Federal Register Vol. 83, No.7,

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-2017-1241; Product Identifier 2017-NM-117-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM 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 received reports indicating that inadequate electrical connection between control surface, wing, and empennage structures caused excessive lightning energy to pass through the aileron and elevator actuators resulting in damage and excessive leakage of hydraulic fluid. The hydraulic fluid leakage, although small, affects the internal aileron and elevator actuator fluid holding capability needed following an unrelated hydraulic system failure since the internal fluid holding capability was not sized to account for the unanticipated damage from a lightning strike. Hydraulic leakage in aileron and elevator PCUs, when coupled with an independent subsequent loss of two hydraulic systems could result in an inability to maintain aileron or elevator actuator stiffness and lead to potentially damaging airplane control surface oscillations.

We reviewed Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017. The service information describes procedures for a records check to inspect for certain parts, detailed inspections for external leakage of the aileron and elevator PCUs, reporting of PCUs with discrepant excessive leakage, and replacement if necessary. 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 this same type design.

This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, described previously, except as discussed under “Difference Between Proposed AD and Service Information,” and except for any differences identified as exceptions in the regulatory text of this proposed AD.

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-2017-1241.

The effectivity of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, is limited to Model 787-8 and 787-9 airplanes with certain line numbers. However, the applicability of this proposed AD includes all Boeing Model 787 series airplanes, because the affected PCUs are rotable parts. We have determined that these parts could later be installed on airplanes that were initially delivered with acceptable PCUs, thereby subjecting those airplanes to the unsafe condition. Appendixes C and D of Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, list the affected PCUs and acceptable spares interchangeability. Any 787 series airplane that has an affected PCU installed must be inspected in accordance with Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017.

Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, does not provide relief from the repetitive inspections if an unaffected PCU is installed after the initial inspections are completed. Paragraph (h) of this proposed AD would terminate the inspection requirements when no affected PCU is installed.

Boeing Alert Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, incorrectly identifies the part number (P/N) for an elevator PCU in four different places as P/N CA9953-004. Paragraph (k)(2) of this proposed AD corrects the elevator PCU part number to P/N CA69953-004.

Boeing Service Bulletin B787-81205-SB270037-00, Issue 002, dated July 19, 2017, provides additional actions for any leakage measured during the detailed inspection of the aileron PCU or elevator PCU that is more than 6 drops (or 9 drops, depending on the inspection) and less than 40 drops, or that is more than 40 drops, but not that is exactly 40 drops. Paragraph (k)(3) of this proposed AD would require additional actions for findings of more than 6 (or 9) drops and 40 drops or less.

These differences have been coordinated with Boeing.

We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this proposed AD affects 82 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary reporting that would be required. We have no way of determining the number of aircraft that might need these reports:

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

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.

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.

This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace and amend Class D and Class E airspace at Olympia Regional Airport, Olympia, WA to support IFR operations within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-1012/Airspace Docket No. 17-ANM-20”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW, Renton, WA 98057.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Olympia Regional Airport to contain IFR departure and arrival aircraft below 1,200 and 1,500 feet above the surface, respectively. This airspace area would duplicate the larger Seattle Class E airspace extending upward from 700 feet above the surface, but will ensure no future changes at Seattle inadvertently impact aircraft operations at Olympia Regional Airport.

The FAA also proposes to modify Class E airspace designated as an extension to a Class D or Class E surface area at Olympia Regional Airport, Olympia, WA, by removing the segments north (within 1.8 miles each side of the Olympia VORTAC 010° radial extending from the 4-mile radius of the airport to 4.8 miles north of the VORTAC) and south (within 3.5 miles each side of the Olympia VORTAC 195° radial extending from the 4-mile radius of Olympia Airport to 9.2 miles south of the VORTAC) of the airport, and establishing a 2-mile wide segment extending to approximately 5.5 miles southeast of the airport.

Also, this action would eliminate the following language from the legal description of Class E airspace designated as an extension to a Class D or Class E surface area at the airport, “This Class E airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.”

Additionally, this action would update the airport name from Olympia Airport to Olympia Regional Airport, update the geographic coordinates of the airport to match the FAA's aeronautical database, and would replace the outdated term Airport/Facility Directory with the term Chart Supplement in the associated Class D and Class E airspace legal descriptions. This proposed airspace redesign is necessary for the safety and management of IFR operations at the airport.

Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

An Advanced Notice of Proposed Rulemaking was provided with a 60-day comment period which ended on July 12, 2013. VA received comments from numerous commenters; on November 6, 2015, a proposed rule was published in the Federal Register (80 FR 68795) which sought to amend 38 CFR part 74 to find an appropriate balance between preventing fraud in the Veterans First Contracting Program and providing a process that would make it easier for eligible VOSBs to become verified. VA received comments from numerous commenters. In drafting this proposed rule, VA has considered the issues raised by the comments submitted in response to both the July 12, 2013 and the November 6, 2015 publications. We thank all commenters for their participation in this process. The bases for the proposed amendments are as follows.

In Public Law 114-840, the NDAA designates the SBA as the Federal Agency responsible for creating regulations governing ownership and control. As regulations relating to and clarifying ownership and control are no longer the responsibility of VA, VA is proposing to remove the six (6) definitions from § 74.1 that relate to and clarify ownership and control. Specifically VA is proposing to remove the following definitions: Day-to-day management, day-to-day operations, immediate family member, negative control, same or similar line of business, and unconditional ownership. In addition, VA proposes to remove one additional definition, VetBiz.gov, to account for anticipated changes to the location of the Vendor Information Pages database.

Within § 74.1, VA also proposes to create three new definitions and amend sixteen (16) others. The new definition “applicant” clarifies the use of the term throughout the regulation. The new definition “application days” is added to clarify the manner by which the time period in § 74.11(a) is computed. The definition http://www.va.gov/osdbu is added to identify the hosting website as VA is considering replacing VetBiz.gov as the host of the Vendor Information Pages database. The new definition will allow VA to transition to a new host site without requiring further amendments to 38 CFR part 74.

VA is proposing to amend the definitions Center for Veterans Enterprise, joint venture, Office of Small and Disadvantaged Business Utilization, non-veteran, participant, primary industry classification, principal place of business, service-disabled veteran, service-disabled veteran owned small business, small business concern, surviving spouse, vendor information pages, verification eligibility, veteran, veterans affairs acquisition regulation, and veteran-owned small business. For consistency, VA also proposes to remove all references to VetBiz and in various places replace the words Center for Verification and Evaluation, service-disabled veteran-owned small business, the Department of Veterans Affairs, Vendor Information Pages, and veteran-owned small business and use in their place the respective abbreviations—CVE, SDVOSB, VA, VIP, and VOSB in titles and the body of the regulation.

VA is proposing to amend the definition of Center for Veterans Enterprise by changing the term to Center for Verification and Evaluation (CVE) to reflect the name change effectuated at 78 FR 59861, September 30, 2013. The definition of CVE would be further amended to reflect the change to the functions of this office to verification activities. The last sentence of the definition will be removed to clarify CVE's function.

VA is proposing to amend the definition joint venture to conform to the amendments to 13 CFR part 125 as it pertains to SDVOSB joint ventures. VA has also added language to clearly address the current policy by indicating that at least one venturer must be a VOSB.

VA is proposing to amend the definition of Office of Small and Disadvantaged Business Utilization to more accurately reflect the role fulfilled by this office with respect to VOSB matters.

VA is proposing to amend the definition of non-veteran to remove the reference to VetBiz, as VA is considering moving the site which hosts the Vendor Information Pages database.

VA is proposing to amend the definition of participant to emphasize CVE's role in verifying status.

VA is proposing to amend the definition of primary industry classification to make a technical change to use the acronym NAICS as it has already been defined in a parenthetical earlier in the definition.

VA is proposing to amend the definition of principal place of business to change day to day operations to daily business operations in order to match the wording in 13 CFR 125.13.

VA is proposing to amend the definition of service-disabled veteran as the current definition has led to confusion regarding the documentation necessary to establish a service-connected disability. This change would also help increase program efficiency by specifically referencing BIRLS, the system that allows CVE to quickly and accurately determine veteran status.

VA is proposing to amend the definition of service-disabled veteran-owned small business concern to align the definition with the definition for `small business concern owned and controlled by service-disabled veterans' proposed by SBA in the amendment to 13 CFR 125.11.

VA is proposing to amend the definition of small business concern to align the definition with the definition for `small business concern' proposed by SBA in the amendment to 13 CFR 125.11.

VA is proposing to amend the definition of surviving spouse to reorder existing language and incorporate additional requirements outlined in the NDAA. The amended definition would provide that immediately prior to death of the deceased veteran the concern must have been owned and controlled in accordance with 13 CFR part 125 and the concern was listed in VIP.

VA is proposing to amend the definition of Vendor Information Pages to replace the reference to the website http://www.VetBiz.gov with the website that is the successor to VetBiz.gov and allow for CVE to make reasonable and necessary adjustments without the need for an amendment of the regulation.

VA is proposing to remove the definition of Vetbiz.gov to account for anticipated changes to the location of the Vendor Information Pages database.

VA is proposing to amend the definition of verification eligibility period to reflect the current eligibility period of 3 years, which was effectuated via publication in the Federal Register on February 21, 2017 at 82 FR 11154. Additionally, a technical change would amend the reference to Center for Veterans Enterprise by replacing it with the abbreviation CVE. A final technical change would replace the word “year” with “eligibility period” to agree with the change in the first sentence.

VA is proposing to amend the definition of Veteran to add a reference to the Veterans Benefits Administration (VBA). This revised definition is meant to be inclusive of all persons who served on active duty and were discharged or released under conditions other than dishonorable. Historically, the program has had an issue wherein applicants who did in fact qualify as veterans under the statutory definition, did not meet the standards outlined in § 74.1. This change is not intended to create a new class of veteran, but rather to clarify that those who are eligible under the applicable statutes will be found eligible for participation in this program.

VA is proposing to amend the definition of Veterans Affairs Acquisition Regulation to remove the term U.S. Department of Veterans Affairs and replace it with the abbreviation for VA as previously defined in § 74.1.

VA is proposing to amend the definition of Veteran-owned small business, in accordance with the NDAA, to reflect that stock owned by ESOPs which in turn are owned by one or more veterans are not included in determining requisite ownership percentage, and to use the abbreviations that have been previously defined in § 74.1.

VA is proposing to amend § 74.2 by revising paragraphs (a)-(e) and adding new paragraph (g). In both 2010 and 2012, GAO published reports tasking VA with reducing potential instances of fraud, waste, and abuse. VA has found in its administration of the verification program that the use of the procedures identified in § 74.2 protects VA acquisition integrity and diminishes ongoing exposure to fraud, waste, and abuse. Therefore, for such limited situations as identified in § 74.2, and only in these limited instances, VA finds that immediate removal from public listing is warranted in order to protect the integrity of VA procurement. Accordingly, the proposed amendments to § 74.2 would serve to more comprehensively outline the circumstances under which a participant would be found ineligible for the VOSB Verification program.

VA is proposing to amend § 74.2(a) to add the clause “submitted required supplemental documentation at http://www.va.gov/osdbu” to clearly explain the key steps necessary to submit an application and obtain verification. Additionally, a technical change would be made to use the abbreviated form “CVE” for consistency.

VA is proposing to amend § 74.2(b) to address the impact of criminal activity on eligibility and thus better protect the government from fraud, waste, and abuse. The title would be amended to reference the System for Award Management (SAM), which has replaced the Excluded Parties List System. Additionally, the language of the first sentence would be amended to address the impact of 38 U.S.C. 8127(g)(3), which now VA authority to exclude all principals in the business concern. Accordingly, the language of § 74.2 would be amended to specify that the debarment of any individual holding an ownership and control interest in the concern will impact the concern's eligibility.

VA is proposing to amend § 74.2(c) by adding the phrase “false statements or information” to reference the title and provide further clarification on the eligibility requirements. The removal provision would be additionally reworded to clarify that removal is immediate. Finally, a technical change would remove the word “the” before CVE in the last sentence.

VA is proposing to amend § 74.2(d) by including tax liens and unresolved debts owed to various governmental entities outside of the Federal Government as financial obligations that would disqualify an applicant for inclusion in the VIP database. The title would be additionally amended to reflect this change. If after verifying the participant's eligibility, CVE discovers that the participant no longer satisfies this requirement, CVE will remove the participant from the VIP database in accordance with § 74.22. Finally, a technical change would remove the word “VetBiz” before verification in the last sentence.

VA is proposing to amend § 74.2(e) to clarify the consequences of SBA protest decisions and other negative findings. “Other negative findings” will additionally be clarified by specifically referencing status protest decisions. A technical change would remove the word “VetBiz” before verification throughout. The title of this section would additionally be amended to clarify this section is not limited to SBA decisions. In order to properly capture the impact of negative findings, § 74.2(e) would continue to clarify removal is immediate. The second sentence would be amended to take into account “other negative findings”.

VA is proposing to amend § 74.2(f) to specifically reference the System for Award Management (SAM) registration. SAM is a consolidated listing of previous databases and was not in existence at the time the original regulation was created and therefore was not referenced. Registration through SAM is required by 48 CFR 4.1200 as supplemented by 48 CFR 804.1102.

VA is proposing to amend § 74.3(a) to reflect that ownership is determined in accordance with 13 CFR part 125 as the result of the amendments to Title 38 of the United States Code as set forth in the NDAA.

VA is proposing to amend § 74.3(e) to redesignate this paragraph as § 74.3(b) to account for the removal of paragraphs (a)-(d). VA is proposing to amend § 74.3(b)(1) by a technical change to replace “application” with “VA Form 0877” in order to clarify the requirement and conform language to the rest of the regulation. VA is proposing to amend § 74.3(b)(1) to add a 30-day time period for submission of a new application after a change in ownership. This change would provide CVE the ability to definitively and accurately track changes of ownership. Further, by adding a time period for a new application, the program would be better able to comply with its statutory mandate to verify that all concerns listed in the VIP Database meet the prescribed ownership and control requirements of the verification program.

VA is proposing to amend § 74.3(b)(3) by a technical change to replace “application” with “VA Form 0877” in order to clarify the requirement and conform language to the rest of the regulation.

VA is proposing to amend § 74.4(a) to state that control is determined in accordance with 13 CFR part 125 pursuant to the NDAA. Paragraphs (b)-(i) would be removed.

VA is proposing to amend § 74.5 to include joint ventures. The paragraph would additionally be reworded to clearly establish that 38 CFR part 74 does not supersede 13 CFR part 121 with respect to size determinations. VA is proposing to add paragraph (b) to specifically address eligibility of joint ventures. Subparagraphs (b)(1) and (b)(2) would be added to provide notice of applicable requirements outlined elsewhere in VA regulation.

VA is proposing to amend § 74.10 to remove reference to the physical address for CVE. Addresses or methods for submission may change over time, and this change allows CVE to make reasonable and necessary adjustments without the need for an amendment to the regulation. This section would be further amended to remove the word “VetBiz” before verification, and change “located” to “contained” in the last sentence for better clarity. Finally, a technical change would remove the word “the” before CVE in the last sentence.

VA is proposing to amend § 74.11 to redesignate paragraphs (c)-(g) to account for addition of new paragraph (c). VA is proposing to amend § 74.11(a) to accommodate a more veteran-friendly, customer service centric approach to processing applications. “Center for Veterans Enterprise” would be changed to “CVE” and “[t]he CVE” would be changed to “CVE”. Additionally, VA is proposing to amend § 74.11(a) to incorporate the term `application days' and to increase the review period to 90 application days, when practicable, to accommodate time spent between registering for verification and the time that all required documentation is received and the application is deemed complete.

VA is proposing to amend § 74.11(c) to address instances where CVE does not receive all requested documentation. VA must verify applicants prior to admission in the database. In order to comply with the statute, VA requests documentation to demonstrate eligibility. This proposed revision would notify the public that failure to adequately respond to document requests may render CVE unable to verify the eligibility of a concern and therefore may result in a denial or administrative removal.

VA is proposing to amend § 74.11(c) to be redesignated as § 74.11(d) and to make a technical change to insert a reference to the newly added paragraph (c). Additionally, the reference to paragraph (d) would be changed to paragraph (e) to account for the redesignation. VA is proposing to add the term “totality of circumstances” to clarify long standing CVE interpretation and procedure. References to § 74.11(b) and § 74.13(a) would be added to highlight all applicable exceptions. Finally, a last sentence would be added to clarify the longstanding policy that the applicant bears the burden of establishing VOSB status.

VA is proposing to amend § 74.11(d) to be redesignated as § 74.11(e). The first and second sentences would be amended by removing the word “adversely.” The third sentence would be removed as it refers to withdrawal or removal of verified status. This scenario will be addressed in § 74.21, which specifically deals with how participants can exit the VIP database. Therefore, the removal would help to eliminate redundancy and reduce the likelihood of confusion. Additionally, VA is proposing to add § 74.11(e)(1) to specifically address bankruptcy as a changed circumstance. Subparagraphs (a)-(c) would be added to outline requirements applicable to firms undergoing the bankruptcy process.

VA is proposing to amend § 74.11(e) to be redesignated as § 74.11(f).

VA is proposing to amend § 74.11(f) to be redesignated as § 74.11(g).

VA is proposing to amend § 74.11(g) to be redesignated as § 74.11(h). A second sentence would be added to increase program efficiency by requiring firms to provide updated contact information. This would allow the program to use the most efficient methods to dispatch determinations and ensure that applicants will receive determinations in a timely manner.

VA is proposing to amend § 74.12 to expand the list of required documentation in order to provide the public notice of documentation that is routinely requested by CVE. This amended list would include documents previously referenced by § 74.20(b). While the documents would still be required for examination as described in § 74.20(b), they also are initially required for the application. As the application is a concern's first exposure with the process, VA finds this list would be more appropriately placed in this § 74.12 to notify the public of the documentary requirements. Additionally, “electronic form” would be changed to “VA Form 0877” throughout for clarity. Similarly, “attachments” would be changed to “supplemental documentation” throughout. Finally, the last two sentences would be removed for clarity.

VA is proposing to amend § 74.13 to modify the title and to remove references to the previous reconsideration process, to include removing paragraphs (b)-(d). In accordance with the NDAA, appeals of initial denials on the grounds of ownership and control will be adjudicated by SBA's Office of Hearings and Appeals (OHA) in accordance with 13 CFR part 134. Accordingly, Section 74.13 (a) would be amended to refer to the appeal process set forth in 13 CFR part 134.

VA is proposing to amend § 74.13(e) to be redesignated as § 74.13(b). VA is further proposing to modify this section to reflect the removal of the reconsideration process and to remove the phrase `service-disabled veteran' as the term veteran is now used to refer to both veterans and service-disabled veterans throughout. VA is proposing to delete paragraphs (f) and (g) as they are no longer relevant to the process.

VA is proposing to amend § 74.14 to remove references to requests for reconsideration and to include notices of verified status cancellation and denials of appeals in the list of determinations that trigger a waiting period before a concern may submit a new verification application. Including denial of appeals takes into consideration any appeal filed with OHA that sustains the initial denial letter issued by CVE. The program has instituted several procedures through policy to assist applicants to identify and address easily correctable issues that render the applicant ineligible. Therefore, the class of notices listed in § 74.14 are issued to applicants with substantial issues in their business structure or underlying documentation that result in ineligibility.

VA is proposing to further amend § 74.14 to be redesignated as § 74.14(a). A new paragraph § 74.14(b) would be added to clarify that a finding of ineligibility during a reapplication will result in the immediate removal of the participant. VA only intends, to the extent practicable, to list as verified in the VIP database concerns which currently meet verification requirements. This proposed change would clarify current policy and serve the important purpose of assisting contracting officers in the procurement process by ensuring the database only includes concerns that are eligible for award of set aside procurements. A final technical change removes the word “VetBiz” before verification throughout.

VA is proposing to amend § 74.15(a) by splitting the paragraph into paragraphs (a), (b), and (c). A technical change would be made to what would be redesignated as § 74.15(a) to improve specificity. A change would be made to what would be redesignated as § 74.15(b) to require participants to inform CVE within 30 days of changes affecting eligibility, consistent with § 74.3(f)(1). A substantive change would be made to the list that would be redesignated as § 74.15(c), which would be expanded to include all situations in which the eligibility period may be shortened. VA is proposing to remove § 74.15(b) because it deals with affiliation and would therefore be addressed in § 74.5. Therefore, any shortening of the eligibility period due to an affiliation determination would result from an SBA determination. This scenario would be addressed by § 74.2(e) and is referenced appropriately at what would be designated § 74.15(c). A technical change would remove the word “VetBiz” before verification throughout. Finally, paragraphs (c), (d), and (e) would be redesignated as (d), (e), and (f) respectively. The redesignated § 74.15(e) will be amended to reference immediate removals pursuant to § 74.2.

VA is proposing to amend the first three sentences of § 74.20(b) for simplicity and clarification. In the first sentence, the phrase, “or parts of the program examination” would be removed. In the second sentence, “location” would be changed to “location(s)”. In the third sentence, the word “[e]xaminers” is changed to “CVE”. As the proposed revisions to § 74.12 would fully address the required documentation necessary for verification the complete list would be removed from § 74.20 in order to avoid redundancy and confusion. A final technical change removes the word “VetBiz” before verification throughout.

VA is proposing to amend § 74.21 to reorder for clarity and to conform with changes made to other sections of this Part. VA is proposing to amend § 74.21(a) by a technical change to remove reference to the “ `verified' status button” in order to reflect the current graphical user interface of the VIP database. Additionally, “Vendor Information Pages” would be changed to “VIP.” VA is proposing to amend § 74.21(b) by changing “Vendor Information Pages” to “VIP.” VA is proposing to amend § 74.21(c) by referencing the immediate removal provisions established by and clarified in § 74.2. VA is proposing to amend § 74.21(c) and associated subparagraphs to be redesignated as § 74.21(d) and associated subparagraphs. Additionally, reference to the “ `verified' status button” would be removed to reflect the current graphical user interface of the database. VA is proposing to remove § 74.21(c)(5) as involuntary exclusions would now be addressed in § 74.2. VA is proposing to amend § 74.21(c)(6) to be redesignated as Section 74.21(d)(5) to account for deletion of § 74.21(c)(5). Additionally, the phrase “or its agents” would be added to clarify who may request documents, and the words “a pattern of ” will be deleted to clarify the requirements necessary to remove a company for failure to provide requested information. In the past, establishing a pattern of failure has led to ineligible firms maintaining verified status for an extended period of time by failing to provide requested documentation. This change would help CVE protect the integrity of the procurement process while still providing firms notice and opportunity to be heard prior to cancellation. VA is proposing to amend § 74.21(c)(7) to be redesignated as § 74.21(d)(6) to account for deletion of § 74.21(c)(5). VA is proposing to remove § 74.21(c)(8) as the action addressed by that provision would now be addressed in § 74.2. VA is proposing to amend § 74.21(c)(10) to be redesignated as § 74.21(d)(7). The term “application” would be removed as VA Form 0877 reflects current program requirements. The phrase `60 days' would be changed to `30 days' to conform with revised § 74.3(f)(1) of this part. VA is proposing to add § 74.21(d)(8) to notify the public that failure to report changed circumstances within 30 days is in and of itself good cause to initiate cancellation proceedings. VA is proposing to amend § 74.21(d) to be redesignated as § 74.21(e).

VA is proposing to amend § 74.22(a) to begin the relevant 30-day time period on the date on which CVE sends notice of proposed cancellation of verified status. This change would provide the agency the ability to definitively and accurately track the cancellation proceedings. Additionally, this change would provide the agency the ability to control the regulatory time period and consistently apply the subsequent provisions of the paragraph. VA is proposing to amend § 74.22(e) to implement the new appeals procedure to OHA prescribed in the NDAA.

VA is proposing to amend § 74.25 to replace “the Department” with “VA”.

VA is proposing to amend § 74.26 to reflect the amended title of § 74.12.

VA is proposing to amend § 74.27 to reword the first sentence to specify that all documents submitted to the program, not only those used to complete applications, will be stored electronically. Additionally, the “Vendor Information Pages” would be changed to “CVE” in order to clearly denote who will be in possession of the documents and responsible for their retention. The location reference would be removed due to the electronic nature of the records to be maintained by the program. The second sentence would be revised to indicate that any owner information provided will be compared to any available records. Finally, references to records management procedures to be followed and procedures governing data breaches would be added.

VA is proposing to amend § 74.28 to replace `Department of Veterans Affairs' and `Center for Veterans Enterprises' VA and CVE respectively.

VA is proposing to amend § 74.29 to refer to VA's records management procedures, which would govern, absent a timely written request from the Government Accountability Office.

The Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with the rule finally adopted if possible or, if not possible, such guidance would be superseded.

This proposed rule contains no provision constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

This rule making has an average cost to the small business of $803, and it would apply only to applying for verified status in the Vendor Information Pages (VIP) database. The proposed regulation would merely seek to clarify and streamline the existing rule and would add no additional burdens or restrictions on applicants or participants with regard to VA's VOSB Verification Program. The overall impact of the proposed rule would be of benefit to small businesses owned by veterans or service-disabled veterans.

The overall impact of the proposed rule will not affect small businesses owned and controlled by veterans and service-disabled veterans. The proposed rule removes ownership and control from 38 CFR part 74 which will be assumed under a separate set of regulations promulgated by SBA. The proposed rule also refines and clarifies process steps and removes post examination review. Post examination review will also be assumed under a separate set of regulations.

Examination of businesses seeking verification as veteran-owned small businesses or service-disabled veteran owned small businesses seeking VA set aside contract opportunities is through the MyVA examination model. The MyVA examination model revises the verification process by assigning dedicated case analysts and providing applicants with additional access to VA staffers during verification.

From December 2016 through February 2017, 352 small businesses that completed the MyVA process and received determination letters participated in a follow-up survey detailing their costs and the attribution of the costs. Seventy-three (73) percent of participating businesses had either $0 costs or responded not applicable; 14 percent estimated costs between $1 and $1,000; 3 percent responded with a cost estimate between $1,001 and $2,000; 3 percent responded with a cost estimate between $2,001 and $3,000; 2 percent responded with a cost estimate between $3,001 and $4,000; 2 percent responded with a cost estimate between $4,001 and $5,000; and 4 percent responded with a cost estimate over $5,000. The average cost of all businesses providing survey responses was $803 per business. The largest cost categories were employee costs, attorney costs, travel/printing, consultants, and accountants. As of the end of April 2017, there were 10,088 verified companies in VA's database and 3,254 companies with applications in process. On this basis, the Secretary certifies that the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. Therefore, under 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of §§ 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages, distributive impacts and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

This proposed rule would affect the verification guidelines of veteran-owned small businesses, for which there is no Catalog of Federal Domestic Assistance program number.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on October 13, 2017, for publication.

For the reasons set forth in the preamble, we propose to amend 38 CFR part 74 as follows:

This is a summary of the Commission's document, FCC 17-165, adopted and released on December 14, 2017. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text of this document will also be available via ECFS at https://www.fcc.gov/document/fcc-seeks-comment-plan-ease-collocations-twilight-towers-0. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an Email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this document, the Commission takes another step towards promoting the deployment of wireless infrastructure. In particular, the Commission sets out a definitive solution for so-called “Twilight Towers,” which, if adopted, would create a new exclusion from routine historic preservation review under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800. This action would open up potentially thousands of existing towers for collocations without the need for either the collocation or the underlying tower to complete an individual historic review, thus ensuring that these towers are generally treated the same as older towers that are already excluded from the historic review process. Facilitating collocations on these towers will make additional infrastructure available for wireless deployments, reduce the need for new towers, and decrease the need for new construction. After more than a decade of debate over the best approach for Twilight Towers, the Commission welcomes the chance to advance this concrete path forward.

2. Twilight Towers are towers whose construction commenced between March 16, 2001, and March 7, 2005, that either did not complete section 106 review or cannot be documented to have completed such review. Sections 1.1307(a)(4) and 1.1320(a) 1 of the Commission's rules, 47 CFR 1.1307(a)(4), 1.1320(a), direct licensees and applicants, when determining whether a proposed action may affect historic properties, to follow the procedures in the rules of the Advisory Council on Historic Preservation (ACHP) or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001 Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (2005 Wireless Facilities NPA), 47 CFR part 1, app. C. Under section III of the 2001 Collocation NPA, collocations on towers whose construction commenced on or before March 16, 2001, are generally excluded from routine historic preservation review, regardless of whether the underlying tower has undergone section 106 review. See 47 CFR part 1, app. B, section III. By contrast, section IV of the 2001 Collocation NPA provides that collocations on towers whose construction commenced on or after March 16, 2001, are excluded from historic preservation review only if the Section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. The 2005 Wireless Facilities NPA, which became effective on March 7, 2005, establishes detailed procedures for reviewing the effects of communications towers on historic properties. 47 CFR part 1, app. C.

3. As indicated above, there are a large number of towers that were built between the adoption of the 2001 Collocation NPA and the effective date of the 2005 Wireless Facilities NPA that either did not complete section 106 review or for which documentation of section 106 review is unavailable. Although during this time the Commission's environmental rules, 47 CFR 1.1307(a)(4), required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the text of the rule did not at that time require parties to perform this evaluation by following the ACHP's rules or any other particular process. Thus, some in the industry have argued that, prior to the 2005 Wireless Facilities NPA, it was unclear whether the Commission's rules required consultation with the relevant State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO), Tribal engagement, or any other procedures, and that this uncertainty was the reason why many towers built during this period did not go through the clearance process. Because the successful completion of the section 106 process is a predicate to the exclusion from review of collocations on towers completed after March 16, 2001, licensees cannot collocate on these Twilight Towers unless either each collocation completes section 106 review or the underlying tower goes through an individual post-construction review process.

4. By this document, the Commission finally identifies a path forward for these Twilight Towers. In particular, the Commission seeks public comment on the attached draft Program Comment addressing the historic preservation review requirements for collocating communications equipment on Twilight Towers. If adopted by the ACHP, the draft Program Comment would establish procedures for permitting collocations on Twilight Towers.

5. The ACHP's rules contain general procedures for considering effects on historic properties, but they also provide a means of establishing customized or streamlined alternative review procedures called “program alternatives.” See 36 CFR 800.14. Where the ACHP determines that a defined program or activity has minimal potential to affect or adversely affect historic properties, a program alternative may reduce the scope of or entirely eliminate the review process. One type of program alternative is the Program Comment. See 36 CFR 800.14(e).

6. The Commission states that, given the record, a Program Comment is a suitable vehicle for specifying how Twilight Towers can be appropriately made available to facilitate broadband deployment. Therefore, the Commission seeks comment on the attached draft consistent with the ACHP's process for developing and issuing a Program Comment. After considering input from all interested parties, the Commission will revise the draft Program Comment as appropriate, summarize the comments for the ACHP pursuant to 36 CFR 800.14(e)(1) and (f)(2), and formally request that the ACHP issue the Program Comment. Section 800.14(e)(5) of the ACHP's rules, 36 CFR 800.14(e)(5), specifies that it will then decide whether to issue the Program Comment within 45 days, and the Commission will publish notice of any Program Comment that the ACHP provides in the Federal Register.

7. This draft Program Comment is informed by comments received in response to the Notice of Proposed Rulemaking in this proceeding, See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330 (2017) (Wireless Infrastructure NPRM); see also Proposed rule, 82 FR 21761, May 10, 2017, as well as several years of engagement with affected parties, including Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by conducting government-to-government consultation with Tribal Nations, holding face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In addition, since the release of the Wireless Infrastructure NPRM, the Commission has met with Tribal representatives numerous times with a focus on issues related to section 106 review, including meetings with the Chairman and commissioners, as well as conference calls and meetings between staff and SHPOs, Tribal representatives, and others.

8. Commenters on the Wireless Infrastructure NPRM generally concur that the Commission should take affirmative steps to develop a regime governing the circumstances and procedures under which collocations will be permitted on Twilight Towers. In general, industry commenters assert that the Commission should grandfather, exempt, or exclude these towers from any historic preservation review, arguing that the towers are unlikely to have adverse effects on historic properties that have not been detected, that current ambiguities in the process are preventing widespread collocations, that there was no clear process for historic preservation review of proposed towers prior to 2005, and that many of the towers are no longer in the possession of their original owners. Other commenters, including SHPOs and Tribal Nations and their associations, advocate requiring a review process and mitigation of adverse effects before collocations on these towers can be permitted, contending that failure to perform section 106 review for these towers should not be forgiven retroactively, that collocations on existing towers can increase any adverse effects of the towers, that removal should be considered for towers with particularly egregious adverse effects, and that collocations that involve any ground disturbance must be subject to section 106 review before the Commission can allow collocations. The Commission seeks comment on the extent to which the draft Program Comment, as described below, effectively addresses these concerns.

9. In the Wireless Infrastructure NPRM, the Commission stated that it does not anticipate taking any enforcement action or imposing any penalties based on good faith deployment during the Twilight Tower period. The Commission states that, in light of the additional comments it has received on this issue, and its recognition that the Commission did not provide specific guidance regarding the procedures for conducting historic preservation review, the Commission now makes clear that it will not take enforcement action relating to the construction of Twilight Towers based on the failure to follow any particular method of considering historic preservation issues or otherwise based on the good faith deployment of Twilight Towers. To the extent the owner of any Twilight Tower is shown to have intentionally adversely affected a historic property with intent to avoid the requirements of section 106, section 110(k) of the NHPA would continue to apply. See 54 U.S.C. 306113.

10. As established in the Wireless Infrastructure NPRM, this is a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules, but with a limited modification in light of the Commission's trust relationship with Tribal Nations and NHOs. Ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs are exempt from the disclosure requirements in permit-but-disclose proceedings, as well as the prohibitions during the Sunshine Agenda period. Nevertheless, Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process.

11. The Commission notes that some commenters urge the Commission to hold additional meetings with Tribal Nations regarding Twilight Towers before moving forward. The Commission welcomes additional meetings with Tribal Nations, Native Hawaiian Organizations, SHPOs, and industry during this comment period. The commission notes that it received ex parte comments filed between the public release of the draft text of this document on November 22, 2017, and its adoption by the Commission on December 14, 2017. To the extent that they have not been addressed here, these comments will be considered along with any comments filed in response to this document.

12. The following is the text of the Draft Program Comment:

This Program Comment was issued by the Advisory Council on Historic Preservation (Advisory Council) on [date to be inserted later], pursuant to 36 CFR 800.14(e), and went into effect on that date. It provides the Federal Communications Commission (FCC or Commission) with an alternative way to comply with its responsibilities under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, and its implementing regulations, 36 CFR part 800 (section 106), as supplemented by two nationwide programmatic agreements. In particular, this Program Comment excludes from section 106 review the collocation of wireless communications facilities on “Twilight Towers” (i.e., certain communications towers for which construction commenced after March 16, 2001, and before March 7, 2005), provided that these collocations satisfy the conditions specified below.

To fulfill its obligations under the NHPA, the FCC imposes certain compliance requirements on its applicants and licensees, but the ultimate responsibility for compliance with the NHPA remains with the FCC. In particular, section 1.1320 of the FCC's rules (47 CFR 1.1320) directs licensees and applicants, when determining whether a proposed action may affect historic properties, to comply with the Advisory Council's rules, 36 CFR part 800, or an applicable program alternative, including the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation NPA), 47 CFR part 1, app. B, and the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the Federal Communications Commission (Wireless Facilities NPA), 47 CFR part 1, app. C. These programmatic agreements, which were executed pursuant to section 800.14(b) of the Advisory Council's rules, substitute for the procedures that Federal agencies ordinarily must follow in performing their historic preservation reviews. See 36 CFR 800.14(b)(2).

Section III of the Collocation NPA, adopted and effective on March 16, 2001,2 provides that collocations on towers 3 constructed on or before the effective date of that agreement are excluded from routine historic preservation review regardless of whether the underlying tower has undergone section 106 review provided that they satisfy the specified conditions. See 47 CFR part 1, app. B, section III. By contrast, section IV of the Collocation NPA provides that collocations on towers whose construction commenced after March 16, 2001, are excluded from historic preservation review only if the proposed collocation meets specified conditions and the section 106 review process for the underlying tower and any associated environmental reviews has been completed. See 47 CFR part 1, app. B, section IV. Through the Wireless Facilities NPA, which was incorporated into the FCC's rules effective on March 7, 2005, the FCC adopted and codified for the first time detailed procedures for reviewing the effects on historic properties of communications towers and those collocations that are subject to review. See 47 CFR part 1, app. C.

Prior to the adoption of the Wireless Facilities NPA, the FCC's rules did not require its licensees and applicants to follow the ACHP's rules or any other specified process when evaluating whether their proposed facilities might affect historic properties as mandated under section 106. Accordingly, a large number of towers constructed during the period between the effective dates of the two NPAs—that is, those for which construction began after March 16, 2001, and before March 7, 2005—do not have documentation demonstrating compliance with the section 106 review process (an issue exacerbated by the limitations of State Historic Preservation Officers' (SHPOs') record-keeping as well as subsequent changes in tower ownership). These towers are referred to as “Twilight Towers.” And because collocation on towers whose construction began after the effective date of the Collocation NPA is excluded from section 106 review only if the tower was itself subject to review, licensees or applicants cannot currently collocate on these Twilight Towers unless each collocation completes a separate section 106 review or the underlying tower completes an individual post-construction review process.

To develop a Program Comment, the rules of the Advisory Council require Federal agencies to arrange for public participation appropriate to the subject matter and the scope of the category of covered undertakings and in accordance with the standards set forth in the Advisory Council's rules. See 36 CFR 800.14(e)(2). Over the past several years, the FCC has engaged with Tribal Nations, Native Hawaiian Organizations (NHOs), SHPOs, and industry, by holding many face-to-face meetings, sponsoring webinars and workshops, participating in conferences, and distributing written materials. In 2014, FCC staff began consultations with relevant parties to discuss possible solutions to make Twilight Towers broadly available for collocations in a manner consistent with the requirements of and policies underlying the NHPA. In October 2015, the FCC circulated a discussion document to SHPOs, Tribal Nations, NHOs and industry associations, and in January 2016, the FCC facilitated a summit in Isleta Pueblo, New Mexico, devoted to discussion of Twilight Towers. Industry, Tribal, and SHPO representatives participated in this meeting. Following the meeting, the FCC sought written comments from the summit participants. In August 2016, the FCC circulated to industry associations, SHPOs, and Tribal/NHO contacts a discussion draft term sheet developed as a result of those consultations. Follow up calls with Tribal and SHPO representatives and other interested parties, including the Advisory Council staff, were held throughout 2016.

Further, in the Wireless Infrastructure NPRM, adopted in April 2017, the FCC sought public comment on how to resolve remaining section 106 issues associated with collocation on Twilight Towers, and it received numerous comments on these issues. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Deployment, 32 FCC Rcd 3330, 3358-3361, paras. 78-86 (2017) (Wireless Infrastructure NPRM); see also Proposed Rule, 82 FR 21761, May 10, 2017. Finally, the FCC facilitated consultations with Tribal representatives on the Rosebud Sioux Reservation on June 8, 2017; at the annual meeting of the National Conference of American Indians on June 14, 2017; on the Navajo Reservation on August 22, 2017; and in Washington, DC on October 4, 2017. FCC staff have also continued to meet in person and by phone with SHPOs and Tribal representatives since release of the Wireless Infrastructure NPRM.

This Program Comment adopts an exclusion under section 106 for certain collocations on Twilight Towers. This exclusion is warranted due to a number of unique factors associated with towers whose construction commenced during the period from March 17, 2001 through March 6, 2005, including: (1) The limited reliability of section 106 review documentation from that time period; (2) the lack of specificity in the FCC's rules regarding section 106 review at the time the Twilight Towers were constructed; (3) the limited likelihood that section 106 review could identify adverse effects from these towers that are not yet known after 12 years or more; and (4) the significant public interest in making these towers readily available for collocation.

Although during the time between the Collocation NPA and the Wireless Facilities NPA the FCC's environmental rules required licensees and applicants to evaluate whether proposed facilities may affect historic properties, the rules did not then state that parties must perform this evaluation by following the Advisory Council's rules or any other specific process. Thus, prior to the effective date of the Wireless Facilities NPA, it was unclear whether the FCC's rules required consultation with the relevant SHPO and/or Tribal Historic Preservation Officer (THPO), engagement with Tribal Nations to identify historic properties off Tribal land (including government-to-government consultation), or any other particular procedures, and this lack of clarity may explain why many towers built during this period apparently did not obtain required clearance.

Routine section 106 review of Twilight Towers is likely to provide little benefit in preserving historic properties. Twilight Towers have been in place for 12 to 16 years. In the vast majority of cases, no adverse effects from these towers have been brought to the FCC's attention. While the lack of objections filed with the FCC does not guarantee that none of the Twilight Towers have caused, or continue to cause, adverse effects on historic properties, such cases are likely few given the passage of time and absence of objections. In addition, any effects on historic properties that may have occurred during construction may be difficult to demonstrate so many years after the fact.

Further, an exclusion for collocations on Twilight Towers under the conditions specified below is in the public interest. The exclusion will rapidly make available thousands of existing towers 4 to support wireless broadband deployment, including the FirstNet public safety broadband network,5 without causing adverse impacts. Importantly, facilitating collocations on existing towers will reduce the need for new towers, thereby avoiding the impact of new tower construction on the environment and on locations with historical and cultural significance.

A Program Comment is necessary to facilitate collocation on Twilight Towers. While the Wireless Facilities NPA contemplates a process for review of proposed collocations on towers that were built without required review, review of each collocation only satisfies the section 106 requirement for that collocation; it does not clear the tower for future collocations. Given the large number of Twilight Towers and potential collocations that could be installed on those towers, the existing review process imposes burdens on all participants that, in the context of the other considerations discussed herein, are not commensurate with its historic preservation benefits.

Accordingly, an approach different from the standard section 106 review process is warranted to make Twilight Towers readily available for collocations. Given the significant public benefits to be realized by making these facilities available for collocation, together with the other considerations discussed above, requiring each licensee or applicant to review each tower individually before collocating is not an effective or efficient means for the FCC to comply with its obligations under section 106. This Program Comment is responsive to the unusual set of factors surrounding the use of these Twilight Towers for the limited purpose of collocation.

Other Federal agencies are not required to comply with section 106 with regard to the effects of collocations on Twilight Towers that are excluded from review under this Program Comment. When other Federal agencies have broader undertakings that include collocations on Twilight Towers, they must, however, comply with section 106 in accordance with the process set forth at 36 CFR 800.3 through 800.7, or 800.8(c), or another applicable program alternative under 36 CFR 800.14 for aspects of the undertaking not involving the collocations.

In August 2000, the Advisory Council established a Telecommunications Working Group to provide a forum for the FCC, industry representatives, SHPOs, THPOs, other Tribal representatives, and the Advisory Council to discuss improved coordination of section 106 compliance regarding wireless communications facilities affecting historic properties. The Advisory Council and the Working Group developed the Collocation NPA, which recognized that the effects on historic properties of collocations on buildings, towers, and other structures are likely to be minimal and not adverse provided that certain premises and procedures are taken into consideration, including limitations on the extent of new construction and excavation. Further, the Collocation NPA stated that its terms should be “interpreted and implemented wherever possible in ways that encourage collocation.” Consistent with that directive, this Program Comment serves to resolve a long standing impediment to collocation on Twilight Towers within the broader protective framework established by the Collocation NPA.

We intend the exclusion here to mirror the exclusion in the Collocation NPA that applies to collocations on towers for which construction commenced on or before March 16, 2001. And so, pursuant to the exclusion adopted here, an antenna may be mounted on an existing tower for which construction commenced between March 16, 2001, and March 7, 2005, without such collocation being reviewed through the section 106 process set forth in the Wireless Facilities NPA, unless:

1. The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or

2. The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or

3. The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or

4. The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site; or

5. The tower has been determined by the FCC to have an adverse effect on one or more historic properties, where such effect has not been avoided or mitigated through a conditional no adverse effect determination, a Memorandum of Agreement, a programmatic agreement, or a finding of compliance with section 106 and the Wireless Facilities NPA; or

6. The tower is the subject of a pending environmental review or related proceeding before the FCC involving compliance with section 106 of the NHPA; or

7. The collocation licensee or the owner of the tower has received written or electronic notification that the FCC is in receipt of a complaint from a member of the public, a Tribal Nation or NHO, a SHPO, or the Advisory Council that the collocation has an adverse effect on one or more historic properties. Any such complaint must be in writing and supported by substantial evidence describing how the effect from the collocation is adverse to the attributes that qualify any affected historic property for eligibility or potential eligibility for the National Register.

In the event that a proposed collocation on a Twilight Tower does not meet the conditions specified above for this exclusion, the collocation must undergo historic preservation review as required by the rules of the Advisory Council as revised or supplemented by the Wireless Facilities NPA and the Collocation NPA. As provided in the Wireless Facilities NPA, such review is limited to effects from the collocation and shall not include consideration of effects on historic properties from the underlying tower.

This Program Comment does not apply on Tribal lands unless the relevant Tribal Nation has provided the FCC with a written notice agreeing to its application on Tribal lands.

A Tribal Nation may request direct government-to-government consultation with the FCC at any time with respect to a Twilight Tower or any collocation thereon. The FCC will respond to any such request in a manner consistent with its responsibility toward Tribal Nations. When indicated by the circumstances, and if the request is in writing and supported by substantial evidence as described in paragraph IV.7., the FCC shall treat a request for consultation as a complaint against the proposed collocation and shall notify the tower owner accordingly.

A Tribal Nation may provide confidential supporting evidence or other relevant information relating to a historic property of religious or cultural significance. The FCC shall protect all confidential information consistent with section IV.I of the Wireless Facilities NPA.

A. Definitions. Unless otherwise defined in this Program Comment, the terms used here shall have the meanings ascribed to them under 36 CFR part 800 as modified or supplemented by the Collocation NPA or Wireless Facilities NPA.

B. Duration. This Program Comment shall remain in force unless terminated or otherwise superseded by a comprehensive Programmatic Agreement or the Advisory Council provides written notice of its intention to withdraw the Program Comment pursuant to section VI.B.1, below, or the FCC provides written notice of its intention not to continue to utilize this Program Comment pursuant to section VI.B.2, below.

1. If the Advisory Council determines that the consideration of historic properties is not being carried out in a manner consistent with section 106, the Advisory Council may withdraw this Program Comment after consulting with the FCC, the National Conference on State Historic Preservation Officers, and the National Association of Tribal Historic Preservation Officers, and thereafter providing them with written notice of the withdrawal.

2. In the event the FCC determines that this Program Comment is not operating as intended, or is no longer necessary, the FCC, after consultation with the parties identified in section VI.B.1 above, shall send written notice to the Advisory Council of its intent to withdraw.

C. Periodic Meetings. Throughout the duration of this Program Comment, the Advisory Council and the FCC shall meet annually on or about the anniversary of the effective date of this Program Comment. The FCC and the Advisory Council will discuss the effectiveness of this Program Comment, including any issues related to improper implementation, and will discuss any potential amendments that would improve its effectiveness.

Complaints Regarding Implementation of This Program Comment. Members of the public may refer any complaints regarding the implementation of this Program Comment to the FCC. The FCC will handle those complaints consistent with section XI of the Wireless Facilities NPA.

13. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

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

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

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

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, Annapolis, MD 20701.

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

People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

14. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

FMCSA encourages you to participate by submitting comments and related materials.

If you submit a comment, please include the docket number for this notice (FMCSA-2017-0372), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comments online, go to www.regulations.gov and put the docket number, “FMCSA-2017-0372” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party, and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period and may grant or not grant this application based on your comments.

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The notice must also specify the effective period and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

TRAA is the national towing association representing more than 35,000 towing companies in all 50 states. The entire industry is comprised of approximately 210,000 commercial motor vehicles (CMVs) and 350,000 commercial drivers operated by the over 35,000 companies. According to TRAA, the vast majority of towing industry companies are small, family-owned operations serving rural America.

Tow truck operators often work close to their terminals, usually operating within the scope of the short-haul exemption [49 CFR Section 395.1(e)(1)] thereby documenting hours-of-service (HOS) compliance with time card records kept at their dispatch office. Occasionally, and often without prior knowledge, these tow operators will be called upon to provide services that will require them to complete a record of duty status (RODS).

TRAA states that few towing companies will be able to utilize the exemption to the ELD mandate found in 49 CFR Section 395.8(iii)(a)(1) as it relates to completion of a RODS eight or fewer days in any 30-day period. Typically, only a few drivers at any one towing company are currently required to complete a RODS and usually most of the drivers lack the required class of license to substitute for these select few drivers, meaning the workload that requires operation outside of the local exemption cannot be equalized or shared among the entire driver pool at any one company as could be done at a traditional motor carrier. Thus, one or two drivers will often be designated to conduct these longer, interstate trips that require RODS.

TRAA asserts that the addition of the ELD rule creates confusing and burdensome scenarios by overlapping and conflicting regulations placed on towing industry operators. The nature of the towing industry has drivers switching between intrastate and interstate regulations multiple times throughout the day, sometimes as often as between each call. Additionally, drivers employed in the towing industry often switch between commercial and non-commercial motor vehicles throughout their shift. TRAA believes that to mandate an electronic means of documenting HOS for only a small part of each towers daily operations creates an undue burden.

Moreover, an exemption from the ELD mandate helps promote the same safety goals inherent in the already existing exemption in 49 CFR Section 390.23(a)(3). This provision exempts towers who are responding to calls from law enforcement from the requirement to keep RODS. The same need to respond quickly to a highway emergency that requires the exemption in Section 390.23(a)(3) exists when a service call comes from a stranded motorist rather than law enforcement. The drivers of these vehicles sitting roadside are at the same risk as those addressed by law enforcement. The current ELD proposal will impact the ability of tow companies to respond to these owners' requests and still be compliant with the regulatory requirements.

TRAA states that, as a practical matter, towers will be required to install and maintain ELDs in all of their equipment, even seldom used spare equipment. It is common practice in the towing industry to maintain spare equipment in a state of readiness, as do other first responder agencies to insure complete readiness for any incident. Due to the complex nature of this and the overlapping scenarios where an ELD may be required, most towers will install, pay service for and utilize costly ELDs even when not required to do so by the regulations to avoid harsh penalties such as out of service orders and expensive fines. TRAA firmly believes it is appropriate to exempt towers from the ELD regulation, and without an exemption from the ELD regulation towers' responsiveness to their customers and the motoring public would be severely reduced, and costs for towing services would increase commeasurably. This will place an unfair burden on the motoring public at large that has not been accounted for in the cost benefit analysis for this regulation.

According to TRAA, towing industry operations represent a unique and vital segment of the overall transportation industry in America that warrants exemption from the ELD regulation. The failure to grant this exemption will cause confusion and create an overly complex regulatory framework which will pose an undue burden on towers and their customers without any measurable benefit to public safety.

According to TRAA, granting this exemption will have no negative impact on public safety or compliance with the HOS regulations by the towing industry companies given that most operate under the short haul or local provisions found in 49 CFR 395.1(e)(1) for drivers of vehicles requiring a commercial driver's license (CDL), and 49 CFR 395.1(e)(2) for drivers of CMVs not requiring a CDL. Instead, the exception will apply only to the small percentage of tow drivers who operate outside these exceptions on longer, interstate trips. The towing industry will maintain a level of safety equal to, or greater than would be achieved while using ELDs by fully complying with the current HOS regulations and not having undue interruption to their current scheduling and staffing methods that have served the industry well in the past.

A copy of TRAA's application for exemption is available for review in the docket for this notice.

FMCSA encourages you to participate by submitting comments and related materials. If you submit a comment, please include the docket number for this notice (FMCSA-2017-0373), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comments online, go to www.regulations.gov and put the docket number, “FMCSA-2017-0373” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period.

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The notice must also specify the effective period and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

The hours of service (HOS) rules (49 CFR part 395) prescribe the duty-time limits and rest requirements for interstate drivers of commercial motor vehicles (CMVs). The rules also require most drivers of CMVs in interstate commerce to use electronic logging devices (ELDs)—not handwritten logbooks—to document their HOS duty status (49 CFR 395.8(a)(1)(i)).

STC is a motor carrier that uses up to 75 CMVs to transport propane fuel and anhydrous ammonia. It has applied for exemption because purchasing ELDs after two years of reduced revenue places an undue financial burden on the company. It further states that installing ELDs in all its CMVs is burdensome because it does not operate year-round, and because its operations are dependent on the weather. It states that it cannot afford to outfit CMVs with ELDs if they are only going to sit idle.

STC asserts that its drivers will continue to employ paper logs if the exemption is granted, and that this would achieve a level of safety equivalent to the level of safety that would be achieved if an ELD was used for recording the duty status of its drivers. A copy of STC's application for exemption is available for review in the docket for this notice.

The purpose of this proposed action is to remove the Monito gecko from the Federal List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations (50 CFR 17.11(h)) based on its recovery.

We may delist a species if the best scientific and commercial data indicate the species is neither a threatened species nor an endangered species for one or more of the following reasons: (1) The species is extinct; (2) the species has recovered; or (3) the original data used at the time the species was classified were in error (50 CFR 424.11). Here, we have determined that the species may be delisted based on recovery. A species may be delisted based on recovery only if the best scientific and commercial data indicate that it is no longer threatened or endangered.

• Rat predation, the threat suspected to be the main cause of an apparent population decline for the Monito gecko (factor C), was eliminated by August 1999 when the last rat eradication campaign was completed by the Puerto Rico Department of Natural and Environmental Resources (PRDNER). From August 1999 to May 2016, no rats or other potential exotic predators have been detected on Monito Island.

• The species' apparent small population size (factor E), noted as a threat at the time of listing, may have been an artifact of bias as surveys were conducted under conditions when the species was not easily detectable. The Monito gecko is currently considered abundant and widely distributed on Monito Island.

• The Monito gecko and its habitat have been and will continue to be protected under Commonwealth laws and regulations (factor D). These existing regulatory mechanisms are adequate to protect the Monito gecko now and in the future.

• There is no indication that other potential remaining threats such as natural predation significantly affect the gecko's survival. There are no known potential climate change effects (i.e., sea level rise) (factor E) that negatively affect the Monito gecko.

We intend that any final action resulting from this proposed rule will be as accurate and effective as possible. Therefore, we request data, comments, and new information from other concerned governmental agencies, 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 that are 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) Information concerning the biology and ecology of the Monito gecko;

(2) Relevant data concerning any threats (or lack thereof) to the Monito gecko particularly any data on the possible effects of climate change to this reptile as it relates to its habitat type, the extent of State protection and management that would be provided to this reptile as a delisted species, and evidence of illegal disembarking from boats onto the island or other illegal activities on Monito Island that may affect the species;

(3) Current or planned activities within the geographic range of the Monito gecko that may impact or benefit the species; and

(4) The draft post-delisting monitoring plan and the methods and approach detailed in it.

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

In issuing a final determination 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. 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.

If you submit information via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the website. 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. Please note that comments posted to this website are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publically viewable until we post it, which might not occur until several days after submission.

Similarly, if you mail or hand-deliver a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review, but 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.

Comments and materials we receive, as well as supporting documentation 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 Documents box, enter FWS-R4-ES-2017-0082, which is the docket number for this rulemaking. Then, in the Search panel on the left side of the screen, select the type of documents you want to view under the Document Type heading.

(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, Caribbean 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 proposal, 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 the DATES section of this document. We will schedule at least one public hearing on this proposal, if any are requested, and announce the dates, times, and locations, as well as how to obtain reasonable accommodations, in the Federal Register at least 15 days before any hearing.

On October 15, 1982, we published a final rule in the Federal Register (47 FR 46090) listing the Monito gecko as an endangered species and designating the entire island of Monito as critical habitat. The final rule identified the following threats to the Monito gecko: Extremely small population size coupled with suspected predation by rats. On March 27, 1986, we published the Monito Gecko Recovery Plan (USFWS 1986, 18 pp.). The 5-year review, which was completed on August 8, 2016 (USFWS 2016, 25 pp.), recommended delisting the species due to recovery.

For additional details on previous Federal actions, see discussion under the Recovery section below. Also see http://www.fws.gov/endangered/species/us-species.html for the species profile for this reptile.

The Monito gecko, Sphaerodactylus micropithecus, (Schwartz 1977, entire) is a small lizard (approximately 36 millimeters (1.42 inches) snout-vent length) with an overall pale tan body and dark-brown mottling on the dorsal surface. It is closely related to the Sphaerodactylus macrolepis complex of the Puerto Rican Bank, but variation in dorsal pattern and scale counts confirm the distinctiveness of the species; probably resulting from a single invasion to Monito Island and its subsequent isolation (Schwartz 1977, p. 990, Dodd and Ortiz 1984, p. 768).

Little is known about the biology of this species, including its diet, reproduction, or potential predators. A study of the diet of other more common Sphaerodactylus species in Puerto Rico found a diverse content of small invertebrates, such as mites, springtails, and spiders (Thomas and Gaa Kessler 1996, pp. 347-362). Out of the 18 individuals counted by Dodd and Ortiz (1983, p. 120), they found juveniles and gravid females suggesting that the species is reproducing. Dodd and Ortiz (1983, p. 121) suspected reproduction occurs from at least March through November as suggested by the egg found by Campbell in May 1974, by the gravid females found by Dodd and Ortiz (1982, p. 121) on August 1982, and the fact that Monito gecko eggs take 2 to 3 months to hatch (Rivero 1998, p. 89). During a plot survey on May 2016, two gravid females and several juveniles were found (USFWS 2016, p. 13). Potential natural predators of the Monito gecko may include the other native lizard Anolis monensis and/or the skink (Spondilurus monitae).

The Monito gecko is restricted to Monito Island, an isolated island located in the Mona Passage, about 68 km (42.3 mi) west of the island of Puerto Rico, 60 km (37.3 mi) east of Hispaniola and about 5 km (3.1 mi) northwest of Mona Island (USFWS 1986, p. 2). Monito Island is a flat plateau surrounded by vertical cliffs rising about 66 m (217 ft) with no beach, and considered the most inaccessible island within the Puerto Rican archipelago (García et al. 2002, p. 116). With an approximate area of 40 acres (c.a. 16 hectares) (Woodbury et al. 1977, p. 1), Monito Island is part of the Mona Island Reserve, managed for conservation by the PRDNER (no date, p. 2). The remoteness and difficulty of access to Monito Island make studying the Monito gecko difficult (Dodd 1985, p. 2).

The only life zone present on Monito Island is subtropical dry forest (Ewel and Whitmore 1973, p. 10). In this life zone, the Monito gecko has been found in areas characterized by loose rock sheets or small piles of rocks, exposed to the sun, and with little or no vegetation cover. Vegetation may or may not be associated with these areas. On Monito Island, such areas include small groves of Guapira discolor (barrehorno), Pithecellobium unguis-cati (escambrón colorado), or Capparis flexuosa (palo de burro) where some leaf litter is present; areas with loose rocks on the ground; or rock sheets that provide shady refuges, and numerous regions where large pieces of metal (remnant ordnance) lay on the ground (Ortiz 1982, p. 2). Being a small, ground-dwelling lizard, the Monito gecko, like other members of its genus, is usually found under rocks, logs, leaf litter (and trash) (Rivero 1998, p. 89).

When the species' Recovery Plan was completed in 1986, only two island-wide surveys had been completed (Dodd and Ortiz 1983, entire; Hammerson 1984, entire), with the higher count from Dodd and Ortiz (1983, p. 120) reporting a total of 18 geckos during a 2-day survey. During both of these surveys all geckos were found during the day and under rocks. Subsequent surveys of variable length and area covered detected from 0 to 13 geckos during the day as well (PRDNER 1993, pp. 3-4; USFWS 2016, p. 9).

These previous attempts to survey for the Monito gecko are considered underestimates, because the surveys were done during the day when the species is more difficult to detect: It seems to be less active and mostly hiding under rocks, debris, crevices, or other substrates. Although geckos in the Sphaerodactylinae group are considered mostly diurnal or crepuscular (Rivero, p. 89; Pianka and Vitt 2003, p. 185), we suspect that the Monito gecko is more active at night and thus easier to detect during night surveys. This nocturnal behavior was confirmed during a May 2014 rapid assessment and a May 2016 systematic survey. During the May 2014 rapid assessment, at least one gecko was seen during each of the three nights of the trip; some encounters were opportunistic and others occurred while actively searching for the species (USFWS 2016, p. 9). In fact, no geckos were seen during daylight hours. Geckos were seen on exposed substrates and not hidden under rocks or litter, although some were seen within leaf litter mixed with rocks under a Ficus citrifolia tree. Geckos were observed escaping into the cracks and solution holes of the limestone rock.

The May 2016 systematic gecko survey involved setting up of 40 random plots on Monito Island (USFWS 2016, p. 10). Each plot was 20 m × 20 m (400 m2), so that the survey covered a total of 16,000 m2 or approximately 11 percent of Monito Island. Four two-person teams visited 10 plots each. Each observer surveyed each plot independently. All sites were surveyed at least twice, and all took place during the night. A total of 84 geckos was observed during 96 surveys among the 40 plots, most on exposed rock. Only 8 out of the 84 counted were found under a rock or other substrate; all others were out during the night. Only two geckos were opportunistically found during the day while observers were turning rocks and dry logs.

Gecko occupancy and abundance was estimated using a standard mathematical population model accounting for the abundance and detection bias that allow individuals to go unseen during surveys (Island Conservation (IC) 2016, p. 5). Occupancy of the geckos on Monito Island was determined to be 27.8 percent (11.3-68.6 percent). The estimated number of geckos per plot from the best fit model was 73.3 geckos (Range: 1-101). The abundance model indicates a total of 1,112 geckos present within the surveyed plots (95 percent confidence interval: 362-2,281). Extrapolated across the entire island, Monito Island hosts approximately 7,661 geckos (50 percent confidence interval: 5,344-10,590).

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of threatened and endangered species unless we determine that such a plan will not promote the conservation of the species. Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of a listed species, 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, and provide guidance to our Federal, State, and other governmental and nongovernmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery criteria being fully met. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished or become obsolete, yet the Service may judge that, overall, the threats have been minimized sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or perhaps delist the species. In other cases, recovery opportunities may have been recognized that were not known at the time the Recovery Plan was finalized. These opportunities may be used instead of methods identified in the Recovery Plan.

Likewise, information on the species may subsequently become available that was not known at the time the Recovery Plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a Recovery Plan.

The following discussion provides a brief review of recovery planning and implementation for the Monito gecko, as well as an analysis of the recovery criteria and goals as they relate to evaluating the status of the taxon.

The Monito Gecko Recovery Plan (Plan) was approved on March 27, 1986 (USFWS 1986, entire). The objective of the Plan was to conduct a systematic status survey and ecological study of the species, and to reevaluate the species' status and formulate a quantitative recovery level and specific recovery actions (USFWS 1986, p. 7). This Plan is considered outdated and does not contain recovery criteria that could lead to delisting the Monito gecko. However, the Plan does provide recovery objectives that, when accomplished, would aid in developing such criteria. No quantitative recovery level was defined due to the lack of data on historical population levels, population trends, and apparent historical population size. The objectives were accomplished as follows:

The Plan identifies five primary recovery actions:

(1) Determine the status of the present population;

(2) Conduct basic ecological studies;

(3) Determine extent, if any, of predation and competition by rats and other native lizards (see Factor C);

(4) Update the Plan; and

(5) Continue protection of the present population.

The following discussion provides specific details for each of these actions.

From 1982 to 1993, several Monito gecko surveys were conducted (USFWS 2016, p. 9). However, some of these surveys were either done before the Plan was completed (USFWS 1986) or did not provide enough information to answer the population objectives of the Plan, and current information (see Population Size and Trends above) suggests that surveys underestimated the number of geckos. Data from the 2014 rapid assessment and the 2016 systematic plot survey show that, overall, the Monito gecko is abundant across the whole island and numbers in the thousands, indicating a large healthy population, as specified in the Species Information section above.

Besides the population survey efforts, no basic ecological studies have been conducted for the Monito gecko. The Service believes that conducting ecological studies, as described in the Plan (USFWS 1986, pp. 7-8), is not crucial to further assess the species' listing status. There is no indication that ecological factors such as habitat preferences (species occurs throughout the island) and fluctuations in reproductive biology or activity patterns (both unknown), are critical for the species' listing status. The adjustment of surveys from diurnal to nocturnal was a key ecological (behavior) trait for researchers to consider in order to obtain reliable data and provide optimal population information. We will further discuss any possible needs of ecological evaluations in relation to post-delisting monitoring with our partners, but we will likely not need detailed research on the gecko's ecology based on the status of threats in its native habitat on Monito Island.

At the time of listing, the presence of rats on Monito Island was identified as the main threat to the Monito gecko. This threat was suspected to be the main cause of an apparent population decline for the Monito gecko, since rats are predaceous and are known to feed on both lizards and lizard eggs (Dodd and Ortiz 1983, 120; Case and Bolger 1991, pp. 273-278). However, the net effect, if any, of the potential rat predation on the geckos is debatable. For example, in comments quoted in the final listing rule (47 FR 46091, October 15, 1982), Dr. H. Campbell indicated that the scarcity of the Monito geckos was an artifact of the intense predation by black rats (Rattus rattus), while Dr. A. Schwartz expressed doubts that rats could have any effect on the gecko or its eggs. Dodd and Ortíz (1983, p. 121) also explained that during their surveys, predator pressure on the gecko could not be proven and that more studies were needed to determine if rats or other predators do affect the Monito gecko. The potential effect of rats on two other relatively common small geckos (Sphaerodactylus monensis and Sphaerodactylus levinsi) on nearby Mona and Desecheo Islands (respectively) is also unknown. Nevertheless, there is ample evidence that the Monito gecko would fare better without rats (Case and Bolger 1991, entire; Towns et al. 2006, entire; Jones et al. 2016, entire; Thibault et al. 2017, entire).

In October 1992, the PRDNER began a black rat eradication and survey project on Monito Island to benefit native and endemic species on that Island (García et al. 2002, p. 116). The eradication campaign continued in March 1993 with poisoning (rodenticide) and snap traps to assess changes in the rat population. A second eradication campaign started in October 1998, with three eradication events at 4-month intervals, and again using, in addition to snap traps, chew blocks (i.e., soft wood pieces soaked in canola oil) as a monitoring tool.

García et al. (2002, pp. 117-118) evaluated the status of the rat population seven times during the first campaign and five times during the second campaign. Since the completion of the second eradication campaign (August 1999), no rats have been detected on Monito Island. García et al. (2002, p. 118) concluded that in order to be certain that eradication had been achieved, it was essential to continue an appropriate rat monitoring program on the island, and recommended using chew blocks. However, no systematic rat monitoring has been implemented on the island since September 1999. Nonetheless, during a seabird blood sampling trip in August 2000, Anderson and Steeves (2000, p. 1) reported not seeing any rats on Monito Island, as did subsequent PRDNER bird survey trips in 2003.

On May 2014, the Service organized an expedition to Monito Island with the PRDNER in order to confirm the eradication of black rats from the island, and to evaluate the status of and threats to the Monito gecko. The Service and the PRDNER placed 27 snap traps and 70 chew blocks distributed along transects covering 870 meters in length (USFWS 2016, p. 7). In addition, some food items (i.e., watermelon, left-over canned food) were intentionally left exposed and available for rats. No signs of rats were detected on these available sources during this 4-day/3-night trip. During surveys conducted in May 2016, the Service and the PRDNER also placed 80 chew blocks, two within each gecko sampling plot (USFWS 2016, p. 10). No rats were seen or detected with the chew blocks during this 5-day/4-night trip. This is a marked contrast from when the species was listed in 1982, when rats were observed island-wide at all times during a 2-day expedition (47 FR 46090, October 15, 1982).

In short, although it cannot be ascertained when the last rat died, the Service believes Monito Island has been rat free since August-September 1999. Thus, the main threat to the species has not been present for at least the past 18 years.

Other lizards (i.e., Anolis monensis and Spondilurus monitae, formerly Mabuya mabouya sloani) that naturally occur on the Island may also prey on the Monito gecko. These other species are considered diurnal (active during the day), while the Monito gecko is considered nocturnal (active during the night). Determining the extent of these potential predator-prey interactions would be challenging. However, this should no longer be necessary, as the species has persisted despite potential predatory threats.

Because of the information on threats and recovery progress that is provided in the Monito gecko 5-year review (USFWS 2016) and this proposed rule, we believe the Monito gecko no longer meets the definition of an endangered or threatened species. Therefore, a formal update of the 1986 Plan is not needed.

Monito Island has been protected by the PRDNER as a nature reserve since 1986 (PRDNER, no date, p. 2). There are no permanent residents on Monito Island and access is allowed only under special permits issued by the PRDNER, which also maintains a ranger detachment and biologist on nearby Mona Island. Monito Island is also visited by illegal immigrants. The frequency of these events varies from year to year, and illegal immigrants are evacuated fairly quickly by the U.S. Coast Guard. Furthermore, the impacts of these visitations seem to be minimal (see discussion below).

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 List of Endangered and Threatened Species. “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 an endangered species or a threatened species because of any of 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 manmade factors affecting its continued existence.

We must consider these same five factors in reclassifying or delisting a species. In other words, for species that are already listed as endangered or threatened, the analysis for a delisting due to recovery must include an evaluation of the threats that existed at the time of listing, 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.

The following discussion examines the factors that were believed to affect the Monito gecko at the time of its listing, are currently affecting it, or are likely to affect the Monito gecko within the foreseeable future.

At the time of listing (47 FR 46090, October 15, 1982), the destruction, modification, or curtailment of its habitat (Factor A from the Act) was not considered a threat to the Monito gecko. In 1940, the U.S. Government acquired Monito Island, and the entire island was used by the Air Corps/U.S. Air Force as a high-level radar bombing and gunnery range (Parsons Corp. 2010, pp. 2-5). In 1961, Monito Island was declared surplus and was returned to the Commonwealth of Puerto Rico in September 1965 (Parsons Corp. 2010, pp. 2-5). Monito Island is managed by the PRDNER for conservation as part of the Mona Island Reserve (PRDNER, no date, p. 2). The final listing rule indicated that there were no plans to continue to use Monito Island for bombing practices at the time, and any major alteration of the island could be detrimental to the continued survival of the Monito gecko. In fact, the large amount of scattered debris on Monito Island suggests significant historical habitat modification from bombing activities (USFWS 1986, p. 5).

A Monito Island site inspection was conducted in August 2009 (Parsons Corp. 2010, entire). A qualitative reconnaissance and munitions constituents sampling was performed to confirm the range location and to evaluate the potential presence of munitions and explosives of concern (Parsons Corp. 2010, p. ES-1). Although unexploded ordnance (UXO) and munitions debris was found on Monito Island, immediate munitions removal actions were not warranted.

The potential for future UXO detonation activities may have an effect on the Monito gecko and its critical habitat. Since Monito Island is a natural reserve, all activities must be coordinated with the PRDNER. The Service has been conducting informal consultations with the U.S. Army Corps of Engineers in order to develop species-specific standard operating procedures (SOPs) for the Monito gecko and other federally listed species that occur on Monito Island. These site-specific SOPs would be considered the appropriate conservation measures required to avoid and minimize potential adverse effects on the species or its critical habitat. Based on the current consultation, the magnitude of threat of these future U.S. Army Corps of Engineers actions on the Monito gecko is considered minimal and non-imminent.

Monito Island receives illegal immigrants usually from the western islands of Cuba and Hispaniola while trying to enter U.S. territory. The PRDNER has stated that illegal immigrants sometimes light fires on Monito Island in order to be detected and rescued. This information was documented during the May 2016 trip, where two recent fire pits were found, along with a small pile of firewood cuttings, on the south-southeast side of the island on exposed rock with no vegetation in the immediate vicinity. The presence of fire pits on Monito Island had not been documented in the past. At least for the two fire pits found in May 2016, their placement and construction demonstrates these were controlled fires and their intention was not of criminal nature. Although there is no information available on the frequency and damage these fires may be causing, based on what was documented in May 2016, the potential effects of such fires may also be considered minimal. To date, there is no indication that any potential fires have spread throughout the Island.

The final listing rule (47 FR 46091, October 15, 1982) mentioned that because of the rarity of the Monito gecko, removal of specimens could be detrimental. At present, we are not aware of any individuals taken after listing for commercial, recreational, scientific, or educational purposes (Factor B from the Act). The remoteness and difficult access of Monito Island limits any collecting efforts. In addition, access is only allowed under special permits issued by the PRDNER, mostly for research, security, or management purposes. Furthermore, the Monito gecko's apparent rarity may have been an artifact of sampling bias, because surveys from 1982 to 1993 were done during daylight hours when the species is mostly hiding and the species has a low detection probability (see Species Information section).

The final listing rule (47 FR 46091, October 15, 1982) indicates that the presence of large numbers of introduced black rats was thought to be the major factor in the precarious state of the Monito gecko because, although predation by black rats on this species has not been confirmed, rats are predaceous and are known to feed on both lizards and lizard eggs (Dodd and Ortiz 1983, p. 120; Case and Bolger 1991, pp. 273-278) (Factor C from the Act). Thus, predation by rats was considered a possible cause of population decline for the Monito gecko (USFWS 1986, p. 5). As previously explained under the Recovery Action 3 section of this proposed rule, Monito Island has been rat free since August-September 1999. Thus, the main threat to the species has not been present for at least the past 18 years.

Although Monito Island is currently rat free, there is still the possibility that rats could reach the island again. Rats may be transferred from Mona Island by floating debris or more likely by human means. In addition to illegal immigrants, as discussed above, there is limited evidence of public use of Monito Island for recreational or unknown purposes. Although it is logistically difficult to disembark on the island and prohibited because of unexploded ordinances from the previous military activities, these disembarking events could increase the chance of invasion and establishment of rats or other exotics species. However, this possibility is considered very low. The rat eradication campaign was completed in 1999, and 18 years later, no rats have been found.

Ortiz (1982, p. 7) included the endemic Monito skink Spondilurus monitae (formerly Mabuya mabouya sloani) as a potential predator of the Monito gecko (Factor C from the Act). Other species of Mabuya feed primarily on small invertebrates, but the diversity of prey types in stomach contents, including small vertebrates, indicates that some skink species (such as M. bistriata) most likely feed on any moving animal of the appropriate size (Vitt and Blackburn 1991, p. 920). Rivero (1998, p. 106) states that M. mabouya live in places where Sphaerodactylus abound, and it is probable that geckos constitute an important food item for this skink. In fact, during the 2016 trip, biologists observed one adult skink active at night within the same exposed rock habitat used by the Monito gecko (i.e., exposed karst rock with lots of crevices and holes). It is also highly probable that another native lizard, Anolis monensis, will prey on the Monito gecko as well, except that Anolis are considered diurnal. The Monito gecko's trait of tail autotomy (tail loss) is certainly an effective predator defense mechanism (Pianka and Vitt 2003, p. 76). During our May 2014 site visit, 2 out of the 8 geckos captured for measurements were missing the tips of their tails, and during May 2016, only 5 geckos out of the 84 seen had missing tail parts. Although difficult to determine, this suggests natural predation pressure from the two other native lizard species mentioned above is low.

When the Monito gecko was listed (1982), the species did not have any other statutory or regulatory protections. Currently, in addition to the Act, territorial laws and regulations protect the Monito gecko (Factor D from the Act). In 1999, the Commonwealth of Puerto Rico enacted Law No. 241-1999, known as the New Wildlife Law of Puerto Rico (Nueva Ley de Vida Silvestre de Puerto Rico). The purpose of this law is to protect, conserve, and enhance both native and migratory wildlife species; declare property of Puerto Rico all wildlife species within its jurisdiction; provide provisions to issue permits; regulate hunting activities; and regulate exotic species, among other actions. In 2004, the PRDNER approved Regulation 6766—to regulate the management of threatened and endangered species in Puerto Rico (Reglamento 6766—Reglamento para Regir el Manejo de las Especies Vulnerables y en Peligro de Extinción en el Estado Libre Asociado de Puerto Rico), including the Monito gecko, which was listed as endangered. Article 2.06 of this regulation prohibits collecting, cutting, removing, among other activities, listed animals within the jurisdiction of Puerto Rico. There is no evidence that either the law or the regulation is not being adequately implemented.

Additionally, the PRDNER has managed Monito Island as a natural reserve since 1986, protecting its wildlife and vegetation. Monito Island is managed for conservation because it harbors one of the largest seabird nesting colonies in the Caribbean, in addition to other endemic and federally listed species like the Higo chumbo cactus (Harrisia portoricensis) and the yellow-shouldered blackbird (Agelaius xanthomus). There are no human permanent residents on the island, and public access is prohibited. The best available information indicates that Monito Island will remain permanently protected as a nature reserve and managed for conservation.

In listing the Monito gecko, we considered as a factor the species' extremely small population size (47 FR 46090, October 15, 1982) (Factor E from the Act). As previously explained in the Species Information and Recovery sections of this proposed rule, the Monito gecko is a small and cryptic species and difficult to detect, especially during the day. However, all of the historical surveys documented (USFWS 2016, p. 9) were done during daylight hours, when the species is apparently less active, safely hiding from diurnal native reptile predators, and/or exhibiting behavioral adaptations to avoid the hot temperatures within its xeric dry forest environment. As discussed above (see Population Size and Trends), these and other biases cause us to question the validity of these historical surveys. In contrast, as also discussed above (see Population Size and Trends), the best available population estimate for the species, completed during the May 2016 systematic plot survey, shows that the Monito gecko is widely distributed throughout Monito Island and gecko abundance appears to number in the thousands, indicating a large well-represented population (IC 2016, pp. 5-6). Our post-delisting monitoring will demonstrate the continued recovery of this species. In general, lizard populations remain fairly stable and are influenced by predation and amount of resources available, and predation and competition usually result in populations existing below their carrying capacity (Pianka and Vitt 2003, p. 64). Based on the May 2014 and 2016 observations and results, there is no indication that limited resources are acting on the population to warrant listing under the Act.

Potential sea level rise (Factor A from the Act) as a result of climate change is not a threat to this species or its habitat, because the Monito gecko is found only on Monito Island, which is 66 m (217 ft) above sea level and has no beach areas. The current rate of sea level rise in the Caribbean is 10 cm (3.9 inches) per century, with more specific sea level rise estimates for Puerto Rico ranging from 0.07 to 0.57 meters (m) (0.20 to 1.87 feet) above current sea level by the year 2060 and between 0.14 to 1.70 m (0.40 to 5.59 feet) by the year 2110 (Puerto Rico Climate Change Council 2013, p. 64). Hurricanes, such as the recent Hurricanes Irma and Maria are not considered a threat to the Monito gecko in part because the island is 66 m above sea level (Factor E from the Act). The vegetation on the island is short and therefore hurricane impacts are expected to be minimal. Additionally, the Monito gecko is under rocks most of the time. We have no information indicating rising temperatures will impact the gecko directly or indirectly.

Under section 4(a)(1) of the Act, we determine whether a species is an endangered species or threatened species because of any one or a combination of the following: (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.

The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). In our policy, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be in danger of extinction or likely to become so in the foreseeable future throughout all of its range; or a species may be in danger of extinction or likely to become so throughout a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.”

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 assessment of the status of a species is to determine its status throughout all of its range. Depending on the status throughout all of its range, we will subsequently examine whether it is necessary to determine its status throughout a significant portion 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. The same factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.

As required by section 4(a)(1) of the Act, we conducted a review of the status of this species and assessed the five factors to evaluate whether it is in danger of extinction currently or likely to become so in the foreseeable future throughout all of its range. We conducted a review of the status of Monito gecko and assessed the five factors to evaluate whether Monito gecko is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. In considering delisting the Monito gecko, we evaluated the range of this reptile to determine if any areas could be considered a significant portion of its range. The Monito gecko is endemic to Monito Island, a small island (approx. 40 acres; 16.2 hectares) off the west coast of Puerto Rico, and it has not been introduced elsewhere. There are no landscape barriers within Monito Island that might be of biological or conservation importance. The most recent survey found that the species occurs across most of the Island. Hence, the basic ecological components required for the species to complete its life cycle are considered present throughout Monito Island. We found that, Monito gecko populations are persistent with an estimate of approximately 7,661 geckos (50 percent confidence interval: 5,344-10,590). During our analysis, we found that impacts believed to be threats at the time of listing (primarily predation by rats, factor C) are either not as significant as originally anticipated or have been eliminated or reduced since listing, and we do not expect any of these conditions to substantially change post-delisting and into the foreseeable future, nor do we expect climate change to affect this species. We conclude that the previously recognized impacts to the Monito gecko no longer are a threat to the species, such that the species is no longer in danger of extinction throughout all of its range now or in the foreseeable future. In order to make this conclusion, we analyzed the five threat factors used in making Endangered Species Act listing (and delisting) decisions. This analysis indicates that the Monito gecko is not in danger of extinction throughout all of its range, nor is it likely to become so in the foreseeable future.

Consistent with our interpretation that there are two independent bases for listing species as described above, after examining the species' status throughout all of its range, we now examine whether it is necessary to determine its status throughout a significant portion of its range. Per our final SPR policy, we must give operational effect to both the “throughout all of its range” language and the SPR phrase in the definitions of “endangered species” and “threatened species.” Because we determined that Monito gecko is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which the species is in danger of extinction or likely to become so.

We evaluated the range of the Monito gecko to determine if any area may be significant. The Monito gecko is endemic to Monito Island where they are under formal protection and management in the State owned nature reserve and the only life zone present on Monito Island is subtropical dry forest (Ewel and Whitmore 1973, p. 10). In this life zone, the Monito gecko has been found in areas characterized by loose rock sheets or small piles of rocks, exposed to the sun, and with little or no vegetation cover. These areas include small groves where some leaf litter is present; areas with loose rocks on the ground; or rock sheets that provide shady refuges, and numerous regions where large pieces of metal (remnant ordnance) lay on the ground. Because its range is limited to Monito Island and the only life zone present on Monito Island is subtropical dry forest, we find that the species is comprised of a single, contiguous population and there are no logical biological divisions delineating portions of the range. For this reason, we did not identify any portions that may be significant because of natural or biological divisions indicating biological or conservation importance.

We also examined whether any threats are geographically concentrated in some way that would indicate the species may be in danger of extinction, or likely to become so, in a particular area. We conclude that none of them are concentrated in any particular area of the species' range; all factors act uniformly throughout its range. The factors affecting the Monito gecko occur at similarly low levels throughout its range and would affect all individuals of the population. Because the species acts as a single population, no portion is likely to have a different status or be differently affected by threats than any other portion or than that of the species throughout all of its range. Therefore, no threats or their effects are sufficiently concentrated to indicate the species may be in danger of extinction, or likely to become so in any area of the species' range. We did not identify any portions where the species may be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portions warrant a detailed SPR analysis because there cannot be any portion, including a significant portion, of the species' range where the species is in danger of extinction or likely to become so in the foreseeable future. For these reasons, we conclude that the species is not in danger of extinction, or likely to become so, throughout a significant portion of its range.

The Monito gecko has demonstrated the ability to adapt to changing environmental conditions over time from both anthropogenic and natural disturbances. And although there is no genetic information available for the Monito gecko, there are no indications of a decreased fitness or that a lack of representation is causing species mortality or limiting the species' ability to adapt. Although the Monito gecko population is considered to have low redundancy (i.e., one population endemic to Monito Island), no immediate risk of extirpation was identified and no other populations outside of Monito Island are needed for its recovery. In addition, the fact that the species was found throughout the Island and gecko abundance is in the thousands, indicates a large well-represented population with demonstrated abilities to recover and adapt from disturbances.

Because the Monito gecko population is considered self-sustaining, contains a relatively large number of individuals, and has demonstrated high resilience and viability, we expect this population to persist into the future. The species is considered abundant within its habitat, which consists of adequate area and quality to maintain survival and reproduction in spite of disturbances. Thus, the Monito gecko appears to have highly resilient population attributes (e.g., habitat generalist, potential high adult survival rate) that allow at least some degree of disturbance within a harsh xeric environment.

We have carefully assessed the best scientific and commercial information available regarding the threats faced by the Monito gecko in developing this proposed rule. The Service finds that the present or threatened destruction, modification, or curtailment of its habitat (factor A) is not a threat to the continued existence of the Monito gecko, and we do not expect it to be a threat in the future. We also conclude that overutilization (factor B) and disease (factor C) are not a threat to the Monito gecko. Natural predation by other native lizards may occur, but this activity is considered a low-magnitude threat because the Monito gecko has persisted despite potential predation and there is no indication that the magnitude of an undetermined natural predation pressure significantly affects the gecko's survival. No rats have been detected on Monito Island since August 1999. Therefore, we conclude that predation (factor C) is not a threat to the Monito gecko.

The species' apparent small population size (factor E), noted at the time of listing, may have been an artifact of bias as surveys were conducted under conditions when the species was not easily detectable. There are no known potential climate change effects (i.e., sea level rise or changes in air temperature) (factor A) that negatively affect the Monito gecko. No other natural or manmade factors are considered threats (factor E). The Monito gecko and its habitat have been and will continue to be protected under Commonwealth laws and regulations (factor D), and these existing regulatory mechanisms are adequate to protect the Monito gecko now and in the future. The information indicates that this species is no longer at immediate risk of extinction, nor is it likely to experience reemergence of threats and associated population declines in the future. Based on the analysis above and after considering the best available scientific and commercial information, we conclude that the Monito gecko does not currently meet the Act's definition of an endangered or threatened species throughout its range.

If this proposed rule is finalized, it would revise 50 CFR 17.11(h) to remove the Monito gecko from the Federal List of Endangered and Threatened Wildlife. If this proposed rule is finalized, the prohibitions and conservation measures provided by the Act would no longer apply to the Monito gecko. Federal agencies would no longer be required to consult with us under section 7 of the Act to ensure that any action authorized, funded, or carried out by them is not likely to jeopardize the gecko's continued existence. The prohibitions under section 9(a)(1) of the Act would no longer make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce, or take, possess, sell, deliver, carry, transport, or ship Monito geckos. Finally, this rule would also remove the Federal regulations related to the Monito gecko listing: The critical habitat designation at 50 CFR 17.95(c).

Section 4(g)(1) of the Act requires us to implement a system in cooperation with the States to monitor effectively for not less than 5 years the status of all species that are delisted due to recovery. Post-delisting monitoring (PDM) refers to activities undertaken to verify that a species delisted due to recovery remains secure from the risk of extinction after the protections of the Act no longer apply. The primary goal of PDM is to ensure that the species' status does not deteriorate, and if a decline is detected, to take measures to halt the decline so that proposing it as threatened or endangered is not again needed. If at any time during the PDM period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing. At the conclusion of the PDM period, we will review all available information to determine if re-listing, the continuation of monitoring, or the termination of monitoring is appropriate.

Section 4(g) of the Act explicitly requires cooperation with the States (which includes Territories such as Puerto Rico) in development and implementation of PDM programs. However, we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation after delisting. In April 2017, the PRDNER and the Service agreed to be cooperators in the PDM for the Monito gecko.

We have prepared a Draft PDM Plan for the Monito gecko (USFWS 2017). The plan is designed to detect significant declines in the Monito gecko with reasonable certainty and precision, and detect possible new or reoccurring threats (i.e., presence of rats). The plan:

(1) Summarizes the species' status at the time of delisting;

(2) Defines thresholds or triggers for potential monitoring outcomes and conclusions;

(3) Lays out frequency and duration of monitoring;

(4) Articulates monitoring methods including sampling considerations;

(5) Outlines data compilation and reporting procedures and responsibilities; and

(6) Proposes a PDM implementation schedule including timing and responsible parties.

Concurrent with this proposed delisting rule, we announce the draft PDM plan's availability for public review. The plan can be viewed in its entirety at http://www.fws.gov/caribbean/es or at http://www.regulations.gov under Docket No. FWS-R4-ES-2017-0082. Copies can also be obtained from the U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, Boquerón, Puerto Rico (see FOR FURTHER INFORMATION CONTACT). We seek information, data, and comments from the public regarding the Monito gecko and the PDM strategy. We are also seeking peer review of this draft PDM plan concurrently with this comment period. We anticipate finalizing this plan, considering all public and peer review comments, prior to making a final determination on the proposed delisting rule.

In accordance with our policy 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 solicit the expert opinions of at least five appropriate and independent specialists regarding the science in this proposed rule and the draft PDM plan. The purpose of such review is to ensure that we base our decisions on scientifically sound data, assumptions, and analyses. We will send peer reviewers copies of this proposed rule and the draft PDM plan immediately following publication of the proposed rule in the Federal Register. We will invite peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed delisting rule and draft PDM plan. We will summarize the opinions of these reviewers in the final decision documents, and we will consider their input and any additional information we receive as part of our process of making a final decision on this proposal and the draft PDM plan. 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:

(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 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 we do not need to prepare an Environmental Assessment or Environmental Impact Statement, as defined in 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 Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that no tribal lands are affected by this proposal.

A complete list of references cited is available on http://www.regulations.gov under Docket Number FWS-R4-ES- 2017-0082.

The primary author of this document is Jan P. Zegarra, Caribbean Ecological Services Field Office (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: