        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R7-ES-2010-0061; MO 92210-0-0008]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Red Knot Subspecies Calidris canutus roselaari as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the roselaari subspecies of red knot (Calidris canutus roselaari) as endangered under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition does not present substantial information indicating that listing this subspecies may be warranted. Therefore, we are not initiating a status review in response to this petition. However, we ask the public to submit to us any new information that becomes available concerning the status of, or threats to, C. c. roselaari or its habitat at any time.

          DATES:
          The finding announced in this document was made on January 4, 2011.

          ADDRESSES:
          This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R7-ES-2010-0061. Supporting documentation we used in preparing this finding is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Fairbanks Fish and Wildlife Field Office, 101 12th Avenue, Room 110, Fairbanks, AK 99701. Please submit any new information, materials, comments, or questions concerning this finding to the above street address.

          FOR FURTHER INFORMATION CONTACT:

          Ted Swem, Branch Chief, Endangered Species Program of the Fairbanks Fish and Wildlife Field Office (see
            ADDRESSES); by telephone (907-456-0441); or by facsimile to (907-456-0208). If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Background
        Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents “substantial scientific or commercial information” indicating that the petitioned action may be warranted. We 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 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 scientific or commercial information” is the “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 conduct a species status review, which we summarize in a subsequent finding due within 12 months.
        Petition History and Previous Federal Action

        On February 27, 2008, we received a petition, dated February 27, 2008, from Defenders of Wildlife, American Littoral Society, American Bird Conservancy, Delaware Audubon, Delaware Nature Society, Delaware Riverkeeper Network, National Audubon Society, New Jersey Audubon Society, and Citizens Campaign for the Environment, requesting that the Department of the Interior (Department) use its emergency authorities under section 4(b)(7) of the Act to list the red knot C. c. rufa subspecies as an endangered species. The petitioners also seek to have the Department list as endangered “a broader taxon comprising both the rufa subspecies and the roselaari subspecies.” The petition further calls for a “national listing based on similarity of appearance” under section 4(e) of the Act. The petition contains the requisite identification information for the petitioners, as required at 50 CFR 424.14(a).

        We previously made a “warranted but precluded” determination (in response to one petition received on August 9, 2004, and two others received on August 5, 2005), on September 12, 2006, for the C. c. rufa subspecies and added this subspecies to our list of candidate species with a listing priority number of 6 (71 FR 53758-53759). “Warranted but precluded” means we have sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened, but that preparation and publication of a listing proposal is precluded by higher priority listing actions. In a May 1, 2008, letter responding to the current petition, we stated that while we had previously made a determination that listing C. c. rufa was “warranted but precluded” and added the subspecies to our candidate list, we were re-evaluating—as part of our annual candidate review process—whether listing remained “warranted but precluded” and whether to utilize the emergency listing provisions of the Act. We also stated in our May 1, 2008, letter that, due to court orders and judicially approved settlement agreements for other listing and critical habitat determinations under the Act that required nearly all of our listing and critical habitat funding for fiscal year 2008, we would not be able to further address the petition's request to list C. c. roselaari at that time but would complete the action when workload and funding allowed. Subsequently, in the 2008 Candidate Notice of Review for C. c. rufa, the Service took into consideration the information supplied by the petitioners and changed the listing priority number from 6 to 3 for this subspecies because threats were determined to be imminent (73 FR 75178-75179, December 10, 2008). Because we determined that it was not necessary, the Service did not emergency list C. c. rufa, as set forth in the October 29, 2009, Species Assessment and Listing Priority Assignment Form for Calidris canutus rufa (Service 2009). In the 2009 Candidate Notice of Review for C. c. rufa, the Service retained a listing priority number of 3 for this subspecies (74 FR 57825-57826, November 9, 2009).

        Accordingly, as we addressed the petitioners' request for an emergency listing of the rufa subspecies in the October 29, 2009, Species Assessment and Listing Priority Assignment Form, this finding addresses only whether the petition presents substantial scientific or commercial information that the following petitioned actions may be warranted: (1) Listing the C. c. roselaari as endangered or threatened, (2) listing “a broader taxon comprising both the rufa subspecies and the roselaari subspecies” as endangered or threatened, and (3) a “national listing based on similarity of appearance” under section 4(e) of the Act. We base our determinations on information set forth in the petition, information in the Service's files, and other readily available information.
        Species Information
        The red knot (Calidris canutus) is a medium-sized (23 to 28 centimeters, or 9 to 11 inches, in length), Arctic-breeding shorebird within the genus Calidris. The breeding plumage of the red knot is distinctive; the face, breast, and upper belly are a rich rufous-red, and the lower belly and under tail-coverts are light-colored with dark flecks. Upperparts are dark brown with white and rufous feather edges; outer primary feathers are dark brown to black (Davis 1983, p. 372; Harrington 2001, p. 2). Females are similar to males in appearance, but rufous colors are typically less intense in females, with more buff or light gray coloration on dorsal parts (Niles et al. 2007, p. 14). Subtle subspecies differences in breeding plumage have been described. Non-breeding plumage, dusky gray above and whitish below, is similar between sexes and among subspecies (Harrington 2001, p. 2). Juveniles resemble non-breeding adults, except that the feathers of the scapulars and wing coverts of juveniles are edged with white and have narrow, dark subterminal bands, giving the upperparts a scalloped appearance (Davis 1983, p. 372); whereas the feathers of adults are more uniform. The black bill is long, straight, and slightly tapered, and the legs and feet are dark green or black (Davis 1983, p. 373). Adult body mass varies seasonally, with highest mean mass occurring during spring (205 grams (g); 7.2 ounces (oz)) and fall (172 g; 6 oz) migration, and lowest values occurring during early winter (125 g; 4.4 oz) (Harrington 2001, p. 12).
        Six subspecies of red knots (C. c. canutus, C. c. piersma,
          C. c. rogersi, C. c. rufa, C. c. roselaari, and C. c. islandica) are currently recognized worldwide based on small differences in body dimensions and breeding plumage characteristics, and discrete breeding areas and migration routes (Piersma and Baker 2000, p. 109; Niles et al. 2007, p. 3). In all subspecies, sexual dimorphism occurs in plumage coloration (Tomkovich 1992, p. 18), as well as both bill length and body weight, with females having longer bills and higher body weights on average than males (Niles et al. 2007, p. 7).

        Four genetically distinct groups of red knots were recently identified through genetic analysis; they are comprised of C. c. canutus, C. c. piersma,
          C. c. rogersi, and a North American group containing C. c. rufa, C. c. roselaari and C. c. islandica (Buehler and Baker 2005, p. 502). C. c. islandica breeds in the Canadian high Arctic and Greenland, and winters in western Europe. The other two subspecies in the North American group occur within the United States: C. c. rufa, currently a candidate species for listing, and C. c. roselaari, the focus of this 90-day finding.

          C. c. roselaari and C. c. rufa are paler by comparison (with C. c. rufa considered the palest) to the other subspecies and have a much longer average bill-length (Harrington 2001, p. 4; Niles et al. 2007, p. 7). C. c. roselaari is longer-winged than the other subspecies, but bill-length overlaps extensively (Harrington 2001, p. 5). In breeding plumage, C. c. roselaari's dorsal coloration is described as similar to that of C. c. canutus, but darker with slightly more variegated pattern. Ventral coloration is considered more similar to that of C. c. rufa than to that of C. c. rogersi, especially with respect to amount of white plumage on vent and lower belly (Harrington 2001, p. 5). However, as recently as 2007, red knot researchers acknowledged that “no one has adequately compared morphological variation in C. c. rufa and C. c. roselaari populations” (Niles et al. 2007, p. 7). In 2006, individual C. c. roselaari caught and measured at a wintering site in Guerrero Negro, Baja, Mexico, had longer bill-lengths than males belonging to wintering populations known or thought to be C. c. rufa, suggesting C. c. roselaari are larger than C. c. rufa (Niles et al. 2008, p. 3).

        Based on genetics, the red knot is thought to have recently survived a genetic bottleneck (resulting in reduced genetic variability), with subspecies groups estimated to have diverged very recently. The three subspecies comprising the North American group, including C. c. roselaari, are estimated to have diverged within the last 5,500 years (Buehler and Baker 2005, p. 505). We accept the characterization of C. c. roselaari as a subspecies because each currently recognized subspecies is believed to occupy separate breeding areas, in addition to having morphological and behavioral character differences. The Service and partners are currently investigating red knot genetics to better assess population structure of C. c. roselaari and rufa subspecies; results are expected within the next few years.
        More is known about the range and biology of C. c. rufa, than about C. c. roselaari. C. c. roselaari breeds in Alaska and on Wrangel Island, Russia (Tomkovich 1992, p. 22); whereas C. c. rufa breeds in the central Canadian Arctic (Harrington 2001, p. 4). C. c. roselaari is the only red knot subspecies known to nest in the United States. Its breeding range in northwest and northern Alaska is not well known, but includes the Seward Peninsula and inland areas north of Kotzebue, including the DeLong Mountains of the Brooks Range (Childs 1969, p. 33; Kessel 1989, pp. 161-162; Kessel and Gibson 1978, p. 39; Harrington 2001, p. 3).

          C. c. rufa migrates primarily along the Atlantic coast of North America, with most wintering sites along the coasts of South America and fewer wintering sites along the Atlantic and Gulf coasts of the southeastern United States (Harrington 2001, p. 4; Morrison et al. 2006, pp. 76-77). Although red knots are known to use the Texas and Florida coasts, other extensive marsh areas of Gulf coast States have not been surveyed. There are sporadic reports of red knots in these areas, but the level of use is not known (A. Scherer, U.S. Fish and Wildlife Service, pers. comm. 2010). There has been taxonomic uncertainty regarding C. canutus wintering in the southeastern United States because C. canutus that winter in Florida, Georgia, and South Carolina have a different molt schedule and do not migrate to southern South America. These birds have been referred to in the past as either C. c. roselaari or C. c. rufa (Niles et al. 2007, pp. 9-10). However, in the attachment to the petition, Niles et al. (2008, p. 1) identify recent information that indicates C. c. roselaari is largely or wholly confined to the Pacific coast of the Americas during migration and in winter, and Niles et al. (2008, p. 1) conclude that red knot populations found along the western Atlantic Ocean coast (wintering in Florida, Brazil, and Tierra del Fuego) are C. c. rufa. The conclusion is based on banding records confirming that red knots found on the Pacific coast of North America breed in Alaska and Wrangel Island, Russia, and morphological measurements of wintering red knots captured in Baja, Mexico, indicating these birds were larger than red knots at other wintering sites where it was previously unclear if the birds were C. c. roselaari or C. c. rufa (Niles et al. 2008, p. 3).
        Currently, C. c. roselaari primarily use a few stopover sites during their northward migration to breeding areas in northern Alaska and Wrangel Island, Russia. The most important stopover sites are Grays Harbor and Willapa Bay in Washington, and Yukon-Kuskokwim Delta and Copper River Delta in Alaska (Isleib 1979, p. 128; Gill and Handel 1990, p. 712; Page et al. 1999, p. 467). Smaller numbers have been documented during migration in the Yakutat Forelands, Alaska, and the San Francisco Bay, California, and during both migration and wintering along the southern coast of California (Andres and Browne 1998, p. 328; Page et al. 1999, p. 468; Stenzel et al. 2002, p. 75). The subspecies primarily bypasses Oregon and British Columbia (McGie 2003, p. 232; Buchanan 2007, p. 65). Use of stopover sites during fall migration is unclear, as the migration is protracted and large concentrations are not reported in fall at sites used during spring (Harrington 2001, p. 7). Red knots are known to undertake long flights during migration that may span thousands of miles (Harrington 2001, p. 1); thus during fall migration they may bypass sites used in spring. Important wintering aggregations of C. c. roselaari have been documented in Western Mexico at Guerrero Negro, Baja California Sur (Carmona et al. 2008, p. 10), and along the Pacific Northwest coast of Mexico in the Gulf of California at Ensenada Pabellones and Bahia Santa Maria, Sinaloa (Engilis et al. 1998, p. 338). C. c. roselaari probably also winters farther south than Mexico (Niles et al. 2007, p. 20), but important sites have not been identified. We lack information on the historical range of C. c. roselaari.

        Different habitats are used by red knots for breeding and migration/wintering. During migration stopovers and in wintering areas, red knots are primarily found in coastal habitats, particularly in areas with extensive sandy intertidal flats or near tidal inlets or mouths of bays and estuaries (Harrington 2001, pp. 8-9). Prey items for C. c. roselaari include bivalves and other benthic invertebrates (Harrington 2001, p. 9).
        On the breeding grounds in Alaska, C. c. roselaari are widely dispersed inland near the Arctic coast (Harrington 2001, pp. 5, 8). Nesting has been documented in upland habitat, particularly on limestone mounds on windswept slopes, 42 to 48 kilometers (20 to 30 miles) inland (Kessel 1989, p. 162; Harrington 2001, p. 8). The red knot's diet on the breeding grounds consists primarily of terrestrial invertebrates, but early in the breeding season they may consume a substantial amount of plant material, such as grass shoots and seeds (Kessel 1989, pp. 162-163; Harrington 2001, p. 11). Red knots lay one clutch (usually 4 eggs) per season. No information is available on hatching success or chick survival rates. Male parents brood and defend their young, which leave the nest within 24 hours of hatching (Harrington 2001, p. 20; Niles et al. 2007, pp. 28, 31-32). While the oldest wild red knot recorded worldwide was estimated to be 25 years old, few red knots are assumed to live more than 7 years (Niles et al. 2007, p. 33).
        The historical and current population sizes of C. c. roselaari are uncertain, and the trend is unknown. Supporting documentation submitted with the petition acknowledges that all attempts to assess the population size of C. c. roselaari have been confounded by uncertainty as to which passage (migrating) or wintering population belongs to which subspecies (Niles et al. 2008, p. 2). Although C. c. roselaari is now considered to be largely or wholly confined to the Pacific coast of the Americas during migration and in winter (Niles et al. 2008, p. 1), limited data exist from the sites along the Pacific coast of North America that are known to be used by this subspecies; in addition, the complete extent of wintering locations and the numbers breeding in Alaska are unknown. Population estimates have ranged from 150,000 (Brown et al. 2001, p. 53; Morrison et al. 2001, p. 34) to 20,000 (Morrison et al. 2006, p. 75) with inclusion of red knot populations found along the western Atlantic Ocean coast (now considered to be C. c. rufa), to less than 10,000 when including only the Pacific coast of the North America population (Niles et al. 2008, p. 6).

        The longest-running data set comes from counts on the central Yukon-Kuskokwim Delta at three field sites where C. c. roselaari are commonly observed during spring migration. While a peak daily count of 110,000 red knots was observed in 1980 at Tutakoke River (Gill and Handel 1990, p. 712), peak daily count has not exceeded 6,380 (Service, unpublished data) in all other years before and after 1980 (24 of 31 years with peak count data from 1978-2007). There is no evidence of a long-term decline based on the one anomalous count in 1980. Overall, observed peak numbers have varied substantially among years (range 25—6,380 without 1980 count); the observed variation is unexplained, and no trend is detectable. The reported counts are conducted on a small portion of coastal Yukon-Kuskokwim Delta. More extensive mudflats occur outside of the study area; thus, while unknown, it is possible C. c. roselaari also occupies these areas to varying degrees during spring migration, which could account for the observed variation in numbers among years. We consider the numbers reported from counts on the Yukon-Kuskokwim Delta to represent minimum numbers passing through the entire delta, with recent observations indicating a minimum, but not absolute number, of less than 10,000 individuals. On the Copper River Delta, Alaska, count-based estimates increased from 10,000 in the 1960s to 40,000-50,000 in the early 1970s, to as high as 100,000 in late 1970s (Isleib 1979, p. 128). None of the data collected at either the Yukon-Kuskokwim or Copper River Deltas included systematic or replicate counts, evaluation of accuracy, or assessment of turnover rates, which would be needed to determine actual abundance from the counts. We also do not know whether or not birds stopping at the Copper River Delta also stop at the Yukon-Kuskokwim Delta or migrate directly to the breeding grounds and therefore represent additional individuals. Supporting documentation submitted with the petition (Niles et al. 2008, p. 6) claims that C. c. roselaari might have declined from greater than 100,000 (in period 1975-1980) to less than 10,000, if the large numbers reported in Alaska in 1975-1980 were all individuals of this subspecies. However, it has been suggested (Morrison et al. 2006, p. 76) and noted in the supporting documentation to the petition (Niles et al. 2008, p. 5), that some of the birds seen during the high-count years might have been due to an unusual arrival of C. c. rogersi, which breed in eastern Siberia and resemble C. c. roselaari in appearance (Morrison et al. 2006, p. 34). Alternatively, inter-annual variation in movements and migration routes through Alaska may have caused large variation in the proportion of C. c. roselaari that are subject to counting among years. Thus, these exceptionally large counts are difficult to interpret, and cannot with reliability be ascribed to C. c. roselaari, or used to infer trends in abundance of C. c. roselaari.

        Data from sites outside Alaska are fragmentary and difficult to interpret, particularly given that counts at some sites have fluctuated among years, presumably due to changing environmental conditions. The petition (p. 4) states that the current C. c. roselaari population totals fewer than 10,000 individuals with uncertainty regarding the extent of the subspecies' decline. While it is possible that the population size is less than 10,000, observations have not been collected in a long enough time-series at any of these sites to determine population trend at particular sites or to accurately estimate overall population size. The Service is currently collaborating with shorebird researchers to estimate the abundance of the stopover population of C. c. roselaari in important Pacific Flyway stopover areas in Washington (Grays Harbor and Willapa Bay) as a means of determining if a reliable estimate of the population size of this subspecies can be developed (Brad Andres, Service, pers. comm. 2010).

          C. c. roselaari is currently listed as a Bird of Conservation Concern by the U.S. Fish and Wildlife Service, Division of Migratory Bird Management (USFWS 2008, p. 66), which deems it a priority species for conservation actions. This list is based on an assessment score from three bird conservation plans: Partners in Flight North American Landbird Conservation Plan, United States Shorebird Conservation Plan, and North American Waterbird Conservation Plan (USFWS 2008, p. 2). While this list provides no regulatory protection, its purpose is to provide a conservation benefit by drawing attention to the subspecies' needs.
        Evaluation of Information for This Finding
        Request To List C. c. roselaari

        In making this 90-day finding, we first evaluated whether information regarding the threats to C. c. roselaari, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action of listing the roselaari subspecies may be warranted. 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 a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
        (A) The present or threatened destruction, modification, or curtailment of its habitat or range;
        (B) Overutilization for commercial, recreational, scientific, or educational purposes;
        (C) Disease or predation;
        (D) The inadequacy of existing regulatory mechanisms; or
        (E) Other natural or manmade factors affecting its continued existence.

        In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to the factor to evaluate whether the species may respond to the factor in a way that causes actual or likely impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and we attempt to determine how significant a threat it is. The threat may be significant if it drives, or contributes to, the risk of extinction of the species such that the situation may warrant listing the species as endangered or threatened as those terms are defined in the Act. The identification of factors that could impact a species negatively may not be sufficient to compel a finding that substantial information has been presented suggesting that listing may be warranted. The information should contain evidence or the reasonable extrapolation that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act. We found no information to suggest that threats may be acting on, or are likely to act on, C. c. roselaari such that the subspecies may become in danger of extinction now or in the foreseeable future.

        In making this 90-day finding, we evaluated whether there is substantial information regarding the threats to C. c. roselaari presented in the petition and other information available in our files indicating that the petitioned action of listing C. c. roselaari may be warranted. Our evaluation of this information is presented below.
        A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

        Supporting documentation submitted with the petition asserts that, as a small population, C. c. roselaari is particularly vulnerable to habitat loss (Niles et al. 2008, p. 11), but that documentation does not support this statement with any evidence that this factor is impacting or is likely to impact this subspecies.
        The primary factor threatening C. c. rufa is destruction and modification of its habitat, particularly the modification of habitat in Delaware Bay through harvesting of horseshoe crabs (74 FR 57825, November 9, 2009). During spring migration, one of the key stopover sites for C. c. rufa is Delaware Bay, where they forage on horseshoe crab (Limulus polyphemus) eggs to replenish resources needed to complete their migration (Harrington 2001, p. 11). As the C. c. roselaari is now considered to be confined to the Pacific coast, this subspecies is presumably not subjected to threats associated with habitat loss in Delaware Bay or at other sites used by C. c. rufa along the Atlantic coast.
        Because the extent of C. c. roselaari's historical and current range is unknown, it is challenging to assess the extent of historical habitat loss that has occurred and its impact on this subspecies. We believe, however, that little habitat loss has occurred on the breeding grounds or key migration sites used by C. c. roselaari in Alaska, due to the areas' remoteness. But wetland loss has occurred throughout the United States due to development (Dahl 2006, p. 15). We, therefore, assume some direct loss of habitat due to development has occurred at migration stopover sites for C. c. roselaari along the Pacific coast of the United States. We have no evidence in our files, however, on the extent of this loss or information suggesting that this habitat loss has resulted in a decline of this subspecies.

        Wetland habitat loss has also occurred along the Pacific coast of the United States due to the spread of invasive plant species, including wetland habitat loss at key migration stopover sites used by C. c. roselaari. In particular, nonnative cordgrass (Spartina) species are aggressive weeds that disrupt ecosystems of native saltwater estuaries by outcompeting native vegetation and converting mudflats into monotypic Spartina meadows that accumulate sediment (Phillips et al. 2008, p. 5). This results in decreased plant diversity, elevated intertidal areas, and displacement of invertebrates, all of which reduce useable foraging and roosting habitat for shorebirds (Phillips et al. 2008, p. 5).
        During the 1990s, the spread of Spartina completely covered some key spring stopover sites for C. c. roselaari in Willapa Bay and portions of Grays Harbor, Washington (Buchanan 2003, pp. 47-48; Chappell 2005, p. 153; Buchanan 2006, p. 65). Eradication efforts have been under way in Washington, as well as in other locations along the Pacific coast, including San Francisco Bay, California. Since 2004, the Service has cooperated with Washington and other groups in a Statewide effort to eradicate Spartina from the State's marine waters. This effort has been extremely successful, with an 85 percent reduction in the number of solid acres of Spartina Statewide by 2007 (Phillips et al. 2008, p. 1).

          Spartina was considered to have been largely removed from important red knot habitat in Willapa Bay by 2006 (Buchanan 2006, p. 65). Control of Spartina meadows has resulted in increased use by shorebirds. Over time, this increased use occurs as the meadows return to pre-invasion natural mudflats with invertebrate prey for shorebirds (Phillips et al. 2008, pp. 9-10). Spartina eradication efforts continue, followed by maintenance efforts within 3 to 5 years. Various eradication and control efforts have been underway for other invasive wetland plant species, such as the common reed (Phragmites australis). Other wetland restoration efforts include Service awards of 2010 National Coastal Wetland Conservation grants to Washington to acquire, restore, or enhance coastal wetlands, including acquisition and protection of wetland habitat in Grays Harbor and Willapa Bay. Thus, we determine that efforts to manage habitat loss in coastal migratory routes along the West Coast have likely ameliorated potential impacts, and the petition has not presented substantial information indicating that habitat loss may have affected the abundance or status of C. c. roselaari.

        Future sea-level rise and shoreline erosion may reduce the availability of intertidal habitat used by C. c. roselaari during migration or wintering. If habitat is limited, this could affect the subspecies' ability to build up adequate nutrient and energy stores to complete their long migrations (Meltofte et al. 2007, p. 36). The actual rates of sea-level rise are hard to predict with any reliability. However, sea-level rise is predicted to increase, and sea levels will likely rise globally by at least 0.18-0.59 meters (0.6—1.9 feet) by the end of this century (IPCC 2007, p. 8). Site-specific rates will differ from the global mean; thus, the persistence of coastal and wetland environments for C. c. roselaari will depend on the degree to which sedimentation keeps pace with sea level rise, as well as local geomorphologic and other anthropogenic factors that affect wetlands at key migration and wintering sites.
        Galbraith et al. (2002, pp. 177-178) examined several different scenarios of future sea-level rise and projected the amount of intertidal habitat loss at key shorebird sites in the United States, including Willapa Bay and San Francisco Bay. Willapa Bay is predicted to lose a relatively small amount (8 percent) of its shorebird intertidal feeding habitats by 2050 but a larger amount (18 percent) by 2100. San Francisco Bay is predicted to lose 12 percent of its intertidal feeding habitats in the northern bay and 24 percent in the southern bay by 2050, and 39 percent in the northern bay and 70 percent in the southern bay by 2100 under the 50-percent probability scenario (Galbraith et al. 2002, pp. 177-178). Such modeling efforts indicate that loss of intertidal habitat is expected to occur as sea levels rise at some sites currently used by C. c. roselaari. In other areas along C. c. roselaari's migration route that currently are, or could be, used by the subspecies, however, there may be a net gain of intertidal flats as coastline migrates inland. The Service is currently participating in multiple efforts to model impacts of future sea-level rise along the Pacific coast. When completed, these models may allow us to predict changes in habitat for C. c. roselaari, but at present we lack sufficient information to evaluate all sites used by the subspecies during migration and wintering to determine the scope and scale of potential habitat loss due to sea-level rise. We determine that at this time there is inadequate information to support the petitioners' contention that sea-level rise may pose a population-level threat to C. c. roselaari.

        While there appears to be ongoing and threatened habitat destruction and modification in areas used by migrating red knots along the Pacific coast in the United States and possibly in wintering habitats in Mexico and other unknown locations, the information presented or readily available does not suggest a population-level impact to C. c. roselaari from habitat loss in these areas. In summary, we find that the information provided in the petition, as well as other information in our files, does not present “substantial scientific or commercial information” indicating that the petitioned action of listing the roselaari subspecies may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        The petition does not claim that overutilization of C. c. roselaari for commercial, recreational, scientific, or educational purposes is taking place or will take place, and does not provide any evidence that this factor may be impacting or will likely impact the subspecies. In the second half of the 19th and first quarter of 20th centuries, red knots were heavily hunted for both market and sport (Harrington 2001, p. 22). Hunting of red knots is no longer allowed in the United States. Based on band recoveries, red knots are hunted in some regions of South America. Take has been documented in Guianas and Barbados (Harrington 2001, p. 22), areas likely occupied by C. c. rufa. The level of hunting and impact to C. c. roselaari is unknown. The available information does not suggest that hunting poses, or is likely to pose, a significant threat to the subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action of listing the roselaari subspecies may be warranted due to overutilization for commercial, recreational, scientific, or education purposes.
        C. Disease or Predation

        The petition does not claim or provide any evidence that disease or predation of C. c. roselaari is a factor impacting or that will impact the subspecies. Although there is some information in our files that disease has been a cause of mortality for individuals of C. c. rufa, the Service has determined that disease and predation do not appear to pose threats to the persistence of C. c. rufa (USFWS 2009, pp. 23-24). We do not have any specific information regarding disease for C. c. roselaari. We have no information that predation rates have risen in recent years or been significantly affected by anthropogenic factors. On the breeding grounds, microtine rodent (lemming and vole) cycles affect shorebird nest predator cycles, resulting in year-to-year fluctuations in productivity (Niles et al. 2007, p. 161). The available evidence does not indicate that predation during the breeding season is having, or is likely to have, a long-term or significant impact on red knots (USFWS 2009, p. 23). In summary, we find that the information provided in the petition, as well as other information in our files, does not present “substantial scientific or commercial information” indicating that the petitioned action of listing the roselaari subspecies may be warranted due to disease or predation.
        D. The Inadequacy of Existing Regulatory Mechanisms

        The petition does not claim that inadequacy of existing regulatory mechanisms for C. c. roselaari is taking place or is likely to take place, and does not provide any evidence that the lack of existing regulatory mechanisms is impacting or is likely to impact the subspecies.

        The petition does claim that existing regulatory mechanisms are inadequate to conserve foraging habitat on Delaware Bay for red knots foraging on horseshoe crabs at this key spring migration stopover site (Petition, p. 3). The Service has identified the inadequacy of existing regulatory mechanisms related to habitat destruction and modification, particularly in Delaware Bay, as a significant threat to C. c. rufa (USFWS 2009, p. 34). However, as C. c. roselaari is believed to be largely or wholly confined to the Pacific coast of the Americas during migration and in winter (Niles et al. 2008, p. 1), there is no evidence that this subspecies passes through Delaware Bay. Therefore, C. c. roselaari is presumably not affected by changes to habitat caused by inadequate regulatory mechanisms at Delaware Bay.

        The Migratory Bird Treaty Act (16 U.S.C. 703-712) (MBTA) is the only current Federal protection provided for C. c. roselaari. The MBTA prohibits “take” of individuals but, other than for nesting sites, provides no authority for protection of habitat or food resources. Niles et al. (1997, p. 165) report human disturbance as a major threat to C. c. rufa throughout its migratory range in the United States. The MBTA does not afford red knots protection from human disturbance on migratory and wintering areas. We believe that human disturbance to C. c. roselaari on their breeding grounds is minimal, due to the remoteness of these areas in Alaska and on Wrangel Island, Russia. We also believe limited human disturbance occurs at migration sites in Alaska, again due to the remote nature of these sites. Human disturbance, such as recreational use of beaches, including foraging and roosting sites, likely occurs on migratory areas along the Pacific coast of the United States and in wintering areas in Mexico and in other unknown locations, but we lack information in our files on the extent of disturbance and, if it is occurring, on the level of impact to the subspecies.

        In April 2007, the Committee on the Status of Endangered Wildlife in Canada determined that the C. c. roselaari type was threatened (COSEWIC 2007, p. 42). As a result, it is now protected under Canada's Federal Species at Risk Act (SARA). The designated unit (referred to as “C. c. roselaari type”) is defined to include “the subspecies roselaari and two other populations that winter in Florida and northern Brazil and that seem to share characteristics of roselaari” (COSEWIC 2007, p. 43). These two populations wintering in Florida and northern Brazil are now considered to be C. c. rufa (Niles et al. 2008, p. 1), and the declines and threats identified for listing these two populations are confined to C. c. rufa. The SARA covers migratory birds in Canada on private, provincial, territorial, and Federal lands. Under SARA, projects that require an environmental assessment must consider the project's effects on listed wildlife species, including recommendations for measures to avoid or reduce adverse effects and plans to monitor the impacts of the project. Destruction of critical habitat of endangered and threatened species found on Federal lands is prohibited. The SARA has permit issuance criteria that include minimizing impacts of the proposed activity and avoiding jeopardy to the species.

        In summary, we find that the information provided in the petition, as well as other information in our files, does not present “substantial scientific or commercial information” indicating that the petitioned action of listing the C. c. roselaari subspecies may be warranted due to inadequacy of existing regulatory mechanisms.
        E. Other Natural or Manmade Factors Affecting Its Continued Existence

        The petition and its supporting documentation claim that new evidence suggests that C. c. roselaari is vulnerable to sudden and imminent extinction due to the inability of a suggested small population size to withstand catastrophic, population-altering events and harmful genetic mutation (Niles et al. 2008, p. 11; Petition, pp. 4-5). However, the petition materials do not support this statement with any evidence that this factor is currently impacting or is likely to impact this subspecies in the foreseeable future. Small populations are generally at greater risk of extinction from stochastic processes than are large populations. However, a given population size will not carry with it the same risk for all species, and the fact that a species has low numbers does not necessarily indicate that it may be in danger of extinction in the foreseeable future. Although there is uncertainty about the population size of C. c. roselaari, a population with possibly fewer than 10,000 individuals, we do not have information in our files on vulnerability of the subspecies to stochastic events in the foreseeable future, nor did the petitioners provide any information regarding this. Consequently, in the absence of information identifying threats to the species and linking those threats to the rarity of the species, the Service does not consider rarity alone to be a threat.

        The petition also asserts that the 2006 and 2007 Candidate Notices of Review for C. c. rufa failed to discuss impacts of climate change to shorebirds or account for the potential destruction of habitat due to sea-level rise and other factors. The petition also asserts that the Service must consider these factors in its analysis (Petition, p. 4). However, the petition does not claim or provide any evidence that climate change is currently impacting, or is likely to impact, C. c. roselaari (Petition, pp. 4-5) in the foreseeable future. Sea-level rise is addressed above under Factor A.

        Besides sea-level rise, climate change could impact red knots as a consequence of the alteration of weather patterns, resulting in changes to habitat and environmental conditions, such as drying (and therefore potential loss) of breeding or intertidal habitat or alteration in prey availability. As an arctic nesting shorebird, C. c. roselaari is adapted to highly variable annual conditions on the breeding grounds (Meltofte et al. 2007, p. 11). In the short term, climatic amelioration could benefit Arctic shorebirds because earlier snowmelt and warmer summers increase both survival and productivity, for example by providing more food resources for adults and chicks on breeding grounds (Meltofte et al. 2007, p. 7). In the long term, habitat changes to both breeding and non-breeding areas could affect the subspecies negatively, but it is currently unknown to what extent shorebirds are able to adapt to rapidly changing climatic conditions (Meltofte et al. 2007, p. 34). In Alaska, C. c. roselaari currently nests in upland tundra habitat, which is drier than the Arctic coastal plain; thus, new habitat could become available on the Arctic coastal plain for this subspecies as habitat is lost in montane habitats. Weather variations are a natural occurrence and normally are not considered to be a threat to the persistence of a species unless the number of individuals is reduced to a very low level and the individuals are concentrated in an area that is subject to weather conditions that are likely to result in mortality or poor productivity or both (USFWS 2009, p. 30). While we expect climate change to continue into the future, and there could be a number of different types of effects on C. c. roselaari from climate change, the available information does not suggest that impacts from climate change are likely to result in population-level effects negatively impacting the subspecies. The petition does not present substantial information, nor do we have substantial information in our files, to suggest that climate change may threaten C. c. roselaari in the foreseeable future.

        In summary, we find that the information provided in the petition, as well as other information in our files, does not present “substantial scientific or commercial information” indicating that the petitioned action of listing the roselaari subspecies may be warranted due to other natural or manmade factors affecting its continued existence.
        Request To List a Broader Taxon Comprising Both the rufa and roselaari Subspecies

        We next evaluated whether the petition presents substantial information that the petitioned action of listing a broader taxon comprising both the rufa and roselaari subspecies may be warranted. However, the only taxonomic unit broader than a “subspecies” is a “species,” and the petition does not seek to have the red knot species, which consists of six subspecies, listed. As there is no broader taxonomic unit consisting of the C. c. rufa and roselaari subspecies together, the Service concludes that the petitioned action of listing a broader taxon comprising both the C. c. rufa and roselaari subspecies does not involve a listable entity under the Act. Accordingly, based on the information set forth in the petition, information in the Service's files, and other readily available information, the petition does not present substantial scientific or commercial information that the petitioned action of listing a broader taxon comprising the rufa and roselaari subspecies may be warranted.
        Request for National Listing Based on Similarity of Appearance

        The petitioner also seeks a “national listing based on similarity of appearance” under section 4(e) of the Act, “[g]iven the potential overlap of rufa and roselaari populations within the southeastern United States.” As a result, we have evaluated whether the petition presents substantial information that “a national listing” based on the similarity of appearance between the C. c. rufa and C. c. roselaari subspecies may be warranted.
        Under section 4(e) of the Act, a species not otherwise qualifying as endangered or threatened may be listed based on its close resemblance to a listed species if certain circumstances exist. Specifically, section 4(e) of the Act states, “The Secretary may, by regulation of commerce or taking, and to the extent that he deems advisable, treat any species as an endangered species or threatened species even though it is not listed pursuant to section 4 of the Act if he finds that—
        (A) Such species so closely resembles in appearance, at the point in question, a species which has been listed pursuant to such section that enforcement personnel would have substantial difficulty in attempting to differentiate between the listed and unlisted species;
        (B) The effect of this substantial difficulty is an additional threat to an endangered or threatened species; and
        (C) Such treatment of an unlisted species will substantially facilitate the enforcement and further the policy of this Act.”

        In short, a threshold requirement for listing a species under section 4(e) of the Act is that the species must closely resemble in appearance “a species which has been listed” such that enforcement personnel would have substantial difficulty in differentiating the listed and unlisted species. In this instance, however, neither C. c. rufa or C. c. roselaari are listed under the Act. Therefore, the petition does not present a basis for concluding that a resemblance between the two subspecies would create difficulty for enforcement personnel in attempting to differentiate between a listed and unlisted entity. More importantly, however, we are aware of no evidence, and none was provided by the petitioners, that commerce or taking of C. c. rufa (which, as a candidate species, may be listed in the near future) poses a threat to the subspecies, and that confusion with C. c. roselaari on the part of enforcement personnel contributes to this threat. All subspecies of red knots are protected by the MBTA and cannot legally be hunted, imported into, or exported from the United States. Accordingly, we find that the petition does not present substantial information that listing either C. c. rufa or C. c. roselaari based on their similarity of appearance to each other under section 4(e) of the Act may be warranted.
        Finding

        In summary, the petition does not present substantial information that the petitioned actions may be warranted. Specifically, the petition does not present substantial information that listing C. c. roselaari as endangered may be warranted because no specific information was provided on threats. The petition (p. 4) asserts that the Service should consider listing C. c. roselaari because its population “is small (probably less than 10,000) and therefore vulnerable.” However, uncertainty currently exists regarding the population size and trend of this subspecies. In addition, in the absence of information identifying threats to the subspecies and linking those threats to the rarity of the species, the Service does not consider rarity alone to be a threat.

        On the basis of our determination under section 4(b)(3)(A) of the Act, we conclude that the petition does not present “substantial scientific or commercial information” to indicate that listing C. c. roselaari under the Act may be warranted. Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with the conservation of C. c. roselaari. The Service is continuing to monitor the subspecies, and studies are ongoing. If new information on the status or distribution of C. c. roselaari is revealed at the conclusion of current studies, we will evaluate the new information. If you wish to provide information regarding C. c. roselaari, you may submit your information or materials to the Field Supervisor, Fairbanks Fish and Wildlife Field Office (see
          ADDRESSES), at any time.

        In addition, we find that the petition does not present substantial information that the petitioned action of listing “a broader taxon comprising both the rufa subspecies and the roselaari subspecies” may be warranted because the petitioned action does not involve a listable entity. Moreover, we find that the petition does not present substantial information that a “national listing based on similarity of appearance” under section 4(e) of the Act may be warranted because there is no listed species and, thus, no need for enforcement personnel to differentiate between a listed and unlisted entity. Additionally, the petition does not present substantial information that commerce or taking of C. c. rufa (which as a candidate species, may be listed in the near future) poses a threat to the subspecies, and that confusion with C. c. roselaari on the part of enforcement personnel contributes to this threat. All subspecies of red knots are protected by the MBTA and cannot legally be hunted, imported into, or exported from the United States. Accordingly, we find that the petition does not present substantial information that listing either C. c. rufa or C. c. roselaari based on their similarity of appearance to each other under section 4(e) of the Act may be warranted.
        References Cited

        A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Fairbanks Fish and Wildlife Field Office (see
          ADDRESSES).
        Authors

        The primary authors of this notice are the staff members of the Fairbanks Fish and Wildlife Field Office (see
          ADDRESSES).
        Authority

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

          Dated: December 8, 2010.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2010-33187 Filed 1-3-11; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU06
        Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period and notice of availability of draft economic analysis.

          SUMMARY:
          We, the U.S. Fish and Wildlife Service (Service), pursuant to the Endangered Species Act of 1973, as amended (Act), announce the reopening of the comment period on the proposal to designate critical habitat for four vernal pool crustaceans and eleven vernal pool plants in California and Southern Oregon, and the availability of the draft economic analysis of the proposed designation of critical habitat. The economic analysis identifies potential costs of approximately $992 million over or 20-year period or $87.5 million per year as a result of the designation of critical habitat, including those costs coextensive with listing. We are reopening the comment period for the proposal to designate critical habitat for these species to allow all interested parties an opportunity to comment simultaneously on the proposed rule and the associated draft economic analysis. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this comment period, and will be fully considered in the preparation of the final rule.

          DATES:
          We will accept public comments until July 20, 2005.

          ADDRESSES:
          Written comments and information may be submitted to us by any one of the following methods:
          1. You may submit written comments and information to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825;
          2. You may hand-deliver written comments and information to our office, at the above address during normal business hours;
          3. You may fax your comments to (916) 414-6710; or

          4. You may also send comments by electronic mail (e-mail) to fw1_vernalpool@fws.gov. Please see the “Public Comments Solicited” section below for file format and other information about electronic filing. In the event that our internet connection is not functional, please submit your comments by the alternate methods mentioned above.

          FOR FURTHER INFORMATION CONTACT:
          Arnold Roessler, Sacramento Fish and Wildlife Office, at the address above (telephone (916) 414-6600; facsimile (916) 414-6710).

        SUPPLEMENTARY INFORMATION:

        Public Comment Solicited

        The final economic analysis concerning the designation of critical habitat for four vernal pool crustaceans and eleven vernal pool plants in California and Southern Oregon will consider information and recommendations from all interested parties. We particularly seek comments concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of exclusion outweigh the benefits of specifying such area as part of critical habitat;
        (2) Assumptions reflected in the draft economic analysis regarding land use practices and current, planned, or reasonably foreseeable activities in the subject areas, including comments or information relating to the potential effects that the designation could have on private landowners as a result of actual or foreseeable State and local government responses due to the California Environmental Quality Act;
        (3) Land use practices and current, planned, or foreseeable activities in the subject areas and their possible impacts on proposed critical habitats;
        (4) Any foreseeable economic or other impacts resulting from the proposed designation of these critical habitats, including impacts that may not have been addressed in the draft economic analysis and, in particular, any impacts on small entities or families;
        (5) Economic and other values associated with designating critical habitat for these species;
        (6) The draft economic analysis notes that approximately 80 percent of the total costs are represented by 25 percent of the critical habitat. We are considering excluding those areas, which can be identified in Table IV-4 of the draft economic analysis as the 20 highest cost areas based on FIPS. Please comment as to whether the Secretary should exclude these areas based on the benefits associated with exclusion or inclusion of these areas in the final critical habitat which have not already been identified. The basis of the proposed exclusion that is being considered is purely economic;
        (7) Should the Secretary exclude the 35 highest cost areas based on the figures in Table IV-4 of the draft economic analysis? What are the benefits of exclusion or inclusion of these areas?
        (8) Should the Secretary exclude the 50 highest cost areas based on the figures in Table IV-4 of the draft economic analysis? What are the benefits of exclusion or inclusion of these areas?
        (9) Table IV-2 of the draft economic analysis details increases in the costs per home related to this critical habitat designation. In addition to any other exclusions, the Secretary is considering excluding any areas identified as experiencing a per-home increase in excess of $3,000 from the designation of critical habitat. Please identify and benefits related to the exclusion or inclusion of those areas;
        (10) Are there any benefits or costs of the proposed designation that the draft economic analysis fails to capture? Please provide as much information as possible related to any costs or benefits that were not identified; and
        (11) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

        All previous comments and information submitted during the initial comment period need not be resubmitted. Our final determination on the proposed critical habitat will take into consideration all comments and any additional information received. Refer to the ADDRESSES section above for information on how to submit written comments and information.
        Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. If you do not receive a confirmation from the system that we have received your email message, contact us directly by calling our Sacramento Fish and Wildlife Office at telephone number (916) 414-6600, during normal business hours.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this prominently at the beginning of your comments. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

        Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours, in our Sacramento Fish and Wildlife Office at the above address. You may obtain copies of the proposed rule and draft economic analysis from the above address, by calling (916) 414-6600, or from our Web site at http://sacramento.fws.gov/.

        Background

        On September 24, 2002, we proposed a total of 128 units of critical habitat for these 15 vernal pool species (Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), vernal pool fairy shrimp (Branchinecta lynchi), vernal pool tadpole shrimp (Lepidurus packardi), Butte County meadowfoam (Limnanthes floccosa ssp. californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's spurge (Chamaesyce hooveri), fleshy (or succulent) owl's-clover (Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass (Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass (Orcuttia tenuis), and Solano grass (Tuctoria mucronata)), totaling approximately 1,662,762 acres (ac) (672,920 hectares (ha)) in 36 counties in California and 1 county in Oregon (67 FR 59884). In accordance with our regulations at 50 CFR 424.16(c)(2), we opened a 60-day comment period on this proposal, which closed on November 25, 2002, but was subsequently extended until December 23, 2002. An economic analysis was completed on the proposed designation and the Draft Economic Analysis (DEA) was released to the public for comment on November 21, 2002 (67 FR 70201). The public comment period was reopened on March 14, 2003, for an additional 14 days (68 FR 12336).
        All the species listed above live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral freshwater habitats. None are known to occur in riverine waters, marine waters, or other permanent bodies of water. The vernal pool habitats of these species have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico. The species have all adapted to the generally mild climate and seasonal periods of inundation and drying that help make the vernal pool ecosystems of California and southern Oregon unique.

        Section 4(b)(2) of the Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefit of such exclusion outweighs the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned. During the development of the final designation, we reviewed the lands proposed as critical habitat based on public comments and any new information that may have become available and refined the boundaries of the proposal to remove lands determined not to be essential to the conservation of the 15 vernal pool species. We then took into consideration the potential economic impacts of the designation, impacts on national security, and other relevant factors such as partnerships and on-going management actions benefiting the species covered by the designation. Next, we determined that the benefits of excluding certain lands from the final designation of critical habitat for the 15 vernal pool species outweighed the benefit of including them in the designation, and the specific exclusions would not result in the extinction of any of the species involved. Lands excluded from the final designation based on policy and management plans or programs that provide a benefit to the species included: lands within specific National Wildlife Refuges and Fish Hatcheries; Department of Defense lands; Tribal lands; State Wildlife Areas and Ecological Reserves; and lands covered by habitat conservation plans or other management plans that provide a benefit for the species. We also excluded lands proposed as critical habitat in Butte, Madera, Merced, Sacramento, and Solano counties based on potential economic impacts.

        On July 15, 2003, we made a final determination of critical habitat for the 15 vernal pool species. On August 6, 2003, the final rule to designate critical habitat for 4 vernal pool crustaceans and 11 vernal pool plants was published in the Federal Register (68 FR 46684). The final designation included approximately 1,184,513 acres (ac) (417,989 hectares (ha)) of land within California and Southern Oregon. However, the area estimate did not reflect the exclusion of lands within the following counties: Butte, Madera, Merced, Sacramento, and Solano from the final designation pursuant to section 4(b)(2) of the Act. The final critical habitat designation with the five counties removed totaled approximately 739,105 ac (299,106 ha).
        In January 2004, Butte Environmental Council, and several other organizations, filed a complaint alleging that we: (1) Violated the Act, and the Administrative Procedure Act (APA), by excluding over 1 million acres from the final designation of critical habitat for the 15 vernal pool species; (2) violated mandatory notice-and-comment requirements under the Act and APA; and (3) have engaged in an unlawful pattern, practice, and policy by failing to properly consider the economic impacts of designating critical habitat. On October 28, 2004, the Court signed a Memorandum and Order that remanded the final designation to the Service in part. In particular, the court ordered us to: (1) Reconsider the exclusions from the final designation of critical habitat for the 15 vernal pool species, with the exception of those lands within the 5 California counties that were excluded based on potential economic impacts, and publish a new final determination as to those lands within 120 days; and (2) reconsider the exclusion of the five California counties based on potential economic impacts and publish a new final determination no later than July 31, 2005. The court also made it clear that the partial remand would not affect the areas included in the August 6, 2003, final designation (68 FR 46684).

        On December 28, 2004, we published a notice (69 FR 77700) that addressed the first requirement of the remand—the reconsideration of the non-economic exclusions from the final designation of critical habitat for the 15 vernal pool species, with the exception of those lands within the 5 California counties that were excluded based on potential economic impacts, and reopened the public comment period. The final non-economic exclusions were published in a Federal Register notice on March 8, 2005 (70 FR 11140). The second requirement of the order (economic exclusions) will be finalized by the July 31, 2005, court-ordered date.
        The current draft economic analysis estimates the foreseeable economic impacts of the critical habitat designation on government agencies and private businesses and individuals. The economic analysis identifies potential costs of approximately $992 million over or 20-year period or $87.5 million per year as a result of the designation of critical habitat, including those costs coextensive with listing. At this time the Service has not identified any areas to exclude under section 4(b)(2) of the Act. The Service will consider excluding areas if the benefits of excluding them from the critical habitat designation outweigh the benefits of including them. The economic analysis presents the Service's tentative conclusions with respect to the economic effects of the proposed critical habitat designation. The Service will not make any final decisions about exclusions, however, until it has obtained public comment on the economic analysis. The Service is interested in comments from the public on the economic analysis, on whether any of the areas identified in the economic analysis as having economic effects should be excluded for economic reasons, and whether those or any other areas should be excluded for other reasons. Reopening of the comment period will provide the public an opportunity to evaluate and comment on both the proposed rule and the draft economic analysis. Comments already submitted on the proposed designation of critical habitat for four vernal pool crustaceans and eleven vernal pool plants do not need to be resubmitted as they will be fully considered in the final determination.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, because the draft economic analysis suggests that the potential economic impacts of conservation activities related to this designation are anticipated to be $87.5 million per year, we do not anticipate that this designation will have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 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 effect 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 an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as 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 this proposed designation of critical habitat for the 15 vernal pool species would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., residential and commercial development, mining, sand and gravel, and agriculture). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our economic analysis of this proposed designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of these 15 vernal pool species and proposed designation of their critical habitat. We determined from our analysis that the small business entities that may be affected are firms in the new home construction sector. It appears that approximately three small businesses may be affected in Sacramento County, and one, or less than one, each in Butte, Solano, Stanislaus, Monterey, Contra Costa, Merced, and Tehama counties, for a total of approximately six firms. These firms may be affected by activities associated with the conservation of the 15 vernal pool species, inclusive of activities associated with listing, recovery, and critical habitat. In total, these small businesses account for approximately four percent of small businesses located in the potentially affected areas. In our previous final designation for these 15 vernal pool species 68 FR 46684; August 6, 2003), Butte, Madera, Merced, Sacramento, and Solano counties were excluded pursuant to section 4(b)(2) of the Act because we found that potentially disproportionate economic impacts from the designation in those counties outweighed the benefit of including those areas in the final designation. Approximately five of the six small business firms that may be affected by this designation occur in these counties. Thus, in the development of our final rule, we will explore potential alternatives to minimize impacts to these affected small business entities. These alternatives may include the exclusion of all or portions of critical habitat units in these counties. As such, we expect that the final designation of critical habitat for the 15 vernal pool species will not result in a significant impact on small business entities.
        Therefore, we believe that that the designation of critical habitat for the 15 vernal pool species will not result in a disproportionate effect to these small business entities. However, we are seeking comment on potentially excluding these areas from the final designation if it is determined that there will be a substantial and significant impact to small real estate development businesses in these particular watersheds.
        We determined that the critical habitat designation is expected to have the largest impacts on the market for developable land. Critical habitat for vernal pools occurs in a number of rapidly growing communities. Regulatory requirements to avoid onsite impacts and mitigate offsite impacts affect the welfare of both producers and consumers. Two scenarios are considered. In the first scenario, avoidance requirements are assumed to reduce the stock of new housing. Given the importance of regulation of housing development even in the absence of critical habitat, this scenario is taken as the base case. In this scenario, critical habitat is expected to impose losses of approximately $965 million relating to lost development opportunities over the 20-year study period, or approximately $85.2 million annually. An alternative scenario is constructed in which all avoidance requirements are accommodated through densification. In this case, welfare losses from critical habitat are $820.2 million over the 20-year study period.
        These economic impacts of critical habitat designation vary widely among the 35 affected counties, and even within counties. The counties most impacted by the critical habitat designation include: Sacramento ($374 million), Butte ($145 million), Placer ($120 million), Solano ($87 million), Fresno ($43 million), Madera ($33 million), Monterey ($29 million), Shasta ($20 million), Tehama ($19 million) and Merced ($16 million). Further, economic impacts are unevenly distributed within counties. The analysis was conducted at the census tract level, resulting in a high degree of spatial precision.
        Please refer to our draft economic analysis of this designation for a more detailed discussion of potential economic impacts.
        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues.

        Seventeen energy production facilities are planned or under construction in the counties with critical habitat. A Geographic Information System (GIS) analysis was used to compute their proximity to the nearest critical habitat designation. Fifteen of those plants are at least 1 mile from proposed critical habitat and are judged to be at low risk of disruption. The projects for the other two energy production facilities have been through the planning phases and are currently under construction. As such, the designation of critical habitat for these 15 vernal pool species is not expected to have additional impacts on these projects (please refer to the draft economic analysis for further discussion of these two facilities and our evaluation).
        On the basis of the information from our draft economic analysis, the designation of critical habitat for the 15 vernal pools is not expected to significantly affect any of these 17 energy production facilities, and thus not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) As discussed in the draft economic analysis of the proposed designation of critical habitat for the 15 vernal pool species, there are many small government entities located adjacent to the boundaries of the proposed designation. It is likely that small governments involved with developments and infrastructure projects will be interested parties or involved with projects involving section 7 consultations for the vernal pool species within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a city's budget. Consequently, we do not believe that the designation of critical habitat for the 15 vernal pool species will significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.
        The primary potential economic effects identified in the analysis identified the California Department of Transportation, energy production facilities, and the University of California as entities that may incur impacts. Please refer to the discussion above under Executive Order 13211 for our evaluation of potential affects on energy production facilites.
        The California Department of Transportation is planning to undertake a number of projects to build, upgrade, and maintain the state's road network in areas of vernal pool critical habitat. Drawing on typical mitigation requirements for past transportation projects, impacts of critical habitat on this type of activity are estimated to be $16.9 million.
        The University of California selected Merced County as its preferred location for its tenth campus. Over the last several years, a broad planning effort has been undertaken to determine the preferred location, size, design, and financing for both the core campus and the associated university community. Many variables for the project remain undetermined at this time. Possible sites for campus and community development will impact about 66.5 ac (26.9 ha) of wetted vernal pools, pools/swales, and seasonal wetlands. Preliminary estimates of mitigation costs for an early campus and community development prototype calculated the wetlands mitigation costs at about $135,000 per wetted acre affected. At this unit cost, total mitigation costs associated with the current estimate of wetted vernal pool loss would be about $10 million. These estimates were based on very approximate and preliminary assumptions. The actual mitigation and other costs associated with campus and community development will be determined over the next few years, as the Merced County Natural Community Conservation Plan/Habitat Conservation Plan is developed. At this time, the precise levels of conservation and mitigation associated with this project are not possible to predict until the Service has issued its Biological Opinion and the Army Corps of Engineers has approved a 404 permit for the project.
        Takings
        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the 15 vernal pool species. 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 permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for the vernal pool species does not pose significant takings implications.
        Author

        The primary authors of this notice are staff from the Sacramento Fish and Wildlife Office (see ADDRESSES section).

          Authority:

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

          Dated: June 23, 2005.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-12963 Filed 6-27-05; 3:05 pm]
      BILLING CODE 4310-55-P


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 1
        [GC Docket No. 20-221; FCC 20-92; FRS 17053]
        Updating the Commission's Ex Parte Rules; Correction

          AGENCY:
          Federal Communications Commission

          ACTION:
          Proposed rule; correction.

          SUMMARY:

          In this document, the Commission is correcting a date that appeared in the Federal Register on September 2, 2020. In this document, the Commission begins a new proceeding to consider several updates to the Commission's ex parte rules. First, the Commission seeks comment on a proposal to exempt from its ex parte rules, in certain proceedings, government-to-government consultations between the Commission and federally recognized Tribal Nations. Second, the Commission seeks comment on a proposal to extend the exemption to its ex parte rules for communications with certain program administrators, such as the Universal Service Administrative Company, to include the Toll-Free Numbering Administrator and the Reassigned Numbers Database Administrator, and to clarify the conditions under which this exemption applies. Third, the Commission seeks comment on a proposal to require that all written ex parte presentations and written summaries of oral ex parte presentations (other than presentations that are permitted during the Sunshine period) be submitted before the Sunshine period begins and to require that replies to these ex parte presentations be filed within the first day of the Sunshine period. The document contained incorrect dates.

          FOR FURTHER INFORMATION CONTACT:

          Mr. Max Staloff of the Office of General Counsel, at (202) 418-1764, or Max.Staloff@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        Correction
        In the Federal Register of September 2, 2020 in FR Doc. 20-17266, on page 54523, in the second column, correct the Dates caption to read:

          DATES:
          Comments due on or before October 2, 2020; reply comments due on or before October 19, 2020.

          Dated: September 2, 2020.

          Federal Communications Commission.
          Marlene Dortch,
          Secretary.

      [FR Doc. 2020-19949 Filed 9-16-20; 8:45 am]
      BILLING CODE 6712-01-P