trigger reporting requirements. Moreover, the impact this action could cause is minor. EPA's economic analysis for this action indicates that all entities that would be impacted are estimated to incur annualized cost impacts of less than 1% (Ref. 2).

This rulemaking does not involve any technical standards, and is therefore not subject to considerations under NTTAA section 12(d), 15 U.S.C. 272 note.

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 address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action adds an industry sector to the EPCRA section 313 reporting requirements. By adding an industry to the list of industry sectors subject to reporting under EPCRA section 313, EPA would be providing communities across the U.S. (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of the action will have a positive impact on the human health and environmental impacts of minority populations, low-income populations, and indigenous peoples.

Therefore, it is proposed that 40 CFR part 372, be amended as follows:

The additions to read as follows:

Information Requested

Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and will be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain their basis. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

(1) New information concerning Eriogonum gypsophilum's general conservation status;

(2) New information on historical and current Eriogonum gypsophilum status, range, distribution, and population size, including any additional population locations, and;

(3) New information regarding Eriogonum gypsophilum life history, ecology and habitat use.

Please note that submissions merely stating support for, or opposition to, the action being considered, without providing supporting information, although noted, will not be considered in making a determination, as the Act (16 U.S.C. 1531 et seq.) section 4(b)(1)(A) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

Prior to issuing a final rule on this proposed action, we will consider all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not consider comments sent by email, fax, or to an address not listed in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you mail or hand-deliver hardcopy comments that include personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

(1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0119, which is the docket number for this rulemaking.

(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's New Mexico Ecological Services Field Office (see ADDRESSES).

The Act, Section 4(b)(5)(E) enables one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and hearing locations, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

Section 4(b)(3)(B) (16 U.S.C. 1531 et seq.) of the Act requires that any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants must contain substantial scientific or commercial information that the petitioned action may be warranted. We must make a finding within 12 months of petition receipt. In this finding, we will determine that the petitioned action is: (1) Not warranted, (2) warranted, or (3) warranted, but immediate regulation proposal implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants.

Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register. This document: (1) Serves as our 12-month warranted finding on a July 16, 2012, petition dated July 12, 2012, from New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that we “delist” Eriogonum gypsophilum (that is, remove Eriogonum gypsophilum from the List of Endangered and Threatened Plants (List)) under the Act; and (2) proposes to remove Eriogonum gypsophilum from the List due to recovery.

Eriogonum gypsophilum was listed on January 19, 1981, as a threatened species (46 FR 5730). When the species was listed, an area that covered 95 percent of the only known population, now known as the Seven Rivers Hills population, was designated as critical habitat (46 FR 5730; January 19, 1981). The written critical habitat description listed two section numbers in the correct township but incorrect ranges. The accompanying map correctly demonstrated the designated lands. On December 21, 1984, we published a correction to the written critical habitat description (49 FR 49639). However, that correction was also incorrect because the range descriptions did not accurately describe the designated critical habitat displayed on the accompanying map. The correct written description should read T20S R25E Section 24: N1/2 NE1/4, N1/2 S1/2 NE1/4, NE1/4 NW1/4, N1/2 SE1/4 NW1/4;; and T20S R26E Section 19: N1/2, N1/2 NE1/4 SE1/4, N1/2 NW1/4 SE1/4; gypsum soils.

On February 2, 2005, we initiated a Eriogonum gypsophilum 5-year review (70 FR 5460). On November 9, 2007, we completed a 5-year review, which recommended Eriogonum gypsophilum be delisted. The 2007 5-year review noted that Eriogonum gypsophilum threats identified at the time of listing and in the recovery plan were no longer deemed significant and that two new populations, of between 11,000 and 18,000 plants each, were discovered.

On July 16, 2012, we received a petition dated July 12, 2012, from New Mexico Cattle Growers' Association, Jim Chilton, New Mexico Farm and Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting that we delist Eriogonum gypsophilum and other species, under the Act. The petitioners' request to delist Eriogonum gypsophilum was based entirely upon the scientific and commercial information contained within our 2007 5-year review.

On May 31, 2013, we received a complaint from the same petitioners alleging we failed to make a 90-day finding on the petition.

On September 9, 2013, we published a 90-day finding (78 FR 55046) that delisting Eriogonum gypsophilum may be warranted. This 90-day finding also announced our initiation of an Eriogonum gypsophilum 5-year review. Following this 90-day finding, the parties agreed to a stipulated dismissal of the pending lawsuit.

On November 20, 2015, the petitioners filed a second lawsuit. This lawsuit sought to compel the Service to complete a 12-month finding regarding Eriogonum gypsophilum, and other species.

On November 4, 2016, we completed our second Eriogonum gypsophilum 5-year review, which also recommended delisting due to recovery. The 2016 five-year review supports this proposed rule. The review concluded that the threats identified at the time of listing and in the recovery plan are no longer deemed significant. In addition, two new populations have been discovered since the listing, thus exceeding the recovery plan's population goals.

Eriogonum gypsophilum is a rare, regionally endemic plant species presently known to occur in three populations in Eddy County in southeastern New Mexico. Eriogonum gypsophilum was first collected by Wooten and Standley in 1909, on a hill southwest of Lakewood, New Mexico (Wooten and Standley, 1913). It is a small, erect herbaceous perennial, a member of the knotweed family, and measures about 8 inches high.

Three Eriogonum gypsophilum populations are known and all are located in Eddy County, southeastern New Mexico. Only one population (Seven Rivers Hills) was known at the time of listing and recovery plan development. After Eriogonum gypsophilum was listed as threatened, other suitable habitats were surveyed and two additional populations were found in 1985. Eriogonum gypsophilum distribution within its populations is patchy and follows suitable gypsum outcrops geographic patterns, which are generally elongated and narrow. The occupied outcrops are approximately 2.7 kilometers (km) (1.7 miles (mi)) long for the Seven Rivers Hills population, 1.6 km (1 mi) long for the Black River population, and 3.5 km (2.2 mi) long for the Ben Slaughter Draw population. Eriogonum gypsophilum patches within populations are also relatively small. The occupied habitat is only 16.3 hectares (ha) (40.3 acres (ac)) at Seven Rivers Hills, little more than 11.9 ha (29.5 ac) at Black River, and 66.4 ha (164.1 acres) at Ben Slaughter Draw (including Hay Hollow). Therefore, this species occupies an approximate total range wide habitat of 94.7 ha (233.9 ac) (Sivinski 2005, p. 6; Sivinski 2013, p. 1).

A population of Eriogonum gypsophilum was previously reported near Hay Hollow by Knight (1993, p. 34) and then discounted following negative surveys (Sivinski 2000; pp. 2-3). In 2013, Sivinski rediscovered this population, considered an extension of the Ben Slaughter population, and he estimated 1,000 to 1,500 plants across less than 4 ha (10 ac) (Sivinski 2013, p. 1).

Eriogonum gypsophilum occupies Permian-age Castile Formation gypsum soils and gypsum outcrops. These habitats are dry and nearly barren except for common of gypsophilic (gypsum-loving) plant species, including Eriogonum gypsophilum, hairy crinklemat (Tiquilia hispidissima), gypsum blazingstar (Mentzelia humilis), and Pecos gypsum ringstem (Anulocaulis leiosolenus var. gypsogenus) (NMRPTC 2015, http://nmrareplants.unm.edu).

Eriogonum gypsophilum is a perennial species that reproduces both by producing seed and asexually by producing clone rosettes from rhizomes or root-sprouts. Seed production has been observed (Spellenberg 1977, p. 22), but seedlings are rarely seen and most propagation occurs by asexual reproduction, or during infrequent climatic episodes suitable for seed germination and seedling establishment (Spellenberg 1977, p. 31; Knight 1993, p. 25). Densities within Eriogonum gypsophilum patches range from 0.03 to 2.04 individual rosettes per square meter (m2) (0.003 to 0.19 per square feet (ft2)) (Knight 1993, pp. 28-32). Plant densities within three monitoring plots at the Seven Rivers Hills population indicated a slight increase from 1987 to 1993 (Knight 1993, p. 28).

Section 4 (16 U.S.C. 1533) of the Act and implementing regulations (50 CFR part 424) set forth procedures to add species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under Section 4(a)(1) of the Act, a species may be determined endangered or threatened based on any of the following five factors, acting alone or in combination:

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

(B) Commercial, recreational, scientific, or educational overutilization;

(C) Disease or predation;

(D) Inadequate regulatory mechanisms; or

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

When delisting a species, we must consider both these five factors and how conservation actions have removed or reduced the threats. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate the species is neither endangered nor threatened for the following reasons:

(1) The species is extinct;

(2) The species has recovered and is no longer endangered or threatened; or

(3) The original scientific data used at the time the species was classified were erroneous.

In making this finding, Eriogonum gypsophilum five factors information provided in the Act, Section 4(a)(1), is discussed below. In considering what factors might constitute threats, we must look beyond mere species exposure to the factor to determine whether the species responds to the factor in a way that causes actual species impacts. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine if that factor rises to threat level, meaning that it may drive or contribute to species extinction risk such that the species warrants listing as an endangered or threatened species as the Act defines those terms. This does not necessarily require empirical threat proof. Combining exposure and some corroborating evidence indicating how the species is likely impacted could suffice. Merely identifying factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered or threatened species under the Act.

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

The 1981 Eriogonum gypsophilum threatened status listing determination (46 FR 5730; January 19, 1981) cited off-road vehicles (ORVs), grazing, and Brantley Dam project impacts as potential species threats. At the time of listing, the Seven Rivers Hills population was the only known Eriogonum gypsophilum population. Losing any plants or habitat from the only known population would have been considered a significant loss at that time, making the species vulnerable to extinction in the near future. However, two additional Eriogonum gypsophilum populations have since been documented at Black River and Ben Slaughter Draw, and have been included in this species reassessment. With the discovery of two additional populations and subsequent increase in species redundancy, combined with the Federal resource management practices implemented since the time of listing (see discussion below), the threats identified at the time of listing and in the recovery plan are no longer considered significant for Eriogonum gypsophilum.

All Eriogonum gypsophilum habitat occurs in areas with high potential for mineral extraction and associated development, especially oil and gas. Although the three populations of Eriogonum gypsophilum comprise a small geographic area, making the species vulnerable to such land use changes, the majority of remaining suitable habitat is located on Federal lands managed by the Bureau of Land Management (BLM), and significant portions of each Eriogonum gypsophilum population have been designated by BLM as Special Management Areas (SMAs). By definition, SMAs are areas where specific management attention is required and can be designated to protect important resources, including special status species like Eriogonum gypsophilum. The Seven Rivers Hills SMA includes 95 percent of the Seven River Hills population of Eriogonum gypsophilum, the Black River SMA includes 50 percent of the Black River population, and the Ben Slaughter SMA includes 50 percent of the Ben Slaughter population. Potential threats to Eriogonum gypsophilum as a result of mineral extraction and oil and gas associated development, such as directly removing occupied habitat during construction or pipeline leaks impacts, have been offset by BLM's designation of significant portions of each Eriogonum gypsophilum population as an SMA. Specifically, these SMAs provide management guidance, and in the case of Eriogonum gypsophilum, do not allow surface occupancy for most surface-disturbing activities. The Bureau of Land Management has committed to keeping similar protections for special status species and sensitive soil outcrops through a revised resource management plan, which will include specific land designations and the implementation of best management practices. The Service has participated in the development of this resource management plan, and will continue to work closely with BLM throughout the implementation phase. A final resource management plan is expected to be signed by BLM in 2017. As a BLM special status species, conservation of Eriogonum gypsophilum is expected to continue into the foreseeable future as BLM manual 6840, titled Special Status Species Management, directs. BLM special status species are federally listed or proposed and Bureau sensitive species, which include both Federal candidate species and delisted species (BLM 2008, entire).

The area designated as Eriogonum gypsophilum critical habitat at Seven Rivers Hills was given BLM SMA status in 1988 (BLM 1988, p. C-2) and protects about 95 percent of the habitat this population occupies. A few hectares of occupied habitat fall outside the SMA boundaries on adjacent BLM and Bureau of Reclamation (BOR) lands. The 1988 BLM Resource Management Plan also created a Springs Riparian Habitat SMA to restrict land use in critical riparian habitat within the Chihuahuan Desert Ecosystem. This SMA includes lands occupied by the Ben Slaughter Draw Eriogonum gypsophilum population (BLM 1988, p. C-14). The 1997 BLM Resource Management Plan Amendment included the Black River SMA that covers the Black River Eriogonum gypsophilum population (BLM 1997, pp. AP4:9, AP4:15-17). SMA management prescriptions at the three populations on public lands include:

• Apply no surface occupancy stipulation to all future oil and gas leases.

• Avoid future right-of-way actions through SMA area.

• Withdraw from mining claim location, and close to mineral material disposal and solid material leasing.

• Complete limited ORV designation and implementation plan to restrict vehicles to designated routes.

• Restrict fire suppression and geophysical operations to comply with ORV designation.

• Restrict surface disturbance, including plant collections and camping within the area.

Proposed actions related to lease rights acquired prior to the SMA designations are analyzed for impacts and designed to reduce or remove the impacts under BLM Manual 6840 directions, and using conditions-of-approval on the permit. SMA guidance can also affect actions that cross both public lands and adjacent non-Federal lands (e.g., pipelines, power lines), due to the actions being connected through a Federal nexus, thus affording species conservation. The occupied habitats are relatively small in acreage and can typically be avoided by surface disturbing activities.

All Eriogonum gypsophilum habitats are within areas with high potential for fluid minerals leasing and extraction. Oil and gas well pads, roads, and pipelines are proliferating in this region of New Mexico. The BLM SMA where the Seven Rivers Hills population's designated critical habitat occurs presently eliminates this threat by requiring “no surface occupancy” for mineral leases within the designated critical habitat. If the critical habitat designation were removed, no land use change is expected to occur as BLM has committed to continue protecting sensitive gypsum soils and the special status species that occur there, including Eriogonum gypsophilum. Roads and pipelines associated with mineral development also must avoid this area. The Seven Rivers Hills SMA protects about 95 percent of the occupied habitat from this land use. SMAs with “no surface occupancy” stipulations for oil and gas leases were also administratively placed on BLM jurisdictions containing Eriogonum gypsophilum habitats at the Black River and Ben Slaughter Draw populations in 1997 (BLM 1988, pp. C-15; BLM 1997, pp. AP4:9, AP4:15-17). These SMAs protect approximately 50 percent of the total habitat at Black River and Ben Slaughter Draw from oil and gas development (Sivinski 2005, p. 6). Approximately 65 percent of total habitat area in all three Eriogonum gypsophilum populations is presently protected from surface impacts associated with oil and gas development and these impacts would be avoided into the foreseeable future under BLM manual 6840 direction.

Knight (1993, p. 57) concluded that oil and gas mineral development, and possibly gypsum, were the only serious potential threats to Eriogonum gypsophilum. At this time, surface disturbance associated with Federal mineral development is very unlikely to occur on Eriogonum gypsophilum habitats within the BLM SMAs. Mineral development could potentially affect nearly 50 percent of the Black River population that occurs on private or State lands. In fact, there is presently an active gas well established within 0.4 km (0.25 mi) of Eriogonum gypsophilum habitat on the State trust land portion of this population (Sivinski 2000, p. 2). The private land portion, approximately 20 percent of the Black River population, could also be impacted by future minerals development. However, approximately 50 percent of the Black River habitat, about 95 percent of the Seven Rivers Hills habitat, and approximately 50 percent of Ben Slaughter Draw habitats are protected by the BLM SMAs “no surface occupancy” stipulation (Sivinski 2005, p. 6). Oil and gas may be leased on these lands, but must be extracted by directional drilling from outside the SMAs. Directional drilling allows a company to develop fluid minerals without being directly above (vertical of) the target, meaning this technology affords greater avoidance options to conserve sensitive habitats. The SMAs require that road and pipeline rights-of-way associated with oil and gas development must also avoid SMA disturbance.

The Seven Rivers Hills and Ben Slaughter Draw SMAs also withdrew minerals, such as gypsum, sulfur, and salts, from claim and mine development, but mineral claims are not specifically withdrawn from the Black River SMA. Chemical analysis found the gypsum outcrops Eriogonum gypsophilum occupied to be from the Castile Formation, composed of 85 percent hydric gypsum, which is suitable quality for mining (Weber and Kottlowski 1959, p. 52; Knight 1993, p. 42). However, gypsum mining potential for the Castile formation is low because of large deposits of higher quality gypsum presently being mined elsewhere in New Mexico (Knight 1993, p. 42).

Other potential impacts to the Seven Rivers Hills Eriogonum gypsophilum population have not occurred, partly due to the Act's protections. Due to the species occurring in three geographically separate populations, there is a lesser potential of a single project affecting the entire population of Eriogonum gypsophilum. For example, U.S. Highway 285 widening was accomplished without impacting the plants in or near this right-of-way (Sivinski 2000, pp. 1-2) and would have only affected one of the three populations. Common land use activities, such as mineral development or livestock grazing, are addressed in the BLM resource management plan and would be managed through the BLM permitting process, which considers all sensitive species and their habitats.

The populations at Black River and Ben Slaughter Draw are not near any existing or proposed reservoirs and, therefore, are not threatened by flooding. At the time of listing, we considered the possibility of flooding to the Seven Rivers Hills population from the Brantley Reservoir. However, this impact has not occurred because the dam spillway does not allow the water level to rise to the level necessary to flood populations (BOR 2009, p. 2). The spillway elevation is 993.5 meters (m) (3,259.5 feet (ft)) mean sea level. Water level peaked on March 29, 2015 (U.S. Geological Survey 2016, http://waterdata.usgs.gov), at approximately 4.0 m (13 ft) above the spillway at 997.5 m (3,272.5 ft) elevation. Even at this highest level, the pool remained east of U.S. Highway 285 and the Eriogonum gypsophilum population. Knight (1993, pp. 53-54) analyzed potential Brantley Reservoir impacts reaching the maximum flood pool with the assumption that the water level would rise similarly across U.S. Highway 285. Under this assumption, the maximum flood event pool in Brantley Reservoir could temporarily flood a few hectares of Eriogonum gypsophilum habitat. He found eight Eriogonum gypsophilum plants at or below the 1,002.8 m (3,290 ft) level on the west side of U.S. Highway 285. The soils in this area would become saturated for a time after a flood and could potentially be invaded by salt cedar (Tamarix spp.), an invasive tree that often lines reservoir banks. Knight (1993, pp. 53-54) surveyed another 6 m (20 ft) vertical up to the 1,009 m (3,310 ft) level where salt cedar might become established and located an additional 44 Eriogonum gypsophilum plants. In 1993, 52 plants were in the hypothetical maximum flood impact zone. A flood event could potentially impact about 100 plants in this population of several thousand plants. However, at the highest water level recorded in 2015, which was at the maximum safe flood control level, the water did not reach U.S. Highway 285 and Eriogonum gypsophilum was not impacted. Therefore, flooding from the Brantley Reservoir is not a significant threat to Eriogonum gypsophilum.

ORV traffic is not presently an Eriogonum gypsophilum threat. Little to no ORV traffic evidence has been observed in recent years in any of the three Eriogonum gypsophilum populations (Knight 1993, pp. 52-53; Sivinski 2000, p. 2; Chopp 2016, p. 1). ORV traffic absence at the Black River and Ben Slaughter Draw SMAs may be attributed to their remote locations and stands of thorny mesquite shrubs surrounding the Eriogonum gypsophilum populations (Knight 1993, p. 53). BLM has established SMA restrictions for ORV traffic that protect 95 percent of the Seven Rivers Hills habitat and 50 percent of the Ben Slaughter Draw habitat from this potential impact. These SMA restrictions cannot eliminate occasional ORV violations, but severe impacts from frequent ORV use will not likely be tolerated by BLM. These protections are likely to continue into the future due to protections described in the resource management plan and BLM manual 6840, which is the principal policy instrument detailing BLM management of special status species (BLM 2008, entire). To prevent unauthorized ORV traffic, in 2010, BLM installed pipe-rail fencing along portions of existing roads and trails at all three known populations, which will continue to be maintained as a condition of the revised resource management plan (BLM 2010, entire). Fencing was not installed at the Ben Slaughter Draw population Hay Hollow portion, but there are no easy access routes to this area (Chopp 2016, p. 1). Therefore, there is little to no ORV threat at this site now or in the foreseeable future.

Livestock grazing is the predominant land use in all Eriogonum gypsophilum habitats. Cattle will not usually eat Eriogonum gypsophilum plants, and grazing does not appear to have a negative effect (Sivinski 2000, p. 2). Forage production on these gypsum outcrops is relatively low and does not attract or concentrate livestock. The Eriogonum gypsophilum recovery plan did not identify livestock grazing as a serious potential designated critical habitat threat at Seven Rivers Hills (Service 1984, entire).

Livestock using the habitat in the Black River population has little effect on Eriogonum gypsophilum, and the river is remote enough from the gypsum outcrop to preclude concentrated livestock activity (Knight 1993, p. 52; Sivinski 2000, p. 2).

The Brantley Dam conservation pool was anticipated to be in close proximity to the Seven Rivers Hills Eriogonum gypsophilum population such that it was expected to concentrate livestock that could trample plants and make erosion-prone trails through this habitat. Over the past 30 years, the actual conservation pool has remained more than 1.6 km (1 mi) away from this population, and livestock have not concentrated in this habitat.

The Ben Slaughter population is immediately adjacent to Ben Slaughter Spring and Jumping Spring, which are water sources that concentrate livestock use. Livestock trailing and trampling Eriogonum gypsophilum plants in this population has been reported by Knight (1993, p. 52), especially in the Ben Slaughter Spring immediate vicinity. Knight (1993, p. 54) observed that plants trampled by livestock tended to produce smaller rosettes than plants not affected, thus shifting that population portion towards higher juvenile form percentages. The Bureau of Land Management has partly mitigated this impact by erecting a livestock-proof fence that encloses 8 ha (20 ac) around Ben Slaughter Spring, including a few hectares of Eriogonum gypsophilum habitat with several hundred plants. This fenced enclosure occurs within the 146-ha (360-ac) BLM SMA that protects the spring and surrounding upland from land-use surface occupancy. The Bureau of Land Management enclosure gate is not always closed to livestock entry (Sivinski 2000, p. 2), but does give the opportunity to manage grazing effects.

All three Eriogonum gypsophilum populations occur near, or within a few kilometers, of permanent natural waters sources. Therefore, the habitats at these populations have experienced more than a century of livestock use that, at times, could have been very intense and aggressive. In fact, the recent heavy livestock concentrations within the Ben Slaughter Draw population have not likely exceeded the livestock amounts concentrated in this area for many decades. These gypsum outcrop habitats may have been modified by this long history of livestock use, but continue to support large species populations. More than 75 percent of the Eriogonum gypsophilum habitats occur on BLM lands. Currently, BLM livestock stocking rates appear to have little, or no, impact on the Seven Rivers Hills and Black River populations. It is also evident that heavy livestock concentrations at Ben Slaughter Draw have not caused the population to decline. It is unlikely that livestock grazing will become a serious species threat in most of its habitats, especially at the Seven Rivers Hills and Black River populations, now or in the foreseeable future.

There are no immediate threats from commercial or recreational Eriogonum gypsophilum collection . The species has no recreational value, and it is not offered for sale within the horticultural market at this time. It is a handsome plant, with early-season green stems that turn dark red after hoisting bright yellow flowers, which could attract rock garden hobbyists, but may not be suitable for non-gypseous garden soils. Scientific collection permits have been confined to a few vouchered specimens to document new species locations.

In addition to alleviating threats, positive steps have been taken to inform and educate the public about Eriogonum gypsophilum. The New Mexico Rare Plants Web site was established in 1998 by the New Mexico Rare Plant Technical Council (NMRPTC) to provide information to the public on rare, threatened and endangered plant species (NMRPTC 2015, http://nmrareplants.unm.edu). This Web site prominently displays descriptive Eriogonum gypsophilum information and illustrations. This effort has helped fulfill the intent to provide information to the public and foster Eriogonum gypsophilum conservation support.

There are no known documented or anecdotal Eriogonum gypsophilum disease or predation reports.

Federal regulatory mechanisms have been effective in removing or managing many Eriogonum gypsophilum threats that could threaten extinction now or in the foreseeable future. The previously identified threats are nearly identical between the three populations, and all three populations include Federal and non-Federal lands. The SMAs afford conservation on Federal lands and adjacent non-Federal lands for linear projects such as roads and pipelines. Using the SMA designations, BLM has successfully protected the designated critical habitat at Seven Rivers Hills from mineral development and ORV traffic. BLM also regulates and manages livestock grazing on significant portions of all three of the known populations. These areas will continue to be conserved through implementation of BLM's revised resource management plan.

ORV traffic prohibitions are difficult to enforce because of sign vandalism, for which law enforcement officers cannot keep a continuous watch. However, BLM SMA restrictions on ORV traffic at the Seven Rivers Hills designated critical habitat area and Ben Slaughter Draw appear to be effective at diminishing ORV impacts. BLM further committed its authority by restricting access to the occupied Eriogonum gypsophilum habitat by installing protective pipe-rail fences above and beyond the SMA description's land use restrictions.

The Bureau of Land Management SMA at the Black River population requires a “no surface occupancy” stipulation for all oil and gas leases, but does not have prescriptions to protect this area from mineral claims or ORV traffic. All three Eriogonum gypsophilum SMA designations in the BLM Resource Management Plan will remain in effect for the life of that plan and are likely to continue for any future amendments.

The Carlsbad Resource Management Plan does not clearly state that future plan revisions shall continue to maintain Eriogonum gypsophilum SMA restrictions if this species is removed from the List. However, due to the species only occurring in gypsum outcrops, which are regarded as a unique resource by BLM, it is expected that BLM would continue to protect this habitat and, therefore, Eriogonum gypsophilum in their new resource management plan (BLM 2015, p. 1).

A few hectares of Eriogonum gypsophilum habitat in the Seven Rivers Hills population occur on BLM land outside the designated SMA and on Federal land in BOR jurisdiction, which is also not within the SMA. Land uses that may affect Eriogonum gypsophilum on these lands must presently be reviewed by the Service. Protections afforded by this review would cease if Eriogonum gypsophilum is removed from the List. However, BLM's current resource management plan would continue to provide species protections. The Bureau of Land Management has committed to continuing these land use restrictions in its revised resource management plan to provide species and habitat conservation in the foreseeable future.

There are no regulatory protections for federally listed endangered and threatened plant species from surface-disturbing land uses on private or State-owned lands, unless the activity is authorized, funded, or carried out by a Federal agency. Approximately 50 percent of the Eriogonum gypsophilum gypsum habitats at the Black River population occurs on private and State-owned land. About 10 percent of the occupied habitat in the Ben Slaughter Draw population is on private and State-owned land (Sivinski 2005, p. 6). The New Mexico State Land Office is aware of the Eriogonum gypsophilum habitats on its State trust lands, and Section 75-6-1 (New Mexico Statutes Annotated 1978 of the New Mexico Administrative Code directs New Mexico's Energy, Minerals and Natural Resources Department to investigate all plant species in the state for the purpose of establishing a list of State endangered plant species. It also authorizes that department to prohibit state endangered species take, with the exception of permitted scientific collections or propagation and transplantation activities that enhance endangered species survival. Should this rule be finalized as proposed, state protections for Eriogonum gypsophilum would remain in place until the state decides to remove the plant from the list of state endangered species.

Our previous reviews did not analyze climate change as a factor affecting the species. Based on the unequivocal evidence the earth's climate is warming from observing increasing average global air and ocean temperatures, widespread glacier and polar ice cap melting, and rising sea levels recorded by the Intergovernmental Panel on Climate Change (IPCC) Report (IPCC 2007a, entire; 2013, entire), climate change is now a factor in all Federal agency decision-making (Government Accounting Office 2007, entire). The Service has incorporated climate change into its decision-making under the Act (Service 2010, entire). Global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014: 2). Climate predictions for the Eriogonum gypsophilum area include a 5 to 6 percent increase in maximum temperature (up to 4 °C (7.2 °F)), 11 percent decrease in precipitation, and a 25 percent increase in evaporative deficit over the next 25 years (National Climate Change Viewer, Eddy County Data http://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp, accessed May 15, 2016). In 11 of the last 15 years, moderate to severe drought conditions existed in the Eriogonum gypsophilum occupied area, with 11 percent of the time in exceptional drought (National Drought Mitigation Center 2015, Eddy County Data) with no obvious negative effects on the species.

Eriogonum is a highly derived taxon that has undergone rapid evolution in arid western North American regions (Reveal 2005, p. 1). We expect that due to its observable resistance to severe drought periods over the past 30 years, Eriogonum gypsophilum is adaptable to climate change, and there is no information to indicate that climate change will have a detrimental effect on the species.

Eriogonum gypsophilum was known from only a single population on the Seven Rivers Hills when it was listed as a threatened species (46 FR 5730; January 19, 1981). An area covering 95 percent of this population was designated as critical habitat at the time of listing. Population monitoring at this site from 1987 to 2005 did not reveal any significant increase or decrease in plant numbers since the recovery plan was finalized in 1984. No surface-disturbing activities have occurred in the designated critical habitat since 1984, and this habitat remains unchanged. The Seven Rivers Hills site remained as the only known extant population until 1984. The recovery plan concluded that this threatened species could be delisted (due to recovery) when the designated critical habitat area was designated an area of critical ecological concern (ACEC), or was provided a similar special use designation. The Bureau of Land Management designated the critical habitat as a SMA in 1988, thus fulfilling this recovery plan criterion.

Two additional populations were documented in Eddy County since this plant was listed in 1981. Plant numbers in those populations also appear relatively unchanged since their 1985 discovery; the Black River population has a minimum of 16,660 plants, and the Ben Slaughter Draw population is estimated at around 18,270 plants. Additionally, an estimated 1,000 to 1,500 plants in the Ben Slaughter Draw population were observed in 2013, at the nearby Hay Hollow location. These numbers are estimates, as it is difficult to estimate plant numbers in each population due to variable density and patchy distribution across occupied gypsum outcrops. All previous and current plant numbers estimates lack precision, but adequately demonstrate substantial populations at the three known locations. No Eriogonum gypsophilum population extirpations or obvious declines were reported since it was listed as a threatened species in 1981.

Based on extensive survey efforts in New Mexico, it is unlikely that other new populations will be discovered. Potentially suitable habitat exists in Texas on private land, but no surveys have been conducted.

Eriogonum gypsophilum is currently listed as threatened with designated critical habitat. Threats identified at the time of listing and in the recovery plan are no longer deemed significant. In addition, two new populations have been discovered which contain between 16,000 and 18,000 Eriogonum gypsophilum plants each. The entire known occupied habitat is distributed among three populations totaling 94 ha (239 ac). Because BLM's existing resource management plan provides protections for significant portions of all populations, that are expected to be extended in future versions, lessening the future threat of mineral and oil and gas development, there are no longer any threats that are expected to cause Eriogonum gypsophilum to be in danger of extinction now or in the foreseeable future.

As required by the Act, we considered the 5 factors in assessing whether Eriogonum gypsophilum is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats facing Eriogonum gypsophilum. We reviewed the petition, information available in our files, and other available published and unpublished information, in addition to consulting with recognized Eriogonum gypsophilum experts and other Federal, State, and tribal agencies. Threats identified at the time of listing and in the recovery plan are no longer significant, which can largely be attributed to current BLM land-use restrictions in occupied Eriogonum gypsophilum habitat. In addition, two new populations were discovered since the original listing decision. Each of these populations adds between 16,000 and 18,000 plants to the overall population estimate.

Based on our reviewing the best available scientific and commercial information pertaining to the 5 factors, we find that the petitioned action to delist Eriogonum gypsophilum is warranted. There is sufficient evidence to indicate that, with ongoing BLM land-use restrictions to avoid and minimize surface-disturbing activities in occupied Eriogonum gypsophilum habitat on public lands, which are expected to continue into the foreseeable future, and no information to indicate that there are threats occurring now or in the future on private and State-owned lands, Eriogonum gypsophilum should be removed from the Federal List of Endangered and Threatened Plants.

In making this finding, we have followed the procedures set forth in section 4(a)(1) of the Act and our regulations at 50 CFR part 424. We intend that any Eriogonum gypsophilum action be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, Native American Tribes, industry, or any other interested party concerning this finding.

As noted earlier in this document, Section 4 of the Act and its implementing regulations at 50 CFR part 424, set forth the procedures for listing, reclassifying or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “species” as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate fish or wildlife population segment that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in Section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the threat analysis must evaluate both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting (i.e., reclassifying a species from endangered to threatened) and removing or reducing the Act's protections. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate 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 erroneous. We determine that Eriogonum gypsophilum should be delisted due to recovery.

We have determined that none of the existing or potential threats is likely causing Eriogonum gypsophilum to be in danger of extinction throughout all or a significant portion of its range, nor is it likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions would not warrant further consideration. Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

On the basis of our evaluation, we propose to remove Eriogonum gypsophilum from the Federal List of Endangered and Threatened Plants (50 CFR 17.12(h)).

This proposal, if made final, would revise 50 CFR 17.12(h) by removing Eriogonum gypsophilum from the Federal List of Endangered and Threatened Plants. The Act's prohibitions and conservation measures, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be 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 Eriogonum gypsophilum. Critical habitat for the species is designated; therefore, if made final, this rule would also remove this plant's critical habitat designation at 50 CFR 17.96(a).

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. This requirement is to develop a program that detects delisted species failures to sustain itself without the Act's protective measures. If, at any time during the monitoring period, data indicate that protective Act status should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective Eriogonum gypsophilum post-delisting monitoring (PDM) plan.

The PDM plan will build upon current monitoring practices. The PDM plan outlines the monitoring needed to verify that a species delisted due to recovery remains secure from extinction after the protections of the Act no longer apply. The goals of this PDM plan are to: (1) Outline the monitoring plan for species abundance and threats; and (2) identify circumstances that will trigger increased monitoring, or to identify when there are no longer concerns for Eriogonum gypsophilum and the PDM plan requirements have been fulfilled. The draft PDM plan will be made available for public comment in a Federal Register notice no later than June 30, 2017, and will be finalized concurrently with the final rule should we delist the species.

In accordance with our joint peer review policy with the National Marine Fisheries Service, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” was published in the Federal Register on July 1, 1994 (59 FR 34270), and the Office of Management and Budget's Final Information Quality Bulletin for Peer Review, dated December 16, 2004, we will seek expert opinions from at least three appropriate independent specialists regarding this proposed rule's science. Peer review's purpose is to ensure that our delisting decision is based on scientifically sound data, assumptions and analyses. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions in this proposed Eriogonum gypsophilum delisting. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input and any additional information we received as part of our final decision-making process for this proposal. Such communication may lead to a final decision that differs from this proposal.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

We have determined that environmental assessments and environmental impact statements, as defined under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) authority, need not be prepared in connection with regulations pursuant to the Act, Section 4(a). We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of all references cited in this final rule is available at http://www.regulations.gov at Docket No. FWS-R2-ES-2016-0119, or upon request from the New Mexico Ecological Services Field Office (see ADDRESSES).

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

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

Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

(1) New information on the historical and current status, range, distribution, and population size of lesser long-nosed bats, including the locations of any additional populations;

(2) New information regarding the life history, ecology, and habitat use of the lesser long-nosed bat;

(3) New information concerning the taxonomic classification and conservation status of the lesser long-nosed bat in general; and

(4) New information related to any of the risk factors or threats to the lesser long-nosed bat identified in the Species Status Assessment or the proposed action.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We will not consider comments sent by email, fax, or to an address not listed in ADDRESSES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked by the date specified in DATES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you mail or hand-deliver hardcopy comments that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

(1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0138, which is the docket number for this rulemaking.

(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES, above. We will schedule at least one public hearing on this proposal, if any are requested, and announce the location(s) of any of hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before any hearing.

On September 30, 1988, we published a final rule in the Federal Register (53 FR 38456) to list the Mexican long-nosed bat (Leptonycteris nivalis) and Sanborn's long-nosed bat (Leptonycteris sanborni (=L. yerbabuenae)) as endangered species. That rule became effective on October 31, 1988, and did not include a critical habitat designation for either bat. In 1993, we amended the List by revising the entry for the Sanborn's long-nosed bat to “Bat, lesser (=Sanborn's) long-nosed” with the scientific name “Leptonycteris curasoae yerbabuenae.” We issued a recovery plan for the lesser long-nosed bat on March 4, 1997. The recovery plan has not been revised. In 2001, we again amended the List by revising the entry for the lesser long-nosed bat to remove the synonym of “Sanborn's”; the listing reads, “Bat, lesser long-nosed” and retains the scientific name “Leptonycteris curasoae yerbabuenae.” Cole and Wilson (2006) recommended that L. c. yerbabuenae be recognized as Leptonycteris yerbabuenae. Additionally, Wilson and Reeder's (2005) “Mammal Species of the World (Third Edition), an accepted standard for mammalian taxonomy, also indicates that L. yerbabuenae is a species distinct from L. curasoae. Currently, the most accepted and currently used classification for the lesser long-nosed bat is L. yerbabuenae, however, the Service continues to classify the listed entity as Leptonycteris curasoae yerbabuenae. We recommended, as part of the status review, that the Service recognize and change the taxonomic nomenclature for the lesser long-nosed bat to be consistent with the most recent classification of this species, L. yerbabuenae. However, throughout this proposed rule, we will refer to the lesser long-nosed bat as a subspecies. On August 30, 2007, we completed a 5-year review, in which the Service recommended reclassifying the species from endangered to threatened status (i.e., “downlisting”) under the Act (USFWS 2007; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). The reclassification recommendation was made because information generated since the listing of the lesser long-nosed bat indicated that the subspecies is not in imminent danger of extinction throughout all or a significant portion of its range (higher population numbers, increased number of known roosts, reduced impacts from known threats, and improved protection status) and thus, does not meet the definition of endangered. On July 16, 2012, the Service received a petition from The Pacific Legal Foundation and others requesting that the Service downlist the lesser long-nosed bat as recommended in the 5-year review (as well as delist one species and downlist three other listed species). On September 9, 2013, the Service published a 90-day petition finding stating that the petition contained substantial scientific or commercial information indicating the petitioned action for the lesser long-nosed bat may be warranted (78 FR 55046). On November 28, 2014, the Service received a “60-day Notice of Intent to Bring Citizen Suit,” and on November 20, 2015, the New Mexico Cattle Growers Association and others filed a complaint challenging the Service's failure to complete in a timely manner the 12-month findings on five species, including the lesser long-nosed bat (New Mexico Cattle Growers Association, et al. v. United States Department of the Interior, et al., No. 1:15-cv-01065-PJK-LF (D.N.M)), asking the Court to compel the Service to make 12-month findings on the five species. On September 29, 2016, the parties settled the lawsuit with the requirement that the Service submit a 12-month finding for the lesser long-nosed bat to the Federal Register for publication on or before December 30, 2016, among other obligations. This document fulfills the portion of the settlement agreement that concerns the lesser long-nosed bat.

A thorough review of the taxonomy, life history, ecology, and overall viability of the lesser long-nosed bat is presented in the Species Status Assessment (SSA) report for the lesser long-nosed bat (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above). The SSA report documents the results of the biological status review for the lesser long-nosed bat and provides an account of the subspecies' overall viability through forecasting of the subspecies' condition in the future (USFWS 2016; entire). In the SSA report, we summarize the relevant biological data and a description of past, present, and likely future stressors to the subspecies, and conduct an analysis of the viability of the subspecies. The SSA report provides the scientific basis that informs our regulatory determination regarding whether this subspecies should be listed as an endangered or a threatened species under the Act. This determination involves the application of standards within the Act, its implementing regulations, and Service policies (see Delisting Proposal, below) to the scientific information and analysis in the SSA. The following discussion is a summary of the results and conclusions from the SSA report. We solicited expert review of the draft SSA report from lesser long-nosed bat experts, as well as experts in climate change modeling and plant phenology (the scientific study of periodic biological phenomena, such as flowering, in relation to climatic conditions). Additionally, and in compliance with our policy, “Notice of Interagency Cooperative Policy for Peer Review of Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we solicited peer reviews on the draft SSA report from four objective and independent scientific experts in November 2016.

The lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) is one of three nectar-feeding bats in the United States; the others are the Mexican long-nosed bat (L. nivalis) and the Mexican long-tongued bat (Choeronycteris mexicana). The lesser long-nosed bat is a migratory pollinator and seed disperser that provides important ecosystem services in arid forest, desert, and grassland systems throughout its range in the United States and Mexico, contributing to healthy soils, diverse vegetation communities, and sustainable economic benefits for communities. The range of the lesser long-nosed bat extends from the southwestern United States southward through Mexico.

The Service has assigned a recovery priority number of 8 to the lesser long-nosed bat. This recovery priority number means that the lesser long-nosed bat was considered to have a moderate degree of threat and a high recovery potential. Because the lesser long-nosed bat is a colonial roosting species known to occur at a limited number of roosts across its range in Mexico and the United States (Arizona and New Mexico), impacts at roost locations could have a significant impact on the population, particularly if the impacts occur at maternity roosts. However, because approximately 60 percent (eight out of fourteen) of the roost locations known at the time of listing were on “protected” lands in both the United States and Mexico, the degree of threat was determined to be moderate. The primary recovery actions outlined in the recovery plan were to monitor and protect known roost sites and foraging habitats. Because both of these actions could be potentially be accomplished through management at all of the known roost sites known at that time, the recovery potential for the lesser long-nosed bat was determined to be high. A U.S. recovery plan was completed for the lesser long-nosed bat in 1997 (USFWS 1997, entire) and the Program for the Conservation of Migratory Bats in Mexico was formed in 1994 (Bats 1995, p. 1-6).

The Service completed a 5-year review of the status of the lesser long-nosed bat in 2007. This review recommended downlisting this bat from endangered to threatened status under the Act (USFWS 2007; available at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). In Mexico, the lesser long-nosed bat was recently removed from that nation's equivalent of the endangered species list (SEMARNAT 2010, entire; Medellin and Knoop 2013, entire). According to SEMARNAT (2010), over the last twenty years, Mexican researchers have carried out a wide range of studies that have demonstrated that the lesser long-nosed bat is no longer in the critical condition that led it to be listed as in danger of extinction in Mexico. Specifically, the evaluation to delist in Mexico showed 1) the distribution of lesser long-nosed bats is extensive within Mexico, covering more than 40 percent of the country; 2) the extent and condition of lesser long-nosed bat habitat is only moderately limiting and this species has demonstrated that it is adaptable to varying environmental conditions; 3) the species does not exhibit any particular characteristics that make it especially vulnerable; and 4) the extent of human impacts is average and increased education, outreach, and research have reduced the occurrence of human impacts and disturbance.

The lesser long-nosed bat is a migratory bat characterized by a resident subpopulation that remains year round in central and southern Mexico to mate and give birth, and a migratory subpopulation that winters and mates in central and southern Mexico, but that migrates north in the spring to give birth in northern Mexico and the southwestern United States (Arizona). This migratory subpopulation then obtains the necessary resources (in Arizona and New Mexico in the United States) to be able to migrate south in the fall back to central and southern Mexico. The lesser long-nosed bat is a nectar, pollen, and fruit-eating bat that depends on a variety of flowering plants as food resources. These plants include columnar cacti, agaves, and a variety of flowering deciduous trees. The lesser long-nosed bat is a colonial roosting species that roosts in groups ranging from a few hundred to over 100,000. Roost sites are primarily caves, mines, and large crevices with appropriate temperatures and humidity; reduced access to predators; free of the disease-causing organisms (fungus that causes white-nose syndrome, etc.); limited human disturbance; structural integrity maintained; in a diversity of locations to provide for maternity, mating, migration, and transition roost sites.

The primary life-history needs of this subspecies include appropriate and adequately distributed roosting sites; adequate forage resources for life-history events such as mating and birthing; and adequate roosting and forage resources in an appropriate configuration (a “nectar trail”) to complete migration between central and southern Mexico and northern Mexico and the United States.

For more information on this topic, see chapter 2 of the SSA Report (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

For the last 20 years following the completion of the lesser long-nosed bat recovery plan, there has been a steadily increasing effort related to the conservation of this subspecies. Better methods of monitoring have been developed, including the use of infrared videography and radio telemetry. These monitoring efforts have led to an increase in the number of known roosts throughout its range, from approximately 14 known at the time of listing to approximately 75 currently known roost sites, as well as more accurate assessments of the numbers of lesser long-nosed bats using these roosts. The 1988 listing rule emphasized low populations numbers along with an apparent declining population trend. At this time, we have documented increased lesser long-nosed bat numbers and positive trends (stable or increasing numbers of bats documented over the past 20 years) at most roosts. There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis (Fleming et al. 2003; Sidner and Davis 1988). For example, although numbers fluctuate from year to year, the numbers of lesser long-nosed bats estimated from 2010-2015 in the three known maternity roosts in the U.S. were an average of two and a half times higher than numbers presented in the Recovery Plan (USFWS 2016; p. 10). Furthermore, protection measures have been implemented at over half the roosts in both the United States and Mexico (approximately 40 roosts), including gating, road closures, fencing, implementation of management plans, public education, monitoring, and enforcement of access limitations. Generally, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Efforts to physically protect roosts through the use of gates or barriers have been implemented at six roost sites in Arizona. The experimental fence at one roost (a mine site) worked initially, but was subsequently vandalized resulting in roost abandonment. The fencing was repaired and there have been no subsequent breeches and the bats have recolonized the site (USFWS 2016; p. 11).

In addition, since the 1988 listing rule, increased public and academic interest, along with additional funding, has resulted in additional research leading to a better understanding of the life history of the lesser long-nosed bat. At the time of listing, we believed livestock grazing and fire were impacting the viability of this subspecies. We now know that livestock grazing and fire have less of an impact on the viability of this subspecies than previously thought. Other threats have been reduced such as reducing the killing of non-target bat species during vampire bat control activities in Mexico (i.e., poisoning, dynamiting, burning, shooting, anticoagulants, roost destruction, etc.) because of outreach and education and reducing human disturbance at roosts through the use of fencing, monitoring, and the use of gates. However, roost disturbance, particularly in the border region between the United States and Mexico; habitat loss due to various land uses; and, to an unknown extent, effects due to climate change continue to be threats to this subspecies. Nonetheless, these threats are being addressed or ongoing research is developing management strategies such that we have determined that the effects of these threats will not affect the future viability of the lesser long-nosed bat.

The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 because of the factors described above. The species has a greater distribution in Mexico than in the United States, but most of the same reasoning for the subspecies' removal from Mexico's endangered species list applies to our proposal to remove the lesser long-nosed bat from the U.S. List of Endangered and Threatened Wildlife. Much of the range of this species in the United States is on federally managed lands (>75 percent). Federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites. As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated. If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands. Agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc. will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. Examples of these agency plans include the Fort Huachuca Integrated Natural Resources Management Plan, the Coronado National Forest Land Use and Resource Management Plan, and the Safford District Resource Management Plan (DOD 2001, entire; USFS 2005, entire; BLM 1991, entire). As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated and, while the best design for such gates is still being developed, these gates do provide long-term protection of the sites. Further, outreach and education, particularly with regard to pollinator conservation, has increased and human attitudes regarding bats are more positive now than in the past; and the lesser long-nosed bat has demonstrated adaptability to potential adverse environmental conditions, such as changes in plant flowering phenology (see discussion under Factor E, below).

Because of the occurrence of both resident and migratory subpopulations within the lesser long-nosed bat population, it is important for all of the necessary habitat elements to be appropriately distributed across the range of this species such that roost sites, forage resources, and migration pathways are in the appropriate locations during the appropriate season. Currently, the distribution of the lesser long-nosed bat extends from southern Mexico into the southwestern United States. In Mexico, the distribution of the lesser long-nosed bat covers approximately 40 percent of the country when considering resident areas, migration pathways, and seasonally-occupied roosts within the range of this subspecies. Within both the United States and Mexico, the current distribution of the lesser long-nosed bat has not decreased or changed substantially from that described in the literature. It is important to note, however, that, as discussed in the SSA report, any given area within the range of the lesser long-nosed bat may be used in an ephemeral manner dictated by the availability of resources that can change on an annual and seasonal basis. Roost switching occurs in response to changing resources and areas that may be used during one year or season may not be used in subsequent years until resources are again adequate to support occupancy of the area. This affects if and how maternity and mating roosts, migration pathways, and transition roosts are all used during any given year or season. However, while the distribution of the lesser long-nosed bat within its range may be fluid, the overall distribution of this species has remained similar over time (USFWS 2016, Chapters 1 through 3).

For more information on this topic, see chapter 5 of the SSA Report (USFWS 2016), which is available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Recovery plans identify site-specific management actions that will achieve recovery of the species and objective, measurable criteria that set a trigger for review of the species' status. Methods for monitoring recovery progress may also be included in recovery plans.

Recovery plans are not regulatory documents; instead they are intended to establish goals for long-term conservation of listed species and define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act. They also identify suites of actions that are expected to facilitate achieving this goal of recovery. While recovery plans are not regulatory, they provide guidance regarding what recovery may look like and possible paths to achieve it. However, there are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery actions being implemented or criteria being fully met. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

The 1997 lesser long-nosed bat recovery plan objective is to downlist the species to threatened (USFWS 1997, entire). The recovery plan does not explain why delisting was not considered as the objective for the recovery plan. The existing recovery plan does not explicitly tie the recovery criteria to the five listing factors at section 4(a)(1) of the Act or contain explicit discussion of those five listing factors. In addition, the reasons for listing discussed in the recovery plan do not actually correspond with the five listing factors set forth in section 4(a)(1) of the Act. The recovery plan lists four criteria that should be considered for downlisting the subspecies, which are summarized below. A detailed review of the recovery criteria for the lesser long-nosed bat is presented in the 5-year Review for the Lesser Long-Nosed Bat (USFWS 2007; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm).

Significant efforts have been made to implement a regular schedule of monitoring at the known roost sites in Arizona. All thirteen of the roost sites identified in the recovery plan have had some degree of monitoring over the past 20 years. In the United States, all of the six roosts identified in the recovery plan for monitoring (Copper Mountain, Bluebird, Old Mammon, Patagonia Bat Cave, State of Texas, and Hilltop) have been monitored since 2001. This recovery criterion has been satisfied for roosts in Arizona. None of the New Mexico roosts were identified for monitoring in the recovery plan, but these roosts have been monitored sporadically since the completion of the recovery plan (USFWS 2007; p. 6-9). The seven roost sites in Mexico have been regularly monitored since the development of the recovery plan (Medellín and Torres 2013, p. 11-13). For more information, see chapter 2 of the SSA Report (USFWS 2016).

Nearly all of the lesser long-nosed bat experts and researchers who provided input to the 5-year review indicated that they observed that the number of lesser long-nosed bats at most of the roost sites in both the United States and Mexico is stable or increasing. As discussed in the SSA report, current expert opinion supports this same conclusion (see chapter 2 of the SSA Report (USFWS 2016). The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 based on the factors discussed above.

More lesser long-nosed bat roost locations are currently known, and are being more consistently monitored, than at the time of listing in 1988 (an increase from approximately 14 to approximately 75 currently known roosts). In related efforts, a number of studies have been completed that provide us with better information related to the forage requirements of the lesser long-nosed bat when compared to the time of listing and recovery plan completion. Because of improved information, land management agencies are doing a better job of protecting lesser long-nosed bat roost sites and foraging areas. For more information, see chapter 2 of the SSA Report (USFWS 2016).

Our current state of knowledge with regard to threats to this subspecies has changed since the development of the recovery plan. Threats to the lesser long-nosed bat from grazing on food plants, the tequila industry, and prescribed fire, identified in the recovery plan, are likely not as severe as once thought. Effects from illegal border activity and the associated enforcement activities are a new and continuing threat to roost sites in the border region. Potential effects to forage species and their phenology as a result of climate change have been identified, but are characterized by uncertainty and lack of data specifically addressing those issues. Nonetheless, lesser long-nosed bats have shown the ability to adapt to adverse forage conditions and we find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions. Some progress has been made toward protecting known lesser long-nosed bat roost sites; while the ultimate level of effectiveness of gates as a protection measure is still being evaluated and improved, they do provide long-term protection of roost sites. Gates are being currently being tested at a few additional lesser long-nosed bat roost sites. For more information, see chapter 4 of the SSA Report (USFWS 2016).

As discussed in the SSA report and 5-year review, data relied upon to develop the 1988 listing rule and the recovery plan were incomplete. Subsequent to the completion of the listing rule and recovery plan, considerable additional data regarding the life history and status of the lesser long-nosed bat have been gathered and, as discussed above, have documented an increase in the number of known roost sites and the number of lesser long-nosed bats occupying those roosts. During the 2007 5-year review of the status of this subspecies, it was determined that the 1997 recovery plan was outdated and did not reflect the best available information on the biology of this subspecies and its needs (USFWS 2007; p. 30; available online at http://www.regulations.gov or https://www.fws.gov/southwest/es/arizona/Lesser.htm). Therefore, rather than use the existing outdated recovery criteria, the Service assessed the species' viability, as summarized in the SSA report (USFWS 2016), in making the determination of whether or not the lesser long-nosed bat has recovered as defined by the Act.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. A species may be reclassified or delisted on the same basis. Consideration of these factors was included in the SSA report in the discussion on “threats” or “risk factors,” and threats were projected into the future using scenarios to evaluate the current and future viability of the lesser long-nosed bat. The effects of conservation measures currently in place were also assessed in the SSA report as part of the current condition of the subspecies, and those effects were projected in future scenarios. The evaluation of the five factors as described in the SSA report is summarized below.

The primary threat to this subspecies continues to be roost site disturbance or loss. The colonial roosting behavior of this subspecies, where high percentages of the population can congregate at a limited number of roost sites, increases the likelihood of significant declines or extinction due to impacts at roost sites. However, as discussed above, increased lesser long-nosed bat numbers and positive trends at most roosts have reduced concerns expressed in the 1988 listing rule with regard to low population numbers and an apparent declining population trend. Known roosts have had protective measures implemented, previously unknown roosts have been identified and agencies and conservation partners are implementing protective measures, and outreach and education has been effective in increasing the understanding of the general public, as well as conservation partners, with regard to the need to prevent disturbance at lesser long-nosed bat roosts while the bats are present (USFWS 2016, p. 45-48). As discussed in the SSA report, we have determined that the current lesser long-nosed bat population is currently viable and is likely to remain so into the future based on the documentation of higher numbers of lesser long-nosed bats, increased numbers of known and protected roost sites, improved outreach and education, and a decrease in the effects of known threats and plans to assess and address known threats in the future (USFWS 2016, entire). We have determined that roost sites have and will be protected to the extent that roost disturbance is no longer a sufficient threat to warrant listing under the Act.

In general, while actual numbers of bats observed at roost sites may not support a statistically valid population trend, the overall numbers of bats observed at roost sites can be used as an index of population status. Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is statistically rigorous enough to draw statistically-valid conclusions about the trend of the population, in the professional judgment of biologists and others involved in these efforts, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored. With a documented increase from an estimated 500 lesser long-nosed bats in the U.S. at the time of listing to over 100,000 currently documented, the total number of bats currently being documented is many times greater than those numbers upon which the listing of this species relied, and while this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population.

Significant information regarding the relationship of lesser long-nosed bats to their forage resources has been gathered over the past decade. Because lesser long-nosed bats are highly specialized nectar-, pollen-, and fruit-eaters, they have potential to be extremely vulnerable to loss of or impacts to forage species. However, lesser long-nosed bats are also highly effective at locating food resources, and their nomadic nature allows them to adapt to local conditions. For example, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred. The failure was first noted in Organ Pipe Cactus National Monument, and such a failure had not been noted in the recorded history of the Monument (Billings 2005). The failure extended from Cabeza Prieta NWR on the west to Tucson on the east, and south into central Sonora, Mexico. The large-scale loss of this lesser long-nosed bat food resource was somewhat offset by the fact that small numbers of both saguaro and organ pipe flowers continued to bloom into August and September. Such a failure would have been expected to result in fewer lesser long-nosed bats using roosts in this area or reduced productivity at these roosts. However, this was not the case. Maternity roost numbers remained as high as or higher than previous years, with some 25,000 adult females counted during 2004 monitoring (Billings 2005). Ultimately, it appears lesser long-nosed bats were able to subsist and raise young in southwestern Arizona in this atypical year. Other observations over the past 20 years, including some years of significantly reduced agave availability, have indicated that the lesser long-nosed bat is more adaptable than previously believed to changing forage resource availability. This adaptability leads us to a determination that forage availability will not significantly affect the viability of the lesser long-nosed bat population.

Additionally, the effects of livestock grazing and prescribed fire on long-nosed bat food sources are also not as significant as originally thought. For example, Widmer (2002) found that livestock were not responsible for all of the utilization of agave flower stalks their study area. Wildlife such as javelina, white-tailed deer, and small mammals also utilized agave flower stalks as a food resource. The extent of livestock use of agave flower stalks appears to be related to standing biomass and distance from water. Further, Bowers and McLaughlin (2000) found that the proportion of agave flower stalks broken by cattle did not differ significantly between grazed and ungrazed areas. All of which indicate that livestock do not have a significant effect on lesser long-nosed bat food sources, over and above native grazers. Thomas and Goodson (1992) and Johnson (2001, p. 37) reported 14% and 19% mortality of agaves following burns. Some agency monitoring has occurred post-fire for both wildfires and prescribed burns. This monitoring indicates that agave mortality in burned areas is generally less than 10% (USFS 2015, p. 82-83; USFS 2013, p. 10-11). Contributing to this relatively low mortality rate is the fact that most fires burn in a mosaic, where portions of the area do not burn. Impacts of fire on agave as a food source for lesser long-nosed bats may not be a significant concern for the following reasons: Fire-caused mortality of agaves appears to be low; alternative foraging areas typically occur within the foraging distance from lesser long-nosed bat roosts; and most agave concentrations occur on steep, rocky slopes with low fuel loads (Warren 1996). In addition, Johnson (2001, p. 35-36) reported that recruitment of new agaves occurred at higher rates in burned plots than in unburned plots, indicating that there may be an increased availability over time of agaves in areas that have burned, if the return rate of fire is greater than seven years. The effects of agave harvesting are limited to bootleggers, which is likely occurring at the same levels as when the species was listed in 1988, however, this is not considered significant. In addition, increased outreach and education are being provided to tequila producers in an effort to reduce the effects of agave harvesting on lesser long-nosed bats.

While not currently a threat affecting the viability of the lesser long-nosed bat population, the potential for migration corridors to be truncated or interrupted is a concern. Significant gaps in the presence of important roosts and forage species along migration routes would affect the population dynamics of this subspecies. While the lesser long-nosed bat continues to be faced with loss and modification of its habitat throughout its range, the habitats used by this subspecies occur over an extensive range that covers a wide diversity of vegetation and ecological communities. These are habitat characteristics that would not make this subspecies intrinsically vulnerable with regard to habitat limitations. That is to say, the wide variety of ecosystems that this subspecies uses, over a relatively expansive range, results in available areas characterized by the asynchronous flowering of forage resources making up the diet of the lesser long-nosed bat and buffers this subspecies from potential loss or reduction of habitats as a result of stochastic events, including the effects of climate change, among others.

There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis with an estimated increase from fewer than 1,000 bats to approximately 200,000 bats (Fleming et al. 2003, pp. 64-65; Sidner and Davis 1988, p. 494). Also, in general, the trend in overall numbers of lesser long-nosed bats estimated at roost sites has been stable or increasing in both the United States and Mexico (Medellín and Knoop 2013, p. 13; USFWS 2016). Increased roost occupancy and the positive trend in numbers of lesser long-nosed bats occupying these roosts appear to be supported by adequate forage resources. The adaptability of the lesser long-nosed bat to changing forage conditions seems to allow the lesser long-nosed bat to sustain a positive population status under current environmental conditions.

While some threats are ongoing with regard to lesser long-nosed bat habitat, in general, we find that threats to this species' habitat have been reduced or are being addressed in such a way that lesser long-nosed bat habitat is being enhanced and protected at a level that has increased since the 1988 listing of this species. In particular, areas that were vulnerable to threats have been protected or are now managed such that those threats have been reduced. Outreach and education have increased the understanding of what needs to be done to protect lesser long-nosed bat habitat. Therefore, based on the analysis completed in the SSA report (USFWS 2016; p. 54-61), we have determined that threats to the habitat of this species are currently reduced and will continue to be addressed in the foreseeable future, or are not as significant as previously thought. We find that threats to the habitat of this species have been eliminated, reduced, or mitigated to the extent that the subspecies no longer is an endangered or threatened species under the Act. Lesser long-nosed bat habitat conditions are currently, and are predicted to remain at levels that have and will improve the viability of the lesser long-nosed bat to the point that the species is no longer endangered.

Lesser long-nosed bats are not known to be taken for commercial purposes, and scientific collecting is not thought to be a problem (USFWS 1988, p. 38459). Caves and mines continue to attract recreational users interested in exploring these features but this threat has probably not increased since the listing. For example, Pima County, in southeastern Arizona, is implementing mine closures on lands that they have acquired for conservation purposes. Other land management agencies also carry out abandoned mine closures for public recreational safety purposes. A positive aspect of these mine closure processes is that most agencies and landowners now understand the value of these features to bats and other wildlife and are implementing measures to maintain those values while still addressing public health and safety concerns. The 1988 listing rule stated that bats were often killed by vandals (USFWS 1988, p. 38459). However, significant changes in the public perception of bats are occurring. Educational efforts are beginning to make a difference.

In both the U.S. and Mexico, public education, in the form of radio and television spots, and educational materials have been implemented. Agencies now receive calls for assistance in nonlethal solutions to bat issues. Often, the general public does take the time to understand or differentiate when it comes to emotional issues such as rabies or vampire bats, but outreach and education are improving the understanding and knowledge of facts when it comes to the reality of the extent of these issues. There has been a focused effort in Mexico to reduce the mortality of non-target species in relation to vampire bat control (see chapter 4 of the SSA Report (USFWS 2016).

In summary, we determine that the viability of the lesser long-nosed bat is not being significantly affected by threats from scientific research or public recreational activities.

Disease does not currently appear to be a significant risk factor for the lesser long-nosed bat. Emerging disease issues, such as those associated with white-nose syndrome, may become more significant, however our current scientific assessment indicates that white-nose syndrome will not affect this non-hibernating species. Therefore, because lesser long-nosed bats do not hibernate, we do not anticipate that white-nose syndrome will be a significant risk factor for lesser long-nosed bats (see chapter 4 of the SSA Report (USFWS 2016).

Predation does contribute to the mortality of lesser long-nosed bats at roost sites. Likely predators include snakes, raccoons, skunks, ringtails, bobcats, coyotes, barn owls, great-horned owls, and screech owls. Specifically, barn owls have been observed preying on lesser long-nosed bats at the maternity roost at Organ Pipe Cactus National Monument for many years and snakes have been observed preying on lesser long-nosed bats in Baja California Sur, Mexico. However, at large aggregations, such as bat roosts, predation is an insignificant impact on the population. Therefore, we find that neither disease nor predation are currently or is likely in the future to affect the viability of the lesser long-nosed bat.

The current listing of the lesser long-nosed bat in the United States and the former listing of the bat in Mexico as an endangered species have provided this species with some level of protection. Outside of this, there are no laws or regulations protecting this species in Mexico. In fact, the lack of regulation related to control of vampire bats in Mexico is continuing to result in the mortality of the lesser long-nosed bat due to the lack of requirements to properly identify the target species. However, increased education and outreach is improving this situation in Mexico. In the United States, State laws and regulations provide some additional level of protection. For example, Arizona State Law in ARS Title 17 prohibits the taking of bats outside of a prescribed hunting season and, per Commission Order 14, there is no open hunting season on bats, meaning it is always illegal to take them. Provisions for special licenses to take bats and other restricted live wildlife are found in Arizona Game and Fish Commission Rule 12, Article 4 and are administered by the Arizona Game and Fish Department. However, this protection is for individual animals only, and does not apply to the loss or destruction of habitat. As discussed in the SSA report (USFWS 2016; p. 14), there is one Federal Act and one State Statute in the United States that provide some measure of protection at cave roosts. The Federal Cave Protection Act of 1988 prohibits persons from activities that “destroy, disturb, deface, mar, alter, remove, or harm any significant cave or alters free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intent of committing any act described . . .” Arizona Revised Statute 13-3702 makes it a class 2 misdemeanor to “deface or damage petroglyphs, pictographs, caves, or caverns.” Activities covered under ARS 13-3702 include “kill, harm, or disturb plant or animal life found in any cave or cavern, except for safety reasons.”

The above laws and regulations will continue to protect lesser long-nosed bats and their habitats after delisting. We have determined that these existing regulations address the most important threats to the lesser long-nosed bat as discussed in the SSA report (USFWS 2016; p. 54-61).

Ecosystems within the southwestern United States are thought to be particularly susceptible to the effects of climate change and variability (Strittholt et al. 2012, p. 104-152; Munson et al. 2012, p. 1-2; Archer and Predick 2008). Documented trends and model projections most often show changes in two variables: Temperature and precipitation. Recent warming in the southwest is among the most rapid in the nation, significantly more than the global average in some areas (Garfin et al. 2014, p. 463; Strittholt et al. 2012, p. 104-152; Munson et al. 2012, p. 1-2; Guido et al. 2009). Precipitation predictions have a larger degree of uncertainty than predictions for temperature, especially in the Southwest (Sheppard et al. 2002), but indicate reduced winter precipitation with more intense precipitation events (Global Climate Change 2009, p. 129-134; Archer and Predick 2008, p. 24). Further, some models predict dramatic changes in Southwestern vegetation communities as a result of the effects of climate change (Garfin et al. 2014, p. 468; Munson et al. 2012, p. 9-12; Archer and Predick 2008, p. 24). In the most recent assessment of climate change impacts by the Intergovernmental Panel on Climate Change (IPCC), the IPCC indicated that there would be a decrease in the number of cold days and nights and an increase in the number of warm days and warm nights which would favor frost-intolerant lesser long-nosed bat forage species like saguaro and organ pipe cacti, but may also affect the blooming phenology of those same species (IPCC 2014, p. 53). They also indicted that precipitation events would likely become more intense and that we are more likely to see climate-related extremes such as heat waves, droughts, floods, wildfires, etc. (IPCC 2014, p. 53).

The U.S. Geological Survey produced a mapping tool that allows climate change projections to be downscaled to local areas including states, counties, and watershed units. We used this National Climate Change Viewer (U.S. Geological Survey 2016) to compare past and projected future climate conditions for Pima, Santa Cruz, and Cochise counties, Arizona. The baseline for comparison was the observed mean values from 1950 through 2005, and 30 climate models were used to project future conditions for 2050 through 2074. We selected the climate parameters of April maximum temperature and August and December mean precipitation to evaluate potential effects on lesser long-nosed bat forage resources. These particular parameters were selected from those available because they represented those most likely to impact the survival and flowering phenology of individual forage species.

Similar to the more general climate change effects discussed above, the downscaled analysis also showed warming spring temperatures which could result in an early blooming period for lesser long-nosed bat forage species (USGS 2016). Precipitation changes were evaluated for changes to monsoon and winter precipitation. In line with the general climate projections, changes during the evaluated time periods were greater for winter precipitation than for monsoon precipitation. Changes projected for monsoon precipitation were minimal, but projected to be reduced by approximately one inch per 100 days for winter precipitation (USGS 2016).

The best available information indicates that ongoing climate change will probably have some effect on lesser long-nosed bat forage resources. Such effects will occur as a result of changes in the phenology (periodic biological phenomena, such as flowering, in relation to climatic conditions) and distribution of lesser long-nosed bat's forage resources. How this affects the viability of the lesser long-nosed bat population is not clear. There is much uncertainty and a lack of information regarding the effects of climate change and specific impacts to forage for this subspecies. The biggest effect to the lesser long-nosed bat will occur if forage availability gets out of sync along the “nectar trail” such that bats arrive at the portion of the range they need to meet life-history requirements (migration, mating, birthing) and there are inadequate forage resources to support that activity. If the timing of forage availability changes, but changes consistently in a way that maintains the nectar trail, this subspecies is expected to adapt to those timing changes as stated above (see chapter 4 of the SSA Report (USFWS 2016). For example, as noted earlier, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred and lesser long-nosed bats were still, ultimately, able to subsist and raise young in southwestern Arizona in this atypical year. It is likely they did so by feeding more heavily on agaves (evident by agave pollen found on captured lesser long-nosed bats) than they typically do (see additional discussion under Factor A above). Although we are still not sure to what extent the environmental conditions described in climate change predictions will affect lesser long-nosed bat forage resource distribution and phenology, we have documented that lesser long-nosed bats have the ability to change their foraging patterns and food sources in response to a unique situation, providing evidence that this species is more resourceful and resilient than may have been previously thought. We find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions.

We evaluated overall viability of the lesser long-nosed bat in the SSA report (USFWS 2016) in the context of resiliency, redundancy, and representation. Species viability, or the ability to survive long term, is related to the species' ability to withstand catastrophic population and species-level events (redundancy); the ability to adapt to changing environmental conditions (representation); and the ability to withstand disturbances of varying magnitude and duration (resiliency). The viability of this species is also dependent on the likelihood of new threats or risk factors or the continuation of existing threats now and in the future that act to reduce a species' redundancy, resiliency, and representation.

As described in the SSA report, we evaluated the viability of the lesser long-nosed bat population at two timeframes, 15 years and 50 years. The 15-year timeframe represents the time it generally takes to document the effectiveness of various research, monitoring, and management approaches that have been or are implemented related to lesser long-nosed bat conservation. Therefore, the 15-year timeframe is a reasonable period of time within which we can predict outcomes of these activities in relation to the viability of the lesser long-nosed bat population. The 50-year timeframe is related primarily to the ability of various climate change models to reasonably and consistently predict or assess likely affects to lesser long-nosed bats and their forage resources. For each of these timeframes, we evaluated three future scenarios, a best-case scenario, a moderate-case scenario, and a worst-case scenario with respect to the extent and degree to which threats will affect the future viability of the lesser long-nosed bat population. We also determined how likely it would be that each of these three scenarios would actually occur. The SSA report details these scenarios and our analysis of the effects of these scenarios, over the two timeframes, on redundancy, resiliency, and representation of the lesser long-nosed bat population.

During our decision-making process, we evaluated our level of comfort making predictions at each of the two timeframes. Ultimately, while the SSA report evaluates both timeframes, there was some discomfort expressed by decision makers for extending predictions of the future viability of the lesser long-nosed bat out to 50 years due to the uncertainty of climate change models and the difficulty of predicting what will happen in Mexico where the majority of this species' habitat occurs, but where we have less information with regard to the threats affecting the lesser long-nosed bats. In the SSA report, all three scenarios were evaluated over both time frames (USFWS 2016, p. 52-56). The evaluation results of future viability in the SSA report were identical for both timeframes (high viability), except in the worst-case scenario where, unlike the moderate- and best-case scenarios, the viability was moderate for the 15-year timeframe and low for the 50-year timeframe. For each future scenario, we describe how confident we are that that particular scenario will occur. This confidence is based on the following confidence categories: Highly likely (greater than 90 percent sure of the scenario occurring); moderately likely (70 to 90 percent sure); somewhat likely (50 to 70 percent sure); moderately unlikely (30 to 50 percent sure); unlikely (10 to 30 percent sure); and highly unlikely (less than 10 percent sure). The SSA report concluded that it is unlikely that the worst-case scenario will actually occur. The worst case scenario describes a drastic increase in negative public attitudes towards bats and lesser long-nosed bat conservation, a greater influence from white-nose syndrome, and the worst possible effects from climate change. Based on our experience and the past and ongoing actions of the public and the commitment of management agencies in their land-use planning documents to address lesser long-nosed bat conservation issues, both now and in the future in both the United States and Mexico, such drastic impacts are unlikely to occur (10 to 30 percent sure this scenario will occur). In fact, for the conditions outlined in the worst-case scenario, we find that certainty of the worst-case scenario occurring is closer to 10 percent than to 30 percent sure that this scenario would actually occur based on the commitment to conservation of this species and the adaptability of the lesser long-nosed bat. If the lesser long-nosed bat is delisted and prior to the final rule, we will confirm with our public and agency conservation partners that they will continue to coordinate and implement existing and future conservation actions related to the lesser long-nosed bat. For additional discussion related to the worst-case scenario, see the SSA report (USFWS 2016; p. 51-53). Such ongoing commitment to lesser long-nosed bat conservation has already been seen subsequent to the delisting of this bat in Mexico and our experience has been that it will also continue in the U.S. after delisting.

Although the worst-case scenario was evaluated in the SSA report, because we found that it was unlikely to actually occur, the focus of our consideration was on the scenarios that had the greatest likelihood of occurring, the best- and moderate-case scenarios, where redundancy, resiliency, and representation remain high regardless of the timeframe or scenario considered. Under the current condition for the lesser long-nosed bat, as well as in both the best-case (somewhat likely to occur) and moderate-case (moderately likely to occur) future scenarios, redundancy, resiliency, and representation of the lesser long-nosed bat population remain high and the viability of the subspecies is maintained (USFWS 2016, p. 64-66).

Section 4 of the Act and its implementing regulations, 50 CFR part 424, set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. For species that are already listed as endangered or threatened, the analysis of threats must include an evaluation of both the threats currently facing the species, and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections. We may delist a species according to 50 CFR 424.11(d) 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 conclude that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act.

Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is rigorous enough to draw statistically calculable conclusions about the trend of the population, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored based on the professional judgment of biologists and others involved in these efforts. The total number of bats currently documented is many times greater than the total number of bats documented at the time of listing in 1988. At the time of listing, there were estimated to be less than 500 lesser long-nosed bats in the United States; current estimates are greater than 100,000. Rangewide, at the time of listing, it was estimated that there were less than 1,000 lesser long-nosed bats. Current rangewide estimates are approximately 200,000 lesser long-nosed bats. While this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population. This better information is related to the species' population and the number of roosts, and its distribution. Better information and increased efforts related to habitat protection (identification of roost sites and forage resources in planning efforts, implementation of protective measures for roosts and forage resources, increased awareness of habitat needs, etc.) have occurred and are planned to be implemented in the future, regardless of the listing status of this subspecies. This increased level of information and conservation, combined with the current state of its threats allow us to conclude that the subspecies is not in danger of extinction and is not expected to become endangered in the foreseeable future. Our thorough evaluation of the available data for occupancy, distribution, and threat factors, as well as the opinions of experts familiar with this subspecies, indicates a currently viable population status with a stable to increasing trend.

Predicting the future viability of the lesser long-nosed bat is somewhat more difficult than for species that occur in discrete, mostly consistent habitats (ponds, springs, specific soil types, etc.). The lesser long-nosed bat population is fluid and constantly adapts to changing environmental conditions over a large, bi-national range. Lesser long-nosed bat roost sites are discrete and consistent, but the lesser long-nosed bat may use these roost sites in a changing and adaptable manner to take advantage of ephemeral and constantly changing forage resources with both seasonal and annual differences of occurrence. Therefore, observations of occupancy and numbers of bats using these roosts may not be a complete or accurate representation of the status of the subspecies across its range. However, the information regarding the status of the lesser long-nosed bat population is much more accurate and complete than it was as the time of the 1988 listing rule.

The future viability of this subspecies is dependent on a number of factors. First, an adequate number of roosts in the appropriate locations is needed. As detailed in the SSA report, adequate roosts of all types (maternity, mating, transition, and migratory) currently exist and are likely to exist into the foreseeable future (USFWS 2016; p. 8-14). Second, sufficient available forage resources are located in appropriate areas, including in proximity to maternity roosts and along the “nectar trail” used during migration. The discussion above and the SSA report detail our analysis and determination that forage resources are adequate and that the lesser long-nosed bat is likely to adapt to any changes in forage availability in the future (USFWS 2016; p. 15-20). In addition, the SSA report analyses the contribution of current and future management of threats to the subspecies' long-term viability. The future viability of the lesser long-nosed bat will also depend on continued positive human attitudes towards the conservation of bats, implementation of conservation actions protecting roost sites and forage and migration resources, and implementation of needed research and monitoring will inform adaptive management that will contribute to the future viability of the lesser long-nosed bat population. The SSA report discusses the improved status of these issues across the range of the lesser long-nosed bat in much more detail (USFWS 2016; p. 43-46). The results of the SSA also indicate that the status of the lesser long-nosed bat has further improved in the years since the 2007 5-Year Review (FWS 2007).

Based on the analysis in the SSA report for the lesser long-nosed bat (USFWS 2016 and summarized above, the lesser long-nosed bat does not currently meet the Act's definition of endangered because it is not in danger of extinction throughout all of its range. Additionally, the lesser long-nosed bat is not a threatened species because it is not likely to become endangered in the foreseeable future throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. Having determined that the lesser long-nosed bat is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the lesser long-nosed bat is in danger of extinction or likely to become so. We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578; July 1, 2014). The final policy states that: (1) If a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout a significant portion of its range, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.

The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become endangered in the foreseeable future, throughout all of its range, we list the species as an endangered species or threatened species, and no SPR analysis will be required. If the species is neither in danger of extinction, nor likely to become so throughout all of its range, as we have found here, we next determine whether the species is in danger of extinction or likely to become so throughout a significant portion of its range. If it is, we will continue to list the species as an endangered species or threatened species, respectively; if it is not, we conclude that listing the species is no longer warranted.

When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether substantial information indicates that: (1) The portions may be “significant”; and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to have a greater risk of extinction, and thus would not warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions would not warrant further consideration.

We identified portions of the lesser long-nosed bat's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the current range of the lesser long-nosed bat, some distinctions can be made between Mexico and the United States (international border, vegetation communities, etc.). While these geographic distinctions may be significant, our analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in any geographic region within the range of the lesser long-nosed bat given that factors such as roost sites, forage resources, and migration pathways are well distributed across the entire range and that the status of the species is stable or increasing in both the United States and Mexico, with conservation actions being implemented to address ongoing threats. Therefore, we have not identified any portion of the range that warrants further consideration to determine whether they are a significant portion of its range.

We also evaluated representation across the lesser long-nosed bat's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Ramirez (2011) investigated population structure of the lesser long-nosed bat through DNA sampling and analysis and reported that combined results indicated sampled individuals belong to single population including both the United States and Mexico. Consequently, individuals found in the northern migratory range (United States) and in Mexico should be managed as a single population.

Our analysis indicates that there is no significant geographic portion of the range that is in danger of extinction or likely to become so in the foreseeable future. Therefore, based on the best scientific and commercial data available, no portion warrants further consideration to determine whether the species may be endangered or threatened in a significant portion of its range.

We have determined that none of the existing or potential threats cause the lesser long-nosed bat to be in danger of extinction throughout all or a significant portion of its range, nor is the subspecies likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; or (3) the original scientific data used at the time the species was classified were in error. On the basis of our evaluation, we conclude that, due to recovery, the lesser long-nosed bat is not an endangered or threatened species. We therefore propose to remove the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h).

This proposed rule, if made final, would revise our regulations at 50 CFR 17.11(h) by removing the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this subspecies. Federal agencies would no longer be 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 lesser long-nosed bat. Because no critical habitat was ever designated for the lesser long-nosed bat, this rule would not affect 50 CFR 17.95. State laws related to the lesser long-nosed bat would remain in place and be enforced and would continue to provide protection for this subspecies. State and Federal laws related to protection of habitat for the lesser long-nosed bat, such as those addressing effects to caves and abandoned mines, as well as protected plant species such as columnar cacti and agaves, would remain in place and afford lesser long-nosed bat habitat some level of protection.

Section 4(g)(1) of the Act requires the Secretary of Interior, through the Service and in cooperation with the States, to implement a system to monitor for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain populations without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

We will coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to develop and implement an effective post-delisting monitoring (PDM) plan for the lesser long-nosed bat. The PDM plan will build upon current monitoring techniques and research, as well as emerging technology and techniques. Monitoring will assess the species numbers, distribution, and threats status, as well as ongoing management and conservation efforts that have improved the status of this subspecies since listing. The PDM plan will identify, to the extent practicable and in accordance with our current understanding of the subspecies' life history measurable thresholds and responses for detecting and reacting to significant changes in the lesser long-nosed bat's populations, distribution, and persistence. If declines are detected equaling or exceeding these thresholds, the Service, in combination with other PDM participants, will investigate causes of these declines, including considerations of habitat changes, substantial human persecution, stochastic events, or any other significant evidence. The result of the investigation will be to determine if the lesser long-nosed bat warrants expanded monitoring, additional research, additional habitat protection, or resumption of Federal protection under the Act. The draft PDM plan will be made available for public comment in a future publication in the Federal Register and will be finalized concurrent with finalization of this rule.

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

(1) Be logically organized;

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

(3) Use clear language rather than jargon;

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

(5) Use lists and tables wherever possible.

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

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), 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 have and will solicit information from Native American Tribes during the comment period to determine potential effects on them or their resources that may result from the proposed delisting of the lesser long-nosed bat, and we will fully consider their comments on the proposed rule submitted during the public comment period.

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 document are the staff members of the Arizona Ecological Services Field Office, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

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

Information Requested

Any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular, we seek comments concerning the following:

(1) Reasons why we should or should not reclassify Echinocereus fendleri var. kuenzleri under the Act (16 U.S.C. 1531 et seq.).

(2) New biological or other relevant data concerning any threat (or lack thereof) to this plant and existing regulations that may be addressing these or any of the below threats.

(3) New information concerning the population size or trends of E. fendleri var. kuenzleri.

(4) New information on how E. fendleri var. kuenzleri responds to wildland and prescribed fire.

(5) New information on the current or planned activities within the range of E. fendleri var. kuenzleri that may adversely affect or benefit the plant.

(6) New information or data on the projected and reasonably likely impacts to E. fendleri var. kuenzleri or its habitat associated with climate change.

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

Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.

You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES. Please note that comments posted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission.

If you mail or hand-deliver hardcopy comments that include personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on http://www.regulations.gov.

In addition, comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection in two ways:

(1) You can view them on http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2016-0137, which is the docket number for this rulemaking.

(2) You can make an appointment, during normal business hours, to view the comments and materials in person at the U.S. Fish and Wildlife Service's New Mexico Ecological Services Field Office (see ADDRESSES).

Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposed rule, if requested. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by the date shown in DATES. We will schedule public hearings on this proposal, if any are requested, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before the first hearing.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. A thorough review of information that we relied on in preparing this proposed rule—including information on taxonomy, genetics, life-history, ecology, population distribution and abundance, and potential threats from our recent 5-year review (Service 2016)—is available at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137. The purpose of peer review is to ensure that decisions are based on scientifically sound data, assumptions, and analyses. A peer review panel will conduct an assessment of the proposed rule, and the specific assumptions and conclusions regarding the proposed reclassification from endangered to threatened (i.e., “downlisting”). This assessment will be completed during the public comment period.

We will consider all comments and information we receive during the comment period on this proposed rule as we prepare the final determination. Prior to issuing a final rule on this proposed action, we will take into consideration all additional information and comments that we receive. Such information may lead to a final rule that differs from this proposal.

Found on slopes of sandy gravel and amid rocky outcrops in southern New Mexico, Echinocereus fendleri var. kuenzleri is a very small member of the cactus family (Cactaceae) that grows in Great Plains grassland, oak woodland, or pinon-juniper woodland within elevations of 1,600 to 2,000 meters (5,200 to 6,600 feet). Individuals may be single stemmed or branched; when branched, the stems are usually fewer than four, but may number as many as eight (Service 1985, p. 3). Stems are normally short-conical, about 15 centimeters (cm) (6 inches (in)) long and 10 cm (4 in) wide, with 9 to 12 ribs with prominent tubercles from which the spine clusters originate, and central spines are usually absent (Castetter et al. 1976, pp. 76-82, Service 1985, p. 3). Useful characteristics to distinguish the taxon from other cacti within its range are its few, contorted, white, chalky-textured spines and large, magenta flowers (Service 1985, p. 4). Fruits are bright red when mature, with black seeds. The cactus flowers in late May and fruits ripen in July, with flowering occurring after only when a cactus reaches 4 to 5 years of age. Like other rare cacti related to this genus, it is believed that E. fendleri var. kuenzleri is an obligate outcrosser (self-incompatible) that requires pollination for sexual reproduction (Tepedino 1998). Little is known about the pollinators of this cactus, but it most likely involves a range of nectar- seeking insects (Ferguson 1989, pp. 217-224).

When we originally listed this cactus in 1979, we were aware of only a single population of approximately 200 plants located on the east slope of the Sacramento Mountains in New Mexico (Chaves and Otero Counties) (44 FR 61924; October 26, 1979). When the recovery plan was adopted in 1985, the plant was known to exist in two locations with a total of fewer than 500 plants. It is now reasonable to estimate, based on recent surveys, that several thousand cacti exist within the known range of this taxon, with approximately 3,300 individuals observed within 11 known population centers since 1981, when more intensive surveys were initiated (Service 2005, entire; 2016, entire). Since 1979, the range of this plant has also been extended 10 miles to the west in Otero County, 40 miles north in Lincoln County (DeBruin 1993), and approximately 100 miles to the southeast (from its northwestern-most location in Lincoln County) into the Guadalupe Mountains of Eddy County. Numerous new locations within this range place it within the U.S. Department of Agriculture (USDA) -Forest Service and U.S. Department of the Interior (USDI)- Bureau of Land Management (BLM) jurisdictions as well on private and State lands. It has also been found on the west side of the Sacramento Mountains in Lincoln County (Knight 1999), and on USDA-Forest Service and USDI-BLM lands in the northern Guadalupe Mountains in Eddy and Otero Counties (Chauvin et al. 2001, Sivinski 1996). Populations are not continuous within this range, but are patchy, scattered, and rare.

Some have questioned the taxonomic status of Echinocereus fendleri var. kuenzleri, by considering it to be a synonym of the common and widespread E. fendleri var. fendleri (Anderson 2001, Zimmerman and Parfitt 2003). However, other assessments by local experts acknowledged that at the northwest edge of the cactus' range, within one of the 11 known populations, E. fendleri var. kuenzleri individuals occur along with the variety E. fendleri var. fendleri and intergradations between both varieties can be found (Rare Plant Technical Council of New Mexico 2005, Marron Associates 2000, entire; Baker 2007, entire). However, because the remaining 10 populations located more toward the center of E. fendleri var. kuenzleri's known distribution exhibit consistently reliable traits unique to this variety, the cactus warrants future study to verify a change in its taxonomic status (Rare Plant Technical Council of New Mexico 2005). The full taxonomic history can be found in the recovery plan (Service 1985) with the most recent updates in the 5-year review (Service 2016, entire). Recent taxonomic review of the varieties of Echinocereus fendleri retained kuenzleri as a variety (Felix et al. 2014). Because of the limited area of introgression and the identification of consistently reliable traits unique to this variety, we do not believe a taxonomic change is warranted at this time.

For a detailed discussion of Echinocereus fendleri var. kuenzleri's description, taxonomy, life history, habitat, soils, distribution, and abundance, and a discussion of the role of fire in the taxon's regeneration, please see the recovery plan (Service 1985, entire) and the 5-year reviews (Service 2005, entire; 2016, entire) available for review at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137.

We proposed to list this plant, with the scientific name Echinocereus hempelli, as an endangered species under the Act on June 16, 1976 (41 FR 24524), because of threats from the great demand by private and commercial collectors, road maintenance and improvements, cattle grazing, and real estate development. We published a final rule listing the plant, with the scientific name Echinocereus kuenzleri, as an endangered species in the Federal Register on October 26, 1979 (44 FR 61924). We finalized a recovery plan for the plant, with the scientific name Echinocereus fendleri var. kuenzleri, in March 1985 (Service 1985).

Under the Act, we maintain the Lists of Endangered and Threatened Wildlife and Plants at 50 CFR 17.11 (for wildlife) and 17.12 (for plants) (Lists). We amend the Lists by publishing final rules in the Federal Register. Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. Section 4(c)(2)(B) requires that we determine: (1) Whether a species no longer meets the definition of endangered or threatened and should be removed from the Lists (delisted), (2) whether a species listed as endangered more properly meets the definition of threatened and should be reclassified to threatened (“downlisted”), or (3) whether a species listed as threatened more properly meets the definition of endangered and should be reclassified to endangered (“uplisted”). In accordance with 50 CFR 424.11(d), using the best scientific and commercial data available, we will delist a species if the data substantiate that the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is considered extinct; (2) the species is considered recovered; or (3) the original data available when the species was listed, or the interpretation of such data, were in error. On July 21, 2004, we published a notice (69 FR 43621) announcing that we were conducting a 5-year review of the status of E. fendleri var. kuenzleri under section 4(c)(2) of the Act. In that notice, we requested that the public provide us any new information concerning this plant. The 5-year review, completed on June 7, 2005 (Service 2005), resulted in a recommendation to change the status of this cactus from endangered to threatened. The 2005 and 2016 5-year reviews for E. fendleri var. kuenzleri are available on the Service's Environmental Conservation Online System (ECOS) (https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=Q1VW).

On July 16, 2012, we received a petition dated July 11, 2012, from The Pacific Legal Foundation, Jim Chilton, the New Mexico Cattle Growers' Association, New Mexico Farm & Livestock Bureau, New Mexico Federal Lands Council, and Texas Farm Bureau requesting the Service to reclassify Echinocereus fendleri var. kuenzleri from endangered to threatened. The petition was based on the analysis and recommendations contained in the most recent 5-year review for this taxon. On September 9, 2013 (78 FR 55046), we published in the Federal Register a 90-day finding for the 2012 petition to reclassify E. fendleri var. kuenzleri. In our 90-day finding, we determined the 2012 petition provided substantial information indicating the petitioned actions may be warranted, and we initiated a status review for E. fendleri var. kuenzleri. This proposed downlisting rule constitutes the 12-month finding and our 5-year status review for E. fendleri var. kuenzleri.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List. However, revisions to the List (adding, removing, or reclassifying a species) must reflect determinations made in accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the Secretary determine whether a species is endangered or threatened (or not) because of one or more of five threat factors. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Therefore, recovery criteria should indicate when a species is no longer an endangered species or threatened species because of any of the five statutory factors.

Thus, while recovery plans provide important guidance to the Service, States, and other partners on methods of minimizing threats to listed species and measurable objectives against which to measure progress towards recovery, they are not regulatory documents and cannot substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of or remove a species from the Federal List of Endangered and Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of the best scientific and commercial data then available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

In 1985, we finalized a recovery plan for E. fendleri var. kuenzleri but it provides no delisting criteria (Service 1985). The recovery plan states that E. fendleri var. kuenzleri could be reclassified to threatened status when existing natural populations are increased to approximately 5,000 individual plants and when that population level is maintained for a period of 5 consecutive years (downlisting criterion 1) (Service 1985, p. iii). The second downlisting criterion is based on the need for the Service to develop policy for propagated cacti and the introduction of 10,000 artificially propagated E. fendleri var. kuenzleri into the commercial market to counter the threat at that time of collection.

The first criterion was intended to address the point at which imminent threats to the plant had been ameliorated so that the populations were no longer in immediate risk of extirpation. Estimated abundance of individuals in all populations has changed over time, from approximately 200 individuals at the time of listing in 1979, to multiple populations with more than 3,300 individuals (Service 2005, p. 4; Service 2016, pp. 3-4). We believe there are likely more than 3,300 individuals across the range of E. fendleri var. kuenzleri because the difficulty in locating nonflowering plants and the lack of survey efforts in the entire suitable habitat limit the ability to observe many of these cacti potentially growing in areas of suitable habitat.

Currently, E. fendleri var. kuenzleri occurs in 11 unique population clusters defined by occupied locations separated by several miles of unsuitable or unoccupied habitats. According to data maintained by Natural Heritage New Mexico, approximately 97 percent of known E. fendleri var. kuenzleri individuals occur on lands managed by either the USDA-Forest Service (FS) or USDI-BLM (2016). There are two populations in the Guadalupe Mountains (mid-range and north range), eight populations in the Sacramento Mountains (north of Carrizozo), and one population in the lower hills of the Guadalupe Mountains, east of the Sacramento range (Service 2005, p. 5; Service 2016, pp. 3-4). Based on this information, this plant is much more numerous than originally determined and is distributed over a broader area.

The second criterion is for the Service to develop policy for commercial propagation and to introduce 10,000 propagated individuals into the commercial market. Echinocereus fendleri var. kuenzleri is now readily available on the open market from commercial growers with Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) certificates (see https://www.cites.org for additional information on CITES). Local populations, especially near the type locality (location where the species was first identified), may continue to be impacted by occasional poaching from growers and hobbyists; however, at this time, this taxon is unlikely to be seriously threatened in most of its range by cactus collectors, because of availability from commercial growers. Thus, collection is no longer considered a major threat to this cactus and this second criterion is no longer relevant.

Various studies have occurred since development of the recovery plan that aid in our understanding of the status of Echinocereus fendleri var. kuenzleri. For example:

• Recent surveys indicate that E. fendleri var. kuenzleri is broadly distributed within its range, plant density can vary from location to location, and populations may be more dynamic than they were expected to be. For example, at Ft. Stanton, the population demonstrated a shift from inside of the survey plot to establishment outside of the survey plot. (Chauvin et al. 2012, entire; Muldavin et al. 2013, entire).

• May et al. (2008, p. 170) found E. fendleri var. kuenzleri was distributed randomly with respect to other vegetation and did not support the hypothesis that it is associated with vegetation that provides thermal protection.

• Both Baker (2007, entire) and Felix et al. (2014, p. 64) found morphological characters than differentiate this taxon from other similar taxa.

• Sivinski (2007, p. 93) found that wildfire can cause high mortality in this cactus, and it was slow to recover, with first flowering occurring at between four to five years after seedlings germinated.

• May (2006, entire) and Wester and Britton (2007, p. 11) found that prescribed fire had little effect on E. fendleri var. kuenzleri under low fuel loads and that prescribed, low intensity fire could be used to lower fuel loads, reducing the risk of catastrophic wildfires.

These and other data that we have analyzed indicate that most threats identified at listing and during the development of the recovery plan are reduced in areas occupied by E. fendleri var. kuenzleri and that the status of the cactus has improved, primarily due to finding additional populations over a broader range. However, more recent threats associated with fire regime alteration, the lack of a comprehensive habitat management plan, drought, and climate change effects may impede the plant's ability to recover.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species on, reclassifying species on, or removing species from the Lists of Endangered and Threatened Wildlife and Plants. The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered species or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or man-made factors affecting its continued existence. A species may be reclassified on the same basis.

Determining whether the status of a species has improved to the point that it can be reclassified from endangered to threatened (“downlisted”) requires consideration of whether the species is endangered or threatened because of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal of the Act's protections.

A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists. For the purposes of this analysis, we first evaluate the status of Echinocereus fendleri var. kuenzleri throughout all of its range, then consider whether this cactus is in danger of extinction or likely to become so in any significant portion of its range.

At the time of listing, the primary threats to E. f. var. kuenzleri were private and commercial collection, road improvement and maintenance, real estate development, and livestock grazing (44 FR 61924; October 26, 1979). By the time the recovery plan was developed in 1985, the same threats were still considered relevant (Service 1985, pp. 8-12). Subsequently, we conducted 5-year status reviews that included an analysis of factors that affect the plant (Service 2005, pp. 12-14; Service 2016, p. 5). The 2005 5-year status review found that the threat of habitat loss from road improvement and maintenance and real estate development (Factor A), and a direct threat from commercial collection (Factor B) have decreased since the time of listing, and are no longer considered significant threats. Livestock grazing (Factor C), continues to be a threat by trampling, only if areas are improperly managed and cattle are aggregated in areas where the cacti are growing. The 2005 review also identified an additional threat of fire based on the alteration of the natural fire regime (Service 2005). The 2016 5-year status review added the threats of drought and effects due to climate change because drought has impacted several populations and the long-term trend in the range of the cactus is one of increased temperatures and drying (Service 2016).

Recommendations to address the impacts of these emerging threats, including a long-term monitoring plan for Echinocereus fendleri var. kuenzleri, should be developed to further understand how these threats affect the long-term viability of the taxon.

Habitat loss by road construction and maintenance and through residential development is negligible in the area occupied by Echinocereus fendleri var. kuenzleri. Where road construction has occurred in occupied areas, individual cacti have been avoided or mitigation has been provided (Marron Associates 2013, entire). If this proposed rule is adopted, this avoidance would likely continue because Echinocereus fendleri var. kuenzleri would remain listed as threatened. Residential development has not been a threat due to the preference of the plant to grow in dry, rugged locations not favored for development. More importantly, the majority of the populations discovered after the recovery plan was written are found on federally managed lands that are not likely to be developed.

Grazing at low intensity stocking rates can be compatible with the presence of Echinocereus fendleri var. kuenzleri, primarily because the cactus tends to be found in rocky outcrops amid rugged locations, although minimal trampling can occur. Areas on USDA-Forest Service and USDI-BLM lands have fenced out livestock to effectively protect the cactus in strategic locations. Additionally, federal grazing allotment permits are evaluated for renewal at least every 10 years and grazing impacts analysis is part of the permit review. Permits can be reviewed sooner to meet management goals. During this review, livestock numbers can be adjusted to achieve conservation goals. Each range improvement (e.g., water pipeline, fence, livestock water) on Federal surface is evaluated for impacts to special status species including endangered and threatened species. Each agency uses project-specific conservation measures to avoid impacts to E. fendleri var. kuenzleri.

As mentioned previously, the collection of Echinocereus fendleri var. kuenzleri is uncommon at this time, due to the legal availability of the cactus in the commercial market. Certified commercial growers have Echinocereus fendleri var. kuenzleri readily available on the open market in accordance with CITES.

The following sections provide a summary of the current threats impacting Echinocereus fendleri var. kuenzleri now and those that may occur in the foreseeable future. These threats include alteration of the fire regime (Factors A and E), drought (Factors A and E), effects due to climate change (Factors A and E), and the effect of any existing regulatory mechanisms (Factor D) or conservation efforts that are ameliorating these impacts.

Both arid grasslands and pinyon-juniper savanna, where E. f. var. kuenzleri occurs, had short-interval fire frequency historically (Payson et al. 2000, p. 122; Gebow and Halverson 2005, p. 4). The fire frequency interval has been extended by fire suppression and grazing (Payson et al. 2000, pp. 126, 132; Gebow and Halverson 2005, p. 4). Livestock grazing reduces the total amount of fine fuels (grasses) that would otherwise carry wild fire across a landscape, thus, extending the period between hotter, more damaging fire events. Use of prescribed fire as a management tool has been growing and is currently implemented to restore grasslands and savannas that have been impacted by historical fire suppression and grazing (Knapp et al. 2009, p. 1). Fires, whether wild or prescribed, within the grassland habitats of Echinocereus fendleri var. kuenzleri can have impacts to the cactus (Sivinski 2007, entire), such as slowing recovery and lessening the cactus' ability to withstand a short-interval fire frequency. The cactus typically undergoes about four to five years of slow growth before individuals are able to flower and set seed, so recolonization after a fire can take many years (Sivinski 2007, p. 4). However, Wester and Britton (2007, p. 11) found no evidence that the plant was negatively affected by prescribed fire, although high fuel loads did increase individual mortality. This suggests that prescribed burns in Echinocereus fendleri var. kuenzleri habitat could be designed to remove fuel loads without causing direct mortality associated with wildfire (May 2006, p. 44). While we originally believed that fire would negatively impact the Echinocereus fendleri var. kuenzleri, we now believe that active management, including the use of low intensity prescribed fire at longer frequencies, could restore the landscape to a natural fire frequency interval, reducing the likelihood of catastrophic wild fires, and thus, reducing impacts on the cactus when fire does occur. Because the cactus is capable of reproducing from seed, but reestablishment of populations may take considerable time, fire frequencies between 25 and 50 years have been recommended (Sivinski 2007, Muldavin 2012) to achieve the best population sustainability. A comprehensive habitat management plan should be developed to ensure that the use of fire is coordinated to optimize conditions for Echinocereus fendleri var. kuenzleri.

During 11 of the last 15 years (2001-2015), there has been moderate to exceptional drought conditions in the area where Echinocereus fendleri var. kuenzleri occurs, with 10 percent of the time in exceptional drought (National Drought Mitigation Center 2015, Four County Data). The 2002-2003 drought spanned all of southwestern North America and was anomalously dry with unusually high temperatures (Breshears et al. 2005, pp. 15, 144); similar conditions occurred in 2011-2013.

Echinocereus fendleri var. kuenzleri has likely experienced and rebounded from periods of drought in the past. However, should substantial effects due to climate change materialize with increased severity and frequency of drought, it would likely reduce the long-term survivorship of this cactus. Drought is also directly related to Echinocereus fendleri var. kuenzleri population health with regard to reproduction and establishment. As with many cactus species, seed germination and seedling survival is dependent on precipitation (Jordan and Nobel 1981, p. 905). Little is known about the Echinocereus fendleri var. kuenzleri seedbank. Even if seedbanks exist and persist, adequate precipitation during the seedling's first year of growth is essential for survival (Roller 1996a, p. 38). In studies of seed germination in similar cacti, Roller (1996a, p. 77) found that on average 88 percent of all seed produced during the summer monsoon season germinated; however, only a small portion of the seedlings survived. Surveys show few seedlings and young juvenile plants among the Echinocereus fendleri var. kuenzleri population survive (e.g. Ecosphere Environmental Services Inc. 1995, pp. 17-21; Schmalzel 2000d, p. 5; Baker 2011, pp. 5-7). Heat stress in adult cacti is minimal compared to other plant species, as they are able to survive heat stress due to both morphology and metabolism (Smith et al. 1984, pp. 647, 650; Wahid et al. 2007, p. 199). Extreme temperatures can, however, negatively impact seedling survival in many desert-adapted plants, and drought coupled with high temperatures lessens temperature tolerance in seedlings (Nobel 1984, pp. 310, 316). Finally, plants that are already stressed from prolonged drought are more susceptible to insect attack and disease. Without sufficient monitoring in place to assess Echinocereus fendleri var. kuenzleri's demographic responses and population trends, the severity of the threat of drought can only be surmised based on other cacti and other drought research.

Based on the unequivocal evidence of warming of the earth's climate from observations of increases in average global air and ocean temperatures, widespread melting of glaciers and polar ice caps, and rising sea levels recorded in the Intergovernmental Panel on Climate Change Report (IPCC 2007a, entire; 2013, entire), effects due to climate change are now a consideration for Federal agency analysis (Government Accounting Office 2007, entire). The Service will incorporate climate change into our decision making under the Act (Service 2010, entire). The earth's surface has warmed by an average of 0.74 degrees Celsius (°C) (1.3 degrees Fahrenheit (°F)) during the 20th century (IPCC 2007b, p. 30). The IPCC (2013, p. 7) projects that there will very likely be an increase in the frequency of hot extremes, heat waves, and heavy precipitation events as a result of climate change.

This global climate information has been downscaled to our region of interest, and projected into the future under two different scenarios of possible emissions of greenhouse gases (Alder and Hostetler 2014, p. 2). Climate projections for the cactus area include a 5 to 6 percent increase in maximum temperature (up to 4 °C (7.2 °F)), an 11 percent decrease in precipitation, and a 25 percent increase in evaporative deficit over the next 25 years (National Climate Change Viewer, Four County Data, http://www2.usgs.gov/climate_landuse/clu_rd/nccv/viewer.asp, accessed May 15, 2016).

Effects due to climate change also include an increase in atmospheric carbon dioxide, which is commonly associated with increased temperatures and the greenhouse effect. This increased carbon dioxide directly affects plant photosynthesis (Huxman and Scott 2007, p. 28). At the plant level, adapting to drought involves the ability to balance carbon sequestration (the uptake and storage of carbon) and carbon respiration (efflux back into the atmosphere), while also maintaining sustainable evapotranspiration rates (Huxman and Scott 2007, p. 28). Adaptation would also require a plant to change its phenology (timing of life cycle events) to coincide successfully with extreme shifts in temperature, precipitation, and soil moisture (Walther et al. 2002, p. 389), which are all part of the evapotranspiration equation. The potential for rapid climate change, which is predicted for the future, could pose significant challenges for plants because they may not be able to adjust their phenology or photosynthetic mechanisms quickly enough.

Cacti have a unique photosynthetic pathway referred to as crassulacean acid metabolism (CAM), which is most effective in low soil moisture, intense sunlight, and high daytime temperature conditions, and is considered to be a desert adaptation (Nefzaoui et al. 2014, p. 121). CAM plants may have an advantage under these drier condition scenarios due to the effects of climate change (Reyes-Garcia and Andrade 2009, p. 755). If atypical cactus mortality occurs, this could be evidence that a climatic severity threshold may have been crossed even for this well-adapted CAM plant.

Munson et al. (2013, p. 2,030) forecasts declines in vegetative cover including cacti in Chihuahuan Desert habitats due to climate change. This is because growing seasons are becoming longer and warmer and in many regions (Kunkel 2013, p. 1) including the Southwest (Cayan et al. 2001, p. 399; Easterling 2002, p. 1329) due to the effects of climate change. This trend of longer and warmer growing seasons is projected to continue in the current climate change assessments. Earlier soil moisture stress would result in decreased flowering and reproduction for Echinocereus fendleri var. kuenzleri. Based on the limited distribution of this cactus, we consider drought and climate change an ongoing, yet not imminent, threat to Echinocereus fendleri var. kuenzleri.

When stressors occur together, one may exacerbate the effects of another, causing effects not accounted for when stressors are analyzed individually. Synergistic or cumulative effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of Echinocereus fendleri var. kuenzleri populations. Livestock grazing interacts with the effect of natural fire frequency within Echinocereus fendleri var. kuenzleri habitats. Removal of fine fuels by grazing animals reduces the ability of a fire to start and carry through the landscape. Land managers have in the past followed an aggressive wildfire suppression program. The result is a disruption of the natural fire regime and an increase of woody vegetation in grassland and savanna habitats. Land managers presently see the need to reintroduce low intensity fire into these habitats for the purpose of restoring grasslands and increasing forage for livestock production. Impacts of these interacting processes to E. fendleri var. kuenzleri can be variable, and will need to be studied and management will be needed to provide the best outcome for the cactus.

Another threat combination can occur between drought, climate change effects, and predation. Although predation has not been a monitored factor for Echinocereus fendleri var. kuenzleri, in the case of other native small cacti, evidence of increased herbivory of adult cacti and seedlings by insect and mammalian predators has been observed during drought, most likely due to increases in thirst and decreases in other available forage. Rodents consume cacti for water, especially in times of drought (Riegel 1941, p. 96; Orr et al. 2015, p. 1058). Herbivory of cacti can also increase following damage to protective spines, such as post-fire. The rate of insect herbivory may increase due to warmer winters in recent decades (Rutman 2007, p. 6). Cacti already stressed from prolonged drought are more susceptible to insect attack and disease, which can cause declines in cactus populations.

Alterations to the fire regime, including implementation of agency guidance to suppress wildland fires and changes to livestock grazing strategies, are likely the most immediate threatening factors to Echinocereus fendleri var. kuenzleri at this time. Staff at BLM and Fort Stanton are actively managing to keep fire from directly impacting Echinocereus fendleri var. kuenzleri individuals during prescribed burns. They are also implementing projects to remove pinyon and juniper trees thereby reducing heavy fuel loads. This management is expected to continue into the future. Increased emphasis on prescribed fire could mimic the natural historical fire regime and reduce the likelihood of damaging wildland fire in heavy fuel load areas. A comprehensive management plan that would guide standardized monitoring and address protection of the cactus for future prescribed fire programs may best be implemented after a species status assessment is conducted for E. f. var. kuenzleri, when more collaborators combine ideas of best adaptive management. This management plan will prove useful in addressing the remaining threats to the cactus.

The effects of climate change may cause extended periods of drought and alter blooming seasons, thus reducing the chances of successful reproduction cycles. Due to the rugged locations of occupied habitats, impacts from surface development (road building and maintenance, urban development) are not considered major threats to the existence of Echinocereus fendleri var. kuenzleri. Collection of Echinocereus fendleri var. kuenzleri is no longer considered a major threat due to successful propagation in legal cactus trade and commercial availability of this cactus. In addition, taxonomic uncertainties have been resolved at a regional level.

The determination of whether a species is endangered or threatened under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of this plant and assessed the five factors to evaluate whether Echinocereus fendleri var. kuenzleri is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by this cactus. We reviewed information presented in the 2012 petition, information available in our files and gathered through our 90-day finding in response to this petition, and other available published and unpublished information.

In considering factors that might constitute threats to a species, we must look beyond the exposure of the species to a factor to evaluate whether the species responds to the factor in a way that causes impacts to the species or is likely to cause impacts in the future. If a species responds negatively to such exposure, the factor may be a threat and, during the status review, our aim is to determine whether impacts are or will be of an intensity or magnitude to place the species at risk. The factor is a threat if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. In sum, the mere identification of factors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors act on the species to the point that the species meets the definition of an endangered or threatened species.

The known range of Echinocereus fendleri var. kuenzleri consisted of a single population of approximately 200 individuals when we listed it as endangered. As such, it was perceived to be upon the brink of extinction. The most serious threat to such a small population would be the elimination of plants in the wild by commercial and hobbyist collectors. Subsequent information on the range and abundance of this cactus has significantly altered this perception. In reality, Echinocereus fendleri var. kuenzleri exists across a much broader geographic range in several populations. Increased survey efforts and habitat model development have resulted in more occupied habitat identified, leaving open the potential of finding even more Echinocereus fendleri var. kuenzleri plants. Protection under the Act and CITES has curtailed unauthorized take by collectors. Dry conditions and remote growing locations of Echinocereus fendleri var. kuenzleri have lessened the impacts of land use within occupied habitats, and most of these habitats have been determined to exist on Federal lands. Thus, threats of collection and development have been diminished. Therefore, Echinocereus fendleri var. kuenzleri is no longer in danger of extinction now. Although now known to be more widespread and abundant than previously thought, Echinocereus fendleri var. kuenzleri remains a relatively rare plant taxon. It occurs only on the lower slopes of Sacramento and Guadalupe Mountain ranges and is an uncommon plant within this limited geographic range. Populations are generally small and scattered, and some habitat that appears suitable is presently unoccupied. Threats remain related to its limited population numbers and distribution, to wild or prescribed fires, and to trampling and erosion from livestock grazing and fire. However, because nearly all of known occupied habitat falls on lands managed by Federal agencies, conservation of the species will continue by addressing potential fire and grazing threats.

The recently published taxonomic determinations of Echinocereus fendleri var. kuenzleri status represent broad-brushed approaches that may not adequately address local variation. To establish the taxonomic status of Echinocereus fendleri var. kuenzleri, surveys are needed to determine the extent of interbreeding at the northern edge of the range and molecular research is needed to determine the genetic variation within E. fendleri. The controversy and lack of definitive data regarding the taxonomy of Echinocereus fendleri var. kuenzleri, combined with the limited distribution and actual population numbers, preclude a recommendation to delist based on taxonomic revision at this time.

As a result of recent information, we know that there are 11 known populations of Echinocereus fendleri var. kuenzleri compared to only 2 that were known at the time of listing and these individuals are spread across a 100 miles of rocky, isolated habitat patches. Significant impacts at the time of listing such as over collection and residential development that could have resulted in the extirpation of all or parts of populations have been eliminated or reduced since listing. We conclude that the previously recognized impacts to E. fendleri var. kuenzleri from present or threatened destruction, modification, or curtailment of its habitat or range (specifically, residential development, road maintenance) (Factor A); overutilization for commercial, recreational, scientific, or educational purposes (Factor B); disease or predation (Factor C); and other natural or manmade factors affecting its continued existence (specifically, reproductive isolation) (Factor E) do not rise to a level of significance, either individually or in combination, such that the species is in danger of extinction now. However, there continues to be concern about the long term impacts of drought, catastrophic wildfire, and effects due to climate change throughout the range of the species. Climate change data indicate an increase in temperature and a decrease in precipitation within the occupied Echinocereus fendleri var. kuenzleri range over the next 25 years. We anticipate that effects due to climate change, fire, and increased drought, and the compounding effects of these threats, including any associated threats such as increased herbivory and predation, are anticipated to impact all of the populations. However, none of these is an imminent threat or at a magnitude such that the taxon warrants endangered status. We conclude that these same factors support the status of threatened, as the cactus is still likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by Echinocereus fendleri var. kuenzleri. After review of the information pertaining to the five factors, we find that the ongoing threats are not of sufficient imminence, intensity, or magnitude to indicate that E. fendleri var. kuenzleri is presently in danger of extinction throughout all of its range. Yet, due to threats with ongoing impacts, we find that E. fendleri var. kuenzleri is likely to become an endangered species within the foreseeable future throughout all of its range.

On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered or threatened species and no SPR analysis will be required. Because we are proposing to reclassify the listing status of E. f. var. kuenzleri as a threatened species under the Act, we are not conducting an SPR analysis for this taxon.

If this proposed rule is made final, it would revise 50 CFR 17.12(h) to reclassify Echinocereus fendleri var. kuenzleri from endangered to threatened on the List of Endangered and Threatened Plants. However, this reclassification does not significantly change the protections afforded this plant under the Act. Pursuant to section 7 of the Act, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of Echinocereus fendleri var. kuenzleri. The prohibitions of section 9 of the Act only apply directly to endangered species. However, the Service has extended most of these prohibitions to threatened plants through 50 CFR 17.71. The Act allows for the promulgation of a rule under section 4(d) that modifies the standard protections for threatened plants (found at 50 CFR 17.71); however no such rule is proposed here. In light of this, the prohibitions of 50 CFR 17.71 will apply for this species.

As applicable, recovery actions directed at Echinocereus fendleri var. kuenzleri will continue to be implemented as outlined in the recovery plan for this taxon (Service 1985, entire). One of the primary actions will be to develop a species status assessment, upon which we will base a revised recovery plan with delisting criteria for the cactus. Section 4(b)(6)(C) of the Act (16 U.S.C. 1533(b)(6)(C)) requires critical habitat to be designated concurrently with a final reclassification rule, unless it is not prudent or determinable. We will determine if critical habitat is prudent and determinable, and publish proposed critical habitat as necessary.

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

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

We determined we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), 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).

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2016-0137 or upon request from the Field Supervisor, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

The primary author of this proposed rule is the Southwest Regional Office in Albuquerque, New Mexico, in coordination with the New Mexico Ecological Services Field Office in Albuquerque, New Mexico (see FOR FURTHER INFORMATION CONTACT).

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