Federal Register / Vol. 82, No. 191 / Wednesday, October 4, 2017 / Proposed Rules 46197 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

Fishes 

*******

Darter, trispot .................. Etheostoma trisella ......... Wherever found .............. T [Federal Register citation when published as a 

final rule.] 

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Dated: September 7, 2017. 

James W. Kurth, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2017–21350 Filed 10–3–17; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2017–0056; 

4500030113] 

RIN 1018–BC44 

Endangered and Threatened Wildlife 

and Plants; Proposed Threatened 

Species Status for the Candy Darter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; 12-month 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

12-month finding on a petition to list 

the candy darter (Etheostoma osburni) 

as a threatened or endangered species 

under the Endangered Species Act, as 

amended (Act), and to designate critical 

habitat. After review of the best 

available scientific and commercial 

information, we find that listing the 

candy darter is warranted. Accordingly, 

we propose to list the candy darter 

(Etheostoma osburni), a freshwater fish 

species from Virginia and West Virginia, 

as a threatened species under Act. If we 

finalize this rule as proposed, it would 

extend the Act’s protections to this 

species. The effect of this regulation will 

be to add this species to the List of 

Endangered and Threatened Wildlife. 

DATES: We will accept comments 

received or postmarked on or before 

December 4, 2017. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. We 

must receive requests for public 

hearings, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by November 20, 2017. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R5–ES–2017–0056, which is 

the docket number for this rulemaking. 

Then, in the Search panel on the left 

side of the screen, under the Document 

Type heading, click on the Proposed 

Rules link to locate this document. You 

may submit a comment by clicking on 

‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R5–ES–2017– 

0056; U.S. Fish and Wildlife Service 

Headquarters, MS: BPHC, 5275 Leesburg 

Pike, Falls Church, VA 22041–3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments below for more information). 

FOR FURTHER INFORMATION CONTACT: John 

Schmidt, Project Leader, West Virginia 

Ecological Services Field Office, 694 

Beverly Pike, Elkins, WV 26241–9475; 

by telephone 304–636–6586 or by 

facsimile 304–636–7824. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, if a species is determined to be 

an endangered or threatened species 

throughout all or a significant portion of 

its range, we are required to promptly 

publish a proposal in the Federal 

Register and make a determination on 

our proposal within 1 year. Critical 

habitat shall be designated, to the 

maximum extent prudent and 

determinable, for any species 

determined to be an endangered or 

threatened species under the Act. 

Listing a species as an endangered or 

threatened species and designations and 

revisions of critical habitat can be 

completed only by issuing a rule. 

This rule proposes adding the candy 

darter (Etheostoma osburni) as a 

threatened species to the List of 

Endangered and Threatened Wildlife in 

title 50 of the Code of Federal 

Regulations (50 CFR 17.11(h)). 

The basis for our action. Under the 

Act, 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 

have determined that hybridization 

(Factor E) with the variegate darter 

(Etheostoma variatum) is the primary 

threat to the candy darter. 

Peer review. A team of Service 

biologists prepared a Species Status 

Assessment Report (SSA Report) for the 

candy darter. The SSA Report 

represents a compilation and 

assessment of the best scientific and 

commercial information available 

concerning the status of the candy 

darter, including the past, present, and 

future factors influencing the species. 

We solicited independent peer review of 

the SSA Report by six individuals with 

expertise in darters; fisheries, 

population, or landscape ecology; 

genetics and conservation genetics; and/ 

or speciation and conservation biology; 

we received comments from four of the 

six peer reviewers. The SSA Report can 

be found in http://www.regulations.gov 

under the FWS–R5–ES–2017–0056 

docket; on the Southwest Virginia 

Ecological Services Field Office Web 

site at: https://www.fws.gov/northeast/ 

virginiafield/svfo/ 

southwesternvirginia.html; and on the 

West Virginia Ecological Services Field 

Office Web site at: https://www.fws.gov/ 

westvirginiafieldoffice/endangered

species.html. 


sradovich on DSK3GMQ082PROD with PROPOSALS
46198 Federal Register / Vol. 82, No. 191 / Wednesday, October 4, 2017 / Proposed Rules 

Information Requested 

Public Comments 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from the public, other 

concerned governmental agencies, 

Native American tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. We particularly seek new 

information not already included in the 

SSA Report concerning: 

(1) The candy darter’s biology, range, 

and population trends, including: 

(a) Biological or ecological 

requirements of the species, including 

habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range 

including distribution patterns; 

(d) Historical and current population 

levels and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) Factors that may affect the 

continued existence of the species, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors. 

(3) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to this species 

and existing regulations that may be 

addressing those threats. 

(4) The historical and current status, 

range, distribution, and population size 

of this species, including the locations 

of any additional populations of this 

species. 

(5) The occurrence of variegate darters 

within the range of candy darters and 

evidence of further hybridization 

between the two species. 

(6) The potential for, and timeframe 

associated with, additional 

introductions of the variegate darter into 

unaffected watersheds. 

(7) Specific prohibitions and 

exceptions to those prohibitions that 

may be necessary and advisable for the 

candy darter’s conservation. We intend 

to publish, as appropriate, a more 

tailored proposed rule with provisions 

set forth under section 4(d) of the Act 

for public review and comment in the 

future. Activities we are considering for 

potential exemption under a section 

4(d) rule include, but are not necessarily 

limited to, exceptions for: 

(a) Specific instream and bank habitat 

restoration activities that will benefit 

the candy darter, including revegetation 

of riparian corridors, natural stream 

channel design, and redesigning and 

removal of stream crossing structures; 

(b) water quality improvement actions 

such as stream liming; 

(c) genetic and population 

monitoring; 

(d) captive propagation in conjunction 

with a Service-approved Captive 

Propagation Plan; 

(e) sustainable forestry practices that 

primarily occur adjacent to, or upslope 

from, but do not occur within streams 

occupied or likely to be occupied by the 

candy darter and that are implemented 

according to well-defined and 

enforceable best management practices 

(e.g., Sustainable Forestry Initiative, 

Forest Stewardship Council); and 

(f) other activities that do not: 

(i) Facilitate the spread of candy 

darter/variegate darter hybridization; 

(ii) increase sedimentation that 

negatively affects feeding, breeding, 

sheltering, or dispersal; and 

(iii) cause a change in water 

temperature that negatively affects 

feeding, breeding, sheltering, or 

dispersal. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is a threatened or endangered 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, West Virginia Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Public Hearing 

Section 4(b)(5) of the Act provides for 

one or more public hearings on this 

proposal, if requested. Requests must be 

received within 45 days after the date of 

publication of this proposed rule in the 

Federal Register. Such requests must be 

sent to the address shown in FOR

FURTHER INFORMATION CONTACT. We will 

schedule public hearings on this 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. 

Peer Review 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

we sought the expert opinions of six 

appropriate and independent specialists 

regarding the SSA Report that supports 

this proposed rule and received 

comments from four of the six peer 

reviewers. These peer reviewers have 

expertise in freshwater fisheries, aquatic 

ecology, and genetics. The purpose of 

peer review is to ensure that our listing 

determinations and critical habitat 

designations are based on scientifically 

sound data, assumptions, and analyses. 

See the Executive Summary—Peer 

Review section above. 

Previous Federal Action 

We identified the candy darter as a 

Category 2 candidate species in the 

December 30, 1982, Review of 

Vertebrate Wildlife; Notice of Review 

(50 FR 58454). Category 2 candidates 

were defined as species for which we 

had information that proposed listing 

was possibly appropriate, but 

conclusive data on biological 

vulnerability and threats were not 

available to support a proposed rule at 

that time. The species remained so 

designated in subsequent annual 

Candidate Notices of Review (CNOR) 

(50 FR 37958, September 18, 1985; 54 

FR 554, January 6, 1989; 56 FR 58804, 

November 21, 1991; and 59 FR 58982, 

November 15, 1994). In the February 28, 

1996, CNOR (61 FR 7596), we 

discontinued the designation of 

Category 2 species as candidates; 


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therefore, the candy darter was no 

longer a candidate species. 

In 2010, the Center for Biological 

Diversity (CBD) petitioned the Service 

to list 404 aquatic, riparian, and wetland 

species from the Southeastern United 

States under the Act. The candy darter 

was among these 404 species. On 

September 27, 2011, the Service 

published a substantial 90-day finding 

for 374 of the 404 species, including the 

candy darter, soliciting information 

about, and initiating status reviews for, 

those species (76 FR 59836). In 2015, 

CBD filed a complaint against the 

Service for failure to complete a 12- 

month finding for the candy darter 

within the statutory timeframe. The 

Service entered into a settlement 

agreement with CBD to address the 

complaint; the court-approved 

settlement agreement specified that a 

12-month finding for the candy darter 

would be delivered to the Federal 

Register by September 30, 2017. 

We will also be providing a proposal 

to designate critical habitat for the 

candy darter under the Act in the near 

future. 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the candy 

darter (Etheostoma osburni) is presented 

in the species status assessment (U.S. 

Fish & Wildlife Service 2017, entire; 

available http://www.regulations.gov 

under the FWS–R5–ES–2017–0056 

docket). The candy darter is recognized 

by the American Fisheries Society (Page 

et al. 2013, p. 139) as a valid taxon and 

is listed as such in the Integrated 

Taxonomic Information System (ITIS) 

database (http://www.itis.gov, 2016). We 

have no information to suggest there is 

scientific disagreement about the candy 

darter’s taxonomy; therefore, we accept 

that the candy darter is a valid taxon 

based upon its recognition by the 

American Fisheries Society and its ITIS 

designation. 

The candy darter is a small, 

freshwater fish endemic to second order 

and larger streams and rivers within 

portions of the upper Kanawha River 

basin, which is synonymous with the 

Gauley and greater New River 

watersheds in Virginia and West 

Virginia. The species is described as a 

habitat specialist, being most often 

associated with faster flowing stream 

segments with coarse bottom substrate 

(e.g., gravel, cobble, rocks, and 

boulders), which provides shelter for 

individual darters and breeding habitat 

(see below). Candy darters are intolerant 

of excessive sedimentation and stream 

bottom embeddedness (the degree to 

which gravel, cobble, rocks, and 

boulders are surrounded by, or covered 

with, fine sediment particles). 

The available candy darter occurrence 

data, all of which were collected after 

the aquatic habitat in the region was 

degraded in the late 1800s by 

widespread forest clearing, indicate that 

the species prefers cool or cold water 

temperatures, but that warm water 

conditions may also be tolerated. The 

fish are opportunistic feeders, eating 

mostly benthic macroinvertebrates such 

as mayflies and caddisflies. In streams 

maintaining favorable habitat 

conditions, candy darters can be 

abundant throughout the stream 

continuum. 

Candy darters are sexually mature at 

2 years of age and live to a maximum 

age of 3 years. They are classified as 

brood-hiding, benthic spawners. In this 

reproductive strategy, the female 

deposits her eggs in the pebble and 

gravel substrate between larger cobbles 

and boulders, and an attendant male 

simultaneously fertilizes the eggs as 

they are released. During spawning, 

males become aggressively territorial, 

and in all observed instances of 

spawning aggression, the larger male 

prevailed and fertilized the female’s 

eggs. Female candy darters produce a 

relatively low number of eggs (average 

170 per individual) as compared to 

other fish, with no significant deviation 

from 1:1 sex ratios. 

We are uncertain whether individual 

candy darters complete their lifecycle 

within single riffles or riffle complexes 

spanning just a few hundred meters or 

are capable of longer, seasonally 

mediated movements within suitable 

habitat. While data are sparse regarding 

the minimum habitat size and degree of 

genetic connectivity required for candy 

darter population viability, the 

historical distribution of the species and 

the fundamentals of conservation 

biology suggest these factors are 

important to the species. 

Summary of Biological Status and 

Threats 

The Act directs us to determine 

whether any species is an endangered 

species or a threatened species because 

of any factors affecting its continued 

existence. We completed a 

comprehensive assessment of the 

biological status of the candy darter and 

prepared a report of the assessment 

(SSA Report), which provides a 

thorough account of the species’ overall 

viability using the conservation biology 

principles of resiliency, redundancy, 

and representation (collectively, the 

‘‘3Rs’’). We have used the SSA Report’s 

assessment of the candy darter’s current 

and potential future status, based on the 

factors influencing the species, framed 

in the context of the 3Rs, to inform our 

determination of whether the candy 

darter meets the definition of a 

threatened or an endangered species 

(see the Determination section below). 

Because we have included 

information below about the candy 

darter’s 3Rs, we further define those 

terms here. Resiliency means having 

sufficiently large populations for the 

species to withstand stochastic events 

(arising from random factors). We can 

measure resiliency based on metrics of 

population health; for example, birth 

versus death rates and population size, 

if that information exists. Resilient 

populations are better able to withstand 

disturbances such as random 

fluctuations in birth rates (demographic 

stochasticity), variations in rainfall 

(environmental stochasticity), or the 

effects of human activities. Redundancy 

means having a sufficient number of 

populations for the species to withstand 

catastrophic events (such as a rare 

destructive natural event or episode 

involving many populations). 

Redundancy is about spreading the risk 

and can be measured through the 

duplication and distribution of 

populations across the range of the 

species. Generally, the greater the 

number of populations a species has 

distributed over a larger landscape, the 

better it can withstand catastrophic 

events. Representation means having 

the breadth of genetic makeup of the 

species to adapt to changing 

environmental conditions. 

Representation can be measured 

through the genetic diversity within and 

among populations and the ecological 

diversity (also called environmental 

variation or diversity) of populations 

across the species’ range. The more 

representation, or diversity, a species 

has, the more it is capable of adapting 

to changes (natural or human caused) in 

its environment. 

In the absence of species-specific 

genetic and ecological diversity 

information, we evaluate representation 

based on the extent and variability of 

habitat characteristics within the 

geographical range. We define viability 

here as the ability of the species to 

persist in the wild over time and, 

conversely, to avoid extinction. 

In this section, we summarize the 

conclusions of that assessment, which 

can be accessed at Docket FWS–R5–ES– 

201X–0056 on http://

www.regulations.gov, at https://

www.fws.gov/westvirginiafieldoffice/ 

endangeredspecies.html, and at https:// 

www.fws.gov/northeast/virginiafield/ 

svfo/southwesternvirginia.html. The 

SSA Report documents the results of 


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46200 Federal Register / Vol. 82, No. 191 / Wednesday, October 4, 2017 / Proposed Rules 

our comprehensive biological status 

review for the candy darter, including 

an assessment of the factors influencing 

its continued existence. The SSA report 

does not represent a decision by the 

Service on whether the candy darter 

should be proposed for listing as an 

endangered or threatened species under 

the Act. Rather, the SSA Report 

provides the scientific basis that informs 

our regulatory decision, which involves 

the further application of standards 

within the Act and its implementing 

regulations and policies. The Act directs 

us to determine whether any species is 

an endangered species or a threatened 

species because of any factors affecting 

its continued existence (i.e., whether it 

meets the definition of a threatened or 

an endangered species). In this section, 

we review the biological condition of 

the species and its resources and the 

factors influencing the species and 

resources to assess the species’ overall 

viability and the risks to that viability. 

Summary of Current Condition 

Historically, the candy darter 

occurred in 35 populations distributed 

across 7 metapopulations located in the 

Bluestone, Lower New River, Upper 

Gauley, Lower Gauley, and Middle New 

watersheds in the Appalachian Plateaus 

physiographic province and the Upper 

New River and Greenbrier watersheds in 

the Valley and Ridge physiographic 

province. 

Within these two physiographic 

provinces, the candy darter has been 

extirpated from almost half of its 

historical range; (17 (49 percent) of 35 

known populations and 2 (29 percent) 

of 7 known metapopulations), with the 

extirpations representing a complete 

loss of resiliency in those populations 

(or metapopulations). We qualitatively 

assessed the remaining (extant) 

populations, placing them in ‘‘low,’’ 

‘‘moderate,’’ or ‘‘high’’ categories that 

represent the populations’ potential to 

bounce back after stochastic events. 

These categories were based on a 

combination of physical habitat metrics, 

nonnative competition metrics, and 

candy darter demographic metrics (see 

Service 2017, pp. 45, B1–B16). Of the 18 

extant populations, 6 (33 percent) have 

a current score of high resiliency, 6 (33 

percent) have moderate resiliency, and 

6 (33 percent) have low or moderate to 

low resiliency. The six populations with 

high resiliency occur in two 

metapopulations (the Upper Gauley in 

the Appalachian Plateaus physiographic 

province and the Greenbrier in the 

Valley and Ridge physiographic 

province); the remaining three extant 

metapopulations (the Lower Gauley and 

Middle New in the Appalachian 

Plateaus physiographic province and 

the Upper New River in the Valley and 

Ridge physiographic province) maintain 

populations with moderate or low 

resiliency. Therefore, we conclude the 

candy darter’s populations currently 

have moderate to low resiliency because 

the majority of metapopulations fall into 

those categories. 

This loss of candy darter populations 

and the areas they represented within 

the species’ historical range, as well as 

the fragmentation of extant populations, 

has compromised the species’ ability to 

repatriate those areas or avoid specieslevel effects of a catastrophic event. 

Based on the species’ current 

distribution across its historical range 

and the species’ distribution and 

condition within each of the seven 

historical metapopulations (one with 

moderate to high internal redundancy, 

one with moderate internal redundancy, 

one with low internal redundancy, two 

with no internal redundancy, and two 

that have been extirpated), we conclude 

that the candy darter’s current 

redundancy is moderate to low (Service 

2017, pp. 27–28, 43–49). 

While the candy darter currently 

maintains representation in both the 

Appalachian Plateaus and Valley and 

Ridge physiographic provinces, only a 

single metapopulation in each province 

has a moderate to high resiliency score. 

As related to the species’ occupation in 

a diversity of environmental settings, 

candy darters have lost representation 

from lower mainstem rivers and 

tributaries. Researchers have noted 

differences in the genetic, physical, 

behavioral, or developmental 

characteristics of some stream fish 

species based on the species’ 

longitudinal position in the watershed 

(e.g., stream size) (Neville et al. 2006, 

pp. 911–913), but we have no data 

indicating candy darters exhibit similar 

differences based on their particular 

environmental setting. Although the 

candy darter retains representation in 

both the Appalachian Plateaus and 

Valley and Ridge physiographic 

provinces, the species has a different 

distribution than it had historically (e.g., 

its presence or absence in headwater vs. 

tributary streams), and likely a different 

ability to respond to stochastic and 

catastrophic events, thereby putting the 

species at increased risk of extinction 

from any such events. Therefore, we 

conclude that the species’ 

representation is currently moderate to 

low (Service 2017, pp. 27–28, 43–49). 

The candy darter is currently 

distributed in five of the historical seven 

metapopulations. The populations 

within those metapopulations generally 

have moderate to low resiliency and 

redundancy scores. While the candy 

darter is present in the two 

physiographic provinces from which it 

is historically known, the species is 

absent from some ecological settings in 

which it once existed. This fact leads us 

to conclude the candy darter’s 

representation is also moderate to low. 

Therefore, our analysis under the 3Rs 

leads us to conclude that the condition 

of the candy darter is currently 

moderate to low. 

Risk Factors for the Candy Darter 

Based on the candy darter’s life 

history and habitat needs, and in 

consultation with species’ experts from 

Virginia and West Virginia State and 

Federal agencies and academic 

institutions, we identified the potential 

stressors (negative influences), the 

contributing sources of those stressors, 

and conservation measures to address 

those stressors that are likely to affect 

the species’ current condition and 

viability (Service 2017, pp. 31–43). We 

evaluated how these stressors may be 

currently affecting the species and 

whether, and to what extent, they would 

affect the species in the future (Service 

2017, pp. 50–65). Water temperature, 

excessive sedimentation, habitat 

fragmentation, water chemistry, water 

flow, and nonnative competition likely 

influenced the species in the past and 

contributed to its current condition, and 

may continue to affect some individual 

populations in the future. Hybridization 

with the closely related variegate darter 

(Etheostoma variatum) appears to be 

having, and will continue to have, the 

greatest influence on candy darter 

populations and its overall viability 

within the next 25 years (Service 2017, 

pp. 50–65). While we acknowledge 

there is uncertainty regarding some of 

the scientific data and assumptions used 

to assess the biological condition of the 

candy darter, the species’ experts 

generally agreed with the overall 

methodology and confirmed that the 

results were reflective of their 

observations of the candy darter and its 

habitat. 

As mentioned above, the primary 

stressor to the candy darter is 

hybridization with the variegate darter 

(Service 2017, pp. 31–36, 50), a species 

that is native to the Kanawha River 

basin below the Kanawha Falls in 

Fayette County, West Virginia. The 

Kanawha Falls serve as a natural barrier 

to fish dispersal from the lower 

Kanawha River basin (and greater Ohio 

River basin) upstream into the range of 

the candy darter in the upper Kanawha 

River basin. However, in the late 20th 

century, the variegate darter was 

introduced into the upper Kanawha 


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basin, likely by ‘‘bait bucket transfer.’’ 

Since their introduction in 1982 and 

2002, variegate darters have expanded 

approximately 3 to 9 stream miles per 

year over the course of the last 20 or 

more years within the range of the 

candy darter. Genetic studies have 

demonstrated that where variegate and 

candy darter ranges now overlap, the 

two species will hybridize, quickly 

resulting in ‘‘genetic swamping’’ (the 

homogenization or replacement of 

native genotypes) of the endemic candy 

darter population and eventually its 

complete replacement by variegate 

darters or hybrids (Service 2017, pp. 31– 

36). 

Summary of Future Conditions Analysis 

We modeled a total of five scenarios 

to assess the potential viability of the 

candy darter at a point up to 25 years 

in the future (Service 2017, pp. 50–65). 

Two scenarios were focused on habitat 

change (one positive and the other 

negative), and three scenarios were 

focused on variegate darter invasion. 

However, the habitat change scenarios, 

by themselves, are not plausible 

scenarios because variegate darter 

hybridization is ongoing and likely to 

continue (see Chapter 4 and Appendix 

B of the SSA Report for additional 

information). We chose to model all 

scenarios out to 25 years because we 

have data to reasonably predict 

potential habitat and variegate darter 

changes and their effects on the candy 

darter within this timeframe. 

Under the three most plausible 

scenarios, the predicted rate of variegate 

darter expansion and hybridization 

remains the same, and at the end of 25 

years, the candy darter will likely occur 

in four isolated populations and 

maintain little resilience, redundancy, 

or representation. The effects of 

significant positive or negative habitat 

changes do not alter this outcome; 

although it is possible that, because 

variegate darters may be more tolerant 

of a wider range of habitat conditions, 

negative habitat changes could 

selectively benefit variegate darters and 

therefore increase the rate at which 

candy darters are extirpated. 

The candy darter SSA Report contains 

a more detailed discussion of our 

evaluation of the biological status of the 

candy darter and the influences that 

may affect its continued existence. Our 

conclusions are based upon the best 

available scientific and commercial 

data, including the expert opinion of the 

species’ experts (fishery biologists, 

aquatic ecologists, and geneticists from 

State and Federal agencies and 

academic institutions). Please see the 

SSA report for a complete list of the 

species experts and peer reviewers and 

their affiliations). 

Determination 

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

and its implementing regulations at 50 

CFR part 424, set forth the procedures 

for adding species to the Federal Lists 

of Endangered and Threatened Wildlife 

and Plants. Under section 4(a)(1) of the 

Act, we may list a species based on: (A) 

The present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) Overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) Disease or 

predation; (D) The inadequacy of 

existing regulatory mechanisms; or (E) 

Other natural or manmade factors 

affecting its continued existence. 

We have carefully assessed the best 

scientific and commercial information 

available regarding the past, present, 

and future threats to the candy darter. 

Our analysis of this information 

indicates that, at the species level, 

hybridization with variegate darters 

(Factor E) is the most influential factor 

affecting the candy darter now and into 

the future. Excessive sedimentation and 

increased water temperatures degraded 

once-suitable habitat (Factor A) and 

likely caused historical declines of the 

candy darter; these factors continue to 

affect some of the remaining 

populations despite regulatory 

mechanisms (Factor D) to reduce or 

eliminate sedimentation. There may be 

additional infrastructure projects (e.g. 

roads, pipeline, etc.) that increase 

sediment loading within the range of the 

candy darter as a result of forest clearing 

for permanent rights of way and stream 

crossings. Additionally, the current 

level of habitat fragmentation (Factor A) 

isolates some populations, which 

reduces gene flow and limits the 

potential for the species to colonize or 

recolonize streams if habitat conditions 

change. Other factors such as flow 

alterations and water quality 

degradation that affect habitat (Factor 

A), and the stocking of nonnative 

species that can eat (Factor C) or 

outcompete (Factor E) candy darter are 

not expected to cause species-level 

effects. In addition, we have no 

evidence that overutilization (Factor B) 

or disease (Factor C) is affecting 

individuals or populations of candy 

darters. 

Hybridization with variegate darters 

has occurred or is currently occurring in 

multiple streams within the Lower New, 

Lower Gauley, and Greenbrier River 

watersheds in West Virginia (Service 

2017, p. 34). Variegate darters have not 

yet been detected in the remainder of 

the candy darter’s range (i.e., the Upper 

Gauley watershed in West Virginia and 

the Middle New and Upper New 

watersheds in Virginia). However, the 

risk is moderately high that the 

variegate darter will eventually be 

introduced into these watersheds and 

ultimately replace most candy darter 

populations throughout the candy 

darter’s range. 

The Act defines an endangered 

species as any species that is ‘‘in danger 

of extinction throughout all or a 

significant portion of its range.’’ We find 

that an endangered species status is not 

appropriate for the candy darter because 

the species still occurs throughout 

approximately half of its historical range 

and the risk is low that the species 

would not persist in the near term; in 

other words, the risk of the candy darter 

significantly declining in the near term 

is low given that it has persisted despite 

historical levels of habitat loss. Further, 

variegate darters are not known to be 

present in the Virginia areas of the 

species’ range, thus the risk of 

significant declines in the near term due 

to hybridization is low in those areas. 

The persistence of occupied habitat 

within the species’ range provides 

redundancy, resiliency, and 

representation levels that are likely 

sufficient to sustain the species beyond 

the near term. Therefore, we conclude 

that the current risk of extinction of the 

candy darter is sufficiently low that it 

does not meet the definition of an 

endangered species under the Act. 

The Act defines a threatened species 

as any species that is ‘‘likely to become 

endangered throughout all or a 

significant portion of its range within 

the foreseeable future.’’ We find that the 

status of the candy darter meets the 

definition of a threatened species. 

Because the risk is high that 

hybridization between the candy darter 

and the variegate darter will continue to 

occur, we can reasonably predict that 

within 20 years hybridization between 

the two species is likely to increase 

within the range of the candy darter to 

an extent causing the species to become 

in danger of extinction (see table 6 and 

Chapter 4 in the SSA report). We cannot 

precisely predict the timing of 

introduction of the variegate darter into 

additional areas within the candy 

darter’s range, the rate of hybridization 

once introduction occurs, and the time 

at which candy darters will be replaced 

by variegate darters or hybrids; 

however, the time period over which 

the variegate darter has spread into the 

candy darter’s range in the past and the 

documented effects of hybridization 

between the two species give us 

reasonable confidence in our 

determination that the candy darter is 


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likely to experience additional effects of 

hybridization within 20 years to an 

extent that will cause the species to 

become in danger of extinction. 

Therefore, on the basis of the best 

available scientific and commercial 

information, we propose listing the 

candy darter as threatened in 

accordance with sections 3(6) and 

4(a)(1) of the Act. 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is endangered or threatened 

throughout all or a significant portion of 

its range. Because we have determined 

that the candy darter is threatened 

throughout all of its range, no portion of 

its range can be ‘‘significant’’ for 

purposes of the definitions of 

‘‘endangered species’’ and ‘‘threatened 

species.’’ See the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37577, July 1, 2014). 

While it is the Service’s position under 

the SPR Policy that undertaking no 

further analysis of ‘‘significant portion 

of its range’’ in this circumstance is 

consistent with the language of the Act, 

we recognize that the Policy is currently 

under judicial review, so we also took 

the additional step of considering 

whether there could be any significant 

portions of the species’ range where the 

species is in danger of extinction. We 

evaluated whether there is substantial 

information indicating that there are any 

portions of the species’ range: (1) that 

may be ‘‘significant,’’ and (2) where the 

species may be in danger of extinction. 

In practice, a key part of identifying 

portions appropriate for further analysis 

is whether the threats are geographically 

concentrated. The threats affecting the 

species are throughout its entire range; 

therefore, there is not a meaningful 

geographical concentration of threats. 

As a result, even if we were to 

undertake a detailed SPR analysis, there 

would not be any portions of the 

species’ range where the threats are 

harming the species to a greater degree 

such that it is in danger of extinction in 

that portion. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing results in 

public awareness, and conservation by 

Federal, state, tribal, and local agencies, 

private organizations, and individuals. 

The Act encourages cooperation with 

the States and other countries and calls 

for recovery actions to be carried out for 

listed species. The protection required 

by Federal agencies and the prohibitions 

against certain activities are discussed, 

in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Subsection 4(f) of 

the Act calls for the Service to develop 

and implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning includes the 

development of a recovery outline 

shortly after a species is listed and 

preparation of a draft and final recovery 

plan. The recovery outline guides the 

immediate implementation of urgent 

recovery actions and describes the 

process to be used to develop the 

recovery plan. A recovery team 

(composed of species experts, Federal 

and state agencies, nongovernmental 

organizations, and stakeholders) is 

sometimes established to develop the 

recovery plan. The recovery plan 

identifies recovery criteria that indicate 

when a species may be ready for 

downlisting or delisting, actions 

necessary to achieve recovery and their 

estimated costs, and methods for 

monitoring recovery progress. The 

recovery plan may be revised to address 

continuing or new threats to the species, 

as new substantive information becomes 

available. When completed, the 

recovery outline, draft recovery plan, 

and final recovery plan will be available 

on our Web site (http://www.fws.gov/ 

endangered), or from our West Virginia 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, states, tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their range may occur primarily 

or solely on non-Federal lands. To 

achieve recovery of these species 

requires cooperative conservation efforts 

on private, state, and tribal lands. If this 

species is listed, funding for recovery 

actions will be available from a variety 

of sources, including Federal budgets, 

state programs, and cost share grants for 

non-Federal landowners, the academic 

community, and nongovernmental 

organizations. In addition, pursuant to 

section 6 of the Act, the States of 

Virginia and West Virginia would be 

eligible for Federal funds to implement 

management actions that promote the 

protection or recovery of the candy 

darter. Information on our grant 

programs that are available to aid 

species recovery can be found at: http:// 

www.fws.gov/grants. 

Although the candy darter is only 

proposed for listing under the Act at 

this time, please let us know if you are 

interested in participating in recovery 

efforts for this species. Additionally, we 

invite you to submit any new 

information on this species whenever it 

becomes available and any information 

you may have for recovery planning 

purposes (see FOR FURTHER INFORMATION

CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 

the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with the Service. 

Federal agency actions within the 

species’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

include, but are not limited to, 

management and any other landscapealtering activities on lands administered 

by the U.S. Forest Service, National Park 

Service, and the U.S. Army Corps of 


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Engineers (ACOE); issuance of section 

404 Clean Water Act permits by the 

ACOE; issuance or oversight of coal 

mining permits by the Office of Surface 

Mining; and construction and 

maintenance of roads, bridges, or 

highways by the Federal Highway 

Administration. 

Under section 4(d) of the Act, the 

Service has discretion to issue 

regulations that we find necessary and 

advisable to provide for the 

conservation of threatened species. The 

Act and its implementing regulations set 

forth a series of general prohibitions and 

exceptions that apply to threatened 

wildlife. The prohibitions of section 

9(a)(1) of the Act, as applied to 

threatened wildlife and codified at 50 

CFR 17.31, make it illegal for any person 

subject to the jurisdiction of the United 

States to take (which includes harass, 

harm, pursue, hunt, shoot, wound, kill, 

trap, capture, or collect; or to attempt 

any of these) threatened wildlife within 

the United States or on the high seas. In 

addition, it is unlawful to import; 

export; deliver, receive, carry, transport, 

or ship in interstate or foreign 

commerce in the course of commercial 

activity; or sell or offer for sale in 

interstate or foreign commerce any 

listed species. It is also illegal to 

possess, sell, deliver, carry, transport, or 

ship any such wildlife that has been 

taken illegally. Certain exceptions apply 

to employees of the Service, the 

National Marine Fisheries Service, other 

Federal land management agencies, and 

state conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving threatened wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.32. With regard to threatened 

wildlife, a permit may be issued for the 

following purposes: For scientific 

purposes, to enhance the propagation or 

survival of the species, and for 

incidental take in connection with 

otherwise lawful activities. There are 

also certain statutory exemptions from 

the prohibitions, which are found in 

sections 9 and 10 of the Act. 

For the candy darter, we are 

considering developing a rule under 

section 4(d) of the Act that is tailored to 

the specific threats and conservation 

needs of this species. Please see the 

Information Requested—Public 

Comments section above for a list of 

activities we are considering exempting 

under a section 4(d) rule in the future. 

If appropriate, we will develop and then 

announce the availability of a proposed 

tailored section 4(d) rule for public 

review and comment. 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. Based on the best available 

information, the following actions are 

unlikely to result in a violation of 

section 9, if these activities are carried 

out in accordance with existing 

regulations and permit requirements; 

this list is not comprehensive: 

• Normal agricultural practices, 

including herbicide and pesticide use, 

which are carried out in accordance 

with any existing regulations, permit 

and label requirements, and best 

management practices. 

Based on the best available 

information, the following activities 

may potentially result in a violation of 

section 9 of the Act; this list is not 

comprehensive: 

(1) Introduction of variegate darters 

into suitable candy darter habitat. 

(2) Stocking of nonnatives into 

suitable candy darter habitat. 

(3) Unlawful destruction or alteration 

of the habitat of the candy darter (e.g., 

unpermitted instream dredging, 

impoundment, water diversion or 

withdrawal, channelization, discharge 

of fill material) that impairs essential 

behaviors such as breeding, feeding, or 

sheltering, or results in killing or 

injuring a candy darter. 

(4) Unauthorized discharges or 

dumping of toxic chemicals or other 

pollutants into waters supporting the 

candy darter that kills or injures 

individuals, or otherwise impairs 

essential life-sustaining behaviors such 

as breeding, feeding, or finding shelter. 

Questions regarding whether specific 

activities would constitute a violation of 

section 9 of the Act should be directed 

to the appropriate office: 

• Southwestern Virginia Ecological 

Services Field Office, 330 Cummings 

Street, Abingdon, VA 24210; telephone 

(276) 623–1233; facsimile (276) 623– 

1185. 

• West Virginia Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Critical Habitat for the Candy Darter 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features: 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means to use all 

methods and procedures that are 

necessary to bring an endangered or 

threatened species to the point at which 

the measures provided pursuant to the 

Act are no longer necessary. Such 

methods and procedures include, but 

are not limited to, all activities 

associated with scientific resources 

management such as research, census, 

law enforcement, habitat acquisition 

and maintenance, propagation, live 

trapping, and transplantation, and, in 

the extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) of the Act would apply, but even 

in the event of a destruction or adverse 

modification finding, the obligation of 

the Federal action agency and the 

landowner is not to restore or recover 

the species, but to implement 

reasonable and prudent alternatives to 

avoid destruction or adverse 

modification of critical habitat. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 


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46204 Federal Register / Vol. 82, No. 191 / Wednesday, October 4, 2017 / Proposed Rules 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines, provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12), require that, to the 

maximum extent prudent and 

determinable, the Secretary designate 

critical habitat at the time the species is 

determined to be endangered or 

threatened. Our regulations (50 CFR 

424.12(a)(1)) state that the designation 

of critical habitat is not prudent when 

one or both of the following situations 

exist: (1) The species is threatened by 

taking or other human activity, and 

identification of critical habitat can be 

expected to increase the degree of threat 

to the species, or (2) such designation of 

critical habitat would not be beneficial 

to the species. 

There is currently no imminent threat 

of take attributed to collection or 

vandalism under Factor B for the candy 

darter, and identification and mapping 

of critical habitat is not likely to 

increase any such threat. In the absence 

of finding that the designation of critical 

habitat would increase threats to a 

species, if there are any benefits to a 

critical habitat designation, then a 

prudent finding is warranted. The 

potential benefits of designation 

include: (1) Triggering consultation 

under section 7 of the Act in new areas 

for actions in which there may be a 

Federal nexus where it would not 

otherwise occur because, for example, it 

is or has become unoccupied or the 

occupancy is in question; (2) focusing 

conservation activities on the most 

essential features and areas; (3) 

providing educational benefits to State 

or county governments or private 

entities; and (4) preventing people from 

causing inadvertent harm to the species. 

Therefore, because we have determined 

that the designation of critical habitat 

will not likely increase the degree of 

threat to these species and may provide 

some measure of benefit, we find that 

designation of critical habitat is prudent 

for the candy darter. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the species is determinable. Our 

regulations at 50 CFR 424.12(a)(2) state 

that critical habitat is not determinable 

when one or both of the following 

situations exist: (i) Information 

sufficient to perform required analyses 

of the impacts of the designation is 

lacking, or (ii) The biological needs of 

the species are not sufficiently well 

known to permit identification of an 

area as critical habitat. 

As discussed above, we have 

reviewed the available information 

pertaining to the biological needs of the 

candy darter and habitat characteristics 

where the species is located. Because 

we are seeking, through this document, 

additional information regarding 

updated candy darter occurrence 

records, updated documentation of 

variegate darter presence and risk for 

additional variegate darter 

introductions, and other analyses, we 

conclude that the designation of critical 

habitat is not determinable for the candy 

darter at this time. We will make a 

determination on critical habitat no later 

than 1 year following any final listing 

determination. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.), need not 

be prepared in connection with listing 

a species as an endangered or 

threatened species under the 

Endangered Species Act. We published 

a notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

Internet at http://www.regulations.gov 

and upon request from the West 

Virginia Ecological Services Field Office 

(see FOR FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the 

Northeast Regional Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245; unless otherwise 

noted. 

■ 2. In § 17.11(h), add an entry for 

‘‘Darter, candy’’ in alphabetical order 

under FISHES to read as set forth below: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 


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Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

FISHES

* * * * * * * 

Darter, candy ................... Etheostoma osburni ....... Wherever found .............. T [Federal Register citation when published as a 

final rule]. 

* * * * * * * 

Dated: September 7, 2017. 

James W. Kurth, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2017–21351 Filed 10–3–17; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 170823802–7802–01] 

RIN 0648–BG82 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Shrimp 

Fishery of the Gulf of Mexico; 

Amendment 17B 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 17B to the 

Fishery Management Plan for the 

Shrimp Fishery of the Gulf of Mexico 

U.S. Waters, (FMP), as prepared and 

submitted by the Gulf of Mexico (Gulf) 

Fishery Management Council (Council). 

This proposed rule would allow for the 

creation of a Federal Gulf shrimp 

reserve pool permit when certain 

conditions are met, and would allow 

non-federally permitted Gulf shrimp 

vessels to transit through the Gulf 

exclusive economic zone (EEZ). 

Amendment 17B would also define the 

aggregate maximum sustainable yield 

(MSY) and aggregate optimum yield 

(OY), and determine a minimum 

number of commercial vessel 

moratorium permits in the fishery. This 

proposed rule also would make 

technical corrections to the regulations 

that would revise the coordinates for the 

Tortugas shrimp sanctuary in the Gulf, 

and correct the provisions regarding the 

harvest and possession of wild live rock 

in Gulf Federal waters. The purpose of 

this proposed rule and Amendment 17B 

is to protect federally managed Gulf 

shrimp stocks while maintaining catch 

efficiency, economic efficiency, and 

stability in the fishery. 

DATES: Written comments must be 

received on or before November 3, 2017. 

ADDRESSES: You may submit comments 

on the proposed rule, identified by 

‘‘NOAA–NMFS–2017–0040’’ by either 

of the following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2017- 

0040, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Frank Helies, Southeast Regional Office, 

NMFS, 263 13th Avenue South, St. 

Petersburg, FL 33701. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). 

Electronic copies of Amendment 17B, 

which includes an environmental 

assessment, a Regulatory Flexibility Act 

(RFA) analysis, and a regulatory impact 

review, may be obtained from the 

Southeast Regional Office Web site at 

http://sero.nmfs.noaa.gov/sustainable_

fisheries/gulf_fisheries/shrimp/2017/ 

am17b/index.html. 

FOR FURTHER INFORMATION CONTACT: 

Frank Helies, telephone: 727–824–5305, 

or email: Frank.Helies@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

shrimp fishery in the Gulf is managed 

under the FMP. The FMP was prepared 

by the Council and implemented 

through regulations at 50 CFR part 622 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

This document also proposes to 

designate the unidentified tables in 

§ 622.55 to bring the section into 

compliance with the requirements of 1 

CFR 8.1 and 8.2 and with the Office of 

the Federal Register’s Document 

Drafting Handbook (https://

www.archives.gov/files/federal-register/ 

write/handbook/ddh.pdf) section 7.4. 

Background 

From 2003 to 2006, the Gulf shrimp 

fishery experienced significant 

economic losses, primarily as a result of 

high fuel costs and reduced prices 

caused by competition with imports. 

These economic losses contributed to a 

reduction in the number of vessels in 

the fishery, and consequently, a 

reduction of commercial effort. During 

that time, commercial vessels in the 

Gulf shrimp fishery were required to 

have an open-access permit. In 2006, to 

prevent overcapitalizing the fishery 

when it became profitable again, the 

Council established a 10-year freeze on 

the issuance of new shrimp permits and 

created a limited access Federal Gulf 

shrimp moratorium permit (moratorium 

permit) (71 FR 56039, September 26, 

2006). In 2016, the Council extended the 

duration of the Gulf shrimp moratorium 

permit program for another 10 years in 

Amendment 17A to the FMP (81 FR 

47733, July 22, 2016). 

During the development of 

Amendment 17A, the Council identified 

several other issues with the Gulf 

shrimp fishery that it wanted addressed. 

First, MSY and OY (equal to MSY), are 

defined individually for the three 

penaeid shrimp species and for royal 

red shrimp. Second, the number of 

moratorium permits has continued to 

decline and the Council is concerned 

that the decline in total permits will 

continue indefinitely. Finally, transit 

through Federal waters (Gulf EEZ) with 

shrimp on board currently requires a 

moratorium permit, which limits the 


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