Federal Register Vol. 83, No.75,

On December 15, 2011, BHTI applied for a type certificate for a new transport category helicopter designated as the Model 525. The aircraft is a medium twin-engine rotorcraft. The design maximum takeoff weight is 20,500 pounds, with a maximum capacity of 19 passengers and a crew of 2.

The BHTI Model 525 helicopter will be equipped with a four-axis full authority digital FBW FCS that provides for aircraft control through pilot input and coupled flight director modes. Current regulations are inadequate in the area of pilot awareness of the flight control modes while operating the helicopter. The proposed special condition will require that suitable mode annunciation be provided to the flight crew for events that significantly change the operating mode of the system but do not merit the traditional warnings, cautions, and advisories.

Under the provisions of 14 CFR 21.17, BHTI must show that the Model 525 helicopter meets the applicable provisions of part 29, as amended by Amendment 29-1 through 29-55 thereto. The BHTI Model 525 certification basis date is December 31, 2013, the effective date of application to the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the BHTI Model 525 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the BHTI Model 525 helicopter must comply with the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).

The BHTI Model 525 helicopter will incorporate the following novel or unusual design features: A four-axis full authority digital FBW FCS. Pilot control inputs, through the mechanically linked cockpit controls (cyclic, collective, directional pedals), are transmitted electrically to each of the three Flight Control Computers (FCCs). The pilot control input signals are then processed and transmitted to the hydraulic flight control actuators which affect control of the main and tail rotors. The FCCs process the pilot control input signals depending on the flight control mode in affect.

The current 14 CFR 29 standards do not provide adequate standards for pilot awareness of the flight control modes while operating the helicopter. These special conditions require that suitable mode annunciation be provided to the flight crew for events that significantly change the operating mode of the system but do not merit the traditional warnings, cautions, and advisories.

Notice of proposed special conditions No. 29-042-SC for the BHTI Model 525 helicopter was published in the Federal Register on December 7, 2017 (82 FR 57687). One commenter, Sikorsky Aircraft (Sikorsky), responded to the Notice.

Sikorsky requested that the annunciation required by the proposed special conditions be placed within the immediate field of view of the pilot. Sikorsky also requested that because the word “significantly” in the proposed special conditions may be subjective, the following language be added to provide clarification: “in such a way as to alter the pilots primary control strategy.”

The FAA agrees. We have revised the special conditions accordingly.

As discussed above, these special conditions are applicable to the BHTI Model 525 helicopter. Should BHTI apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of rotorcraft. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

The Coast Guard will enforce the special local regulation established in 33 CFR 100.1103, Table 1, Item number 3 on April 22, 2018. From 9 a.m. to 1 p.m. on April 22, 2018 the special local regulation applies to the navigable waters from Bluff Point on the southeastern side of Tiburon Peninsula to Point Campbell on the northern edge of Angel Island, and from Peninsula Point on the southern edge of Tiburon Peninsula to Point Stuart on the western edge of Angel Island.

Under the provisions of 33 CFR 100.1103, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the regulated area during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1103 and 5 U.S.C. 552(a). In addition to this notification in the Federal Register, the Coast Guard plans to provide the maritime community with extensive advance notification of the regulated area and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notification, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

I. Table of Abbreviations APA Administrative Procedure Act CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule due to the short time period between when Sector Delaware Bay received complete details of this operation, March 28, 2018, and the date when this safety zone needs to go into effect by. It is impracticable and contrary to the public interest to publish an NPRM before issuing this rule because we must establish the safety zone by April 30, 2018, to ensure the safety of personnel, vessels, associated equipment, and the marine environment from potential hazards created by survey and diving operations the Coast Guard is providing an opportunity to comment prior to the rule becoming effective and while the rule is in effect and may amend the rule after it is effective if necessary.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to mitigate hazards presented by survey and diving operations.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Delaware Bay (COTP) has determined that a safety zone is necessary to mitigate the hazards involving survey and diving operations. The safety zone covers all navigable waters within 250-yards of vessels and associated equipment being used by personnel to conduct survey and diving operations.

This rule establishes a safety zone from April 30, 2018, through June 30, 2018. The safety zone will cover all navigable waters within 250-yards of survey and diving operation vessels, as well as any associated equipment, operating in Marcus Hook Anchorage No. 7 near Marcus Hook, PA, and within the Marcus Hook Range on the Delaware River. Diving and survey operations conducted within the anchorage will be in the southernmost portion of the anchorage on the eastern side adjacent to the New Jersey shoreline. The affiliated safety zone will restrict available anchorage grounds in the lower portion of Anchorage No. 7. During diving and survey operations conducted within navigable channel of the Marcus Hook Range, vessels will not be permitted to anchor within the southern portion of the anchorage as this section will be utilized to allow traffic to safely pass around the safety zone. Information on procedures for requesting permission to anchor, as well as any changes to traffic patterns, will be distributed to the maritime community via the methods stated below.

Notification regarding the specific location of the zone and any changes to traffic patterns will be sent to the maritime community via Broadcast Notice to Mariners and Marine Safety information Bulletins. Marine Safety Information Bulletins may be obtained from https://homeport.uscg.mil/port-directory/delaware-bay or by calling the Coast Guard Delaware Bay Command Center at 215-271-4807.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, location and duration of the safety zone. The safety zone will impact a small designated area of Marcus Hook Anchorage No. 7 and the Marcus Hook Range on the Delaware River. During enforcement periods of the safety zone these impacts include restrictions to the location, type and size of vessels that may anchor in the Marcus Hook Anchorage. However, other anchorages in the Delaware River will remain fully operational as alternatives for vessel traffic. Vessel traffic will be able to safely transit around the safety zone. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16, Local Notice to Mariners, and Marine Safety Information Bulletin about the zone.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 250-yards of survey and diving operation vessels, as well as any associated equipment, operating in Marcus Hook Anchorage No. 7 and Marcus Hook Range, on the Delaware River. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. The Coast Guard may amend this temporary final rule if we receive comments from the public that indicate that a change is warranted. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

Documents mentioned in this temporary final rule as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted.

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

I. Background

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52 “Approval and Promulgation of Implementation Plans,” title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is “incorporated by reference.” This means that EPA has approved a given state regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new and/or revised state regulations. A submission from a state can revise one or more rules in their entirety or portions of rules, even change a single word. The state indicates the changes in the submission (such as, by using redline/strikethrough) and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number. which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

On May 22, 1997, (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each state SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally-approved regulations and source specific permits submitted by each state agency. These SIP Compilations are updated primarily on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular state. EPA applied the 1997 revised procedures to Florida on June 16, 1999 (64 FR 32346).

This action represents EPA's publication of the Florida SIP Compilation update, appearing in 40 CFR part 52: Specifically, the materials of paragraphs (c) and (d) at 40 CFR 52. In addition, notice is provided of correcting typographical errors, state effective dates, EPA approval dates and Federal Register citations listed in to Table (c) paragraph of paragraph 52.520, as described below:

EPA has determined that this action falls under the “good cause” exemption in the section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs and corrects typographical errors appearing in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and typographical corrections) only reflect existing law. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the updated Florida SIP Compilation and notice of typographical corrections to the Florida “Identification of Plan” portion of the Federal Register. Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP compilation and the CFR “Identification of plan” section (which includes table entry corrections).

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by Florida and federally effective prior to October 1, 2017. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the Florida SIP compilations previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) is not available.

40 CFR part 52 is amended as follows:

LSC proposed to create a new regulation, known as a Touhy regulation, that would establish a process by which litigants in cases where LSC is not a party could obtain documents or testimony from LSC and its employees. Arising from the Supreme Court's decision in U.S. ex rel Touhy v. Ragen, 340 U.S. 462 (1951), Touhy regulations define agencies' procedures for responding to document or testimony requests, as well as individual agency employees' obligation to follow such procedures.

Between 2013 and 2017, LSC and its Office of the Inspector General (OIG) received several subpoenas and requests for testimony or documents but did not have internal or external guidance in place regarding such requests. At the OIG's recommendation, LSC added rulemaking on requests for documents and testimony to its rulemaking agenda in 2015. On October 15, 2017, the Operations and Regulations Committee (Committee) of LSC's Board of Directors (Board) voted to recommend that the Board authorize rulemaking on part 1603. On October 17, 2017, the Board authorized LSC to begin rulemaking.

Regulatory action was justified for four reasons. First, a Touhy regulation would promote efficiency and timeliness by identifying those LSC officials with the authority to respond to requests or subpoenas for documents or testimony and establishing a procedure for LSC's consideration of such requests. Second, it would minimize the possibility of involving LSC in controversies not related to its functions. Third, it would prevent the misuse of LSC's employees as involuntary expert witnesses for private interests or as inappropriate expert witnesses as to the state of the law. Fourth, it would maintain LSC's impartiality toward private litigants.

On January 21, 2018, the Committee voted to recommend that the Board approve this notice of proposed rulemaking (NPRM) for publication. On January 23, 2018, the Board accepted the Committee's recommendation and voted to approve publication of this NPRM with a 30-day comment period. LSC published the notice of proposed rulemaking in the Federal Register on February 1, 2018, 83 FR 4827. The comment period remained open for thirty days and closed on March 5, 2018.

On April 8, 2018, the Committee voted to recommend that the Board adopt this Final Rule and approve its publication in the Federal Register. On April 10, 2018, the Board accepted the Committee's recommendation and voted to adopt and approve publication of this final rule.

Materials regarding this rulemaking are available in the open rulemaking section of LSC's website at http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at http://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking.

LSC received no comments on the proposed rule. Consequently, LSC is adopting the text of the proposed rule published in the Federal Register at 83 FR 4827 with minor revisions. At the Operations and Regulations Committee meeting on April 8, 2018, the Committee recommended that LSC make two technical changes. The first was to include language in the definition of employee to make clear that this rule applies to non-Director members of Board committees. The second was to add language to § 1603.4(a) clarifying that individuals seeking testimony from an employee of OIG must follow the procedures in § 1603.4(b) for requesting testimony from the OIG Legal Counsel, rather than submitting the request to LSC's General Counsel. LSC Management concurred with the recommendations and revised the proposed final rule text accordingly.

In a final rule published elsewhere in this issue of the Federal Register, LSC is removing the existing version of part 1603 pertaining to state advisory councils. LSC is replacing it with this regulation.

This is a summary of the Commission's Second Report and Order (Second Report and Order) in WT Docket No. 10-4, FCC 18-35, released on March 23, 2018. The complete text of the Second Report and Order, including all Appendices, is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW, Room CY-A157, Washington, DC 20554, or by downloading the text from the Commission's website at https://apps.fcc.gov/edocs_public/attachmatch/FCC-18-35A1.pdf.

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 Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The Commission will send a copy of the Second Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

1. The Commission's Consumer Signal Booster rules, adopted in a 2013 Report and Order (WT Docket No. 10-4) (Report and Order), 78 FR 21555, Apr. 11, 2013, appear to have achieved the Commission's goals of expanding Americans' access to well-designed boosters that do not harm wireless providers' networks. The rules adopted in the Report and Order, however, were conservatively designed and tailored to meet the needs of individual consumers. Given the record developed in the proceeding, the Commission finds that it can expand the availability of Consumer Signal Boosters without creating a risk of unacceptable interference. Accordingly, in its Second Report and Order, the Commission further expands access to signal boosters by eliminating a restriction on their use that the Commission now finds unnecessary. Specifically, based on the record before it, the Commission removes the personal use restriction on the operation of Provider-Specific Consumer Signal Boosters so that small businesses, public safety entities, and other organizations also may take full advantage of these boosters to improve their access to quality wireless coverage. In an accompanying Second Further Notice of Proposed Rulemaking, published elsewhere in this issue of the Federal Register, the Commission proposes to remove the personal use restriction for Wideband Consumer Signal Boosters as well.

2. The Commission in the Report and Order required that prior to operating a Consumer Signal Booster, the subscriber, inter alia, must (1) obtain the consent of the licensee providing service to the subscriber, and (2) register the booster with the licensee providing service to the subscriber. These requirements help ensure that wireless providers retain sufficient control over signal boosters to avoid a violation of Section 310(d) of the Communications Act and are key components to the success of the Consumer Signal Booster regulatory regime. Coupled with § 20.21(e)'s Network Protection Standard (NPS), these requirements have ensured that signal boosters are effective at improving signal coverage without causing harmful interference to wireless networks.

3. The Commission originally included the personal use restriction on Consumer Signal Booster operation and use in the expectation that it would help support a streamlined process for meeting the consent and registration requirements. In particular, by restricting operation to the subscriber's personal use, the Commission ensured that consumers need only obtain consent from and register their devices with the wireless provider to which they subscribe. For example, if a subscriber plans to use his booster with only his own provider for his own personal use, he would need only register with that provider. Or, if he and a housemate plan to use the same booster with two different wireless providers (his provider and the housemate's different provider), each would need to register with his own provider.

4. In a Further Notice of Proposed Rulemaking released on September 23, 2014 (WT Docket No. 10-4) (Further NPRM), 79 FR 70837, Nov. 28, 2014, the Commission explained that, because a Provider-Specific Consumer Signal Booster operates only on a single wireless provider's spectrum, once the subscriber has obtained provider consent to use the signal booster, any transmission from the signal booster would be authorized. The Commission therefore questioned whether the personal use restriction remains necessary for Provider-Specific Consumer Signal Boosters. The Further NPRM specifically asked whether the Commission should eliminate the personal use restriction for Provider-Specific Consumer Signal Boosters, and it sought comment on several related questions. Commenters responding to the Further NPRM overwhelmingly supported elimination of the personal use restriction for Provider-Specific Consumer Signal Boosters.

5. As described below, the Commission finds that the personal use restriction on Provider-Specific Consumer Signal Boosters is unnecessary and that removing it is in the public interest. The Commission therefore amends § 20.21 to remove this restriction. The action the Commission takes will expand access to signal boosters for small businesses, public safety entities using subscriber-based services in support of their operations, and other organizations, furthering the goals the Commission first set out to achieve in the Report and Order. When these rule changes take effect, once a subscriber—whether an individual or a non-individual—properly registers its Provider-Specific Consumer Signal Booster with its provider, anyone who subscribes to that provider also may use the device. For example, if a small business owner registers her Provider-Specific Consumer Signal Booster with and receives the consent of her wireless provider, any employees or customers who subscribe to that same provider would then be free to use that booster without registering. The Commission reiterates that the registering subscriber is an “operator” under its rules and as such must adhere to the requirements of its rules.

6. In adopting this change, the Commission concludes that the personal use restriction on Provider-Specific Consumer Signal Boosters is not needed to prevent unauthorized operation of these boosters or to ensure compliance with its signal booster rules. As stated in the Further NPRM and explained above, the fact that a subscriber must register his Provider-Specific Consumer Signal Booster with his provider renders the personal use restriction unnecessarily restrictive. As Nextivity points out, “[a]s required by the Commission's rules and implemented in the equipment certification process, Provider-Specific Consumer Signal Boosters can only be used with an appropriate carrier registration and therefore the carrier always retains control over the Provider-Specific Consumer Signal Booster. . . . In no instance can a Provider-Specific Consumer Signal Booster be used to operate on spectrum without the carrier's consent.”

7. In addition to concluding that the personal use restriction on Provider-Specific Consumer Signal Boosters is unnecessary, the Commission also finds that modifying its rules as described in its Second Report and Order will affirmatively further the public interest. As T-Mobile explains, “[t]here are numerous practical considerations that favor the use of a provider-specific consumer booster in a non-personal use setting. For example, a small business may need to install a booster to improve signal strength within its office.” The inclusion of the personal use restriction on Provider-Specific Consumer Signal Boosters, however, prevents such use and blocks whole segments of the public—e.g., small businesses, institutions of higher education, office parks, factories, warehouses, and government buildings—from taking advantage of the boosters' benefits. As T-Mobile also notes, “[t]he only options available to such [small businesses and others] would be to deploy an industrial signal booster, switch carriers, or continue to endure indoor coverage issues.” The Commission also agrees with Nextivity that retaining the restriction on Provider-Specific Consumer Signal Boosters “denies a significant segment of the American business sector from fully participating in the nation's wireless transformation. Further, the prohibition disproportionality penalizes small business users in rural and edge areas and dense indoor urban environments where wireless coverage often is especially challenged.”

8. Accordingly, based on the record before it, the Commission eliminates the personal use restriction on Provider-Specific Consumer Signal Boosters. Not only is this restriction unnecessary, but its removal will have cognizable public interest benefits by permitting more entities to take advantage of the recognized benefits of Provider-Specific Consumer Signal Boosters.

9. The Second Report and Order does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, the Second Report and Order does not contain any new or modified information collection burdens 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). The Final Regulatory Flexibility Certification (FRFC) is in Appendix C of the Second Report and Order.

10. The Commission will send a copy of the Second Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA (5 U.S.C. 603(a)).

11. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a FRFC, set forth in Appendix C of the Second Report and Order, concerning the possible impact of the rule changes.

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

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

14. Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j), 7, 301, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 157, 301, 302, and 303, that the Second Report and Order in WT Docket No. 10-4 is adopted.

15. It is further ordered that part 20 of the Commission's rules, 47 CFR part 20, is amended as specified in Appendix A of the Second Report and Order.

16. It is further ordered that the adopted rules will become effective 30 days after the date of publication in the Federal Register.

17. It is further ordered that, pursuant to Section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of the Second Report and Order to Congress and to the Government Accountability Office.

18. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Second Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531 et seq.), a species may be added to the Lists of Endangered and Threatened Wildlife and Plants if it is endangered or threatened throughout all or a significant portion of its range. Adding a species to (“listing”) or removing a species from these Lists (“delisting”) can only be accomplished by issuing a rule.

What this document does. This rule makes final the removal of the lesser long-nosed bat (Leptonycteris curasoae yerbabuenae) from the Federal List of Endangered and Threatened Wildlife.

The basis for our action. Under the ESA, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We may delist a species if the best available scientific and commercial data indicate that the species is neither endangered or threatened. We have determined that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act.

Peer review and public comment. We sought comments on both the SSA and the proposed delisting rule from independent specialists to ensure that this rule is based on scientifically sound data, assumptions, and analyses. We also considered all comments and information received during the comment period.

In carrying out our responsibility to enforce the Endangered Species Act of 1973, as amended (ESA or Act; 16 U.S.C. 1531 et seq.), we, the U.S. Fish and Wildlife Service (Service), maintain the Lists of Endangered and Threatened Wildlife and Plants in title 50 of the Code of Federal Regulations. On September 30, 1988, we published a final rule in the Federal Register (53 FR 38456) to add the Mexican long-nosed bat (Leptonycteris nivalis) and Sanborn's long-nosed bat (Leptonycteris sanborni (=L. yerbabuenae)) as endangered species to the Federal List of Endangered and Threatened Wildlife (List). That rule became effective on October 31, 1988. In 1993, we amended the List by revising the entry for the Sanborn's long-nosed bat to “Bat, lesser (=Sanborn's) long-nosed” with the scientific name “Leptonycteris curasoae yerbabuenae.” We issued a recovery plan for the lesser long-nosed bat on March 4, 1997.

In 2001, we revised the entry for the lesser long-nosed bat to remove the synonym of “Sanborn's”; consequently, the listing reads, “Bat, lesser long-nosed” and retains the scientific name “Leptonycteris curasoae yerbabuenae.” Cole and Wilson (2006) recommended that L. c. yerbabuenae be recognized as Leptonycteris yerbabuenae. Additionally, Wilson and Reeder's (2005) “Mammal Species of the World (Third Edition), an accepted standard for mammalian taxonomy, also indicates that L. yerbabuenae is a species distinct from L. curasoae. Currently, the most accepted and currently used classification for the lesser long-nosed bat is L. yerbabuenae; however, the Service continues to classify the listed entity as Leptonycteris curasoae yerbabuenae. On August 30, 2007, we completed a 5-year review, in which we recommended reclassifying the species from endangered to threatened status (i.e., “downlisting”) under the Act (Service 2007; available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or https://www.fws.gov/southwest/es/arizona/Lesser.htm). We recommended, as part of the status review, that the Service recognize and change the taxonomic nomenclature for the lesser long-nosed bat to be consistent with the most recent classification of this species, L. yerbabuenae. However, because we are removing the lesser long-nosed bat from the List (i.e., “delisting” the species), this recommendation is moot. Please note that, throughout this rule, we continue to refer to the lesser long-nosed bat as a subspecies.

The recommendation to downlist the species in the 5-year review was made because information generated since the listing of the lesser long-nosed bat indicated that the subspecies was not in imminent danger of extinction throughout all or a significant portion of its range (higher population numbers, increased number of known roosts, reduced impacts from known threats, and improved protection status) and thus, did not meet the definition of endangered. On July 16, 2012, we received a petition from The Pacific Legal Foundation and others requesting that, among other reclassification actions, the Service downlist the lesser long-nosed bat as recommended in the 5-year review. On September 9, 2013, the Service published a 90-day petition finding under the Act stating that the petition contained substantial scientific or commercial information indicating the petitioned action (i.e., downlisting) for the lesser long-nosed bat may be warranted (78 FR 55046).

On November 28, 2014, the Service received a “60-day Notice of Intent to Bring Citizen Suit.” On November 20, 2015, the New Mexico Cattle Growers Association and others filed a complaint challenging the Service's failure to complete the 12-month findings on five species, including the lesser long-nosed bat (New Mexico Cattle Growers Association, et al. v. United States Department of the Interior, et al., No. 1:15-cv-01065-PJK-LF (D.N.M)). Plaintiffs asked the Court to compel the Service to make 12-month findings on the five species. The parties settled the lawsuit with the requirement that the Service submit a 12-month finding for the lesser long-nosed bat to the Office of the Federal Register for publication on or before December 30, 2016, among other obligations not related to the lesser long-nosed bat. On January 6, 2017, the Service published in the Federal Register a proposed rule (82 FR 1665) and 12-month petition finding and request for comments to remove the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife.

We have not made any substantive changes in this final rule based on the comments that we received during the public comment period on the January 6, 2017, proposed rule (82 FR 1665). Based on peer review, State, and public comments, we added text and information to clarify some language in the SSA and the proposed rule that has been incorporated into this final rule as discussed below in the Summary of Comments and Recommendations.

A thorough review of the taxonomy, life history, ecology, and overall viability of the lesser long-nosed bat is presented in the SSA report for the lesser long-nosed bat (Service 2017), which is available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above). The SSA report documents the results of the biological status review for the lesser long-nosed bat and provides an account of the subspecies' overall viability through forecasting of the subspecies' condition in the future (Service 2017; entire). In the SSA report, we summarize the relevant biological data and a description of past, present, and likely future stressors to the subspecies, and conduct an analysis of the viability of the subspecies. The SSA report provides the scientific basis that informs our regulatory determination regarding whether this subspecies should be listed as an endangered or a threatened species under the Act. This determination involves the application of standards within the Act, its implementing regulations, and Service policies to the scientific information and analysis in the SSA.

The following discussion is a summary of the results and conclusions from the SSA report. The Service invited a group of experts to provide input as the draft SSA report was being developed. These experts included lesser long-nosed bat biologists, as well as experts in climate change modeling and plant phenology (the scientific study of periodic biological phenomena, such as flowering, in relation to climatic conditions). Following development of the draft SSA, and in compliance with our policy, “Notice of Interagency Cooperative Policy for Peer Review of Endangered Species Act Activities,” which was published on July 1, 1994 (59 FR 34270), we solicited peer reviews on the draft SSA report from four objective and independent scientific experts in November 2016 and received responses from two peer reviewers.

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

Following listing of the lesser long-nosed bat, recovery activities were based on the U.S. recovery plan (Service 1997, entire) and the Program for the Conservation of Migratory Bats in Mexico, which was formed in 1994 (Bats 1995, pp. 1-6). The primary recovery actions outlined in the recovery plan were to monitor and protect known roost sites and foraging habitats. Because the lesser long-nosed bat is a colonial roosting species known to occur at a limited number of roosts across its range in Mexico and the United States (Arizona and New Mexico), impacts at roost locations could have a significant impact on the population, particularly if the impacts occur at maternity roosts. However, because approximately 60 percent (8 out of 14) of the roost locations known at the time of listing were on “protected” lands in both the United States and Mexico, the degree of threat from impacts to roost locations was determined in our SSA to be moderate. For example, as stated in the proposed rule, approximately 75 percent of this species in the United States is on federally managed lands where there are guidelines and management plans (Land and Resource Management Plans, Resource Management Plans, Integrated Natural Resource Management Plans, etc.) that include actions and measures that contribute to the protection of lesser long-nosed bats and their habitat.

The Service's 5-year review recommended downlisting from endangered to threatened status (Service 2007; available at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or https://www.fws.gov/southwest/es/arizona/Lesser.htm). The 5-year review, indicated that information generated since the listing of the bat indicated that it was not in imminent danger of extinction throughout all or a significant portion of its range and thus, would not meet the definition of endangered. In Mexico, the lesser long-nosed bat was removed from that nation's equivalent of the endangered species list in 2013 (SEMARNAT 2010, entire; Medellin and Knoop 2013, entire). Between 1990 and 2010, Mexican researchers carried out a wide range of studies that demonstrated that the lesser long-nosed bat was no longer in the critical condition that led it to be listed as in danger of extinction in Mexico. Specifically, the evaluation to delist in Mexico showed (1) the distribution of lesser long-nosed bats is extensive within Mexico, covering more than 40 percent of the country; (2) the extent and condition of lesser long-nosed bat habitat is only moderately limiting and this species has demonstrated that it is adaptable to varying environmental conditions; (3) the species does not exhibit any particular characteristics that make it especially vulnerable; and (4) the extent of human impacts is average and increased education, outreach, and research have reduced the occurrence of human impacts and disturbance.

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

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

For more information on this topic, see chapter 2 of the SSA Report (Service 2017), which is available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

For the last 20 years, following the completion of the lesser long-nosed bat recovery plan, there has been a steadily increasing effort related to the conservation of this subspecies. In addition, better methods of monitoring have been developed, such as the use of infrared videography and radio telemetry. These monitoring efforts have led to an increase in the number of known roosts throughout its range, from approximately 14 known at the time of listing to approximately 75 currently known roost sites. Additionally, these monitoring efforts have led to more accurate assessments of the numbers of lesser long-nosed bats using these roosts. The 1988 listing rule emphasized low population numbers along with an apparent declining population trend. At the time of listing, 1,000 lesser long-nosed bats were estimated rangewide. Since then, we have documented increased lesser long-nosed bat numbers and positive trends (stable or increasing numbers of bats documented over the past 20 years) at most roosts. The current estimate is now more than 200,000 bats rangewide. While this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population.

A number of lesser long-nosed bat publications have population estimates that far exceed those known at the time of listing (Fleming et al. 2003; Sidner and Davis 1988). Although population estimates and roost count numbers fluctuate from year to year, the numbers of lesser long-nosed bats estimated from 2010 through 2015 in the three known maternity roosts in the United States were an average of two and a half times higher than those known in the late 1990s (Service 2017; p. 10). Furthermore, protection measures have been implemented at over half the roosts in both the United States and Mexico (approximately 40 roosts), including gating, road closures, fencing, implementation of management plans, public education, monitoring, and enforcement of access limitations. Generally, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than if the roost occurred on non-federal lands. Efforts to physically protect roosts through the use of gates or barriers have been implemented at six roost sites in Arizona. The experimental fence at one roost (a mine site) worked initially, but was subsequently vandalized resulting in roost abandonment. The fencing was repaired and there have been no subsequent breeches and the bats have recolonized the site (Service 2017; p. 11).

In the summer of 2017, a drastic (i.e., approximately 86 percent) decline was observed in the numbers of bats at one of the key maternity sites along the U.S.-Mexico border. Additionally, a late-summer transition roost in Arizona was documented as not being occupied for the second year in a row. We do not have a complete understanding of what caused the fatality event and roost abandonment in 2017. It is likely that a mortality event at the maternity roost site in 2016 probably contributed to the decline in 2017 and the information we have indicates the observed fatalities were the result of a natural weather event. The decline could also be the result of migrating females using other roosts in the area or resource conditions in Mexico resulted in fewer bats migrating northward. We intend to work with our partners in Mexico and the United States to increase the monitoring effort at this roost. We also intend to gather information on resource conditions in both the United States and Mexico and consider roost counts at other maternity roosts in the region to gain a better understanding of the causes and implications of the events of 2016 and 2017. This maternity roost is included in our draft post-delisting monitoring plan, so we will continue to monitor and evaluate this roost for the next 15 years and implement adaptive management actions, if necessary. We evaluated lesser long-nosed bat resiliency, redundancy, and representation in the SSA over two time frames, 15 years and 50 years. Because the species' viability is evaluated by resiliency, redundancy, and representation under a 15-year time frame, we used the same timeframe in the development of thresholds for post-delisting monitoring. In addition, the 15-year is based on the history of past conservation implementation, such as identifying and monitoring roost sites; completing the processes for identifying, permitting, implementing, and monitoring roost protection measures; conducting education and outreach and seeing changes in public perceptions.

Lesser long-nosed bat roosts have a history of numbers fluctuating from year to year. Any observed incidents of fatalities or changes in roost occupancy patterns should be considered in the context of time. There is not rigorous roost count data that can be used to statistically define the trend of the lesser long-nosed bat population throughout its range. We have count data from both the United States and Mexico that has occurred regularly over the past 20 years, including annual simultaneous counts at both maternity and late-summer transition roosts in the United States. Not all roosts are counted every year, but some are. Not all roosts are counted multiple times each year, but some are. Regardless, each known roost in the United States has some count data that has occurred over the past 20 years that has resulted in regular or periodic visits by bat biologists or land managers. These counts have shown increasing or stable numbers and roost sites that continue to provide for the life history needs of the lesser long-nose bat. When looking at the count data over time and applying our best professional judgment to this data, we have concluded that the overall lesser long-nosed bat population trend is positive. Our conservation partners in Mexico reached the same conclusion when they delisted the lesser long-nosed bat in 2013.

The lesser long-nosed bat's conservation status in Mexico is secure enough that Mexico removed the subspecies from its endangered species list in 2013 because of the factors described above. The species has a greater distribution in Mexico than in the United States; thus much of the same reasoning for the subspecies' removal from Mexico's endangered species list applies to our reasoning to remove the lesser long-nosed bat from the U.S. List of Endangered and Threatened Wildlife.

Because the lesser long-nosed bat has both resident and migratory subpopulations, all of the necessary habitat elements must be appropriately distributed across the range of this species such that roost sites, forage resources, and migration pathways are in the appropriate locations during the appropriate season. Currently, the distribution of the lesser long-nosed bat extends from southern Mexico into the southwestern United States. In Mexico, the distribution of the lesser long-nosed bat covers approximately 40 percent of the country when considering resident areas, migration pathways, and seasonally-occupied roosts within the range of this subspecies. Within both the United States and Mexico, the current distribution of the lesser long-nosed bat has not generally decreased or changed substantially over the past 20 years from that described in the Recovery Plan. An exception to this is the recent documentation of the lesser long-nosed bat range expanding northward to the Gila River in New Mexico (HEG 2015, entire). However, any given area within the range of the lesser long-nosed bat may be used in an ephemeral manner dictated by the availability of resources that can change on an annual and seasonal basis. Roost switching occurs in response to changing resources and areas that may be used during one year or season may not be used in subsequent years until resources are again adequate to support occupancy of the area. This affects if and how maternity and mating roosts, migration pathways, and transition roosts are all used during any given year or season. However, while the distribution of the lesser long-nosed bat within its range may be fluid, the overall distribution of this species has remained similar over time (Service 2017, chapters 1 through 3).

For more information on this topic, see chapter 5 of the SSA Report (Service 2017), which is available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or https://www.fws.gov/southwest/es/arizona/Lesser.htm, or in person at the Arizona Ecological Services Field Office (see ADDRESSES, above).

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

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

The 1997 lesser long-nosed bat recovery plan objective is to downlist the species to threatened (Service 1997, entire). The recovery plan does not explain why delisting was not considered as the objective for the recovery plan. The existing recovery plan does not explicitly tie the recovery criteria to the five listing factors at section 4(a)(1) of the Act or contain explicit discussion of those five listing factors. The recovery plan lists four criteria that should be considered for downlisting the subspecies, which are summarized below. A detailed review of the recovery criteria for the lesser long-nosed bat is presented in the 5-year Review for the Lesser Long-Nosed Bat (Service 2007; available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or at https://www.fws.gov/southwest/es/arizona/Lesser.htm).

During our development of the SSA report and 5-year review, we found that data relied upon to develop the 1988 listing rule and the recovery plan are out of date. Subsequent to the completion of the listing rule and recovery plan, considerable additional data regarding the life history and status of the lesser long-nosed bat have been gathered and, as discussed above, have documented an increase in the number of known roost sites and the number of lesser long-nosed bats occupying those roosts. During the 2007 5-year review of the status of this subspecies, it was determined that the 1997 recovery plan was outdated and did not reflect the best available information on the biology of this subspecies and its needs (Service 2007; p. 30; available online at http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138 or at https://www.fws.gov/southwest/es/arizona/Lesser.htm). As explained below, we assessed the species' viability in the SSA report (Service 2017) in making the determination of whether or not the lesser long-nosed bat has recovered as defined by the Act.

Significant efforts have been made to implement a regular schedule of monitoring at the known roost sites throughout the range of the species. Approximately six roosts were known in Arizona and New Mexico at the time of listing. Currently, we have documented approximately 50 lesser long-nosed bat roosts in Arizona and New Mexico. All 13 of the roost sites identified in the recovery plan have had some degree of monitoring over the past 20 years. In the United States, all of the six major roosts identified in the recovery plan for monitoring (Copper Mountain, Bluebird, Old Mammon, Patagonia Bat Cave, State of Texas, and Hilltop) have been monitored since 2001. Additionally, we now consider almost all of the approximately 50 known roosts in the United States to be major roosts, meaning they host more than 1,000 bats. None of the New Mexico roosts were identified for monitoring in the recovery plan, but these roosts have been monitored sporadically since the completion of the recovery plan (Service 2007; pp. 6-9). The seven roost sites in Mexico have been regularly monitored since the development of the recovery plan (Medellín and Torres 2013, pp. 11-13). Therefore, this recovery criterion has been satisfied. For more information, see chapter 2 of the SSA Report (Service 2017).

Nearly all of the lesser long-nosed bat experts and researchers who provided input to the 5-year review and SSA indicated that they observed that the number of lesser long-nosed bats at most of the roost sites in both the United States and Mexico is stable or increasing (see chapter 2 of the SSA Report (Service 2017). The lesser long-nosed bat's conservation status in Mexico has been determined to be secure enough that Mexico removed the subspecies from its endangered species list in 2013 based on the factors discussed above. With a documented increase from an estimated 1,000 lesser long-nosed bats rangewide at the time of listing to more than 200,000 currently documented, the total number of bats documented at this time is many times greater than those numbers upon which the listing of this species relied. Therefore, this criterion has been met.

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

More roost locations for lesser long-nosed bats are currently known, and are being more consistently monitored, than at the time of listing in 1988 (an increase from approximately 14 to approximately 75 currently known roosts). As we describe in more detail in Factor D below, we now know that the majority of these roost sites occur on public lands where they are protected and managed.

In related efforts, a number of studies have been completed that provide us with better information related to the forage requirements of the lesser long-nosed bat when compared to the time of listing and recovery plan completion. We now know that lesser long-nosed bats are more adaptable to ephemeral forage resources and we know that effects from livestock grazing, prescribed burning, and harvesting by the tequila industry do not significantly affect lesser long-nosed bat forage resources.

Some progress has been made toward protecting known lesser long-nosed bat roost sites, but the ultimate level of effectiveness of gates as a protection measure is still being evaluated and improved. Gates provide long-term protection of roost sites, but are accepted and used by different bat species to different extents. Different gates designs are currently being tested at additional lesser long-nosed bat roost sites. For more information, see chapter 4 of the SSA Report (Service 2017).

In summary, we have considerably better data with regard to roost locations of lesser long-nosed bat compared to the information available at the time of listing and completion of the recovery plan. Because of improved information, land management agencies are doing a better job of protecting lesser long-nosed bat roost sites and foraging areas. Over the past five years, there has been considerable effort and success in understanding lesser long-nosed bat roost protection options and many roosts have had roost protection measures implemented (Service 2017, p. 56). In addition, monitoring over the past 24 years indicates steady increases in the numbers of lesser long-nosed bats at these roosts due to roost site protections (Service 2017, p. 10). Therefore, we believed this recovery criterion has been met. For more information, see chapter 2 and Conservation Efforts in the SSA Report (Service 2017).

This criterion relates to adequately addressing threats known at the time the 1997 recovery plan was written, as well as any new threats that have been identified subsequent to the completion of the recovery plan. Our current state of knowledge with regard to threats to this subspecies has changed since the development of the recovery plan. Threats to the lesser long-nosed bat from grazing on food plants, the tequila industry, and prescribed fire, identified in the recovery plan, are likely not as severe as once thought. Effects from illegal border activity and the associated enforcement activities are a new and continuing threat to roost sites in the border region. However, the Service and appropriate land managers have an active program of coordination and technical assistance with Customs and Border Protection that are addressing border issues. Potential effects to forage species and their phenology as a result of climate change have been identified, but are characterized by uncertainty and lack of data specifically addressing those issues. Nonetheless, lesser long-nosed bats have shown the ability to adapt to adverse forage conditions and we find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions.

Some progress has been made toward protecting known lesser long-nosed bat roost sites; while the ultimate level of effectiveness of gates as a protection measure is still being evaluated and improved, they do provide long-term protection of roost sites. Gates are currently being tested at a few additional lesser long-nosed bat roost sites. Roost protection also occurs in the form of regular monitoring, fencing, road closures, and ongoing management as outlined in the land management agencies' planning documents. This recovery criterion has been met. For more information, see chapter 4 of the SSA Report (Service 2017).

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

The Service reviews the best scientific and commercial information available when conducting a threats analysis. In considering what factors may constitute a threat, we must look beyond the mere exposure of individuals of a species to the factor to determine whether the exposure causes actual impacts to the entire species. The mere identification of factors that could negatively impact a species is not sufficient to compel a finding that a currently listed species should be maintained on the Federal Lists of Endangered and Threatened Wildlife and Plants. We require evidence that these factors are operative threats currently acting on the species to the point that the species meets the definition of endangered or threatened under the Act.

The primary concern regarding future viability of this subspecies continues to be roost site disturbance or loss. This is primarily an issue related to human activities and destructive actions at these roost sites. In addition, the colonial roosting behavior of this subspecies, where high percentages of the population can congregate at a limited number of roost sites, increases the likelihood of significant declines or extinction if impacts at roost sites are pervasive However, as discussed above, increased lesser long-nosed bat numbers and positive trends at most roosts have reduced concerns expressed in the 1988 listing rule with regard to low population numbers and an apparent declining population trend. Agencies and conservation partners are implementing protective measures at known roosts and newly discovered roosts Outreach and education efforts have been effective in increasing the understanding of the general public, as well as conservation partners, with regard to the need to prevent disturbance at lesser long-nosed bat roosts while the bats are present (Service 2017, pp. 45-48). As discussed further in Factor D below, we have determined that roost sites have and will be protected to the extent that roost disturbance is no longer a sufficient threat to warrant protection under the Act.

Although most data related to lesser long-nosed bat roost counts and monitoring have not been collected in a way that is statistically rigorous enough to draw statistically-valid conclusions about the trend of the population, in the professional judgment of biologists and others involved in these efforts, the total numbers of bats observed at roost sites across the range of the lesser long-nosed bat are considered stable or increasing at nearly all roost sites being monitored. With a documented increase from an estimated 1,000 lesser long-nosed bats rangewide at the time of listing to more than 200,000 currently estimated, the total number of bats currently being documented is many times greater than those numbers upon which the listing of this species relied, and while this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population. This documented increase in roosts and of stable or increasing lesser long-nosed bat numbers indicates that threats to habitat have not reduced available habitat components to the point that it is significantly affecting the lesser long-nosed bat status. And, roost site protections will continue into the foreseeable future. Adequate roosts of all types (maternity, mating, transition, and migratory) currently exist and are likely to exist into the foreseeable future (Service 2017; pp. 8-14).

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

Additionally, the effects of livestock grazing and prescribed fire on long-nosed bat food sources are also not as significant as originally thought. For example, Widmer (2002) found that livestock were not responsible for all of the utilization of agave flower stalks in their study area. Wildlife such as javelina, white-tailed deer, and small mammals also utilized agave flower stalks as a food resource. The extent of livestock use of agave flower stalks appears to be related to standing biomass and distance from water. Further, Bowers and McLaughlin (2000) found that the proportion of agave flower stalks broken by cattle did not differ significantly between grazed and ungrazed areas. This information indicates that livestock do not have a significant effect on lesser long-nosed bat food sources, over and above the impact of native grazers.

Thomas and Goodson (1992) and Johnson (2001, p. 37) reported 14 percent and 19 percent mortality of agaves following burns. Some agency monitoring has occurred post-fire for both wildfires and prescribed burns. This monitoring indicates that agave mortality in burned areas is generally less than 10 percent (USFS 2015, pp. 82-83; USFS 2013, pp. 10-11). Contributing to this relatively low mortality rate is the fact that most fires burn in a mosaic, where portions of the area do not burn. Impacts of fire on agave as a food source for lesser long-nosed bats may not be a significant concern for the following reasons: Fire-caused mortality of agaves appears to be low; alternative foraging areas typically occur within the foraging distance from lesser long-nosed bat roosts; and most agave concentrations occur on steep, rocky slopes with low fuel loads (Warren 1996). In addition, Johnson (2001, pp. 35-36) reported that recruitment of new agaves occurred at higher rates in burned plots than in unburned plots, indicating that there may be an increased availability over time of agaves in areas that have burned, if the return rate of fire is greater than 7 years. The effects of agave harvesting are primarily limited to bootleggers, which is likely occurring at the same levels as when the species was listed in 1988; however, this is not considered significant, because it removes a relatively limited number of lesser long-nosed bat forage plants. In addition, increased outreach and education are being provided to tequila producers in an effort to reduce the effects of agave harvesting on lesser long-nosed bats. These producers primarily farm agaves (as opposed to harvesting wild-growing agaves) and are working with our Mexican partners to leave agaves for utilization by nectar-feeding bats.

Sufficient available forage resources are located in appropriate areas, including in proximity to maternity roosts and along the “nectar trail” used during migration. The discussion above and the SSA report detail our analysis and determination that forage resources are adequate and that the lesser long-nosed bat is likely to adapt to any changes in forage availability in the future (Service 2017; pp. 15-20).

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

Lesser long-nosed bats are affected directly by development that removes important foraging habitat, but also indirectly as growing numbers of people increase the potential for roost disturbance. Impacts from urbanization on lesser long-nosed bat habitat are of concern because they tend to be permanent, long-term impacts, as opposed to the often temporary, shorter-term impacts from fire, grazing, and agave harvesting. Lesser long-nosed bats are often able to react to temporary impacts by moving to alternative sites in the short-term. Various human activities, including recreation and caving, can result in impacts to lesser long-nosed bat roosts. As discussed earlier, various land use plan and laws regulate the access to sensitive sites such as bat roosts. The implementation of these plans is not dependent on the regulatory protections of the Act. Additionally, post-delisting monitoring will provide regular assessments of lesser long-nosed bat roosts and allow us to respond with appropriate management to an indication of disturbance or vandalism. Past and ongoing outreach and education has been effective in raising public awareness related to the conservation of bats. The general public better understands the needs and benefits of bats in the environment. Continued education and understanding will help reduce the occurrence of bat roost disturbance and vandalism. Such efforts have been very effective, particularly in Mexico.

There is no question that current population numbers of lesser long-nosed bats exceed the levels known and recorded at the time of listing in 1988. A number of publications have documented numbers of lesser long-nosed bats throughout its range that far exceed the numbers used in the listing analysis with an estimated increase from fewer than 1,000 bats to approximately 200,000 bats rangewide (Fleming et al. 2003, pp. 64-65; Sidner and Davis 1988, p. 494). Also, in general, the trend in overall numbers of lesser long-nosed bats estimated at roost sites has been stable or increasing in both the United States and Mexico (Medellín and Knoop 2013, p. 13; Service 2017). Increased roost occupancy and the positive trend in numbers of lesser long-nosed bats occupying these roosts appear to be supported by adequate forage resources. The adaptability of the lesser long-nosed bat to changing forage conditions seems to allow the lesser long-nosed bat to sustain a positive population status under current environmental conditions.

While some threats are ongoing with regard to lesser long-nosed bat habitat, in general, we find that threats to this species' habitat have been reduced or are being addressed in such a way that lesser long-nosed bat habitat is being enhanced and protected at a level that has increased since the 1988 listing of this species. In particular, areas that were vulnerable to threats have been protected or are now managed such that those threats have been reduced. Outreach and education have increased the understanding of what needs to be done to protect lesser long-nosed bat habitat.

Beyond the regulatory requirements of the Act, our conservation partners have implemented a number of past and current conservation measures that to benefit the bat (Service 2017, p. 46). The Blue Bird Mine on Cabeza Prieta National Wildlife Refuge was fenced in 2004 to protect a known lesser long-nosed bat maternity roost. Bats reoccupied this abandoned roost following the installation of this protective fencing. After the fence was vandalized and subsequently abandoned by lesser long-nosed bats in 2005, the fence was repaired (McCasland 2005), and there has been no subsequent abandonment of this roost.

Telemetry projects have identified a number of new transition roosts. Roosts on non-Federal lands support efforts to promote the conservation of the lesser long-nosed bat. The Arizona-Sonora Desert Museum has conducted studies on seasonal movements between lesser long-nosed bat roosts in Arizona, a migratory pollinator study, and roost monitoring in the United States and Mexico, and conducts educational activities related to bats (Krebbs 2005a).

Investigations were initiated related to the distribution and use of hummingbird feeders by lesser long-nosed bat in the Tucson area (Wolf 2006). This program has been continued and expanded through a citizen scientist program being coordinated by the Service, Arizona Game and Fish Department (AGFD), the Town of Marana, the University of Arizona, and a system of volunteer citizen scientists now number over 100. Information on arrival and departure dates, peak use periods, and population characteristics are being gathered to increase our understanding of lesser long-nosed bat life history.

A mine site on the Tohono O'odham Nation that supports a lesser long-nosed bat maternity colony has been structurally stabilized to maintain roost integrity (Wolf and Dalton 2005). The exhaust fan was removed from the historical Colossal Cave maternity roost in an effort to get lesser long-nosed bat to recolonize this roost; however, so far, no lesser long-nosed bats have recolonized this cave (AGFD 2005, entire). More recently, in 2015, a gate blocking the entrance to the bat roost at Colossal Cave has been replaced by a more bat-friendly gate.

Educational programs occur at organized events such as Southwest Wings Birding Festival. Other programs are conducted as requested, but efforts are sporadic (AGFD 2005). In Mexico, bat biologists are working with elementary schools, providing “bat-pollination” and other games for school children who previously had known little about and had little concern for bats. This educational effort has been successful in passing along this information to siblings and teachers are sharing the program (Medellín 2011; p. 9).

The Service and other agencies and partner organizations are raising the awareness of pollinators in general, and bat pollinators specifically, through education and outreach efforts that include events across the United States and in Mexico.

Therefore, based on the analysis completed in the SSA report (Service 2017; pp. 54-61), we have determined that threats to the habitat of this species are currently reduced and will continue to be addressed in the foreseeable future, or are not as significant as previously thought.

Lesser long-nosed bats are not known to be taken for commercial purposes, and scientific collecting is not known to be a problem (Service 1988, p. 38459). Caves and mines continue to attract recreational users interested in exploring these features, but this threat has probably not increased since the listing. For example, Pima County, in southeastern Arizona, is implementing mine closures on lands that they have acquired for conservation purposes. Other land management agencies also carry out abandoned mine closures for public recreational safety purposes. A positive aspect of these mine closure processes is that most agencies and landowners now understand the value of these features to bats and other wildlife and are implementing measures to maintain those values while still addressing public health and safety concerns. The 1988 listing rule stated that bats were often killed by vandals (Service 1988, p. 38459). However, significant changes in the public perception of bats are occurring. Educational efforts are making a difference, as evidenced by decreased vandalism at roost sites, measures being including in land use planning, reduced non-target fatalities during rabies control, and public interest and ownership in bat conservation efforts such as the hummingbird feeder monitoring project.

In both the United States and Mexico, public education, in the form of radio and television spots, and educational materials have been implemented. Agencies now receive calls for assistance in nonlethal solutions to bat issues. Often, the general public may be concerned about rabies or vampire bats, but outreach and education are improving the understanding and knowledge of bats concerning these issues. Vampire bat control is implemented in portions of the lesser long-nosed bat range in Mexico. This control is necessary because of potential impacts to humans and livestock, including the transmission of rabies. Such control can result in the indiscriminate killing of non-target bats, including lesser long-nosed bats (Johnson et al. 2014; p. 1920-1922). Because of the colonial roosting nature of lesser long-nosed bats, any roost lost or disturbed because of rabies control activities can affect the lesser long-nosed bat population. Mexico has focused efforts to reduce the mortality of non-target species in relation to vampire bat control (see chapter 4 of the SSA Report (Service 2017).

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

Disease does not currently appear to be a significant risk factor for the lesser long-nosed bat. Emerging disease issues, such as those associated with white-nose syndrome, may become more significant; however our current scientific assessment indicates that white-nose syndrome will not affect this non-hibernating species. Therefore, because lesser long-nosed bats do not hibernate, we do not anticipate that white-nose syndrome will be a significant risk factor for lesser long-nosed bats (see chapter 4 of the SSA Report (Service 2017).

Predation contributes to the mortality of lesser long-nosed bats at roost sites. Likely predators include snakes, raccoons, skunks, ringtails, bobcats, coyotes, barn owls, great-horned owls, and screech owls. Specifically, barn owls have been observed preying on lesser long-nosed bats at the maternity roost at Organ Pipe Cactus National Monument for many years (Billings 2005; p. 11) and snakes have been observed preying on lesser long-nosed bats in Baja California Sur, Mexico (Frick 2017, pers. comm.). However, it is our professional judgement that at large aggregations, such as bat roosts, predation is an insignificant impact on the population. Therefore, we find that neither disease nor predation are currently or is likely in the future to affect the viability of the lesser long-nosed bat.

The current listing of the lesser long-nosed bat in the United States and the former listing of the bat in Mexico as an endangered species have provided this species with some level of protection. Outside of laws generally protecting wildlife and their habitats, no specific laws or regulations protect this species in Mexico. As noted in Factor B above, rabies control activities have resulted in the mortality of the lesser long-nosed bats due to the lack of requirements to properly identify the target species. However, increased education and outreach is improving this situation in Mexico, and incidents of nontarget fatalities during rabies control have been reduced. In the United States, State laws and regulations provide some additional level of protection. For example, Arizona State Law in Arizona Revised Statute (ARS) Title 17 prohibits the taking of bats outside of a prescribed hunting season and, per Commission Order 14, there is no open hunting season on bats, meaning it is always illegal to take them. Provisions for special licenses to take bats and other restricted live wildlife are found in Arizona Game and Fish Commission Rule 12, Article 4 and are administered by the AGFD. However, this protection is for individual animals only, and does not apply to the loss or destruction of habitat. However, the loss and destruction of habitat has been and will be managed and adequate areas of suitable habitat remain undeveloped such that this lack of protection of habitat under State law does not result in a threat to the lesser long-nosed bat population.

More than 75 percent of the range of this species in the United States is on federally managed lands and these federal agencies have guidelines and requirements in place to protect lesser long-nosed bats and their habitats, particularly roost sites. As described above, roosts on Federal lands benefit from monitoring by agency personnel and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than if the roosts occurred elsewhere. Gating of roosts on Federal lands is being implemented and evaluated. If the lesser long-nosed bat is delisted, protection of their roost sites and forage resources will continue on Federal lands because agency land-use plans and general management plans contain objectives to protect cave resources and restrict access to abandoned mines, both of which can be enforced by law enforcement officers. In addition, guidelines in these plans for grazing, recreation, off-road use, fire, etc., will continue to prevent or minimize impacts to lesser long-nosed bat forage resources. The Coronado National Forest's 2017 Land and Resource Management Plan (LRMP) includes standards and guidelines to retain and enhance areas with paniculate agaves in order to benefit the lesser long-nosed bat. The Cabeza Prieta National Wildlife Refuge Comprehensive Conservation Plan has identified an objective to install additional measures to protect the lesser long-nosed bat maternity roost on the refuge. The Bureau of Land Management has forage plant protections within the range of the lesser long-nosed bat, including avoidance measures to protect agave and saguaros. Organ Pipe Cactus National Monument and Cabeza Prieta National Wildlife Refuge protect hundreds of square miles of areas containing foraging plants for the bat within its refuge boundaries. We are currently working with the Department of Defense facilities at Fort Huachuca and Barry M. Goldwater Range to include actions in their Integrated Natural Resources Management Plans to continue with lesser long-nosed bat conservation activities. On Fort Huachuca, for example, they are implementing an Agave Management Plan that states that they will maintain a self-sustaining populations of Agave palmeri on Fort Huachuca to conserve the forage base of the lesser long-nosed bat and other species using agave.

As described above, roosts on Federal lands benefit from monitoring by agency personnel, or access is granted for monitoring by other entities, and a law enforcement presence resulting in these roosts being exposed to fewer potential impacts than they otherwise would be. Gating of roosts on Federal lands is being implemented and evaluated and, while the best design for such gates is still being developed, these gates do provide long-term protection of the sites. Further, outreach and education, particularly with regard to pollinator conservation, has increased and human attitudes regarding bats are more positive now than in the past; and the lesser long-nosed bat has demonstrated adaptability to potential adverse environmental conditions, such as changes in plant flowering phenology (see discussion under Factor E, below).

The Federal Cave Protection Act of 1988 prohibits persons from activities that “destroy, disturb, deface, mar, alter, remove, or harm any significant cave or alters free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intent of committing any act described . . .” Arizona statute (ARS 13-3702) makes it a class 2 misdemeanor to “deface or damage petroglyphs, pictographs, caves, or caverns.” Activities covered under ARS 13-3702 include “kill, harm, or disturb plant or animal life found in any cave or cavern, except for safety reasons.” The above laws and regulations will continue to protect lesser long-nosed bats and their habitats after delisting.

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

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

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

The best available information indicates that ongoing climate change will probably have some effect on lesser long-nosed bat forage resources. Such effects will occur as a result of changes in the phenology (periodic biological phenomena, such as flowering, in relation to climatic conditions) and distribution of lesser long-nosed bat's forage resources. How this affects the viability of the lesser long-nosed bat population is not clear. There is much uncertainty and a lack of information regarding the effects of climate change and specific impacts to forage for this subspecies. The biggest effect to the lesser long-nosed bat will occur if forage availability gets out of sync along the “nectar trail” such that bats arrive at the portion of the range they need to meet life-history requirements (migration, mating, birthing) and there are inadequate forage resources to support that activity. If the timing of forage availability changes, but changes consistently in a way that maintains the nectar trail, this subspecies is expected to adapt to those timing changes as stated above (see chapter 4 of the SSA Report (Service 2017). For example, as noted earlier, the resiliency of lesser long-nosed bats became evident in 2004, when a widespread failure of saguaro and organ pipe bloom occurred and lesser long-nosed bats were still, ultimately, able to subsist and raise young in southwestern Arizona in this atypical year. It is likely they did so by feeding more heavily on agaves (evident by agave pollen found on captured lesser long-nosed bats) than they typically do (see additional discussion under Factor A above). Although we are still not sure to what extent the environmental conductions described in climate change predictions will affect lesser long-nosed bat forage resource distribution and phenology, we have documented that lesser long-nosed bats have the ability to change their foraging patterns and food sources in response to a unique situation (Billings 2005; pp. 3-4), providing evidence that this species is more resourceful and resilient than may have been previously thought. We find that the lesser long-nosed bat is characterized by flexible and adaptive behaviors that will allow it to remain viable under changing climatic conditions.

We evaluated overall viability of the lesser long-nosed bat in the SSA report (Service 2017) in the context of resiliency, redundancy, and representation. Species viability, or the ability to survive long term, is related to the species' ability to withstand catastrophic population and species-level events (redundancy); the ability to adapt to changing environmental conditions (representation); and the ability to withstand disturbances of varying magnitude and duration (resiliency). The viability of this species is also dependent on the likelihood of new threats or risk factors or the continuation of existing threats now and in the future that act to reduce a species' redundancy, resiliency, and representation.

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

During our decision-making process, we evaluated our level of comfort making predictions at each of the two timeframes. Ultimately, while the SSA report evaluates both timeframes, the decision-makers could not reasonably rely on predictions of the future viability of the lesser long-nosed bat out to 50 years due to the uncertainty of climate change models and the difficulty of predicting what will happen in Mexico where the majority of this species' habitat occurs, but where we have less information with regard to the threats affecting the lesser long-nosed bats. In the SSA report, all three scenarios were evaluated over both time frames (Service 2017, pp. 52-56). The evaluation results of future viability in the SSA report were identical for both timeframes (high viability), except in the worst-case scenario where, unlike the moderate- and best-case scenarios, the viability was moderate for the 15-year timeframe and low for the 50-year timeframe. For each future scenario, we describe how confident we are that that particular scenario will occur. This confidence is based on the following confidence categories: Highly likely (greater than 90 percent sure of the scenario occurring); moderately likely (70 to 90 percent sure); somewhat likely (50 to 70 percent sure); moderately unlikely (30 to 50 percent sure); unlikely (10 to 30 percent sure); and highly unlikely (less than 10 percent sure).

The SSA report concluded that it is unlikely that the worst-case scenario will actually occur. The worst case scenario describes a drastic increase in negative public attitudes towards bats and lesser long-nosed bat conservation, a greater influence from white-nose syndrome, and the worst possible effects from climate change. Based on our experience and the past and ongoing actions of the public and the commitment of management agencies in their land-use planning documents to address lesser long-nosed bat conservation issues, both now and in the future in both the United States and Mexico, such drastic impacts are unlikely to occur (10 to 30 percent sure this scenario will occur). In fact, for the conditions outlined in the worst-case scenario, we find that certainty of the worst-case scenario occurring is closer to 10 percent than to 30 percent sure that this scenario would actually occur based on the commitment to conservation of this species and the adaptability of the lesser long-nosed bat.

Subsequent to the publication of the proposed delisting rule for the lesser long-nosed bat (82 FR 1665, January 6, 2017), we have been in communication with our public and agency conservation partners to determine the extent of their participation in the post-delisting monitoring of the lesser long-nosed bat. Conservation partners will continue to implement management plans, such as the Forest Service's LRMPs, Bureau of Land Management's Resource Management Plans, Department of Defense's Integrated Natural Resources Management Plan that will result in continued coordination and implementation of existing and future conservation actions related to the lesser long-nosed bat as appropriate and as resources are available. Such ongoing commitment to lesser long-nosed bat conservation has already been seen subsequent to the delisting of this bat in Mexico and our experience has been that it will also continue in the United States after delisting.

Our SSA evaluated the current status of the population in relation to the population's resiliency, redundancy, and representation (Service 2017; pp. 3-4). Resiliency addresses the population's health and ability to withstand stochastic events (numbers of individuals and population trajectory). Redundancy addresses the population's ability to withstand catastrophic events (number and distribution of population segments). Representation addresses diversity within the population (genetic and habitat variation). We also evaluated future scenarios to assess the future viability of the populations in the foreseeable future. Although the worst-case scenario was evaluated in the SSA report, because we found that it was unlikely to actually occur, the focus of our consideration was on the scenarios that had the greatest likelihood of occurring, the best- and moderate-case scenarios, where redundancy, resiliency, and representation remain high regardless of the timeframe or scenario considered. Under the current condition for the lesser long-nosed bat, as well as in both the best-case (somewhat likely to occur) and moderate-case (moderately likely to occur) future scenarios, redundancy, resiliency, and representation of the lesser long-nosed bat population remain high and the viability of the subspecies is maintained (Service 2017, pp. 64-66). Current and future viability is based on the following findings of the high resiliency, redundancy, and representation. Multiple occupied roost sites occur within both the resident and migratory segments of the population. The numbers of bats at these roost sites have been characterized as stable or increasing. Lesser long-nosed bat numbers have been documented as increasing from approximately 1,000 rangewide at the time of listing to approximately 200,000 currently. This includes stable and increasing numbers of bats at all roost types—maternity, late-summer transition, and mating roosts. Redundancy is high because there are multiple roost sites of each type of roost in both the migratory and non-migratory segments of the population. Lesser long-nosed bats have shown the ability to move among roost sites based on ephemeral forage availability allowing the bats to adapt to the ever-changing availability of forage resources. Ramirez (2011, entire) investigated population structure of the lesser long-nosed bat through DNA sampling and analysis and reported that combined results indicated sampled individuals belong to single population including both the United States and Mexico. Consequently, individuals found in the northern migratory range (United States) and in Mexico should be managed as a single population. Because the lesser long-nosed bats in both the United States and Mexico are considered a single population, there is little overall genetic variation. However, because of the large range and migratory nature of this species, the lesser long-nosed bat occupies a tremendous variety of vegetation communities and habitat types. This overall high diversity of habitat provides high representation across the range (see chapter 5 of the SSA Report (Service 2017).

The future viability of this subspecies is dependent on a number of factors. First, an adequate number of roosts in the appropriate locations is needed. As detailed in the SSA report, adequate roosts of all types (maternity, mating, transition, and migratory) currently exist and are likely to exist into the foreseeable future (Service 2017; pp. 8-14). Second, sufficient available forage resources are located in appropriate areas, including in proximity to maternity roosts and along the “nectar trail” used during migration. The discussion above and the SSA report detail our analysis and determination that forage resources are adequate and that the lesser long-nosed bat is likely to adapt to any changes in forage availability in the future (Service 2017; pp. 15-20). In addition, the SSA report analyses the contribution of current and future management of threats to the subspecies' long-term viability. The future viability of the lesser long-nosed bat will also depend on continued positive human attitudes towards the conservation of bats, implementation of conservation actions protecting roost sites and forage and migration resources, and implementation of needed research and monitoring to inform adaptive management as discussed above and in our SSA report.

Section 4 of the Act and its implementing regulations, 50 CFR part 424, set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The analysis of threats must include an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered or threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.

The total numbers of lesser long-nosed bats across its range are stable or increasing at nearly all roost sites being monitored based on the professional judgment of biologists and others involved in these efforts. While we acknowledge that the data we have does not allow us to draw statistically defensible population trend conclusions, the total number of bats currently documented is many times greater than the total number of bats documented at the time of listing in 1988. At the time of listing, fewer than 500 lesser long-nosed bats were estimated to remain in the United States; current estimates are greater than 100,000 bats. At the time of listing, the estimated rangewide population was fewer than 1,000 lesser long-nosed bats. Current range-wide estimates are approximately 200,000 lesser long-nosed bats. While this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it changes our view of the danger of extinction of the species and gives us better information upon which to evaluate the status of the lesser long-nosed bat population.

This better information is related to the species' population size, the number of roosts, and its distribution. In addition, there have been increased efforts related to habitat protection (identification of roost sites and forage resources in planning efforts, implementation of protective measures for roosts and forage resources, increased awareness of habitat needs, etc.) and additional efforts for habitat protection are planned to be implemented in the future, regardless of the listing status of this subspecies. Threats identified at the time of listing are not as significant as thought or have been addressed to such an extent that they no longer threaten the lesser long-nosed bat population, now or in the future. For example, effects to agaves, a key lesser long-nosed bat forage resource, from prescribed burning and livestock grazing is not a significant impact to lesser long-nosed bat forage availability (FWS 2016; p. 33-35). Vandalism and human disturbance has been reduced at roost sites due to actions implemented by land management and border management agencies, including the use of fencing and gates and land use planning (FWS 2016; pp. 28-32). Forage resource impacts from agave harvesting for tequila production and non-target impacts to lesser long-nosed bats from vampire bat control in Mexico have both been reduced due to ongoing outreach and education (FWS 2016, p. 32 and 38). Public support for bats has increased with ongoing education and outreach and this has resulted in the public being more supportive of actions taken to reduce threats to bats including the protection of roosts and forage resources (FWS 2016; pp. 45-46). This increased level of information related to population, roosts, and distribution, along with ongoing conservation efforts, combined with the current state of its threats, allow us to conclude that the subspecies is not in danger of extinction and is not expected to become endangered in the foreseeable future. Our thorough evaluation of the available data for occupancy, distribution, and threat factors, as well as the opinions of experts familiar with this subspecies, indicates a currently viable population status with a stable to increasing trend.

In the case of the lesser long-nosed bat, we have determined that, while the above threats may be affecting individuals or specific sites or areas within the range of the lesser long-nosed bat, they do not represent significant threats to the overall population of the lesser long-nosed bat. Therefore, after assessing the best available information, we conclude that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act. We conclude that the lesser long-nosed bat is not in danger of extinction throughout all of its range and we also find that the lesser long-nosed bat is not likely to be in danger of extinction throughout all of its range in the foreseeable future.

On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578) (SPR Policy). Aspects of that policy were vacated for species that occur in Arizona by the United States District Court for the District of Arizona. Center for Biological Diversity v. Jewell, No. CV-14-02506-TUC-RM (D. AZ. Mar. 29, 2017). Because this species occurs in Arizona, we are not relying on the portions of the SPR policy that were vacated by the court in this decision. Pursuant to the Act, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. 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 a significant portion of its range, the species, is an “endangered species.” The same analysis applies to “threatened species.” Having determined that the lesser long-nosed bat is not endangered or threatened throughout all of its range, we next consider whether there are any significant portions of its range in which the lesser long-nosed bat is in danger of extinction or likely to become so.

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

We identified portions of the lesser long-nosed bat's range that may be significant, and examined whether any threats are geographically concentrated in some way that would indicate that those portions of the range may be in danger of extinction, or likely to become so in the foreseeable future. Within the current range of the lesser long-nosed bat, some distinctions can be made between Mexico and the United States, such as the presence of an international border with associated differences in laws and culture, areas of different vegetation communities, areas of different management approaches, etc. However, we have not found that any of these geographic distinctions are characterized as areas where threats are concentrated. Therefore, our analysis indicates that the species is unlikely to be in danger of extinction or to become so in the foreseeable future in any geographic region within the range of the lesser long-nosed bat. The primary driver of the status of the species continues to be roost site disturbance or loss. This and other factors affecting the viability of the lesser long-nosed bat population as discussed above occur throughout the range of the bat. We have found no areas where the threats are concentrated in any geographic region. Therefore, we have not identified any portion of the range that warrants further consideration to determine whether they are a significant portion of its range.

We also evaluated representation across the lesser long-nosed bat's range to determine if certain areas were in danger of extinction, or likely to become so, due to isolation from the larger range. Ramirez (2011, entire) investigated population structure of the lesser long-nosed bat through DNA sampling and analysis and reported that combined results indicated sampled individuals belong to single population including both the United States and Mexico. Consequently, individuals found in the northern migratory range (United States) and in Mexico should be managed as a single population. Additionally, the species' population has increased from an estimated 1,000 lesser long-nosed bats rangewide at the time of listing to over 200,000 currently.

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

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

This final rule revises 50 CFR 17.11(h) by removing the lesser long-nosed bat from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to this subspecies. Federal agencies are no longer required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the lesser long-nosed bat. Because no critical habitat was ever designated for the lesser long-nosed bat, this rule would not affect 50 CFR 17.95. State laws related to the lesser long-nosed bat will remain in place. State and Federal laws related to protection of habitat for the lesser long-nosed bat, such as those addressing effects to caves and abandoned mines, as well as protected plant species such as columnar cacti and agaves, will remain in place.

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

To fulfill the post-delisting monitoring requirement, we developed a draft post-delisting monitoring plan for the lesser long-nosed bat in coordination with the State wildlife agencies from Arizona and New Mexico. We will be publishing a notice of the availability of the draft post-delisting monitoring plan for comment shortly. We will continue to coordinate with other Federal agencies, State resource agencies, interested scientific organizations, and others as appropriate to implement an effective post-delisting monitoring plan for the lesser long-nosed bat.

In the proposed rule published on January 6, 2017 (82 FR 1665) in the Federal Register, we requested that all interested parties submit written comments on the proposal by March 7, 2017. We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing.

Section 4(b)(5)(A)(ii) of the Act states that the Secretary must give actual notice of a proposed regulation under section 4(a) to the State agency in each state in which the species is believed to occur, and invite the comments of such agency. Section 4(i) of the Act directs that the Secretary will submit to the State agency a written justification for his or her failure to adopt regulations consistent with the agency's comments or petition. The Service submitted the proposed regulation to both the AGFD and the New Mexico Department of Game and Fish (NMGFD). We received comments supporting the proposed rule from both agencies.

In accordance with our peer review policy, which was published July 1, 1994 (59 FR 34270), we solicited expert opinion on the SS) from which the proposed delisting rule was developed. Specifically, we solicited peer review from six knowledgeable, independent individuals with scientific expertise and background related to bats in general and to lesser long-nosed bats specifically. We received responses from two of the invited peer reviewers. Editorial and clarifying comments, as well as additional data and supporting citations, have been incorporated into this final delisting rule and the SSA.

We reviewed all comments received from the peer reviewers and the State agencies for substantive issues and new information regarding the delisting of the lesser long-nosed bat. These comments are addressed below.

Comment (1): Both the NMGFD and the AGFD are supportive of the proposed rule and indicated that both the proposed rule and the Service's SSA provide sufficient justification for the removal of the lesser long-nosed bat from the List of Endangered and Threatened Wildlife. The AGFD reiterated supporting data and stated that they “look forward to our continued collaboration in developing an adequate post-delisting monitoring plan and implementing those techniques that ensure the status of the lesser long-nosed bat continues to improve once removed from the regulatory protections of the Endangered Species Act.” The NMGFD provided clarifying information and suggestions, which have been incorporated in the SSA and the final delisting rule.

Our Response: We appreciate the NMGFD and the AGFD's support and continued commitment to the conservation of the lesser long-nosed bat. We also look forward to working with both of these State agencies on post-delisting monitoring and adaptive management, if necessary, of the lesser long-nosed bat.

Comment (2): The AGFD commented on the issue of substantially reduced numbers at a major lesser long-nosed bat maternity roost in 2017 and what that might mean for our proposed delisting of this species.

Our Response: As described above, the largest known maternity roost for the lesser long-nosed bat experienced an 86 percent decline between 2016 and 2017. We do not have a complete understanding of what caused the fatality event in 2017 and what that ultimately means for the lesser long-nosed bat population. The decline was likely due to mortality, but it could be the result of migrating females using other roosts in the area or resource conditions in Mexico resulted in fewer bats migrating northward. We do not know if this decline represents a permanent loss of these bats. We will work with our partners in Mexico and the United States to increase the monitoring effort at this roost, as well as consider roost counts at other maternity roosts in the region, and gather information on resource conditions in both the United States and Mexico. This will provide information needed to better understand what the causes and implications of the events of 2016 and 2017 are and what, if any, ramifications this has on the viability of the lesser long-nosed bat population. This roost is included in our draft post-delisting monitoring plan, so we will continue to monitor and evaluate this roost for the next 15 years and implement adaptive management actions as appropriate.

Despite this decline, significantly more lesser long-nosed bats remain than when we listed the species, and the threats are not as significant as we concluded at the time of listing. When looking at the overall data from the past 20 years and applying our best professional judgment, we find that the overall lesser long-nosed bat population trend is positive, a conclusion that our conservation partners in Mexico also relied upon when they delisted the lesser long-nosed bat in 2013. Consequently, stable and increasing numbers of lesser long-nosed bats, in conjunction with the various analyses included in our SSA have led us to conclude that the lesser long-nosed bat no longer meets the definition of threatened or endangered under the Endangered Species Act.

Comment (3): One peer reviewer expressed concern that habitat loss and climate change could create a catastrophic effect on resource availability in the southwestern United States. The reviewer also believed that food items are lacking along the migration route in the United States. Thus, the reviewer believed that the species should not be delisted at this time.

Our Response: We reviewed the best scientific and commercial information available when conducting the threats analysis. We acknowledge that climate change is likely to affect forage availability in the future, both in Mexico and the United States. However, we cannot predict at this time specifically how forage resources will be affected, and how lesser long-nosed bats are likely to respond to these changes. Loss of lesser long-nosed bat habitat and forage resources are a threat that does not appear to be as significant as described at the time this species was listed as an endangered species. In the SSA and this final delisting rule, we discuss the apparent flexibility and adaptability of the lesser long-nosed bat with regard to changes in forage availability. We acknowledge that the opportunity to observe this adaptability has been limited and may not represent future long-term changes in forage availability; however, it provides evidence of the ability of this species to maintain viability during local or seasonal changes in forage availability. We have determined that, while threats to forage availability may be affecting individuals or specific sites or areas within the range of the lesser long-nosed bat, they do not represent significant threats to the overall population of the lesser long-nosed bat.

Overall, the threats to foraging areas have been reduced since the species was listed under the Act. Foraging habitat for the species is primarily on public lands and is managed and conserved through inclusion in resource management plans as noted in Factor D above. Thus, land use plans, State regulatory mechanisms, and ongoing conservation measures support increased conservation efforts for the lesser long-nosed bat habitat and forage resources in the United States.

Comment (4): One peer reviewer suggested that we attempt to get better documentation related to the consistency and quality of data used to evaluate and describe the status of the lesser long-nosed bat in Mexico.

Our Response: We are committed to ongoing communication and coordination with our Mexican conservation partners. The draft post-delisting monitoring plan includes the use of available information on the status of the lesser long-nosed bat in Mexico to ensure that we consider the entire range of the species in assessing its status absent the protections of the Act. We consider the information we used during development of the SSA and the final delisting rule related to the 2013 delisting of the lesser long-nosed bat in Mexico, in conjunction with other data from Mexico provided during our SSA process, to be the best available scientific information at this time. We will work with our partners on both sides of the U.S.-Mexico border to update and improve the information regarding the status of the lesser long-nosed bat in Mexico.

During the public comment period for the proposed rule, we received comments from 19 individuals or organizations. Of these, six provided substantial comments which we address below.

Comment (6): Several commenters would support the Service in downlisting the lesser long-nosed bat to a threatened species, but do not support delisting.

Our Response: We assessed the status of the species based on the best available scientific and commercial information, and included expert input and review. Mexico completed a similar process in 2013 where they evaluated the current status of the lesser long-nosed bat in Mexico. The result of that analysis was the removal of the lesser long-nosed bat from Mexico's version of the endangered species list. We considered that determination when evaluating the range-wide status of the lesser long-nosed bat. We analyzed the information within the SSA and determined that the lesser long-nosed bat does not meet the definition of endangered nor does it meet the definition of a threatened species, because the future scenario's analysis indicate that the lesser long-nosed bat will retain its viability into the foreseeable future due to high resiliency, redundancy, and representation. In addition, the population is stable or increasing, threats are not as significant as previously believed or have been alleviated through management, and conservation actions continue to be implemented. Therefore, the lesser long-nosed bat is not in danger of extinction now or within the foreseeable future. We have determined that the lesser-long nosed bat has recovered and no longer meets the definition of endangered or threatened under the Act.

Comment (7): Several commenters requested that the Service explain the rationale it used to estimate the current population of the species. One commenter stated that the estimate regarding post-maternity population size in the proposed rule is not a defendable number.

Our Response: Counts of bats at nearly every known lesser long-nosed bat roost have occurred at least to some extent over the past 20 years in both the United States and Mexico. We cannot generate statistically rigorous population numbers or trend from these counts because limited resources has meant that roost counts do not always occur annually and, with the exception of a few sites, very rarely have multiple counts per year been completed. However, these counts have generally occurred multiple times over the past 20 years and they represent information that can be used to assess the status of the population. To do this, we relied upon the professional judgement of those conducting the counts, supported by a data set that, although not statistically robust, is a long-term data set. This input has been that, in general, the trend in overall numbers has been stable or increasing in both the United States and Mexico (AGFD 2005 and 2016, entire; Medellín and Torres 2013, pp. 11-13; Buecher 2016, p. 10; Cerro 2012, p. 23). The number of lesser long-nosed bats at any given roost fluctuates considerably each year and among years making it crucial to have long-term data sets to assess the status of the lesser long-nosed bat population. We considered the overall roost counts for maternity sites and at late-summer transition roosts, understanding that there is likely some overlap between individuals within those two sets of data. We also considered count data from Mexico understanding that there is overlap of individuals within the migratory segment of the population that inhabits both the United States and Mexico. This has allowed us to estimate that the overall population is probably at least 200,000, especially considering that one maternity site has consistently been counted at over 100,000 bats annually for many years. It also allows us to support the conclusion given to us by researchers familiar with these roost sites that indicate increasing and stable populations at nearly all roost sites that are being monitored. A good example are roost sites on Fort Huachuca in the Huachuca Mountains of Arizona. Monitoring over the past 24 years indicates steady increases in the numbers of lesser long-nosed bats at these roosts. In addition, two roost sites that had been abandoned have been reoccupied (Sidner 2005; Buecher 2016; p. 17). However, we also have documented the abandonment of roost sites including roost sites in the Chiricahua and Santa Rita mountain ranges.

We believe that we have conservatively estimated the overall lesser long-nosed bat population to be at least 200,000. The count data used in the SSA and the proposed delisting rule represent more of an index of population size and not the exact number of lesser long-nosed bats that exist within its range. Again, we acknowledged that the population numbers used in the SSA and the proposed delisting rule do not represent actual population numbers. We are required to make decisions based on the best available scientific and commercial data and have used this count data to evaluate the current status of the species. While numbers fluctuate both within and between years, the count data we used was generally gathered using a consistent approach and over a relatively long period of time such that we believe this does provide an index of population size. The total number of bats currently being documented is many times greater than those numbers upon which the listing of this species relied, and while this may, in large part, reflect a better approach to survey and monitoring in subsequent years, it gives us better information upon which to evaluate the status of the lesser long-nosed bat population.

In addition, a documented expansion of the known range of the lesser long-nosed bat in the United States has occurred subsequent to listing. According to Bat Conservation International (lit 2017), recent reports from Dr. Keith Geluso at the University of Nebraska have identified the presence of lesser long-nosed bats near Gila, New Mexico. This is an expansion of over 100 miles north of known occurrences in Hidalgo County, NM. Additional data collected by Buecher Biological Consulting confirmed the presence of this species in the southern Big Burros Mountains at hummingbird feeders (HEG 2015, entire). These reports are approximately 100 miles north of the historic northern extent of their range in the Peloncillo and Big Hatchet Mountains.

Comment (8): Several commenters suggested that additional evaluation and quantitative analyses of the population size and trend is needed before a determination that downlisting or delisting can be supported.

Our Response: As stated in our response to the previous comment, we acknowledge that we do not have statistically rigorous roost count data that provides a statistically sound population estimate. Past, current, and future resources have not and are unlikely to support future roost counts at the intensity needed to provide such a population estimate. However, the count data we do have, in conjunction with the professional judgment of the biologists conducting these counts and of those involved in the management of roost sites, does provide us a picture of increased numbers and known roost sites subsequent to the listing of the lesser long-nosed bat in 1988. As stated in the proposed rule, there has been a steadily increasing effort related to the conservation of this subspecies for the last 20 years following the completion of the lesser long-nosed bat recovery plan. Better methods of monitoring have been developed. These monitoring efforts have led to an increase in the number of known roosts throughout its range. The 1988 listing rule emphasized low population numbers along with an apparent declining population trend. At this time, we have documented increased lesser long-nosed bat numbers and positive trends at most roosts sites, as well as an increased number of knowns roosts and an expansion of the range of this species in the United States.

Much of the debate as to the legitimacy of the 1988 listing of the lesser long-nosed bat centers around the population numbers and trends recorded from roost site monitoring. At the time of listing, population numbers and trends used by the Service in determining the endangered status of the lesser long-nosed bat showed low numbers and a declining trend (Wilson 1985). Information gathered since the listing show higher population numbers and a generally stable to increasing trend (Cockrum and Petryszyn 1991, AGFD 2005, entire, AGFD 2016, entire). Further, the increasing trend in Mexico warranted and resulted in the removal of the lesser long-nosed bat from Mexico's Law for Endangered Protection in 2013.

We anticipate that ongoing post-delisting monitoring will detect any significant changes in population health and allow for adaptive management responses, including possible re-listing, if necessary. As is the case with many listed species, we have not had, nor do we anticipate that we will have in the future, adequate resources to gather all the information we would like or feel is necessary to evaluate prior to delisting the lesser long-nosed bat. We rely on the best available scientific and commercial information. Based on this information, we have determined that the population of the lesser long-nosed bat is currently viable and will likely maintain viability into the future based on the analysis contained in our SSA and this final rule.

Comment (9): Several commenters remarked on and requested that the Service should more rigorously consider whether roost protections are likely to be maintained post-delisting in the absence of regulatory requirements of the Act.

Our Response: After delisting, the lesser long-nosed bat will continue to be a high priority for conservation activities due to its status in both New Mexico and Arizona's State Wildlife Action Plans (SWAP). New Mexico has the species identified as a Species of Greatest Conservation Need. In Arizona's SWAP, the lesser long-nosed bat is named as a special status species and monitoring roosts is a proposed activity in the plan. Further, the U.S. Forest Service has the species identified as Regional Forester Sensitive, providing it with additional conservation status in all regional USFS National Environmental Policy Act analyses. These classifications and proposed conservation activities were not identified when the lesser long-nosed bat was listed in 1988.

We acknowledge that sustaining efforts of post-delisting monitoring can be challenging and subject to competing priorities for available resources. Nonetheless, we have designed the draft post-delisting monitoring plan to be realistic given limited resources and will continue to work with our conservation partners to obtain the resources necessary to implement post-delisting monitoring. As occurred prior to delisting, we anticipate protection and conservation of the lesser long-nosed bat will continue to be implemented as the result of existing management and land use plans, as well as other State and Federal laws related to protection of bats and their habitats, including caves used as roosts. These laws and plans will continue to be implemented and used to benefit the conservation of the lesser long-nosed bat following delisting. We acknowledge that the level of support for ongoing lesser long-nosed bat conservation actions changes over time and is often focused on species listed under the Act. However, we have reached out to our Federal and non-Federal lesser long-nosed bat conservation partners as we worked to address comments on and finalize the delisting rule for the lesser long-nosed bat to assess their level of participation in future conservation actions for this species. They have indicated that they will continue to implement conservation actions as appropriate and as resources are available.

Our discussion in Factor A above includes a number of specific examples of conservation actions that our conservation partners have and are implementing; many of which are regulatory requirements. We are confident that actions similar to those discussed above in this section will continue to benefit the conservation of lesser long-nosed bat even absent the regulatory protections of the Act as such actions have done in Mexico. Lesser long-nosed bat recovery has occurred because of the commitments of our conservation partners that have gone well beyond the requirements of the Act. The recovery of the lesser long-nosed bat is evidence of how effective species conservation can be when supported by a committed, active group of binational conservation partners.

Comment (10): One commenter suggested that gates are ineffective in protecting lesser long-nosed bat roosts.

Our Response: We are still developing the most appropriate gate design and implementation strategy for gates on lesser long-nosed bat roosts. Three efforts to physically protect roosts through the use of gates or barriers have been implemented (Bluebird and State of Texas). The experimental fence at the Bluebird Mine worked initially, but it was subsequently vandalized resulting in roost abandonment. The gate was repaired and there have been no subsequent breeches and the bats have recolonized the site. Gating at the State of Texas mine has had some success (the site is protected, but bat numbers have declined), but we still do not know how lesser long-nosed bats will adapt to gates over time or if gates will prove to be a viable option for lesser long-nosed bat roost protection, especially at roosts containing the largest numbers of bats. A protective gate was installed at the Cave of the Bells roost site. This site has not been occupied since gating (AGFD 2005, entire). It is not entirely clear if the gating was responsible for abandonment of this roost, but additional research has indicated that gating may be problematic for lesser long-nosed bats based on colony size and flight speeds. Bat gates are an excellent conservation tool for bat roosts, but they may not be as suitable for lesser long-nosed bats (Ludlow and Gore 2000). Further research, similar to efforts at Coronado National Memorial, is needed before the effectiveness of this tool can be determined (Bucci et al. 2003). Current efforts are underway to use the existing gate at Coronado National Memorial to determine a better gate design and configuration with regard to lesser long-nosed bats. Regardless, the gates do provide protection from disturbance and as such, benefit the long-term conservation of the lesser long-nosed bat.

Comment (11): Several commenters stated that with the on-going impact of illegal border activity occurring across the U.S.-Mexico border, abandoned mines and caves used by the bat are still at risk from disturbance.

Our Response: Patterns of cross-border traffic are continually changing and, while the level of use in proximity to roosts may rise and fall, roost sites nonetheless occur in areas where they are vulnerable to disturbance by border traffic. In general, recent data indicates that illegal border crossings have decreased. This may indicate a current downturn in illegal border activity, but this trend may reverse at any time. The roost monitoring proposed in our draft post-delisting monitoring plan will provide regular assessments of lesser long-nosed bat roosts and allow us to respond appropriately if threats or impacts from illegal border activities become an issue.

We have determined that, while activities associated with illegal border crossing may be affecting individuals or specific sites or areas within the range of the lesser long-nosed bat, they do not represent significant threats to the overall population of the lesser long-nosed bat.

Comment (12): One commenter stated that growing human populations and increased rate of urbanization within the range of the lesser long nosed bat will increase the prevalence of vandalism at roost sites.

Our Response: Lesser long-nosed bats can be affected directly by development which removes important foraging habitat, but also indirectly as growing numbers of people increase the potential for roost disturbance. We have specifically addressed the issue of development and urbanization in Factor A above. We have determined that, while human development and urbanization may be affecting individuals or specific sites or areas within the range of the lesser long-nosed bat, they do not represent significant threats to the overall population of the lesser long-nosed bat.

Comment (13): Several commenters suggested that the species' food resources are unstable and the species' resilience to the 2004 cactus bloom failure event was overstated.

Our Response: We have determined that there is a lack of evidence presented within the best available scientific and commercial information that these issues are or will have population-level effects on the lesser long-nosed bat. The threat to foraging areas has been reduced since the species was listed under the Act. A key to maintaining lesser long-nosed bat population viability into the future is assuring that forage species remain present and appropriately distributed across the landscape and available for the various life history requirements of the lesser long-nosed bat. Foraging habitat for the species is primarily on public lands and is conserved through inclusion in resource management plans. These plans provide guidance and measures to ensure that forage resources such as agaves and columnar cacti remain present in the landscape. For example, we are working with The Department of Defense facility at Fort Huachuca to continue their Agave Management Plan as part of their Integrated Natural Resources Management Plan which states that it will maintain a self-sustaining populations of Agave palmeri on Fort Huachuca to conserve the forage base of the lesser long-nosed bat and other species using agave. The Coronado National Forest's 2017 LRMP includes standards and guidelines to retain and enhance areas with paniculate agaves in order to benefit the lesser long-nosed bat. The Bureau of Land Management has forage plant protections within the range of the lesser long-nosed bat, including avoidance measures to protect agave and saguaros. Organ Pipe Cactus National Monument and Cabeza Prieta National Wildlife Refuge protect hundreds of square miles of areas containing foraging plants for the bat within its refuge boundaries. We are confident that these efforts and protections will continue even after the lesser long-nosed bat is delisted.

Comment (14): One commenter suggested that lesser long-nosed bats may become dependent on artificial food resources (i.e., hummingbird feeders), which may work as a temporary replacement of their natural food but are not sufficient as a sustainable food resource.

Our Response: As stated in the SSA, one interesting aspect of the foraging behavior of lesser long-nosed bats is the fact that they readily find and use hummingbird feeders as a forage resource (Buecher and Sidner 2013, Wolf 2006, Town of Marana 2017). Some hypothesize that the year-round presence of hummingbird feeders in southern Arizona and New Mexico support lesser long-nosed bats staying later in the year in these areas, perhaps even year-round. It is possible that this extra availability of forage resources may be one factor that has led to the lesser long-nosed bat's increased stability and progress towards recovery. The increase and permanent presence of hummingbird feeders at homes in southern Arizona and New Mexico may supply a consistent forage resource for these nectar-feeding bats that allows them to use and remain in areas when natural forage resources are absent or reduced (R. Sharp, 2013 pers. comm.). Alternatively, the long-term effects of staying longer before migrating southward and the questionable nutritional value of the sugar water in the hummingbird feeders are unknown and could actually be detrimental.

In 2006, in southern Arizona, there was a significant failure of blooming agaves. As a result, many members of the public reported that bats were using their hummingbird feeders that year. The Service, AGFD, and the Town of Marana initiated a citizen scientist program to track use of hummingbird feeders in 2007 based on Wolf (2006, entire) and, over the past approximately 10 years, the volunteer network of feeder watchers has grown to more than 100 individuals monitoring their hummingbird feeders across southern Arizona. This has resulted in a tremendous amount of data and some very interesting results.

The existence of this ongoing study related to lesser long-nosed bat use of hummingbird feeders provides us an opportunity to continue to assess and evaluate the potential benefits and negative effects of hummingbird feeders on the landscape within the range of the lesser long-nosed bat. Currently, there is no evidence that this resource in the landscape is negatively affecting the lesser long-nosed bat population.

Comment (15): Several commenters stated that the impacts of climate change to bat distributions are unknown at this time and that the SSA did not adequately acknowledge the threat of climate change.

Our Response: The lesser long-nosed bat SSA incorporates the best available scientific and commercial information related on the current state of our understanding of the potential effects of climate change on the lesser long-nosed bat. We acknowledge the limitations of the currently available information related to predicting the potential impacts of climate change on the lesser long-nosed bat specifically. However, we have determined that, while climate change may be affecting individuals or specific sites or areas within the range of the lesser long-nosed bat, it does not represent a significant threat to the overall population of the lesser long-nosed bat based upon the analysis we completed in the SSA.

We are committed to using the best available scientific and commercial information in our analysis of the current and future status of the lesser long-nosed bat. We acknowledge that ecosystems within the southwestern United States are thought to be particularly susceptible to climate change and variability (Strittholt et al. 2012, pp. 104-152; Munson et al. 2012, pp. 1-2; Archer and Predick 2008, p. 23). Documented trends and model projections most often show changes in two variables: temperature and precipitation. Recent warming in the southwest is among the most rapid in the nation, significantly more than the global average in some areas (Guido et al. 2009, pp. 3-5). Bagne and Finch (2012 and 2013; pp. 107-116; pp. 150-160) assessed the vulnerability of the lesser long-nosed bat to the effects of climate change in the areas of the Barry M. Goldwater Range (southwestern Arizona) and at Fort Huachuca (southeastern Arizona). They concluded that the lesser long-nosed bat was moderately vulnerable to declines related to global climate change. Vulnerability was increased by reliance on the quantity and timing of flowering of a limited number of plant species, while resilience is incurred by flexible migratory behaviors and the probable resilience of forage plant populations to increasing temperatures.

They also predicted that changes in climate are expected to exacerbate current threats. One of the primary factors related to the vulnerability of this species to climate change was the adaptability of non-native grasses and the potential changes in fire regime that are expected under most climate change scenarios. However, current climate change modeling efforts do not allow us to predict what the effects of this climate change will be beyond a relatively short timeframe. We are not able to conclude what the effects of climate change will be on the lesser long-nosed bat population distribution and viability given the current level of information we have related to climate change on forage resources such as saguaros and agaves. However, we acknowledge the potential for climate change to affect lesser long-nosed bat forage availability, and we have included an assessment of this issue as part of the draft post-delisting monitoring plan. This will provide us with information to make a better informed evaluation of the potential effects of climate change on lesser long-nosed bat forage resources. Results of this monitoring will allow us to formulate potential adaptive management actions to address these effects, or consider relisting the species if necessary.

The best available scientific and commercial information indicates that the current population condition of the lesser long-nosed bat appears to indicate that lesser long-nosed bats may be showing some resiliency with regard to fluctuating food plant flowering cycles.

Comment (16): Several comments expressed concern with regard to current regulations and laws not adequately protecting bats and caves.

Our Response: The Federal Cave Protection Act of 1988 prohibits persons from activities that “destroy, disturb, deface, mar, alter, remove, or harm any significant cave or alters free movement of any animal or plant life into or out of any significant cave located on Federal lands, or enters a significant cave with the intent of committing any act described . . .” Arizona Revised Statute 13-3702 makes it a class 2 misdemeanor to “deface or damage petroglyphs, pictographs, caves, or caverns.” Activities covered under ARS 13-3702 include “kill, harm, or disturb plant or animal life found in any cave or cavern, except for safety reasons.” We acknowledge that these regulations are only as effective as their enforcement, but we are confident that our Federal and State partners will enforce these regulations to the best of their ability. We are currently aware of only one site where abandonment of the roost resulted from human disturbance. This issue was addressed through fencing and human disturbance has not been an issue since the fencing was installed.

Comment (17): Two commenters discussed the potential effects of wind energy development. One indicated that wind energy facilities were not adequately evaluated in the SSA and the proposed delisting rule.

Our Response: We are aware of lesser long-nosed bat fatalities from wind energy development facilities in both the United States and Mexico. However, because monitoring at these sites is not comprehensive and because this is an emerging threat without much information available specifically related to lesser long-nosed bats, it is difficult to determine the actual long-term impact of wind turbines on this species. Based on existing wind energy development, there are two wind energy facilities in Arizona (producing 268 MW of power) and one wind energy facility in New Mexico (producing 1,112 MW of power) within the range of the lesser long-nosed bat. The American Wind Energy Association (AWEA) has identified an additional six projects under development in New Mexico; however, none of these projects are within the range of lesser long-nosed bat. The AWEA has identified no additional projects under development in Arizona within the range of the lesser long-nosed bat. Through 2050, the U.S. Department of Energy's Wind Vision (2013) report, projects 5 and 15 gigawatts of wind generating capacity for Arizona and New Mexico respectively. However, based on wind resource maps from the National Renewable Energy Laboratory, measured at 80 meters above ground level, wind resources are limited within the range of the lesser long-nosed bat in either State. While we do not have any specific information related to wind energy development in Mexico, short- and medium term projects indicate that the development of wind power is expected to take an increasingly important position in Mexico's energy landscape. One source predicts that wind energy development in Mexico will increase four fold from 2016 to 2020.

The impact of wind energy development on lesser long-nosed bats is unknown and more attention must be paid to characterizing and avoiding potential impacts. Because lesser long-nosed bats are migratory, and impacts from wind energy facilities to migratory bats are well documented, the construction of new facilities should be carefully sited to avoid roosts and migratory flyways. Moreover, construction of sites within the range of the lesser long-nosed bat should be monitored and fatalities reported with adaptive management strategies in place to reduce fatalities over time.

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

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of 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. Therefore, we solicited information from Native American Tribes during the comment period to determine potential effects on them or their resources that may result from the delisting of the lesser long-nosed bat, and we fully considered their comments in this final rule.

A complete list of all references cited in this rule is available on http://www.regulations.gov in Docket No. FWS-R2-ES-2016-0138, or upon request from the Field Supervisor, Arizona Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

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

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

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

In 2015, NMFS implemented a final rule that established the U.S. BFT quota and subquotas consistent with ICCAT Recommendation 14-05 (80 FR 52198, August 28, 2015). As a result, based on the currently codified U.S. quota of 1,058.79 mt (not including the 25 mt allocated by ICCAT to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area), the baseline Purse Seine, Longline, and Reserve category quotas are codified as 184.3 mt, 148.3 mt, and 24.8 mt, respectively. See § 635.27(a). For 2018 to date, NMFS has made the following inseason quota transfers: 14.3 mt from the General category December 2018 subquota period to the January 2018 subquota period (82 FR 60680, December 22, 2017) and 10 mt from the Reserve category to the General category (83 FR 9232, March 5, 2018), resulting in an adjusted 2018 Reserve category quota of 14.8 mt.

Pursuant to § 635.27(a)(4), NMFS has determined the amount of quota available to the Atlantic Tunas Purse Seine category participants in 2018, based on their BFT catch (landings and dead discards) in 2017. In accordance with the regulations, NMFS makes available to each Purse Seine category participant either 100 percent, 75 percent, 50 percent, or 25 percent of the individual baseline quota allocations based on the previous year's catch, as described in § 635.27(a)(4)(ii), and reallocates the remainder to the Reserve category. NMFS has calculated the amounts of quota available to the Purse Seine category participants for 2018 based on their individual catch levels in 2017 and the codified process adopted in Amendment 7. NMFS did not open the Purse Seine fishery in 2017 because there were no purse seine vessels permitted to fish for BFT and thus on catch in 2017. As a result, each Purse Seine category participant will receive 25 percent of the individual baseline quota amount, which is the required distribution even with no fishing activity under the current regulations. The individual baseline amount is 36.9 mt (184.3 mt divided by five Purse Seine category participants), 25 percent of which is 9.2 mt. Consistent with § 635.27(a)(4)(v)(C), NMFS will notify Atlantic Tunas Purse Seine category participants of the amount of quota available for their use this year through the IBQ electronic system established under § 635.15 and in writing.

By summing the individual available allocations, NMFS has determined that 46.1 mt are available to the Purse Seine category for 2018. Thus, the amount of Purse Seine category quota to be reallocated to the Reserve category is 138.2 mt (184.3 mt − 46.1 mt). This reallocation results in an adjusted 2018 Reserve category quota of 153 mt (14.8 mt + 138.2 mt), before any further transfers to other categories.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering the 14 regulatory determination criteria provided under § 635.27(a)(8). NMFS has considered all of these criteria, and discuss specific consideration of the criteria relevant for the quota transfer below.

NMFS considered the catches of the Longline category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii)). As of March 31, the Longline category has landed about 28.2 mt (19 percent) of its 148.3-mt baseline quota. Thus, this is not a situation in which NMFS is transferring quota to avoid the need for closure of the whole Longline category. However, as discussed in more detail in the next section, the additional quota will be distributed to active vessels in the Longline category to help vessel owners account for BFT catch while fostering conditions in which permit holders become more willing to lease IBQ to other vessels through the IBQ system.

Longline vessels must use IBQ to account for their incidental BFT landings and dead discards while fishing for swordfish and yellowfin tuna. In 2018, NMFS modified HMS regulations to require vessels in the pelagic longline fishery to account for bycatch of BFT using IBQ on a quarterly basis instead of on a trip-level basis (82 FR 61489, December 28, 2017). If a vessel has insufficient IBQ to account for such landings and dead discards within a quarter, it goes into “quota debt.”

For the first fishing trip in a calendar year quarter, as defined at § 635.15(b)(3), a vessel is not allowed to fish with pelagic longline gear if it has outstanding quota debt or does not have the minimum amount of quota (i.e., 276 lb (0.125 mt) to depart on a fishing trip in the Atlantic and 551 lb (0.25 mt) to depart on a fishing trip in the Gulf of Mexico). These minimum amounts were specified to allow the landing and accounting of one BFT, based on average fish weight for each area (e.g., 551 lb of quota would allow for the landing and accounting of one BFT in the Gulf of Mexico). Without the quota transfer, active vessels may have difficulty accounting for their BFT catch within a quarter. Transferring 44.5 mt of quota from the Reserve category would provide limited additional opportunities to harvest available swordfish and yellowfin tuna without exceeding the BFT quota available to account for incidental BFT catch during those operations. Regarding the projected ability of the vessels fishing under the particular category quota (here, the Longline category) to harvest the additional amount of BFT before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS cannot predict if all of the 44.5 mt of quota will be used by December 31, given the highly variable nature (i.e., temporally and spatially) of incidental BFT catch. NMFS anticipates, however, that the amount of quota transferred is an amount sufficient to facilitate vessel trips within the next quarters and encourage leasing by other permit holders, without limiting NMFS' ability to meet other needs with the Reserve quota for the remainder of the year.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2018 landings and dead discards. A small portion of the overall commercial BFT quota has been used in 2018 to date, consistent with the amount of quota used in the early months of previous years. NMFS will need to account for all 2018 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations and anticipates having sufficient quota to do that even with this transfer from the Reserve category.

This transfer is consistent with the current quotas, which were established and analyzed in the Atlantic BFT quota final rule (80 FR 52198, August 28, 2015), and with objectives of the 2006 Consolidated HMS FMP and amendments (§ 635.27(a)(8)(v) and (vi)). The adjusted Longline category quota of 192.8 mt remains within the ICCAT quota. The revised Longline category quota supports the broader objectives of Amendment 7, which include reducing BFT interactions and dead discards while maintaining an economically viable swordfish and yellowfin tuna directed fishery.

Regarding “optimizing fishing opportunity” (§ 635.27(a)(8)(x)), the ability of pelagic longline vessel owners to account for BFT with allocated quota or to lease IBQ at an affordable price is key to the success of the IBQ Program and thus to optimize fishing opportunity. An inseason transfer of quota to the Longline category would optimize fishing opportunity, contribute to full accounting for landings and dead discards, and reduce uncertainty in the fishery as a whole. Quota transferred from the Reserve category and distributed directly to active vessels should reduce situations where fishing opportunity for target species is constrained by the unavailability of quota (e.g., because of BFT quota debt or a low IBQ balance) or, in the case of vessels with recent fishing activity that are not associated with IBQ shares, by not finding affordable quota (or sufficient quota) for lease. Detailed information is discussed below showing that without this transfer of quota, some otherwise active vessels will be unable to fish because of quota debt or low balance (below the minimum amount of allocation needed to fish) at the start of the second quarter. The quota transfer will also reduce vessel owner uncertainty about whether a vessel owner will have sufficient quota to account for future BFT catch. Without this inseason quota transfer, permit holders may be unnecessarily conservative at the beginning of the year, in a way that does not optimize fishing opportunities nor encourage the appropriate functioning of the IBQ leasing program. For example, vessel owners may fear that they will not have enough IBQ to account for BFT retained or discarded dead, and thus may feel they cannot lease IBQ to other vessels. If they do lease out quota, they may set the lease prices unnecessarily high to offset their perceived risks. An inseason distribution of IBQ to active vessels will reduce the perceived risk associated with leasing a portion of their IBQ to other vessels early in the year and will reduce uncertainty in their business plans for the year.

Regarding accounting for dead discards (§ 635.27(a)(8)(xi)) and variations in seasonal distribution or abundance, a quota transfer from the Reserve category to the Longline category would contribute to full accounting of BFT catch by vessels that accrue quota debt (i.e., reduce quota debt), enhance the likelihood that share recipients will lease IBQ to others, and reduce uncertainty in the fishery as a whole. Transferring quota relatively early in 2018 helps to address the diversity of the fishery with respect to the timing of fishing activities in different geographic areas. A quota transfer later in the year may disadvantage those fishing early in the year. In addition, the first quarter of 2018 recently ended and any vessels that have gone into debt will not be able to fish beginning April 1 until they account for quota debt and obtain the minimum amount of allocation needed to fish with pelagic longline gear. Additional inseason transfers could occur later in the year and the additional quota at the beginning of the year helps equalize the distribution among the active vessels.

Based on the considerations above, NMFS is transferring 44.5 mt of the adjusted Reserve category quota to the Longline category. As a result of this quota transfer, the adjusted 2018 Reserve category quota is 108.5 mt (153 mt − 44.5 mt), and the adjusted 2018 Longline category quota is 192.8 mt.

After transferring additional BFT quota inseason to the Longline category, NMFS may then distribute the quota either to all qualified IBQ share recipients (i.e., share recipients who have associated their permit with a vessel) or only to permitted Atlantic Tunas Longline vessels with recent fishing activity, whether or not they are associated with IBQ shares. This decision may be based on information for the subject year and previous year, including the number of BFT landings and dead discards, the number of IBQ lease transactions, the average amount of IBQ leased, the average amount of quota debt, the annual amount of IBQ allocation, any previous inseason allocations of IBQ, the amount of BFT quota in the Reserve category, the percentage of BFT quota harvested by the other quota categories, the remaining number of days in the year, the number of active vessels fishing not associated with IBQ share, and the number of vessels that have incurred quota debt or that have low levels of IBQ allocation (§ 635.15(b)(9)). Discussion of the relevant information and justification for how NMFS is distributing the transferred quota in this action follows.

One hundred thirty-six IBQ share recipients were designated under Amendment 7, and the baseline Longline category quota is distributed to those share recipients at the beginning of the year, regardless of their fishing activity. Other permitted Longline vessels may also fish but do not automatically receive annual IBQ allocation from shares. NMFS has examined the logbook, Vessel Monitoring System (VMS), dealer, and electronic monitoring data for 2017 and for 2018 as of March 31, and has determined that 89 vessels have recent fishing activity and that, of those, 85 were IBQ share recipients. Any vessel activity in the pelagic longline fishery during this date range is sufficient to qualify as “recent fishing activity” (§ 635.15(b)(9)).

Preliminary data indicate that, in 2017, 58 Atlantic Tunas Longline vessels landed a total of 494 BFT (226,738 lb) and 93 BFT were discarded dead. Data from the IBQ system indicate that in 2018 through March 31, 25 Atlantic Tunas Longline vessels landed a total of 122 BFT (59,134 lb). These landings and dead discards (as well as VMS data that document BFT released alive) indicate that pelagic longline vessels have been interacting with BFT in 2017 (and early 2018). The vessels have been accounting for BFT using IBQ, as required by the regulations. It is likely that there will continue to be pelagic longline interactions with BFT and a need for vessels to account for the BFT retained and discarded dead in 2018. Distributing only to active vessels provides a focused, more efficient distribution of quota to those that need it and will help reduce uncertainty and facilitate better business decisions and a more effective leasing program for the remainder of the year. NMFS notes that this is only a small influx of quota to facilitate effective leasing and more certainty in operational decisions at the beginning of the year.

There were 118 IBQ lease transactions in the relevant time period analyzed (85 in 2017; 33 in 2018 through March 31), with 55 distinct share recipients leasing. A total of 200,823 lb were leased (156,148 lb in 2017; 44,675 lb in 2018 through March 31). Seventeen IBQ lessors did not have recent fishing activity. Overall, the average amount of IBQ leased was 1,837 lb in 2017 with an average lease price of $1.67 per pound, and 1,354 lb in 2018 through March 31 with an average lease price of $2.84 per pound (weighted average). In discussions with vessel operators, some have indicated that the ex-vessel price of BFT was variable, and relatively low, and that they essentially made little or no money from BFT given expenses including the cost to lease IBQ. Data indicate that the ex-vessel price of BFT from pelagic longline vessels ranged from $0.01 to $35 per pound, with an average of $4.95 per pound. There were four active vessels that were not associated with IBQ shares that leased quota from share recipients in order to fish with pelagic longline gear. Fifteen distinct vessels had quota debt at any given point in 2017, with an average of 900 lb. Nine vessels had quota debt at any given point in 2018 through March 31, with an average of 1,526 lb. This price and leasing information demonstrates that the leasing market is active, vessels are paying out of pocket to obtain additional IBQ as needed, and that BFT landings are generally not profitable. It also indicates that influxes of quota inseason were helpful in facilitating the effective functioning of the IBQ Program and system. Furthermore, share recipients that are not actively fishing are earning some revenue through leasing to those vessels that are fishing (i.e., from 5 such vessels in 2015 to 17 vessels from January 1, 2017 through March 31, 2018). These trends further support distribution of quota to Atlantic Tunas Longline vessels with recent fishing activity in order to facilitate accounting for BFT catch or reducing the likelihood of accrued quota debt, while helping to lower any additional cost of leasing.

The annual amount of Longline category quota allocated in the IBQ system for 2017 was the baseline Longline category quota of 148.3 mt plus the 45-mt transfer that was effective February 28, 2017, for a total of 193.3 mt (not including the 25 mt for the Northeast Distant Gear Restricted Area). The annual amount of Longline category quota currently allocated in the IBQ system for 2018 is the baseline Longline category quota of 148.3 mt. NMFS has not made any inseason transfers to the Longline category thus far in 2018. As described above, the amount of quota in the Reserve category following this action's reallocation from the Purse Seine category is 153 mt. As described in the Quota Transfer section above, a small portion of the overall commercial BFT quota has been used in 2018 to date, consistent with the amount of quota used in the early months of previous years. Thus, substantial quota remains available in the Reserve category for future transfers, as appropriate.

NMFS has determined that distribution of quota only to Atlantic Tunas Longline vessels with recent fishing activity fulfills IBQ Program objectives. Such a distribution would provide transferred quota only to the vessels that have recently fished and are therefore most likely to need quota in order to account for BFT interactions. This would include the four Atlantic Tunas Longline vessels with recent fishing activity that are not associated with IBQ shares, as well as the 85 IBQ share recipients with recent fishing activity (representing 63 percent of all IBQ share recipients). For comparison, if the 44.5 mt were distributed to all qualified IBQ share recipients, each would receive 721 lb (0.33 mt) rather than 1,102 lb (0.5 mt) to each of the 89 vessels with recent fishing activity. Some inactive share recipients participate in the IBQ Program through leasing out quota; however, a majority of inactive share recipients (36 of 51) did not lease out quota in the period analyzed. After considering this information, NMFS has decided to distribute the 44.5 mt of quota transferred from the Reserve to the Atlantic Tunas Longline vessels with recent fishing activity.

For those vessels with recent fishing activity that are not associated with valid (i.e., unexpired) permits at the time of the quota transfer, the IBQ will be transferred, but will not be usable by the vessel owner (i.e., may not be leased or used to account for BFT) unless and until the vessel is associated with a valid permit. When a qualified IBQ share recipient with recent fishing activity receives inseason quota, the quota will be designated as either Gulf of Mexico (GOM) IBQ, Atlantic (ATL) IBQ, or both GOM and ATL IBQ, according to the share recipient's regional designations. Those vessels that are participating in the voluntary Deepwater Horizon Oceanic Fish Restoration Project repose period through June 30, 2018, and that have recent fishing activity, would receive a distribution of inseason quota once the repose period ends. For vessels with recent fishing activity that are not qualified IBQ share recipients, NMFS will assign the distributed quota a regional designation based on where the majority of the vessel's “recent fishing activity” occurred for the relevant period analyzed (either GOM or ATL).

NMFS anticipates that it will announce additional BFT quota adjustments during 2018 for all quota categories, to provide reasonable fishing opportunities throughout the year. An ICCAT recommendation adopted at the annual meeting in November 2017 for western Atlantic BFT management would result in an increase to the baseline U.S. BFT quota (i.e., from 1,058.79 mt to 1,247.86 mt) and subquotas for 2018, and NMFS will undertake domestic implementation of that recommendation through rulemaking in the near future. NMFS also anticipates that some underharvest of the 2017 adjusted U.S. BFT quota will be carried forward to 2018 and placed in the Reserve category, in accordance with the regulations, also in mid-2018 (when complete 2017 catch information is available and finalized). Subsequent notices will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates.

NMFS will continue to monitor the BFT fisheries, including the pelagic longline fishery, closely through the mandatory landings and catch reports. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT through the electronic BFT dealer reporting system as well as through the online IBQ system. Pelagic longline vessels are required to enter BFT dead discard information through the IBQ system and confirm the accuracy of dealer-reported data. Pelagic longline vessels are also required to report BFT catch through VMS, as well as through the online IBQ system.

Longline category permit holders are reminded that all BFT discarded dead must be reported through VMS, and accounted for in the online IBQ system, consistent with requirements at § 635.15(a).

If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov for updates on quota monitoring and inseason adjustments.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of and an opportunity for public comment on, the transfer from the Reserve category to the Longline category for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP, as amended, provide for inseason adjustments to quotas and other aspects of BFT fishery management, to respond to the diverse range of factors which may affect BFT fisheries, including ecological (e.g., rebuilding, or the migratory nature of HMS) and commercial (e.g., optimizing fishing opportunity, or reducing bycatch).

NMFS has determined that adjustments to the Reserve and Longline category BFT quotas are warranted. This transfer is consistent with the current quotas, which were established and analyzed in the Atlantic BFT quota final rule (80 FR 52198, August 28, 2015), and with objectives of the 2006 Consolidated HMS FMP and amendments. The adjusted Longline category quota of 192.8 mt remains within the ICCAT quota. The revised Longline category quota supports the broader objectives of Amendment 7, which include reducing BFT interactions and dead discards while maintaining an economically viable swordfish and yellowfin tuna directed fishery. Transferring quota relatively early in 2018 helps to address the diversity of the fishery with respect to the timing of fishing activities in different geographic areas. A quota transfer later in the year may disadvantage those fishing early in the year.

Affording prior notice and opportunity for public comment to implement the quota transfer is impracticable. The transfer of 44.5 mt of quota from the Reserve category to the Longline category needs to happen early in the year to facilitate effective leasing and more certainty in operational decisions. NMFS only recently received updated data from the 2017 fishery, as it recently closed, and from the first couple of months of the 2018 fishery. If NMFS were to offer an opportunity for public comment, it would unnecessarily preclude fishing opportunities for some vessel operators, particularly those that fish early in the fishing season. In addition, the first quarter of 2018 has ended, and some vessels that have gone into debt or have a low balance (below the minimum amount of allocation needed to fish) are not able to fish, as of April 1, until they account for quota debt and obtain the minimum amount of allocation needed to fish with pelagic longline gear. Without this inseason quota transfer, permit holders may be unnecessarily conservative in a way that does not optimize fishing opportunities nor encourage the appropriate functioning of the IBQ leasing program, which is contrary to the public interest. As explained earlier, NMFS conducted notice-and-comment rulemaking on the underlying regulations that set forth the criteria used for this action, and therefore notice-and-comment rulemaking is not necessary for this inseason action.

Delays in adjusting the Reserve and Longline category quotas would adversely affect those permitted Atlantic Tunas Longline vessels that would otherwise have an opportunity to reduce or resolve quota debt, lease quota to other vessels, as well as delay potential beneficial effects on the ability for vessel operators to make business plans for their future. NMFS is trying to balance providing opportunity to the pelagic longline fishery, with the reduction of BFT bycatch, and delaying this action would be contrary to the public interest. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

This action is being taken under §§ 635.15(b), 635.15(f), 635.27(a)(4) and (a)(7), 635.27(a)(8) and (9), and is exempt from review under Executive Order 12866.

NMFS published the final 2018 and 2019 BSAI groundfish harvest specifications on February 27, 2018 (83 FR 8365). The document contains incorrect amounts of Atka mackerel specified for the Amendment 80 sector in the CAI and the WAI. These corrections are necessary to provide the correct information about the amount of Atka mackerel allocated to the Amendment 80 sector in these districts, and to avoid confusion by the fishery participants.

In the Federal Register of February 27, 2018 (83 FR 8365) the Amendment 80 sector allocation in the CAI for 2018 and 2019 did not account for the 75 metric ton incidental catch allowance (ICA), and the Amendment 80 sector allocation in the WAI for 2018 and 2019 did not account for the 20 metric ton ICA. Therefore, Table 6 and Table 7 of the final 2018 and 2019 BSAI groundfish harvest specifications are republished as follows:

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This action corrects errors made in the allocations to the Amendment 80 sector of Atka mackerel in the CAI and WAI districts of the BSAI. This correction does not change operating practices in the fisheries. Corrections should be made as soon as possible to avoid confusion for participants in the fisheries.

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