        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2012-0063; 4500030114]
        RIN 1018-AY24
        Endangered and Threatened Wildlife and Plants; Endangered Status and Designation of Critical Habitat for the Jemez Mountains Salamander

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 12, 2012, proposed endangered status for the Jemez Mountains salamander and proposed designation of critical habitat under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis and draft environmental assessment of the proposed designation of critical habitat for the Jemez Mountains salamander, and an amended required determinations section of the proposal. We are proposing minor amendments to the proposed critical habitat units based on updated mapping data. In addition, we are proposing minor changes to clarify the primary constituent elements. We are reopening the comment period to allow all interested parties an opportunity to comment simultaneously on the proposed rule, the associated draft economic analysis and draft environmental assessment, the amended required determinations section, and the proposed changes to the primary constituent elements and critical habitat units described in this document. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

          We will consider comments received on or before March 14, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES section, below) must be received by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:
          You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket No. FWS-R2-ES-2012-0063, and submit comments on the critical habitat proposal and associated draft economic analysis to Docket No. FWS-R2-ES-2013-0005. See SUPPLEMENTARY INFORMATION for an explanation of the two dockets.
          (2) By hard copy: Submit comments on the listing proposal by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2012-0063; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203. Submit comment on the critical habitat proposal and draft economic analysis by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2013-0005; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          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 the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Wally Murphy, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE., Albuquerque, NM 87113; by telephone 505-346-2525; or by facsimile 505-346-2542. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed listing and designation of critical habitat for the Jemez Mountains salamander (Plethodon neomexicanus) that was published in the Federal Register on September 12, 2012 (77 FR 56482), our draft economic analysis and draft environmental assessment of the proposed designation, the amended required determinations provided in this document, and the proposed changes to the primary constituent elements and critical habitat units described in this document. We will consider information and recommendations from all interested parties.
        We are also notifying the public that we will publish two separate rules for the final listing determination and the final critical habitat determination for the Jemez Mountains salamander. The final listing rule will publish under the existing docket number, FWS-R2-ES-2012-0063, and the final critical habitat designation will publish under docket number FWS-R2-ES-2013-0005.
        We will publish two separate rules because we are basically engaging in two separate rulemaking actions. The Secretary of the Interior has delegated authority to the Director of the Service to make determinations regarding listing species under the Act, which the Act requires to be based entirely on science. However, in making critical habitat designations, the Act requires that we consider economic implications as well as science, and, therefore, these rules are subject to a higher level of governmental review and signature. In addition, as the result of a 2011 settlement agreement for a multidistrict lawsuit regarding the listing process, we must publish numerous rulemaking documents on a prescribed schedule until 2017, and dividing this rulemaking action into two separate rules will help us adhere to this schedule.
        We request that you provide comments specifically on our listing determination under the existing docket number FWS-R2-ES-2012-0063. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:
        (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats.
        (2) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
        (3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and its habitat.
        (4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.
        We request that you provide comments specifically on the critical habitat determination under docket number FWS-R2-ES-2013-0005. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
        (6) Specific information on:
        (a) The amount and distribution of Jemez Mountains salamander habitat;
        (b) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation and why;
        (c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
        (d) What areas not occupied at the time of listing are essential to the conservation of the species and why.
        (7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
        (8) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
        (9) Information on the extent to which the description of economic impacts in the draft economic analysis is complete and accurate.
        (10) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the draft economic analysis and draft environmental assessment, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
        (11) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        If you submitted comments or information on the proposed rule (77 FR 56482; September 12, 2012) during the initial comment period from September 12, 2012, to November 13, 2012, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final rules.

        You may submit your comments and materials concerning the September 12, 2012, proposed rule, the draft economic analysis, the draft environmental assessment, the amended required determinations provided in this document, or the proposed changes to the primary constituent elements and critical habitat units described in this document by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0063 (for the proposed listing rule) and Docket No. FWS-R2-ES-2013-0005 (for the proposed critical habitat designation and draft economic analysis), or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0063 and the draft economic analysis at Docket No. FWS-R2-ES-2013-0005, or by mail from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section).
        Background

        It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the Jemez Mountains salamander in this document. For more information on previous Federal actions concerning the Jemez Mountains salamander, or for more information on the Jemez Mountains salamander or its habitat, refer to the proposed endangered status for the Jemez Mountains salamander and proposed designation of critical habitat published in the Federal Register on September 12, 2012 (77 FR 56482), which is available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0063) or from the New Mexico Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

        On September 12, 2012 (77 FR 56482), we published a proposed rule to list and designate critical habitat for the Jemez Mountains salamander. We proposed to designate approximately 90,789 acres (ac) (36,741 hectares (ha)) in two units located in Los Alamos, Rio Arriba, and Sandoval Counties, New Mexico, as critical habitat. That proposal had a 60-day comment period ending November 13, 2012. We will submit for publication in the Federal Register a final listing and a critical habitat designation for the Jemez Mountains salamander on or before September 12, 2013.
        Critical Habitat
        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Changes from the Previously Proposed Critical Habitat Designation
        Amended Primary Constituent Elements (PCEs) for the Jemez Mountains Salamander
        We are proposing to amend the PCEs that we proposed in our September 12, 2012, proposed rule (77 FR 56482) to provide additional clarification to PCEs 1 and 3a. The overall intent of proposed PCEs has not changed. Based on the needs and our current knowledge of the life history, biology, and ecology of the species, and the habitat requirements for sustaining the essential life-history functions of the species, we have determined that, in total, the PCEs essential to the conservation of the Jemez Mountains salamander are:
        (1) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and:
        (a) Consists of the following tree species alone or in any combination:
        Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and

        (b) Has an understory that predominantly comprises: Rocky Mountain maple (Acer glabrum); New Mexico locust (Robinia neomexicana); oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.).
        (2) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
        (3) Ground surface in forest areas with:
        (a) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 inches (25 centimeters) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or
        (b) Structural features, such as rocks, bark, and moss mats that provide the species with food and cover.
        (4) Underground habitat in forest or meadow areas containing interstitial spaces provided by:
        (a) Igneous rock with fractures or loose rocky soils;
        (b) Rotted tree root channels; or
        (c) Burrows of rodents or large invertebrates.
        Amended Proposed Critical Habitat Units

        In this publication, we are proposing to revise the size of the two previously proposed critical habitat units, based on recently finalized map data that were still in draft form during our initial analysis. The updated map data resulted in minor changes in size and ownership in both proposed units. There is a slight reduction in the overall area proposed, with some reduction of private lands and addition of a small parcel of State lands. In the September 12, 2012 (77 FR 56482), proposed rule, we proposed a total of approximately 90,789 ac (36,741 ha) in two units. Based on new map data, we are updating the approximate area and land ownership of both proposed critical habitat units; the updates are shown in Table 1. The total Federal proposed critical habitat consists of 56,897 ac (23,025 ha) of U.S. Forest Service lands, 23,745 ac (9,609 ha) of Valles Caldera National Preserve lands, and 7,198 ac (2913 ha) of National Park Service lands. Also, we identified a 73-ac (30-ha) parcel owned by New Mexico Department of Game and Fish in the Western Jemez Mountains Unit. Based on these revisions, we are now proposing a total of approximately 90,716 ac (36,711 ha) in two critical habitat units, which is 73 ac (30 ha) less than what we previously proposed. Such a small change in the acreage does not affect the accuracy of the maps published in the September 12, 2012 (77 FR 56482), proposed rule.

          Table 1—Proposed Critical Habitat Units for the Jemez Mountains Salamander

            Critical habitat unit
            Land ownership by type
            Size of unit in acres (Hectares)

            1. Western Jemez Mountains Unit
            Federal
            41,466 (16,781)

            Private
            906 (367)

            State
            73 (30)

            Total Unit 1
            42,445 (17,177)

            2. Southeastern Jemez Mountains Unit
            Federal
            46,374 (18,767)

            Private
            1,897 (768)

            Total Unit 2
            48,271 (19,535)

            Total
            Federal
            87,840 (35,548)

            Private
            2,803 (1,134)

            State
            73 (30)

            Total
            90,716 (36,711)

            Note: Area sizes may not sum due to rounding.

        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. We have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis and draft environmental assessment concerning the proposed critical habitat designation, which are available for review and comment (see ADDRESSES section).
        Draft Economic Analysis
        The purpose of the draft economic analysis is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Jemez Mountains salamander. The draft economic analysis describes the economic impacts of all potential conservation efforts for the Jemez Mountains salamander; some of these costs will likely be incurred regardless of whether we designate critical habitat. The economic impact of the proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, considering protections already in place for the species (e.g., under the Federal listing and other Federal, State, and local regulations). The baseline, therefore, represents the costs incurred regardless of whether critical habitat is designated. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs; these are the costs we may consider in the final designation of critical habitat when evaluating the benefits of excluding particular areas under section 4(b)(2) of the Act. The analysis forecasts both baseline and incremental impacts likely to occur if we finalize the proposed critical habitat designation. For a further description of the methodology of the analysis, see Chapter 2, “FRAMEWORK FOR THE ANALYSIS,” of the draft economic analysis.
        The draft economic analysis provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the Jemez Mountains salamander over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing.
        The draft economic analysis quantifies economic impacts of Jemez Mountains salamander conservation efforts associated with the following categories of activity: (1) Severe wildland fire, (2) fire management, (3) other Federal land management, (4) private development, (5) transportation, and (6) livestock grazing. Economic impacts are estimated for severe wildland fire, fire management, other Federal land management, livestock grazing, and transportation. No impacts are forecast for private development, because no projects with a Federal nexus were identified within the study area.

        Total present value incremental impacts are approximately $260,000 over 20 years following the designation, assuming a 7 percent discount rate ($330,000 assuming a 3 percent discount rate). All incremental costs are administrative in nature and result from the consideration of adverse modification in section 7 consultations. Both proposed units are expected to experience similar levels of incremental impact. Differences in forecast impacts across the two units are predominately a result of the distribution of land ownership, rather than differences in activities across units.
        As we stated earlier, we are soliciting data and comments from the public on the draft economic analysis, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
        Draft Environmental Assessment

        The purpose of the draft environmental assessment, prepared under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), is to identify and disclose the environmental consequences resulting from the proposed action of designating critical habitat for the Jemez Mountains salamander. In the draft environmental assessment, two alternatives are evaluated: Alternative A, the proposed rule, and the no action alternative. Under Alternative A, critical habitat units on private and other lands could potentially be excluded in the final rule based on economic impact, national security, or other relevant impacts. We did not propose exclusion of private or any other lands. Alternative A is the current proposal, and the no action alternative is equivalent to no designation of critical habitat for the Jemez Mountains salamander. The no action alternative is required by NEPA for comparison to the other alternatives analyzed in the draft environmental assessment. Our preliminary determination is that designation of critical habitat for the Jemez Mountains salamander will not have direct impacts on the environment. However, we will further evaluate this issue as we complete our final environmental assessment.
        As we stated earlier, we are soliciting data and comments from the public on the draft environmental assessment, as well as all aspects of the proposed rule. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the comment period on the environmental consequences resulting from our designation of critical habitat.
        Required Determinations—Amended

        In our September 12, 2012, proposed rule (77 FR 56482), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the draft economic analysis. We have now made use of the draft economic analysis data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the draft economic analysis data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), E.O. 12630 (Takings), and the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.
        According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for the Jemez Mountains salamander would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as fire management, private development, transportation, and livestock grazing. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the Jemez Mountains salamander is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the draft economic analysis, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Jemez Mountains salamander. The designation of critical habitat for the salamander is unlikely to directly affect any small entities. Ninety-seven percent of land in the designation is Federally owned. Anticipated incremental impacts in proposed critical habitat are primarily related to consultations on fire management and other Federal land management activities (comprising approximately 99 percent of the annual anticipated incremental costs of the designation). The remaining forecast impacts are anticipated to be conducted for road and highway maintenance projects. Little to no impact to third parties is expected associated with these activities. For this reason, there would be little to no impacts to small entities as a result of critical habitat designation for the salamander. Please refer to the draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Takings—Executive Order 12630
        In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Jemez Mountains salamander in a takings implications assessment. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to allow actions that do require Federal funding or permits to go forward. The takings implications assessment concludes that this proposed designation of critical habitat does not pose significant takings implications for lands within or affected by the designation. However, we will further evaluate this issue as we complete our final economic analysis, and review and revise this assessment as appropriate.
        National Environmental Policy Act (NEPA)

        It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] However, when the range of the species includes States within the Tenth Circuit, such as that of the Jemez Mountains salamander, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat designation. In accordance with the Tenth Circuit, we have completed a draft environmental assessment to identify and disclose the environmental consequences resulting from the proposed designation of critical habitat for the Jemez Mountains salamander. Our preliminary determination is that the designation of critical habitat for the Jemez Mountains salamander would not have direct impacts on the environment. However, we will further evaluate this issue as we complete our final environmental assessment.
        Authors
        The primary authors of this notice are the staff members of the New Mexico Ecological Services Field Office, Southwest Region, U.S. Fish and Wildlife Service.

          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 further amend the proposed amendments to part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as published on September 12, 2012, at 77 FR 56482, as set forth below:

          PART 17—[AMENDED]

        1. The authority citation for part 17 continues to read as follows:

          Authority:
          16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

        2. In § 17.95(d), in the proposed entry for “Jemez Mountains Salamander (Plethodon neomexicanus)”, as published at 77 FR 56482, revise proposed paragraph (d)(2) to read as follows:

          § 17.95
          Critical habitat—fish and wildlife.

          (d) Amphibians.

          Jemez Mountains Salamander (Plethodon neomexicanus)

          (2) Within these areas, the primary constituent elements of the physical or biological features essential to the conservation of the Jemez Mountains salamander consist of four components:
          (i) Moderate to high tree canopy cover, typically 50 to 100 percent canopy closure, that provides shade and maintains moisture and high relative humidity at the ground surface, and:

          (A) Consists of the following tree species alone or in any combination: Douglas fir (Pseudotsuga menziesii); blue spruce (Picea pungens); Engelman spruce (Picea engelmannii); white fir (Abies concolor); limber pine (Pinus flexilis); ponderosa pine (Pinus ponderosa); and aspen (Populus tremuloides); and

          (B) Has an understory that predominantly comprises: Rocky Mountain maple (Acer glabrum); New Mexico locust (Robinia neomexicana); oceanspray (Holodiscus sp.); or shrubby oaks (Quercus spp.).
          (ii) Elevations from 6,988 to 11,254 feet (2,130 to 3,430 meters).
          (iii) Ground surface in forest areas with:
          (A) Moderate to high volumes of large fallen trees and other woody debris, especially coniferous logs at least 10 inches (25 centimeters) in diameter, particularly Douglas fir, which are in contact with the soil in varying stages of decay from freshly fallen to nearly fully decomposed; or
          (B) Structural features, such as rocks, bark, and moss mats that provide the species with food and cover.
          (iv) Underground habitat in forest or meadow areas containing interstitial spaces provided by:
          (A) Igneous rock with fractures or loose rocky soils;
          (B) Rotted tree root channels; or

          (C) Burrows of rodents or large invertebrates.

          Dated: February 1, 2013.
          Michael J. Bean
          Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2013-03111 Filed 2-11-13; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R9-ES-2010-0086; MO 92210-1111F113 B6]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List All Chimpanzees (Pan troglodytes) as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list all chimpanzees (Pan troglodytes) as endangered under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing all chimpanzees as endangered may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the species to determine if listing the entire species as endangered is warranted. To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:
          To allow us adequate time to conduct this review, we request that we receive information on or before October 31, 2011.

          ADDRESSES:
          You may submit information by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R9-ES-2010-0086 and then follow the instructions for submitting comments.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R9-IA-2008-0123; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
          We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Solicited section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171; facsimile 703-358-1735. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Information Solicited
        Under the Act, when we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species. To ensure that our status review of the chimpanzee is complete and based on the best available scientific and commercial information, we need certain information. We request scientific and commercial information from the public, concerned governmental agencies, the scientific community, industry, or any other interested parties on the status of the chimpanzee throughout its range, including but not limited to:
        (1) Information on taxonomy, distribution, habitat selection, diet, and population abundance and trends of this species.
        (2) Information on the effects of habitat loss and changing land uses on the distribution and abundance of this species and its principal food sources over the short and long term.
        (3) Information on whether changing climatic conditions are affecting the species, its habitat, or its prey base.
        (4) Information on the effects of other potential threat factors, including live capture and collection, domestic and international trade, predation by other animals, and diseases of this species.
        (5) Information on management programs for chimpanzee conservation, including mitigation measures related to conservation programs, and any other private or governmental conservation programs that benefit this species.
        (6) Information relevant to whether any populations of this species may qualify as distinct population segments.
        (7) Information on captive breeding and domestic trade of this species in the United States.
        (8) Genetics and taxonomy.

        (9) The factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:

        (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.
        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.
        We will base our status review on the best scientific and commercial information available, including all information we receive during the public comment period. Please note that comments merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be part of the basis of this determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue the 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

        You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. 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 you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying 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.

        Information and materials we receive, as well as supporting documentation we used in preparing this finding, 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, Endangered Species Program, Branch of Foreign Species (see FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly review the status of the species, which is subsequently summarized in our status review (also referred to as a 12-month finding).
        Petition History

        On March 16, 2010, we received a petition dated the same day, from Meyer Glitzenstein & Crystal on behalf of The Humane Society of the United States, the American Association of Zoological Parks and Aquariums, the Jane Goodall Institute, the Wildlife Conservation Society, the Pan African Sanctuary Alliance, the Fund for Animals, Humane Society International, and the New England Anti-Vivisection Society (hereafter referred to as “petitioners”) requesting that captive chimpanzees (Pan troglodytes) be reclassified as endangered under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). The petition contained information on what the petitioners reported as potential threats to the species from habitat loss, poaching and trafficking, disease, and inadequate regulatory mechanisms. In a September 15, 2010, letter to Katherine Meyer, we responded that we were currently required to complete a significant number of listing and critical habitat actions in fiscal year 2010, including complying with court orders and court-approved settlement agreements, listing actions with absolute statutory deadlines, and high-priority listing actions, that required nearly all of our listing and critical habitat funding for fiscal year 2010. We also stated that we anticipated making an initial finding during fiscal year 2011, as to whether the petition contained substantial information indicating that the action may be warranted.

        On October 12, 2010, we received a letter from Anna Frostic, Staff Attorney with the Humane Society of the United States, on behalf of the petitioners clarifying that the March 16, 2010, petition was a petition to list the entire species (Pan troglodytes) as endangered, whether in the wild or in captivity, pursuant to the Act. We acknowledged receipt of this letter in a letter to Ms. Frostic dated October 15, 2010. This finding addresses the petition.
        Previous Federal Action(s)
        On October 19, 1976, we published in the Federal Register a rule listing the chimpanzee and 25 other species of primates under the Act (41 FR 45990); the chimpanzee and 13 of the other primate species were listed as threatened. The chimpanzee was found to be threatened based on (1) Commercial logging and clearing of forests for agriculture and the use of arboricides; (2) capture and exportation for use in research labs and zoos; (3) diseases, such as malaria, hepatitis, and tuberculosis contracted from humans; and (4) ineffectiveness of existing regulatory mechanisms. We simultaneously issued a special rule that the general prohibitions provided to the threatened species would apply except for live animals of these species held in captivity in the United States on the effective date of the rulemaking, progeny of such animals, or to the progeny of animals legally imported in the United States after the effective date of the rulemaking.

        On November 4, 1987, we received a petition from the Humane Society of the United States, World Wildlife Fund, and Jane Goodall Institute, requesting that the chimpanzee be reclassified from threatened to endangered. On March 23, 1988 (53 FR 9460), we published in the Federal Register a finding, in accordance with section 4(b)(3)(A) of the Act, that the petition had presented substantial information indicating that the requested reclassification may be warranted and initiated a status review. We opened a comment period, which closed July 21, 1988, to allow all interested parties to submit comments and information.
        On December 28, 1988 (53 FR 52452), we published in the Federal Register a finding that the requested reclassification was warranted with respect to chimpanzees in the wild. This decision was based on the petition and subsequent supporting comments which dealt primarily with the status of the species in the wild and not with the viability of captive populations. Furthermore, we found that the special rule exempting captive chimpanzees in the United States from the general prohibitions may encourage propagation, providing surplus animals and reducing the incentive to remove animals from the wild. On February 24, 1989 (54 FR 8152), we published in the Federal Register a proposed rule to implement such reclassification. We did not propose reclassification of captive chimpanzees. Following publication of the proposed rule, we opened a 60-day comment period to allow all interested parties to submit comments and information.
        On March 12, 1990, we published in the Federal Register (55 FR 9129) a final rule reclassifying the wild populations of the chimpanzees as endangered. The captive chimpanzees remained classified as threatened, and those within the United States continued to be covered by the special rule allowing activities otherwise prohibited.
        Finding
        On the basis of information provided in the petition we find that the petition presents substantial scientific or commercial information indicating that listing the entire species of chimpanzee as endangered may be warranted. Therefore, we will initiate a status review to determine if listing the species in its entirety is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding this species (see Information Solicited).
        It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough review of the status of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        Author

        The primary authors of this notice are the staff members of the Branch of Foreign Species (see FOR FURTHER INFORMATION CONTACT).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: August 22, 2011.
          Gregory E. Siekaniec,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2011-22372 Filed 8-31-11; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Parts 223 and 224
        [Docket No. 160524463-6544-01]
        RIN 0648-XE657
        Endangered and Threatened Species; Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish From the Federal List of Threatened and Endangered Species, and Removal of Designated Critical Habitat, and Update and Amend the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:

          We, NMFS, are issuing a proposed rule to remove the Puget Sound/Georgia Basin canary rockfish (Sebastes pinniger) Distinct Population Segment (DPS) from the Federal List of Threatened and Endangered Species and remove its critical habitat designation as recommended in the recent five-year review under the Endangered Species Act (ESA). We propose these actions based on newly obtained genetic information that demonstrates that the Puget Sound/Georgia Basin canary rockfish population does not meet the DPS criteria and therefore does not qualify for listing under the ESA.

          We also propose to update and amend the listing description for the Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS based on a geographic description to include fish within specified boundaries. Further, although the current listing description is not based on boundaries, with this proposal we are also correcting a descriptive boundary for the DPS depicted on maps to include an area in the northern Johnstone Strait and Queen Charlotte Channel in waters of Canada consistent with newly obtained genetic information on yelloweye rockfish population grouping.
          We also propose to update and amend the listing description for the bocaccio DPS based on a geographic description and to include fish within specified boundaries.

          DATES:
          Information and comments on the subject action must be received by September 6, 2016.

          ADDRESSES:

          Reference materials supporting this rulemaking can be obtained via the Internet at: http://www.westcoast.fisheries.noaa.gov/ or by submitting a request to Dan Tonnes, Protected Resources Division, West Coast Region, National Marine Fisheries Service, 7600 Sand Point Way NE., Seattle WA, 98115.
          You may submit comments, identified by the code: NOAA-NMFS-2016-0070 by either of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0070. Click the “Comment Now” icon, complete the required fields, and enter or attach your comments.
          • Mail: Send comments to Chris Yates, Assistant Regional Administrator, Protected Resources Division, NMFS, West Coast Regional Office, Attn: Dan Tonnes, 7600 Sand Point Way NE., Seattle, WA 98115.

            Instructions: You must submit comments by one of the above methods to ensure that we receive, document, and consider them. 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. All comments received are a part of the public record and will generally be posted for public viewing on http://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. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Dan Tonnes, NMFS, West Coast Region, Protected Resources Division, 206-526-4643; or Chelsey Young, NMFS, Office of Protected Resources, 301-427-8403.

        SUPPLEMENTARY INFORMATION:

        Background

        We have been petitioned several times to list various “DPSs” of rockfish in the Puget Sound region. In response to a petition in 1999, we conducted a status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al. 2001). During this status review, the Biological Review Team (BRT) that we established determined that the available genetic information for each species demonstrated population structure and supported a determination of discreteness as defined by the joint NMFS and U.S. Fish and Wildlife Service (USFWS) 1996 DPS Policy (61 FR 4722; February 7, 1996). Based on this examination, the BRT identified a DPS for each of the three rockfish species in Puget Sound proper that can be considered a species under the ESA, and concluded that none of the identified DPSs were at risk of extinction (Stout et al. 2001).

        On April 9, 2007, we received a petition from Mr. Sam Wright (Olympia, Washington) to list DPSs of five rockfish species (yelloweye, canary, bocaccio, greenstriped and redstripe) in Puget Sound, as endangered or threatened species under the ESA and to designate critical habitat. We found that this petition did not present substantial scientific or commercial information to suggest that the petitioned actions may be warranted (72 FR 56986; October 5, 2007). On October 29, 2007, we received a letter from Mr. Wright presenting information that was not included in the April 2007 petition, and requesting reconsideration of the decision not to initiate a review of the species' status. We considered the supplemental information as a new petition and concluded that there was enough information in this new petition to warrant conducting status reviews of these five rockfish species. The status review was initiated on March 17, 2008 (73 FR 14195) and completed in 2010 (Drake et al. 2010).

        In the 2010 status review, the BRT used the best scientific and commercial data available at that time, including environmental and ecological features of the Puget Sound/Georgia Basin, but noted that the limited genetic and demographic data for the five petitioned rockfish species populations created some uncertainty in the DPS determinations (Drake et al. 2010). The BRT assessed genetic data from the Strait of Georgia (inside waters of eastern Vancouver Island) for yelloweye rockfish (Yamanaka et al. 2006), that indicated a distinct genetic cluster that differed consistently from coastal samples of yelloweye rockfish, but also observed that genetic data from Puget Sound were not available for this species. The BRT also noted there was genetic information for canary rockfish (Wishard et al. 1980) and bocaccio (Matala et al. 2004, Field et al. 2009) in coastal waters, but no genetic data for either species from inland Puget Sound waters. The BRT found that in spite of these data limitations there was other evidence to conclude that each noted population of rockfish within inland waters of the Puget Sound/Georgia Basin was discrete from its coastal counterpart. Specifically, the BRT noted similar life histories of rockfish and based their determinations, in part, on the status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al. 2001) and the genetic information for those species that supported separate DPSs for inland compared to coastal populations (Drake et al. 2010). Thus, based on information related to rockfish life history, genetic variation among populations, and the environmental and ecological features of Puget Sound and the Georgia Basin, the BRT identified Puget Sound/Georgia Basin DPSs for yelloweye rockfish, canary rockfish, and bocaccio, and a Puget Sound proper DPS for greenstriped rockfish and redstripe rockfish (Drake et al. 2010).

        Informed by the BRT recommendations and our interpretation of best available scientific and commercial data, on April 28, 2010, we listed the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary rockfish as threatened under the ESA, and the Puget Sound/Georgia Basin DPS of bocaccio as endangered (75 FR 22276). The final critical habitat rule for the listed DPSs of rockfishes was published in the Federal Register on November 1, 2014 (79 FR 68041). We determined that greenstriped rockfish (S. elongatus) and redstripe rockfish (S. proriger) within Puget Sound proper each qualified as a DPS, but these DPSs were not at risk of extinction throughout all or a significant portion of their ranges (Drake et al. 2010).
        In 2013, we appointed a recovery team and initiated recovery planning for the listed rockfish species. Through the process of recovery planning, priority research and recovery actions emerged. One such action was to seek specific genetic data for each of these rockfish species to better evaluate and determine whether differences exist in the genetic structure of the listed species' populations between inland basins where the DPSs occur and the outer coast.
        In 2014 and 2015, we partnered with the Washington Department of Fish and Wildlife, several local fishing guides, and Puget Sound Anglers to collect samples and compare the genetic structure of the species' populations between the different basins of the Puget Sound/Georgia Basin DPSs area and the outer coast.

        In 2015, we announced a five-year review (80 FR 6695; February 6, 2015) for the three rockfish DPSs. The five-year review was completed on May 5, 2016 (NMFS 2016), and is available at: http://www.westcoast.fisheries.noaa.gov/publications/protected_species/other/rockfish/5.5.2016_5yr_review_report_rockfish.pdf. To complete the review, we collected, evaluated, and incorporated all information on the species that has become available since April 2010, the date of the listing, including the 2014 final critical habitat designation and the newly obtained genetic information. This newly obtained genetic information and the five-year review inform the conclusions in this proposed rule.
        Policies for Delineating and Listing Species Under the ESA
        Under the ESA, the term “species” means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-USFWS policy clarifies the Services' interpretation of the phrase “Distinct Population Segment,” or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS under the ESA: (1) Discreteness of the population segment in relation to the remainder of the species/taxon; and, if discrete, (2) the significance of the population segment to the species/taxon to which it belongs. Thus, under the DPS policy a population segment is considered a DPS if it is both discrete from other populations within its taxon and significant to its taxon.
        A population may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the ESA (61 FR 4722; February 7, 1996). According to the policy, quantitative measures of genetic or morphological discontinuity can be used to provide evidence for item (1) below.
        A population may be considered significant if it satisfies any one of the following conditions: (1) Persistence of the discrete segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or 4) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics.
        The ESA gives us clear authority to make listing determinations and to revise the Federal list of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether “any species,” which is defined to include species, subspecies, and DPSs, is an endangered species or a threatened species based on certain factors. Review of a species' status may be commenced at any time, either on the Services' own initiative—through a status review or in connection with a five-year review under Section 4(c)(2)—or in response to a petition. Because a DPS is not a scientifically recognized entity, but rather one created under the language of the ESA and effectuated through our DPS Policy (61 FR 4722; February 7, 1996), we have some discretion to determine whether populations of a species should be identified as DPSs and, based upon their range and propensity for movement, what boundaries should be recognized for a DPS. Section 4(c)(1) of the ESA gives us authority to update the Federal list of threatened and endangered species to reflect these determinations. This can include revising the list to remove a species or reclassify the listed entity.

        Under sections 4(c)(1) and 4(a)(1) of the ESA, the Secretary shall undertake a five-year review of a listed species and consider, among other things, whether a species' listing status should be continued. Pursuant to implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons:
        (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct.
        (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened.
        (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)).
        DPS and Status Determinations
        Genetics Data Collection and Analysis Methods

        Analysis of the geographical distribution of genetic variation is a powerful method of identifying discrete populations (Drake et al. 2010); thus, genetic analysis provides useful information to address the uncertainties associated with the limited information that informed our initial discreteness determinations for yelloweye rockfish, canary rockfish and bocaccio.

        To address the need for specific genetic data from yelloweye rockfish, canary rockfish and bocaccio within the inland Puget Sound/Georgia Basin area to compare to genetic data from rockfish in coastal areas as defined during recovery planning, we collected biological samples for genetic analysis several ways. Over the course of 74 fishing trips, biological samples were gathered from listed rockfishes using hook-and-line recreational fishing methods in Puget Sound and the Strait of Juan de Fuca. Additional samples were gathered from archived sources from Fisheries and Oceans Canada, the NMFS Southwest Fisheries Science Center's Fisheries Resource Division, and the NMFS Northwest Fisheries Science Center's West Coast groundfish bottom trawl survey. Samples collected from these sources were used to examine the population structure for each species. Population structure was examined using three methods: principal components analysis, calculation of FST (fixation index; measure of population differentiation) among geographic groups, and a population genetics based model clustering analysis (termed STRUCTURE) (NMFS 2016).
        NMFS' Puget Sound/Georgia Basin rockfish BRT reviewed the results from the new genetic information. Their recommendations (Ford 2015) informed and were further evaluated during the five-year review. The results are summarized below.
        Yelloweye Rockfish Findings

        Several different analytical methods indicated significant genetic differentiation between the inland and coastal samples of yelloweye rockfish at a level consistent with the limited genetic data for this species (Yamanaka et al. 2006) that were available at the time of the 2010 status review. The BRT concluded that these new data represent the best available science and commercial data and are consistent with and confirm the existence of an inland population of Puget Sound/Georgia Basin yelloweye rockfish that is discrete from coastal yelloweye rockfish (Ford 2015). In addition, yelloweye rockfish from Hood Canal were genetically differentiated from other Puget Sound/Georgia Basin fish, indicating a previously unknown degree of population differentiation within the DPS.

        The BRT also found that new genetic information from Canada demonstrates that yelloweye rockfish occurring in the northern Johnstone Strait and Queen Charlotte Channel clustered genetically with yelloweye rockfish occurring in the northern Strait of Georgia, the San Juan Islands, and Puget Sound. This is consistent with additional genetic analysis identifying a population of yelloweye rockfish inside the waters of eastern Vancouver Island (Yamanaka et. al. 2006, COSEWIC 2008, Yamanaka et al. 2012, Seigle et al. 2013). Based on this information and the five-year review, this proposed rule would correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS to include this area. This proposed rule would also update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada). We propose this change because this description better aligns with yelloweye rockfish life-history and their sedentary behavior as adults, rather than the current description of fish originating from the Puget Sound/Georgia Basin.
        Canary Rockfish Findings

        These same analytical methods were used to analyze population structure in canary rockfish. These current analyses indicate a lack of genetic differentiation of canary rockfish between coastal and inland Puget Sound/Georgia Basin samples. FST values, a metric of population differentiation, among groups were not significantly different from zero among geographic regions, and STRUCTURE analysis did not provide evidence supporting population structure in the data. None of these analyses provided any evidence of genetic differentiation between canary rockfish along the coast from the canary rockfish within the boundaries of the Puget Sound/Georgia Basin DPS (NMFS 2016).

        The BRT noted that the very large number of loci provided considerable power to detect differentiation among sample groups and concluded that the lack of such differentiation indicated that it is unlikely that the inland Puget Sound/Georgia Basin samples are discrete from coastal areas (Ford 2015). In the context of this newly obtained genetic information, the BRT considered whether other factors that supported the original discreteness determination, such as oceanography and ecological differences among locations, continue to support a finding of discreteness for this population. In considering this newly obtained genetic data in the context of the other evidence, the BRT found that their original interpretation of the scientific data informing discreteness is no longer supported. Rather, they concluded that the lack of genetic differentiation indicates sufficient dispersal to render a discreteness determination based on environmental factors implausible. The BRT found that current genetic data evaluated and interpreted in the context of all available scientific information now provides strong evidence that canary rockfish of the Puget Sound/Georgia Basin are not discrete from coastal area canary rockfish. Based on the BRT findings, the five-year review, and best available science and commercial information, and in accordance with the DPS policy, we have determined that the canary rockfish of the Puget Sound/Georgia Basin do not meet the criteria to be considered a DPS. The new genetic data reveal that canary rockfish of the Puget Sound/Georgia Basin are part of the larger population occupying the Pacific Coast. Canary rockfish of the Pacific Coast was declared overfished in 2000 and a rebuilding plan under the Magnuson-Stevens Fishery Conservation and Management Act was put in place in 2001. NMFS determined the stock to be “rebuilt” in 2015 (Thorson and Wetzel 2015, NMFS 2016).
        Based on the discussion above and the recommendation of the five-year review, we are proposing to remove Puget Sound/Georgia Basin canary rockfish from the Federal List of Threatened and Endangered Species because the new genetic data evaluated and interpreted in the context of all best available science indicate they are not a discrete population. Under section 4(c)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d)(3), we may propose to delist canary rockfish if, among other things, subsequent investigation demonstrates that our interpretation of best scientific or commercial information was in error. After considering this newly obtained genetic data in the context of the other evidence supporting discreteness, we determined that our original interpretation of discreteness for Puget Sound/Georgia Basin canary rockfish is no longer supported and was in error. Based on this reasoning, there is no need for a post-delisting monitoring plan.
        Bocaccio Findings
        Bocaccio are rare within the DPS area and we were able to obtain only a few samples of them in the genetic study. Because of their rarity, the genetic analysis for bocaccio included only two samples from within the DPS area, and this is not sufficient information to change our prior status review determination that Puget Sound/Georgia Basin bocaccio are discrete from coastal fish (Ford, 2015).

        The BRT noted that bocaccio have a propensity for greater adult movement than more benthic rockfish species, similar to the case for canary rockfish. The BRT considered that the lack of genetic differentiation between coastal and Puget Sound/Georgia Basin canary rockfish might suggest a similar lack of genetic differentiation for bocaccio because of similarities in the life history of the two species. However, the BRT concluded that the new information was not sufficient to change the conclusions of the previous BRT documented in Drake et al. (2010). This is consistent with the five-year review recommendation (NMFS 2016) and is based upon best available scientific data and commercial information.
        Similar to yelloweye rockfish, we propose to update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/Georgia Basin.
        Effects of the New Determinations
        Based on the new information and the BRT's determination, we propose that Puget Sound/Georgia Basin canary rockfish be removed from the Federal List of Threatened and Endangered Species. The Puget Sound/Georgia Basin yelloweye rockfish DPS shall remain threatened under the ESA, and the Puget Sound/Georgia Basin bocaccio DPS shall remain endangered.

        We also propose to remove designated critical habitat for canary rockfish. The critical habitat designation for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs will remain in place. The area removed as designated critical habitat for canary rockfish will continue to be designated critical habitat for bocaccio and, thus, there will be no change to the spatial area that was originally designated. Maps of critical habitat can be found on our Web site at http://www.westcoast.fisheries.noaa.gov and in the final critical habitat rule (79 FR 68041; November 13, 2014).
        Additionally, we propose to update and amend the listing description of the yelloweye rockfish DPS to define geographical boundaries including an area farther north of the Johnstone Strait in Canada (Figure 1). This boundary would not have an effect on critical habitat, because we do not designate critical habitat outside U.S. territory.
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          EP06JY16.000

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        If the Puget Sound/Georgia Basin canary rockfish DPS is delisted, then the requirements under section 7 of the ESA would no longer apply. Federal agencies would be relieved of the need to consult with us on their actions that may affect Puget Sound/Georgia Basin canary rockfish and their designated critical habitat and to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of canary rockfish or adversely modify their critical habitat. ESA section 7 consultation requirements will remain in place for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs. Recovery planning efforts will continue for these listed DPSs as well.
        References Cited

        The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov.

        Information Quality Act and Peer Review

        In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. Peer review under the OMB Peer Review Bulletin ensures that our listing determinations are based on the best available scientific and commercial information. Prior to a final rule, and during the public comment period, NMFS will solicit the expert opinions of three qualified specialists selected from the academic and scientific community, Federal and state agencies, or the private sector to review our five-year review and underlying science supporting this action, to ensure the best biological and commercial information is being used in the decision-making process.

        Classification
        National Environmental Policy Act (NEPA)

        The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216-6.)
        Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act
        As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act.
        Executive Order 13122, Federalism
        In accordance with E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be shared with the relevant state agencies in Washington state.

          List of Subjects
          50 CFR Part 223
          Endangered and threatened species, Exports, Imports, Transportation.
          50 CFR Part 224
          Endangered and threatened species.

          Dated: June 23, 2016.
          Samuel D. Rauch, III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons set out in the preamble, 50 CFR parts 223 and 224 are proposed to be amended as follows:

          PART 223—THREATENED MARINE AND ANADROMOUS SPECIES

        1. The authority citation for part 223 continues to read as follows:

          Authority:

           16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

        2. In § 223.102, in the table in paragraph (e), under the subheading “Fishes”, remove the entry for “Rockfish, canary (Puget Sound/Georgia Basin DPS)”; and revise the table entries for “Rockfish, yelloweye (Puget Sound/Georgia Basin DPS)”, to read as follows:

          § 223.102
          Enumeration of threatened marine and anadromous species.

          (e) * * *

              Species 1

              Common name
              Scientific name
              Description of listed entity
              Citation(s) for listingdetermination(s)

              Critical habitat
              ESA rules

              *         *         *         *         *         *         *

                Fishes

              *         *         *         *         *         *         *

              Rockfish, yelloweye (Puget Sound/Georgia Basin DPS)

                Sebastes ruberrimus

              Yelloweye rockfish residing within the Puget Sound/Georgia Basin, inclusive of the Queen Charlotte Channel to Malcom Island, in a straight line between the western shores of Numas and Malcom Islands—N. 50 50′46″, W. 127 5′55″ and N. 50 36′49″, W. 127 10′17″
              75 FR 22276, Apr 28, 2010
              226.224
              NA

              The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N. 48 7′16″, W. 123 17′15″ in a straight line to the Canadian side at N. 48 24′40″, 123 17′38″

              *         *         *         *         *         *         *

              1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

          PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES

        3. The authority citation for part 224 continues to read as follows:

          Authority:
          16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

        4. In § 224.101, paragraph (h), under the subheading “Fishes”, revise the table entry for “Bocaccio (Puget Sound/Georgia Basin DPS)” to read as follows:

          § 224.101
          Enumeration of endangered marine and anadromous species.

          (h) * * *

              Species 1

              Common name
              Scientific name
              Description of listed entity
              Citation(s) for listingdetermination(s)

              Critical habitat
              ESA rules

              *         *         *         *         *         *         *

                Fishes

              Bocaccio (Puget Sound/Georgia Basin DPS)

                Sebastes paucispinis

              Bocaccio residing within the Puget Sound/Georgia Basin to the Northern Boundary of the Northern Strait of Georgia along the southern contours of Quadra Island, Maurelle Island and Sonora Island, all of Bute Inlet
              75 FR 22276, Apr 28, 2010
              226.224
              NA

              The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N. 48 7′16″, W. 123 17′15″ in a straight line to the Canadian side at N. 48 24′40″, 123 17′38″

              *         *         *         *         *         *         *

              1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

      [FR Doc. 2016-15923 Filed 7-5-16; 8:45 am]
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        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 02-2321; MB Docket Nos. 02-296; 02-297; 02-298; 02-299; 02-300; 02-301; 02-302; RM-10571, RM-10572; RM-10574; RM-10575; RM-10576; RM-10578; RM-10579]
        Radio Broadcasting Services; Broken Bow, Oklahoma, Colorado City, O'Brien, Panhandle, Shamrock, Stamford, Texas; and Taloga, Oklahoma

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:

          This document proposes seven separate allotments in Broken Bow, Oklahoma, Colorado City, O'Brien, Panhandle, Shamrock, Stamford, Texas; and Taloga, Oklahoma proceedings in a multiple docket Notice of Proposed Rule Making. Katherine Pyeatt requests the allotment of Channel 261A at O'Brien, Texas as the first local aural transmission service at a site 3.7 kilometers (2.3 miles) north of the community at coordinates 33-24-47 NL and 99-51-02 WL. Katherine Pyeatt requests the allotment of Channel 295C2 at Stamford, Texas, as the third local aural transmission service at a site 7.8 kilometers (4.9 miles) north of the community at coordinates 33-00-57 NL and 99-47-46 WL. Linda Crawford requests the allotment of Channel 291C3 at Panhandle, Texas, as the community's first local aural transmission service at a site 18.0 kilometers (11.2 miles) east of the community at coordinates 35-20-38 NL and 101-10-54 WL. Maurice Salsa requests the allotment of Channel 271A at Shamrock, Texas as the second local aural transmission service at a site 2.4 kilometers (1.5 miles) west of the community at coordinates 35-12-22 NL and 100-16-23 WL. Linda Crawford requests the allotment of Channel 257A at Colorado City, Texas, as the community's third local aural transmission service at a site 10.1 kilometers (6.3 miles) northwest of the community at coordinates 32-26-23 NL and 100-57-29 WL. Jeraldine Anderson requests the allotment of Channel 232A at Broken Bow, Oklahoma, as the community's third FM channel at a site 10.2 kilometers (6.3 miles) northeast of the community at coordinates 34-04-37 NL and 94-38-58 WL. Robert Fabian requests the allotment of Channel 226A at Taloga, Oklahoma, as the community's first local aural transmission service at a site 7.8 kilometers (4.8 miles) south of the community at coordinates 35-57-57 NL and 98-59-11 WL.

          DATES:
          Comments must be filed on or before: November 18, 2002 and reply comments must be filed on or before December 3, 2002.

          ADDRESSES:

          Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioners as follows: Katherine Pyeatt, 6655 Aintree Circle, Dallas, Texas 75214 (MB Docket Nos. 02-296, 02-297); Linda Crawford, 3500 Maple Avenue #1320, Dallas, Texas 75219 (MB Docket Nos. 02-298, 02-300); Maurice Salsa, 5615 Evergreen Valley Drive, Kingwood, Texas 77345 (MB Docket No. 02-299); Jeraldine Anderson, 1702 Cypress Drive, Irving, Texas 75061 (MB Docket No. 301); Robert Fabian, 4 Hickory Crossing Lane, Argyle, Texas 76226 (MB Docket No. 02-302).

          FOR FURTHER INFORMATION CONTACT:
          Victoria M. McCauley, Mass Media Bureau, (202) 418-2180.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 02-296,02-297, 02-298, 02-299, 02-300, 02-301, 02-302, adopted September 11, 2002, and released, September 27, 2002. The full text of this document is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

        The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          List of Subjects in 47 CFR Part 73
          Radio, Radio broadcasting.

        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

          PART 73—RADIO BROADCAST SERVICES
          1. The authority citation for Part 73 continues to read as follows:

            Authority:
            47 U.S.C. 154, 303, 334, 336.

            § 73.202
            [Amended]
            2. Section 73.202(b), the Table of FM Allotments under Oklahoma, is amended by adding Channel 232A at Broken Bow, and Taloga, Channel 226A.
            3. Section 73.202(b), the Table of FM Allotments under Texas, is amended by adding Channel 257A at Colorado City, O'Brien, Channel 261A, Panhandle, Channel 291C3, Channel 271A at Shamrock, and Channel 233A at Stamford.

            Federal Communications Commission.
            John A. Karousos,
            Assistant Chief, Audio Division, Media Bureau.

      [FR Doc. 02-26226 Filed 10-18-02; 8:45 am]
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