Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76337

deletion in the preamble to the direct LBL also states that the proposed facility Commission consideration or court final Notice of Deletion, and those will increase the net total population review, all ex parte contacts (other than reasons are incorporated herein. If we served by the station by almost 700,000 ex parte presentations exempt under 47 receive no adverse comment(s) on this persons. LBL believes the grant of this CFR 1.1204(a)) are prohibited in deletion action, we will not take further petition would serve the public interest. Commission proceedings, such as this action on this Notice of Intent for DATES: Comments must be filed on or one, which involve channel allotments. Deletion. If we receive adverse before January 6, 2012, and reply See 47 CFR 1.1208 for rules governing comment(s), we will withdraw the comments on or before January 23, restricted proceedings. direct final Notice of Deletion and it 2012. For information regarding proper will not take effect. We will, as ADDRESSES: Federal Communications filing procedures for comments, see 47 appropriate, address all public Commission, Office of the Secretary, CFR 1.415 and 1.420. comments in a subsequent final Notice 445 12th Street SW., Washington, DC List of Subjects in 47 CFR Part 73 of Deletion based on this Notice of 20554. In addition to filing comments Intent for Deletion. We will not institute with the FCC, interested parties should Television, Television broadcasting. a second comment period on this Notice serve counsel for petitioner as follows: Federal Communications Commission of Intent for Deletion. Any parties Howard M. Liberman, Esq., Drinker Barbara A. Kreisman, interested in commenting must do so at Biddle & Reath, 1500 K Street NW., Chief, Video Division, Media Bureau. this time. Suite 1100, Washington, DC 20005. Proposed Rules For additional information, see the FOR FURTHER INFORMATION CONTACT: direct final Notice of Deletion which is Joyce L. Bernstein, For the reasons discussed in the located in the Rules section of this [email protected], Media Bureau, preamble, the Federal Communications Federal Register. (202) 418–1647. Commission proposes to amend 47 CFR List of Subjects in 40 CFR Part 300 SUPPLEMENTARY INFORMATION: This is a Part 73 as follows: Environmental protection, Air synopsis of the Commission’s Notice of Proposed Rule Making, MB Docket No. PART 73—RADIO BROADCAST pollution control, Chemicals, Hazardous SERVICES waste, Hazardous substances, 11–192, adopted November 21, 2011, Intergovernmental relations, Penalties, and released November 22, 2011. The 1. The authority citation for Part 73 Reporting and recordkeeping full text of this document is available for continues to read as follows: public inspection and copying during requirements, Superfund, Water normal business hours in the FCC’s Authority: 47 U.S.C. 154, 303, 334, 336, pollution control, Water supply. and 339. Reference Information Center at Portals Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. II, CY–A257, 445 12th Street SW., § 73.622(i) [Amended] 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, Washington, DC 20554. This document 2. Section 73.622(i), the Post- 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; will also be available via ECFS (http:// 3 CFR, 1987 Comp., p. 193. Transition Table of DTV Allotments www.fcc.gov/cgb/ecfs/). (Documents under Nebraska is amended by Dated: November 14, 2011. will be available electronically in ASCII, removing channel 51 and adding Al Armendariz, Word 97, and/or Adobe Acrobat.) This channel 15 at Lincoln. Regional Administrator, Region 6. document may be purchased from the [FR Doc. 2011–31403 Filed 12–6–11; 8:45 am] [FR Doc. 2011–31266 Filed 12–6–11; 8:45 am] Commission’s duplicating contractor, BILLING CODE 6712–01–P BILLING CODE 6560–50–P Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone DEPARTMENT OF THE INTERIOR FEDERAL COMMUNICATIONS 1–(800) 478–3160 or via email http:// COMMISSION www.BCPIWEB.com. To request this document in accessible formats Fish and Wildlife Service 47 CFR Part 73 (computer diskettes, large print, audio recording, and Braille), send an email to 50 CFR Part 17 [MB Docket No. 11–192, RM–11646; DA 11– [email protected] or call the Commission’s [Docket No. FWS–R8–ES–2011–0097; 1924] Consumer and Governmental Affairs 4500030114] Bureau at (202) 418–0530 (voice), (202) Television Broadcasting Services; RIN 1018–AX41 Lincoln, NE 418–0432 (TTY). This document does not contain proposed information Endangered and Threatened Wildlife AGENCY: Federal Communications collection requirements subject to the and Plants; Designation of Critical Commission. Paperwork Reduction Act of 1995, Habitat for Lost River Sucker and ACTION: Proposed rule. Public Law 104–13. In addition, Shortnose Sucker therefore, it does not contain any SUMMARY: The Commission has before it proposed information collection burden AGENCY: Fish and Wildlife Service, a petition for rulemaking filed by ‘‘for small business concerns with fewer Interior. Lincoln Broadcasting, LLC (‘‘LBL’’), the than 25 employees,’’ pursuant to the ACTION: Proposed rule; reproposal. licensee of KFXL–TV, channel 51, Small Business Paperwork Relief Act of Lincoln, Nebraska, requesting the 2002, Public Law 107–198, see 44 U.S.C. SUMMARY: We, the U.S. Fish and substitution of channel 15 for channel 3506(c)(4). Wildlife Service (Service), propose to 51 at Lincoln. LBL’s proposal complies Provisions of the Regulatory designate critical habitat for the Lost with the Commission announcement Flexibility Act of 1980 do not apply to River sucker (Deltistes luxatus) and that it would lift the current freeze on this proceeding. Members of the public shortnose sucker (Chasmistes the acceptance of channel substitution should note that from the time a Notice brevirostris) under the Endangered rulemaking proceeding for petitions of Proposed Rule Making is issued until Species Act of 1973, as amended (Act). proposing to relocate from channel 51. the matter is no longer subject to In total, we are proposing as critical

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76338 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

habitat approximately 146 miles (234 Therefore, we request comments or critical habitat in any way to provide for kilometers) of streams and 117,848 acres information from government agencies, greater public participation and (47,691 hectares) of lakes and reservoirs the scientific community, industry, or understanding, or to better for Lost River sucker and approximately any other interested party concerning accommodate public concerns and 128 miles (207 kilometers) of streams this proposed rule. We particularly seek comments. and 123,590 acres (50,015 hectares) of comments concerning: You may submit your comments and lakes and reservoirs for shortnose (1) The reasons why we should or materials concerning this proposed rule sucker. The proposed critical habitat is should not designate habitat as ‘‘critical by one of the methods listed in the located in Klamath and Lake Counties, habitat’’ under section 4 of the Act (16 ADDRESSES section. We will not accept Oregon, and Modoc County, California. U.S.C. 1531 et seq.), including whether comments sent by email or fax or to an On December 1, 1994, we published there are threats to the species from address not listed in the ADDRESSES proposed critical habitat for Lost River human activity, the degree of which can section. We will post your entire sucker and shortnose sucker. This new be expected to increase due to the comment—including your personal proposed rule uses updated information designation, and whether that increase identifying information—on http:// concerning Lost River sucker’s and in threat outweighs the benefit of www.regulations.gov. You may request shortnose sucker’s ecology, as well as designation such that the designation of at the top of your document that we the technological advancements made critical habitat may not be prudent. withhold personal information such as available since preparing the 1994 (2) Specific information on: your street address, phone number, or proposed rule, to inform our proposed (a) The amount and distribution of email address from public review; critical habitat designation for Lost Lost River sucker and shortnose sucker however, we cannot guarantee that we River sucker and shortnose sucker. habitat; will be able to do so. (b) What areas, that were occupied at Comments and materials we receive, DATES: We will accept comments as well as supporting documentation we received or postmarked on or before the time of listing (or are currently used in preparing this proposed rule, February 6, 2012. We must receive occupied) contain physical and will be available for public inspection requests for public hearings, in writing, biological features essential to the conservation of the species, should be on http://www.regulations.gov, or by at the address shown in the FOR FURTHER included in the designation and why; appointment, during normal business INFORMATION CONTACT section by January (c) Special management hours, at the U.S. Fish and Wildlife 23, 2012. considerations or protection that may be Service, Klamath Falls Fish and Wildlife ADDRESSES: You may submit comments needed for the physical and biological Office (see FOR FURTHER INFORMATION by one of the following methods: features essential to the conservation of CONTACT). (1) Electronically: Go to the Federal the species in critical habitat areas we Background eRulemaking Portal: http:// are proposing, including managing for www.regulations.gov. In the Enter the potential effects of climate change; It is our intent to discuss only those Keyword or ID box, enter Docket No. and topics directly relevant to the FWS–R8–ES–2011–0097, which is the (d) What areas not occupied at the designation of critical habitat for these docket number for this rulemaking. time of listing that meet our criteria for species in this proposed rule. For (2) By hard copy: Submit by U.S. mail being essential for the conservation of further information on the Lost River or hand-delivery to: Public Comments the species should be included in the sucker’s and shortnose sucker’s biology Processing, Attn: FWS–R8–ES–2011– designation and why. and habitat, population abundance and 0097; Division of Policy and Directives (3) Land use designations and current trend, distribution, demographic Management; U.S. Fish and Wildlife or planned activities in the subject areas features, habitat use and conditions, Service; 4401 N. Fairfax Drive, MS and their possible impacts on proposed threats, and conservation measures, 2042–PDM; Arlington, VA 22203. critical habitat. please see the final listing rule (53 FR We will not accept email or faxes. We (4) Information on the projected and 27130; July 18, 1988), the 2007 5–year will post all comments on http:// reasonably likely impacts of climate reviews completed for the Lost River www.regulations.gov. This generally change on the Lost River sucker and sucker and shortnose sucker (Service means that we will post any personal shortnose sucker, the features essential 2007a and 2007b), and the Draft Revised information you provide us (see the to its conservation, and the areas Lost River Sucker and Shortnose Sucker Public Comments section below for proposed as critical habitat. Recovery Plan (Service 2011). These more information). (5) Whether any specific areas we are documents are available on the Klamath FOR FURTHER INFORMATION CONTACT: proposing for critical habitat Falls Fish and Wildlife Office web site Laurie R. Sada, Field Supervisor, U.S. designation should be considered for at http://www.fws.gov/klamathfallsfwo/ Fish and Wildlife Service, Klamath Falls exclusion under section 4(b)(2) of the or on the Environmental Conservation Fish and Wildlife Office, 1936 Act, and whether the benefits of Online System http://ecos.fws.gov/ecos/ California Avenue, Klamath Falls, OR potentially excluding any specific area indexPublic.do). 97601; telephone 541–885–8481; outweigh the benefits of including that Lost River sucker and shortnose facsimile 541–885–7837. If you use a area under section 4(b)(2) of the Act; sucker are members of the fish family telecommunications device for the deaf (6) Any probable economic, national Catostomidae and are endemic to the (TDD), call the Federal Information security, environmental, cultural, or upper Klamath River basin (National Relay Service (FIRS) at 800–877–8339. other relevant impacts of designating as Research Council of the National SUPPLEMENTARY INFORMATION: critical habitat any area that may be Academies (NRC) 2004, pp. 184, 189). included in the final designation. In Both species predominantly inhabit lake Public Comments particular, we seek information on any environments but also utilize riverine, We intend that any final action impacts on small entities, and the marsh, and shoreline habitats for resulting from this proposed rule will be benefits of including or excluding areas portions of their life history. Lost River based on the best scientific and that exhibit these impacts; and sucker and shortnose sucker spawn in commercial data available and be as (7) Whether we could improve or the spring in rivers and creeks in areas accurate and as effective as possible. modify our approach to designating with a moderate velocity of water flow

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76339

containing gravel or cobble substrate at recovery plan for the Lost River sucker the use of all methods and procedures depths less than 1.3 meters (m) (4.3 feet and shortnose sucker was released in that are necessary to bring an (ft)) (Moyle 2002, pp. 200, 204). In 2011 (Service 2011). endangered or threatened species to the addition, a small group of Lost River On September 9, 1991, the Service point at which the measures provided sucker spawns at several shoreline received a 60–day notice of intent to sue pursuant to the Act are no longer springs along the eastern portion of from the Oregon Natural Resources necessary. Such methods and Upper Klamath Lake (Janney et al. 2008, Council (ONRC) for failure to prepare a procedures include, but are not limited p. 1813). recovery plan and to designate critical to, all activities associated with Lost River sucker are distributed habitat for the Lost River sucker and scientific resources management such as within Upper Klamath Lake and its shortnose sucker. On November 12, research, census, law enforcement, tributaries (Klamath County, Oregon), 1991, ONRC filed suit in Federal Court habitat acquisition and maintenance, Clear Lake Reservoir and its tributaries (Wendell Wood et al. v. Marvin Plenert, propagation, live trapping, and (Modoc County, California), Tule Lake et al. (Case No. 91–06496–TC (D. Or.))). transplantation, and, in the (Siskiyou and Modoc Counties, The Service entered into a settlement extraordinary case where population California), Lost River (Klamath County, agreement and agreed to complete a pressures within a given ecosystem Oregon, and Modoc County, California), final recovery plan by March 1, 1993, cannot be otherwise relieved, may Link River (Klamath County, Oregon), and a proposal to designate critical include regulated taking. and the Klamath River mainstem, habitat on or before March 10, 1994, and Critical habitat receives protection including Keno, J.C. Boyle, Copco, and publish a final critical habitat rule by under section 7 of the Act through the Iron Gate Reservoirs (Klamath County, November 29, 1994. requirement that Federal agencies Oregon, and Siskiyou County, On December 1, 1994, we published insure, in consultation with the Service, California; Moyle 2002, p. 199; NRC proposed critical habitat for Lost River that any action they authorize, fund, or 2004, pp. 190–192). The distribution of sucker and shortnose sucker (59 FR carry out is not likely to result in the shortnose sucker overlaps with that of 61744); that proposal was never destruction or adverse modification of Lost River sucker, but shortnose sucker finalized. The ONRC (now known as critical habitat. The designation of also occurs in Gerber Reservoir Oregon Wild) recently contacted the critical habitat does not affect land (Klamath County, Oregon) and upper Department of Justice and requested that ownership or establish a refuge, Willow Creek (Modoc County, we issue a final critical habitat rule wilderness, reserve, preserve, or other California, and Lake County, Oregon), a within a reasonable amount of time. On conservation area. Such designation tributary to Clear Lake Reservoir May 10, 2010, a settlement agreement does not allow the government or public (Buettner and Scoppettone 1991, p. 18; was reached that stipulated the Service to access private lands. Such Moyle 2002, p. 203; NRC 2004, pp. 190– submit a final rule designating critical designation does not require 192). habitat for the Lost River sucker and the implementation of restoration, recovery, Lost River sucker and shortnose shortnose sucker to the Federal Register or enhancement measures by non- sucker were once widespread in the no later than November 30, 2012 (Wood Federal landowners. Where a landowner upper Klamath River basin and were et al. v. Thorson et al., No. 91–cv–6496– seeks or requests Federal agency important to subsistence, commercial, TC (D. Or.)). Given this settlement funding or authorization for an action and recreational fishers (Moyle 2002, agreement, advancement in our that may affect a listed species or pp. 200–201, 204; Service 2011, pp. 1, understanding of Lost River sucker’s critical habitat, the consultation 28–29). Lost River sucker and shortnose and shortnose sucker’s ecology, and the requirements of section 7(a)(2) would sucker have been extirpated from technological advancements made apply, but even in the event of a portions of their historic range (Moyle available since preparing the former destruction or adverse modification 2002, pp. 200, 204), and previous efforts proposed rule, we now issue a new finding, the obligation of the Federal to monitor angler catch rates have proposed critical habitat rule. action agency and the landowner is not indicated extreme population declines to restore or recover the species, but to relative to former levels (Scoppettone Critical Habitat implement reasonable and prudent and Vinyard 1991, p. 367; NRC 2004, p. alternatives to avoid destruction or Background 203). Putative factors for declines adverse modification of critical habitat. include introduction of exotic species Critical habitat is defined in section 3 For inclusion in a critical habitat and habitat loss and alteration, of the Act as: designation, the habitat within the primarily due to construction of dams, (1) The specific areas within the geographical area occupied by the water diversions, and draining of geographical area occupied by the species at the time it was listed must wetlands (Scoppettone and Vinyard species, at the time it is listed in contain physical and biological features 1991, pp. 368–369, 371; Moyle 2002, pp. accordance with the Act, on which are which are essential to the conservation 200–201, 204). found those physical or biological of the species and which may require features special management considerations or Previous Federal Actions (a) Essential to the conservation of the protection. Critical habitat designations The Lost River sucker and shortnose species and identify, to the extent known using the sucker were listed as endangered on (b) Which may require special best scientific and commercial data July 18, 1988 (53 FR 27130). A recovery management considerations or available, those physical and biological plan for Lost River sucker and shortnose protection; and features that are essential to the sucker was finalized on March 17, 1993 (2) Specific areas outside the conservation of the species (such as (Service 1993). Five-year reviews for the geographical area occupied by the space, food, cover, and protected Lost River sucker and shortnose sucker species at the time it is listed, upon a habitat), focusing on the principal were completed on July 19, 2007 (73 FR determination that such areas are biological or physical constituent 11945; March 5, 2008). A considerable essential for the conservation of the elements (primary constituent elements) amount of scientific information has species. within an area that are essential to the been collected since the 1993 recovery Conservation, as defined under conservation of the species (such as plan and an updated, revised draft section 3 of the Act, means to use and roost sites, nesting grounds, seasonal

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76340 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

wetlands, water quality, tide, soil type). materials and expert opinion or We recognize that critical habitat Primary constituent elements are the personal knowledge. designated at a particular point in time elements of physical and biological Habitat is dynamic, and species may may not include all of the habitat areas features that, when laid out in the move from one area to another over that we may later determine are appropriate quantity and spatial time. Climate change will be a particular necessary for the recovery of the arrangement to provide for a species’ challenge for biodiversity because the species. For these reasons, a critical life-history processes, are essential to interaction of additional stressors habitat designation does not signal that the conservation of the species. associated with climate change and habitat outside the designated area is Under the Act, we can designate current stressors may push species unimportant or may not be required for critical habitat in areas outside the beyond their ability to survive (Lovejoy recovery of the species. Areas that are geographical area occupied by the 2005, pp. 325–326). The synergistic important to the conservation of the species at the time it is listed, upon a implications of climate change and species, both inside and outside the determination that such areas are habitat fragmentation are the most critical habitat designation, will essential for the conservation of the threatening facet of climate change for continue to be subject to: (1) species. We designate as critical habitat biodiversity (Hannah et al. 2005, p.4). Conservation actions implemented areas outside the geographical area Current climate change predictions for under section 7(a)(1) of the Act, (2) presently occupied by a species only terrestrial areas in the Northern regulatory protections afforded by the when a designation limited to its Hemisphere indicate warmer air requirement in section 7(a)(2) of the Act present range would be inadequate to temperatures, more intense for Federal agencies to insure their ensure the conservation of the species. precipitation events, and increased actions are not likely to jeopardize the When the best available scientific data summer continental drying (Field et al. continued existence of any endangered do not demonstrate that the 1999, pp. 1–3; Hayhoe et al. 2004, p. or threatened species, and (3) the conservation needs of the species 12422; Cayan et al. 2005, p. 6; prohibitions of section 9 of the Act if require such additional areas, we will Intergovernmental Panel on Climate actions occurring in these areas may not designate critical habitat in areas Change (IPCC) 2007, p. 1181). Climate affect the species. Federally funded or outside the geographical area occupied change may lead to increased frequency permitted projects affecting listed by the species. An area currently and duration of severe storms and species outside their designated critical occupied by the species but that was not droughts (McLaughlin et al. 2002, p. habitat areas may still result in jeopardy occupied at the time of listing may, 6074; Cook et al. 2004, p. 1015; findings in some cases. These however, be essential to the Golladay et al. 2004, p. 504). protections and conservation tools will The specific effects of climate change conservation of the species and may be continue to contribute to recovery of on the upper Klamath River basin have included in the critical habitat this species. Similarly, critical habitat not been thoroughly investigated; designation. designations made on the basis of the however, potential effects include best available information at the time of Section 4 of the Act requires that we increased temperatures, drier summers, designation will not control the designate critical habitat on the basis of and higher snowpack elevation direction and substance of future the best scientific and commercial data (Koopman et al. 2009, p. 3). As a result recovery plans, habitat conservation available. Further, our Policy on of increased temperatures, it is plans (HCPs), or other species Information Standards Under the anticipated the peak spring runoff of conservation planning efforts if new Endangered Species Act (published in tributary streams will shift earlier in the information available at the time of the Federal Register on July 1, 1994 (59 year from spring to late winter (Poff et these planning efforts calls for a FR 34271)), the Information Quality Act al. 2002, p. 11). Thus, we anticipate Lost (section 515 of the Treasury and General River sucker and shortnose sucker may different outcome. Government Appropriations Act for experience altered timing of spawning Physical or Biological Features Fiscal Year 2001 (Pub. L. 106–554; H.R. migrations, i.e., spawning migrations In accordance with sections 3(5)(A)(i) 5658)), and our associated Information may occur earlier in the year. and 4(b)(1)(A) of the Act and regulations Quality Guidelines, provide criteria, Furthermore, altered stream flow into establish procedures, and provide lakes may lead to lower lake levels (Poff at 50 CFR 424.12, in determining which guidance to ensure that our decisions et al. 2002, p. 15). Lower lake levels may areas within the geographical area are based on the best scientific data prevent fish from accessing refugia or occupied by the species at the time of available. They require our biologists, to shoreline spawning areas, such as listing to designate as critical habitat, the extent consistent with the Act and spring-influenced habitat, that may be we consider the physical and biological with the use of the best scientific data important during periods of poor water features essential to the conservation of available, to use primary and original quality (Banish et al. 2009, p. 165). As the species which may require special sources of information as the basis for lakes warm in response to increased management considerations or recommendations to designate critical temperatures, algal production increases protection. These include, but are not habitat. (Poff et al. 2002, p. 13), which may limited to: When we are determining which areas exacerbate hypereutrophic (nutrient (1) Space for individual and should be designated as critical habitat, rich) systems, such as Upper Klamath population growth and for normal our primary source of information is Lake. Nuisance algal blooms are already behavior; generally the information developed considered a threat to Lost River sucker (2) Food, water, air, light, minerals, or during the listing process for the and shortnose sucker (Perkins et al. other nutritional or physiological species. Additional information sources 2000, pp. 24–25, 30), and therefore may requirements; may include the recovery plan for the be a heightened threat in the face of (3) Cover or shelter; species, articles in peer-reviewed climate change. Diseases such as gill rot (4) Sites for breeding, reproduction, or journals, conservation plans developed caused by the Columnaris bacterium rearing (or development) of offspring; by States and counties, scientific status also are likely to become more of a and surveys and studies, biological concern with higher water temperatures (5) Habitats that are protected from assessments, or other unpublished (NRC 2004, p. 201). disturbance or are representative of the

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76341

historical, geographical, and ecological historical Lost River sucker habitat for in sufficient quantity and diversity to distributions of a species. individuals migrating in the mainstem meet the nutritional and physiological We derive the specific physical or Lost River. In contrast, construction of requirements necessary to maintain Lost biological features required for Lost hydroelectric dams on the mainstem River sucker and shortnose sucker River sucker and shortnose sucker from Klamath River and construction of Clear populations. Therefore, based on the studies of this species’ habitat, ecology, Lake Reservoir likely have increased the information above, we identify an and life history as described below. amount of available habitat. abundant food base, including a broad Additional information can be found in Because shortnose sucker share the array of chironomids, micro- the final listing rule published in the same habitats as Lost River sucker, the crustaceans, and other small aquatic Federal Register on July 18, 1988 (53 FR lakes, reservoirs, streams, marshes, and macroinvertebrates, to be a biological 27130), and the Draft Revised Recovery spring habitats with migratory corridors feature necessary for both Lost River Plan for the Lost River Sucker and between these habitats also provide sucker and shortnose sucker. Shortnose Sucker (Service 2011). We space for individual and population have determined that Lost River sucker growth and for normal behavior of Cover or Shelter and shortnose sucker require the shortnose sucker. Therefore, based on The cover and shelter components, following physical or biological the information above, we identify including emergent vegetation and features: lakes, reservoirs, streams, marshes, and depth, are the same for shortnose sucker spring habitats with migratory corridors as for Lost River sucker. Lost River Space for Individual and Population between these habitats to be a physical sucker and shortnose sucker larvae Growth and for Normal Behavior or biological feature essential for the density is generally higher within and Lakes, streams, marshes, and spring conservation of both Lost River sucker adjacent to emergent vegetation than in habitats with migratory corridors and shortnose sucker. areas devoid of vegetation (Cooperman between these habitats provide space for and Markle 2004, p. 374; Crandall et al. individual and population growth and Food, Water, Air, Light, Minerals, or 2008, p. 413; Erdman and Hendrixson for normal behavior of Lost River Other Nutritional or Physiological 2009, p. 18; Cooperman et al. 2010, p. sucker. Requirements 34). Emergent vegetation provides cover Lost River sucker spend most of their Adult Lost River sucker have from predators and habitat for prey such lives within lakes although they subterminal mouths and gill raker as zooplankton, macroinvertebrates, and primarily spawn in streams (Moyle structures that are adapted for feeding periphyton (Klamath Tribes 1996, p. 12; 2002, p. 199). Spawning occurs in late primarily on benthic macroinvertebrates Cooperman and Markle 2004, p. 375). winter and early spring in major in lake environments (NRC 2004, p. Such areas also may provide refuge from tributaries to lakes where they occur. In 190). Prey selection, however, appears wind-blown current and turbulence, as addition, a small proportion of Lost to be a function of developmental shifts well as areas of warmer water River sucker utilize spring areas within in habitat use. Lost River sucker larvae temperature, which may facilitate larval Upper Klamath Lake for spawning feed near the surface of the water growth (Cooperman and Markle 2004, p. (Janney et al. 2008, p. 1813). After column, primarily on chironomids 375; Crandall 2004, p. 7; Cooperman et hatching, larval Lost River sucker drift (commonly called ‘‘midges’’; a family of al. 2010, pp. 35–36). downstream within spawning small flies whose larval and pupal Different life stages use different tributaries and reach lakes by mid- stages are mainly aquatic) (Markle and water depths as cover or shelter. summer. Larval habitat is generally Clauson 2006, pp. 494–495). Juvenile Juvenile Lost River sucker and along the shoreline, in water 10 Lost River sucker rely less on surface- shortnose sucker primarily use centimeters (cm) to 50 cm (6 inches (in) oriented feeding and shift to prey items relatively shallow (less than to 20 in) deep where emergent from benthic areas. For instance, Markle approximately 1.2 m (3.9 ft)) vegetated vegetation provides cover from and Clauson (2006, pp. 495–496) areas, but may also begin to move into predators, protection from currents and documented that juvenile Lost River deeper, unvegetated, off-shore habitats turbulence, and abundant food suckers consumed chironomid larvae as (Buettner and Scoppettone 1990, pp. 33, (Cooperman and Markle 2004, p. 375). well as micro-crustaceans (amphipods, 51; Markle and Clauson 2006, p. 499). As larval suckers grow into the juvenile copepods, cladocerans, and ostracods). Data from Upper Klamath Lake indicate stage, they increasingly use deeper As adults, Lost River sucker consume juveniles of less than 1 year often are habitat with and without emergent many of these same items (Moyle 2002, found at depths less than 1.0 m (3 ft) in vegetation. Adult Lost River sucker pp. 199–200). May and June, but shift in late July to primarily use deep (greater than 2.0 m Shortnose sucker have terminal water 1.5 to 2.0 m (5 to 6.5 ft) deep (6.6 ft)), open-water habitat as well as mouths and gill raker structures adapted (Burdick and Brown 2010, p. 50; no spring-influenced habitats that act as for feeding on zooplankton (Moyle 2002, similar data exist from other occupied refugia during poor water quality events p. 203; NRC 2004, p. 190). Similar to water bodies). Similarly, 1-year-old (Banish et al. 2009, pp. 159–161, 165). Lost River sucker, shortnose sucker also juveniles occupy shallow habitats Reservoirs also figure prominently in exhibit an ontogenetic shift in prey during April and May, but may move meeting the requirements for space for selection (Markle and Clauson 2006, pp. into deeper areas along the western individual and population growth and 494–495). Adult shortnose sucker also shore of Upper Klamath Lake (e.g., Eagle for normal behavior of Lost River consume many of the same prey items Ridge trench) until dissolved oxygen sucker. Much of the upper Klamath as juveniles, including chironomid levels become reduced in mid- to late- River basin landscape has been larvae, amphipods, copepods, July (Bottcher and Burdick 2010, p. 17; hydrologically altered since Anglo- cladocerans, and ostracods (Moyle 2002, Burdick and VanderKooi 2010, p. 13). European settlement, including p. 203; Markle and Clauson 2006, pp. Juveniles then appear to move into construction of reservoirs. Some 494–495). shallower habitat along the eastern reservoirs have adversely affected Lost Habitats must provide the necessary shore or main part of Upper Klamath River sucker, while others may provide conditions, including water with Lake (Bottcher and Burdick 2010, p. 17). benefits. For example, the dam on sufficient phytoplankton and fine It is assumed that sub-adults, i.e., Malone Reservoir blocks access to aquatic substrate, to harbor prey species individuals that display all of the

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76342 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

characteristics of adults with the off-shore habitats as they grow (Buettner groundwater sources, and refugia exception of reproductive maturity and and Scoppettone 1990, pp. 32–33; NRC habitats with minimal physical, reproductive structures (e.g., tubercles), 2004, p. 198). biological, or chemical impediments to utilize habitats similar to adults (NRC Throughout their range, shortnose connectivity. Water should exhibit 2004, p. 199). Adult Lost River sucker sucker ascend large tributary streams to depths ranging from less than 1.0 m and shortnose sucker inhabit water spawn, generally from February through (3.28 ft) up to 4.5 m (14.8 ft) to depths of 0.9 to 4.8 m (3.0 to 15.7 ft) May, often corresponding with spring accommodate each life stage. The water (Reiser et al. 2001, p. 5–26; Banish et al. snowmelt (Moyle 2002, p. 204; NRC quality characteristics should include 2009, p. 161). In addition, cover (e.g., 2004, p. 194). Shortnose sucker have water temperatures of less than 28.0 large woody debris) is sparse in many of been documented migrating upstream as °Celsius (82.4 °F); pH less than 9.75; the lentic habitats occupied by adult far as 13 km (8 mi) in the Sprague River dissolved oxygen levels greater than 4.0 Lost River sucker and shortnose sucker, (Ellsworth et al. 2007, p. 20). Spawning mg per L; algal toxins (less than 1.0 so water depth or turbidity may provide at shoreline springs in Upper Klamath microgram (mg) per L); and un-ionized concealment from avian predators Lake by shortnose sucker is presently ammonia (less than 0.5 mg per L). (Banish et al. 2009, p. 164). rare (NRC 2004, p. 194). In lotic habitat, Elements also include natural flow Therefore, based on the information spawning occurs in similar habitat as regimes that provide flows during the above, we identify lakes and reservoirs Lost River sucker spawning, although appropriate time of year or, if flows are with adequate amounts of emergent spawning may occur in areas with controlled, minimal flow departure from vegetation of appropriate depth and greater stream flow (up to 125 cm per a natural hydrograph. water quality to provide for cover and second (4.1 ft per second); Moyle 2002, (2) Spawning and rearing habitat. shelter as described above to be a p. 204). At shoreline spring habitat, Streams and shoreline springs with physical or biological feature for Lost spawning occurs over similar substrate gravel and cobble substrate at depths River sucker and shortnose sucker. and at similar depths to Lost River typically less than 1.3 m (4.3 ft) with sucker spawning. Females broadcast Sites for Breeding, Reproduction, or adequate stream velocity to allow their eggs, which are fertilized most Rearing (or Development) of Offspring spawning to occur. Areas identified in commonly by two accompanying males PCE1 containing emergent vegetation Throughout their range, Lost River (Buettner and Scoppettone 1990, p. 44). sucker ascend large tributary streams to adjacent to open water that provides Larval out-migration, and larval and habitat for rearing . This facilitates spawn, generally from February through juvenile rearing patterns, are similar to April, often corresponding with spring growth and survival of suckers, as well Lost River sucker (Buettner and as protection from predation and snowmelt (Moyle 2002, p. 200; NRC Scoppettone 1990, p. 51; Cooperman 2004, p. 194). They have been protection from currents and and Markle 2004, pp. 374–375; NRC turbulence. documented migrating upstream as 2004, p. 198; Ellsworth et al. 2010, pp. (3) Food. Areas that contain an many as 120 kilometers (km) in the 51–52). Sprague River (75 miles (mi)) (Ellsworth Therefore, based on the information abundant forage base, including a broad et al. 2007, p. 20). Beginning at the same above, we identify accessible lake and array of chironomidae, crustacea, and time, a segment of the Lost River sucker river spawning locations with suitable other aquatic macroinvertebrates. population uses shoreline areas affected water flow, gravel and cobble substrate, With this proposed designation of by input of spring discharge for and water depth (as well as flowing critical habitat, we intend to identify the spawning in Upper Klamath Lake water) for larval out-migration and physical and biological features (Janney et al. 2008, p. 1813). In rivers, juvenile rearing habitat as described essential to the conservation of the spawning occurs in riffles and pools above to be physical features for both species, through the identification of the over gravel and cobble substrate at Lost River sucker and shortnose sucker. appropriate quantity and spatial depths less than 1.3 m (4.3 ft) and arrangement of the primary constituent velocities up to 85 cm per second (2.8 Primary Constituent Elements for Lost elements sufficient to support the life- ft per second; Buettner and River Sucker and Shortnose Sucker history processes of the species. Scoppettonne 1990, p. 20; Moyle 2002, Under the Act and its implementing Special Management Considerations or p. 200; NRC 2004, p. 194). At shoreline regulations, we are required to identify Protection spring habitat, spawning occurs over the physical and biological features similar substrate and at similar depths. essential to the conservation of Lost When designating critical habitat, we Females broadcast their eggs, which are River sucker and shortnose sucker in assess whether the specific areas within fertilized most commonly by two areas occupied at the time of listing, the geographical area occupied by the accompanying males (Buettner and focusing on the features’ primary species at the time of listing contain Scoppettone 1990, p. 17). The fertilized constituent elements. We consider features which are essential to the eggs settle within the top few inches of primary constituent elements to be the conservation of the species and which the substrate until hatching, around 1 specific elements of physical and may require special management week later. Generally, larvae spend little biological features that are essential to considerations or protection. Special time in rivers after swim-up, but quickly the conservation of the species. management considerations or drift downstream to lakes (Cooperman Based on our current knowledge of protection may be necessary to and Markle 2003, pp. 1147–1149). the physical or biological features and eliminate or reduce the magnitude of Downstream movement occurs mostly at habitat characteristics required to threats that affect these species. Threats night near the water surface (Ellsworth sustain the species’ life-history identified in the final listing rule for et al. 2010, pp. 51–52). Larvae transform processes, we determine that the these species include: (1) Poor water into juveniles by mid-July at about 25 primary constituent elements specific to quality; (2) potential entrainment at mm (0.98 in) total length. Juvenile Lost self-sustaining Lost River sucker and water diversion structures; (3) lack of River sucker primarily occupy relatively shortnose sucker populations are: access to essential spawning habitat; (4) shallow (less than approximately 50 cm (1) Water. Areas with sufficient water lack of connectivity to historical habitat (1.6 ft)), vegetated areas, but also may quantity and depth within lakes, (i.e., migratory impediments); (5) begin to move into deeper, unvegetated, reservoirs, streams, marshes, springs, degradation of spawning, rearing, and

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76343

adult habitat; and (6) predation by or These signs of stress began to decline as Throughout the Upper Klamath Lake competition with nonnative fish. the water level in Clear Lake Reservoir and Lost River Basin, timber harvesting Poor water quality is particularly rose in 1993, at the end of the drought and associated activities (e.g., road associated with high abundance of the (NRC 2004, p. 132). In 2009, when lake building) by Federal, State, tribal, and blue-green alga Aphanizomenon flos- levels were again low due to drought, private landowners have resulted in soil aque. Core samples of bottom sediments diversions from Clear Lake Reservoir erosion on harvested lands and indicate that A. flos-aque was not were halted in mid-summer, and there transport of sediment into streams and present in Upper Klamath Lake prior to were no diversions in 2010. rivers adjacent to or downstream from the 1900s (Bradbury et al. 2004, p. 162; Additionally, low lake levels adversely those lands (Service 2002, p. 65; NRC Eilers et al. 2004, p. 14). Its appearance affect Clear Lake Reservoir sucker 2004, pp. 65–66). Past logging and road is believed to be associated with populations by limiting access to building practices often did not provide increases in productivity of the lake Willow Creek, the sole spawning for adequate soil stabilization and through human influence (NRC 2004, tributary (Barry et al. 2009, p. 3). erosion control. A high density of forest pp. 108–110). This alga now dominates Likewise, the amount of available larval roads remain in the upper Klamath the algal community from June to habitat and suitable shoreline spring River basin, and many of these are November, and, because of the high spawning habitat in Upper Klamath located near streams where they likely phosphorus concentrations and its Lake is significantly affected by even contribute sediment (USFS 1995, p. 7), ability to fix nitrogen, is able to reach minor changes in lake elevation (Service which results in an increase of fine soil seasonally high biomass levels that 2008, p. 79). Therefore, special particles that can cover spawning eventually produce highly degraded management considerations or substrata. The major agricultural activity water quality (Boyd et al. 2002, p. 34). protections are needed to address in the upper Klamath River basin, Once the algal bloom subsides, fluctuations in water levels due to livestock grazing, also has likely led to decomposition of the massive amounts regulated flow and lake elevation an increase in sediment and nutrient of biomass can lower dissolved oxygen management. Special management may loading rates by accelerating erosion and raise pH to levels harmful or fatal include the following actions: managing (Moyle 2002, p. 201; Service 2002, pp. to fish (Perkins et al. 2000, pp. 24–25; bodies of water such that there is 56, 65; McCormick and Campbell 2007, Wood et al. 2006, p. 1). Additionally, minimal flow departure from a natural pp. 6–7). Livestock, particularly cattle, other cyanobacteria (Microcystis sp.) hydrograph; maintaining, improving, or have heavily grazed flood plains, may produce toxins harmful to sucker reestablishing instream flows to wetlands, forest, rangelands, and liver tissue (VanderKooi et al. 2010, p. improve the quantity of water available riparian areas, resulting in the 2). Special management considerations for use; and maintaining or improving degradation of these areas. Grazing or protections are therefore needed to groundwater use. alters the streamside riparian vegetation protect water quality from the The effects of fluctuations in water and compacts soil surfaces, increasing deleterious effects of algal blooms and levels due to regulated flow groundwater runoff, lowering may include reducing excess management may affect the ability of streambank stability, and reducing phosphorus concentrations by fencing Lost River sucker and shortnose sucker cover. The increase in sediment cattle out of riparian areas, to access refugia during periods of poor accumulation and nutrient loading is reconfiguring agricultural waterways, water quality. For example, Pelican Bay consistent with the changes in land use increasing riparian stands of vegetation, appears to act as a key refugium during in the upper Klamath River basin and restoring wetland habitat that is periods of poor water quality, and occurring over the last century crucial for filtering sediment and efforts to maintain the quality and (Bradbury et al. 2004, pp. 163–164; nutrients. quantity of the habitat there may be Eilers et al. 2004, pp. 14–16). Therefore, Hydrographs of both Clear Lake beneficial for suckers (Banish et al. special management considerations or Reservoir and Upper Klamath Lake 2009, p. 167). Therefore, special protections may be required to improve exhibit patterns of a snow-melt driven management considerations or water quality and include: reducing system with highest inflows and levels protections are needed to address access sediment and nutrient loading by during spring and early summer, to refugia and may include the protecting riparian areas from although groundwater also is a following: maintaining appropriate lake agricultural and forestry impacts, significant contributor to Upper depths to allow access to refugia; Klamath Lake (Gannett et al. 2007, p. 1). restoring degraded habitats to improve reducing road density to prevent excess However, Clear Lake Reservoir, Gerber quantity of flow at refugia as well as sediment loading, and improving cattle Reservoir, and Upper Klamath Lake are refugia quality; and maintaining or management practices. managed to store and divert water for establishing riparian buffers around Lost River sucker and shortnose irrigation every year. Clear Lake refugia to improve refugia water quality. sucker have limited hydrologic Reservoir is highly sensitive to drought The Klamath Project (Project) stores connection to spawning or rearing and downstream water delivery because and later diverts water from Upper habitat. For example, low lake levels of its small watershed, low Klamath Lake for a variety of Project adversely affect Clear Lake Reservoir precipitation, minimal groundwater purposes. These operations result in sucker populations by limiting access to input, and high evaporation rates (NRC lake levels and flows at the outlet of the the Willow Creek drainage, the sole 2004, p. 129). In the dry years of 1991 lake that differ from historic conditions, spawning tributary (Barry et al. 2009, p. and 1992, the U.S. Bureau of some of which increase movement of 3). Likewise, the amount of suitable Reclamation (BOR) drew down the level juvenile fish downstream of Upper shoreline spring spawning habitat in of Clear Lake Reservoir to extremely low Klamath Lake. As such, special Upper Klamath Lake is significantly levels for irrigation supply (Moyle 2002, management considerations or affected by even minor changes in lake p. 201). In 1992, Lost River sucker protections for water quantity may be elevation, but it is unknown exactly within Clear Lake Reservoir were needed to address water intake at water how such levels directly affect annual examined and exhibited signs of stress, diversion structures to improve water productivity. Several shoreline spring- including high rates of parasitism and diversion efficiency to increase the spawning populations, including poor body condition (NRC 2004, p. 132). quantity of water available as habitat. Harriman Springs and Barkley Springs,

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76344 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

have been lost or significantly altered Special management considerations or River sucker and shortnose sucker and due to railroad construction (Andreasen protections may be needed to protect the habitats they depend on for survival 1975, pp. 39–40; NRC 2004, p. 228). the forage base from predation by exotic or recovery. We also reviewed available Historically, wetlands comprised fish species and could be accomplished data concerning Lost River sucker and hundreds of thousands of hectares by the following: reducing conditions shortnose sucker habitat use and throughout the range of the species that allow exotic fishes to be successful preferences, habitat conditions, threats, (Gearhart et al. 1995, pp. 119–120; and restoring conditions that allow Lost population demographics, and known Moyle 2002, p. 200; NRC 2004, pp. 72– River sucker and shortnose sucker to locations, distribution, and abundances 73), some of which likely functioned as thrive, conducting evaluations to of Lost River sucker and shortnose crucial habitat for larvae and juveniles. determine methods to remove exotic sucker. Other wetlands may have played vital fish species, and determining methods We identified the geographical areas roles in the quality and quantity of to reduce or eliminate competition for occupied by Lost River sucker and water. Loss of ecosystem functions such the forage base upon which Lost River shortnose sucker at the time of listing as these, due to alteration or separation sucker and shortnose sucker depend to that contain the PBFs essential for the of the habitat, is as detrimental as survive. conservation of the species and which physical loss of the habitat. contained one or more of the primary Criteria Used To Identify Critical constituent elements identified above. Approximately 70 percent of the Habitat original 20,400 ha (50,400 ac) of This was done by gathering information wetlands surrounding Upper Klamath As required by section 4(b)(1)(A) of from the entities listed above and Lake was diked, drained, or the Act, we use the best scientific and mapping Lost River sucker and significantly altered beginning around commercial data available to designate shortnose sucker distribution. 1889 (Akins 1970, pp. 73–76; Gearhart critical habitat. We review available We used data gathered during the Lost et al. 1995, p. 2). Additionally, of the information pertaining to the habitat River sucker and shortnose sucker approximately 13,816 ha (34,140 ac) of requirements of the species. In recovery planning process and the Draft wetlands connected to Upper Klamath accordance with the Act and its Lost River Sucker and Shortnose Sucker Lake, relatively little functions as implementing regulation at 50 CFR Recovery Plan (Service 2011), and rearing habitat for larvae and juveniles, 424.12(e), we consider whether supplemented those data with recent partly due to lack of connectivity with designating additional areas—outside data developed by State agencies, tribes, those currently occupied as well as current spawning areas (NRC 2004, pp. the U.S. Forest Service, Bureau of Land those occupied at the time of listing— 72–73). Therefore, special management Management, and other entities. These are necessary to ensure the conservation considerations or protections may be data were used to update Lost River of the species. We are proposing to sucker and shortnose sucker status and needed for water quantity to improve designate only areas within the distribution data for purposes of the access to spawning locations and geographical area occupied by the proposed critical habitat designation. quality and quantity of wetlands used as species at the time of listing, and that For areas where we had data gaps, we rearing habitat. This may be are also presently occupied, because solicited expert opinions from accomplished by: improving lake level these areas are sufficient for the knowledgeable fisheries biologists in the management to allow access to conservation of Lost River sucker and local area. Material reviewed included spawning locations during late winter shortnose sucker and have all of the data in reports submitted during section and early spring, restoring access to physical or biological features essential 7 consultations, reports from biologists wetland rearing habitat, and creating to the conservation of Lost River sucker holding section 10(a)(1)(A) recovery wetland rearing habitat adjacent to lakes and shortnose sucker. The Draft Lost permits, research published in peer- and reservoirs. River Sucker and Shortnose Sucker reviewed scientific journals, academic The exotic fish species most likely to Recovery Plan (Service 2011) recognizes theses, State and Federal government affect Lost River sucker and shortnose two recovery units, each containing agency reports, and GIS data. sucker is the fathead minnow. This occupied management units. The steps In streams, critical habitat includes species may prey on young Lost River we followed in identifying critical the stream channel within the sucker and shortnose sucker and habitat were: designated stream reach and a lateral compete with them for food or space 1. Our initial step in identifying extent as defined by the bankfull (Markle and Dunsmoor 2007, pp. 571– critical habitat was to determine, in elevation on one bank to the bankfull 573). For example, fathead minnow accordance with section 3(5)(A)(i) of the elevation on the opposite bank. The were first documented in the upper Act and regulations at 50 CFR 424.12, lateral extent of critical habitat in lakes Klamath River basin in the 1970s and the physical or biological habitat and reservoirs is defined by the are now the numerically dominant features essential to the conservation of perimeter of the water body as mapped exotic fish in Upper Klamath Lake the species, as explained in the previous according to the U.S. Geological Survey (Simon and Markle 1997, p. 142; section. 2009 National Hydrography Dataset. Bottcher and Burdick 2010, p. 40; 2. We reviewed the best available Land ownership calculations were Burdick and VanderKooi 2010, p. 33). scientific data pertaining to the habitat based on 2011 Oregon and California Additional exotic, predatory fishes requirements of this species, including Bureau of Land Management State office found in sucker habitats, although information obtained from the Lost data layers. An updated data layer of typically in relatively low numbers, River and Shortnose Sucker Recovery Upper Klamath Lake and newly restored include yellow perch (Perca flavescens), Team and the Recovery Implementation wetlands was provided by the U.S. bullhead (Ameiurus species), Committee, which included biologists Geological Survey (USGS), Western largemouth bass (Micropterus from partner agencies and entities Fisheries Research Center, and Klamath salmoides), crappie (Pomoxis species), including Federal, State, tribal, and Falls Field Station. green sunfish (Lepomis cyanellus), private biologists; experts from other 3. In selecting areas to propose as pumpkinseed (Lepomis gibbosus), and scientific disciplines, such as hydrology critical habitat, we considered factors Sacramento perch (Archoplites and forestry; resource users; and other such as size, connectivity to other interruptus) (NRC 2004, pp. 188–189). stakeholders with an interest in Lost aquatic habitats, and rangewide

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76345

recovery considerations. We took into value with characteristics such as: (a) no adverse modification unless the account the fact that Lost River sucker The largest occupied areas or specific action would affect the physical and shortnose sucker habitats include populations, (b) the most highly and biological features in the adjacent streams used largely for spawning and connected populations and habitat, (c) critical habitat. outmigration; lakes and reservoirs used areas that can contribute to Lost River We are proposing for designation of for rearing, foraging, and migration; and sucker and shortnose sucker critical habitat lands that we have springs used for spawning and refugia. conservation and recovery. determined were occupied at the time of 4. In determining areas to propose as 6. We examined geographic locations listing and contain sufficient elements critical habitat, we relied upon currently occupied by Lost River sucker of physical and biological features to principles of conservation biology, and shortnose sucker and determined support life-history processes essential including: (a) Resistance and resiliency, that certain areas did not contain the to the conservation of the Lost River to ensure sufficient habitat is protected PBFs essential for the conservation of sucker and shortnose sucker. throughout the range of the species to these species, and we have not proposed support population viability (e.g., these areas as critical habitat. Such Proposed Critical Habitat Designation demographic parameters); (b) determinations include those areas We are proposing two units as critical Redundancy, to ensure multiple viable where Lost River sucker or shortnose habitat for Lost River sucker and two populations are conserved throughout sucker: Are not viable, are not units for shortnose sucker with each the species’ range; and (c) connected to spawning habitat, occur in unit being composed of streams, lakes, Representation, to ensure the low densities or abundances in very and reservoirs. The critical habitat areas representative genetic and life history of isolated populations, are greatly we describe below constitute our suckers (e.g., spring spawning and river impacted by nonnative species, have current best assessment of areas that spawning) were conserved. very low potential for conservation or meet the definition of critical habitat for 5. Using the conservation biology restoration, or have low connectivity Lost River sucker and shortnose sucker. principles and primary constituent among populations and severe habitat The two units we propose as critical elements, we examined the distribution degradation. habitat for the Lost River sucker, which of Lost River sucker and shortnose When determining proposed critical were both occupied at the time of sucker to determine critical habitat habitat boundaries, we made every listing, are: based on the following criteria: Largest effort to avoid including developed occupied areas or populations, most areas such as lands covered by (1) Upper Klamath Lake Unit, highly connected populations and buildings, pavement, and other including Upper Klamath Lake and habitat, areas that can contribute to Lost structures because such lands lack tributaries as well as the Link River and River sucker and shortnose sucker physical and biological features for Lost Keno Reservoir. conservation, and areas with highest River sucker and shortnose sucker. The (2) Lost River Basin Unit, including conservation potential (e.g., essential scale of the maps we prepared under the Clear Lake Reservoir and tributaries. PBFs). We then used these criteria to parameters for publication within the The two units we propose as critical identify those areas that contain habitats Code of Federal Regulations may not habitat for the shortnose sucker, which essential to the conservation of Lost reflect the exclusion of such developed were occupied at the time of listing, are: River sucker and shortnose sucker. lands. Any such lands inadvertently left (1) Upper Klamath Lake Unit, Using the conservation biology inside critical habitat boundaries shown including Upper Klamath Lake and principles and primary constituent on the maps of this proposed rule have tributaries as well as the Link River and elements, we examined the distribution been excluded by text in the proposed Keno Reservoir. of Lost River sucker and shortnose rule and are not proposed for (2) Lost River Basin Unit, including sucker to assess whether or not to designation as critical habitat. Clear Lake Reservoir and tributaries, propose areas as critical habitat. We Therefore, if the critical habitat is and Gerber Reservoir and tributaries. emphasized areas as essential to the finalized as proposed, a Federal action The approximate area and stream conservation of the Lost River and involving these lands would not trigger length within each proposed critical shortnose sucker which contained section 7 consultation with respect to habitat unit is shown in Tables 1 populations of highest conservation critical habitat and the requirement of through 4.

TABLE 1—AREA OF LAKES AND RESERVOIRS PROPOSED AS CRITICAL HABITAT FOR LOST RIVER SUCKER [Area estimates reflect all land within critical habitat unit boundaries]

Acres Critical habitat unit Land ownership by type (hectares)

1. Upper Klamath Lake ...... Federal ...... 15,198 (6,151) State ...... 533 (216) Private/Other ...... 74,684 (30,224) 2. Lost River Basin ...... Federal ...... 27,238 (11,023) State ...... 0 Private/Other ...... 194 (79)

Total ...... Federal ...... 42,437 (17,174) State ...... 533 (216) Private/Other ...... 75,249 (30,452)

Total ...... 118,219 (47,842) Note: Area sizes may not sum due to rounding.

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76346 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

TABLE 2—STREAM LENGTH PROPOSED AS CRITICAL HABITAT FOR LOST RIVER SUCKER [Area estimates reflect all land within critical habitat unit boundaries]

Miles Critical habitat unit Land ownership by type (kilometers)

1. Upper Klamath Lake ...... Federal ...... 13 (21). State ...... 0. Private/Other ...... 106 (171). 2. Lost River Basin ...... Federal ...... 23 (37). State ...... Less than 1. Private/Other ...... 3 (5).

Total ...... Federal ...... 36 (58). State ...... Less than 1. Private/Other ...... 109 (176).

Total ...... 146 (234). Note: Lengths may not sum due to rounding.

TABLE 3—AREA OF LAKES AND RESERVOIRS PROPOSED AS CRITICAL HABITAT FOR SHORTNOSE SUCKER [Area estimates reflect all land within critical habitat unit boundaries]

Acres Critical habitat unit Land ownership by type (hectares)

1. Upper Klamath Lake ...... Federal ...... 15,198 (6,151) State ...... 533 (216) Private/Other ...... 74,684 (30,224) 2. Lost River Basin ...... Federal ...... 32,051 (12,971) State ...... 0 Private/Other ...... 1,124 (455)

Total ...... Federal ...... 47,250 (19,121) State ...... 533 (216) Private/Other ...... 76,179 (30,829)

Total ...... 123,961 (50,166) Note: Area sizes may not sum due to rounding.

TABLE 4—STREAM LENGTH PROPOSED AS CRITICAL HABITAT FOR SHORTNOSE SUCKER [Area estimates reflect all land within critical habitat unit boundaries]

Miles Critical habitat unit Land ownership by type (kilometers)

1. Upper Klamath Lake ...... Federal ...... 6 (9). State ...... 0. Private/Other ...... 34 (54). 2. Lost River Basin ...... Federal ...... 72 (116). State ...... Less than 1. Private/Other ...... 16 (26).

Total ...... Federal ...... 78 (125). State ...... Less than 1. Private/Other ...... 50 (80).

Total ...... 128 (207). Note: Length may not sum due to rounding.

We present brief descriptions of the Habitat’’ considerations. These areas • Ensure Lost River sucker and two critical habitat units for Lost River will: shortnose sucker are distributed across sucker and two critical habitat units for • Provide sufficient habitat various habitat types required by shortnose sucker and the reasons why throughout the range of the species to different life stages; and they meet the definition of critical ensure multiple populations are • Conserve the full genetic variability habitat, below. The areas we are conserved throughout the species’ and variable life histories (e.g., stream- proposing as critical habitat below range; spawning and lake-spawning) of Lost satisfy each of the criteria stated above • Support viability of each River sucker and shortnose sucker. Each under ‘‘Criteria Used To Identify Critical population; unit for Lost River and shortnose sucker was occupied at the time of listing.

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76347

Unit 1: Upper Klamath Lake 1, 2, and 3. This unit is essential to and reduce the depth of water used as Lost River Sucker shortnose sucker conservation because cover, and cause a lack of access to it supports the largest population of essential rearing habitat (i.e., marsh and The Upper Klamath Lake unit is shortnose sucker and provides wetland areas); gravel and cobble located in south-central Oregon within redundancy in the number of shortnose substrata to prevent the degradation of Klamath County and consists of 90,415 sucker populations that are needed for spawning, rearing, and adult habitat ac (36,590 ha) and 119 mi (192 km) of conservation. Additionally, this unit caused by past land management proposed critical habitat. This unit ensures shortnose sucker are distributed practices; and the forage base to prevent includes Upper Klamath Lake and across various habitat types required by predation by or competition with Agency Lake, together with some different life stages. The physical and nonnative fish that may reduce available wetland habitat; portions of the biological features which may require forage for Lost River sucker. Williamson and Sprague Rivers; Link special management or protection Shortnose Sucker River; Lake Ewauna; and the Klamath include maintaining: Water quality by River from the outlet of Lake Ewauna preventing the deleterious effects of The unit is the same as for Lost River downstream to Keno Dam. This unit is nuisance algal blooms, increased sucker, but also includes Gerber proposed as critical habitat for Lost sedimentation, excess nutrients, and Reservoir and its principal tributaries. River sucker because it contains those other factors affecting water quality; This unit contains 33,175 ac (13,426 ha) physical or biological features essential water quantity to prevent reductions in and 88 mi (142 km) of proposed critical to the conservation of the species which water levels that may limit access to habitat. This unit is proposed as critical may require special management or spawning locations or refugia and habitat for shortnose sucker because it protection. This unit, at least seasonally, reduce the depth of water used as cover, contains those physical and biological contains primary constituent elements and cause a lack of access to essential features essential to the conservation of 1, 2, and 3. The unit represents the rearing habitat (i.e., marsh and wetland the species and which may require largest population of Lost River sucker areas); gravel and cobble substrata to special management or protection. This and provides redundancy in the number prevent the degradation of spawning, unit, at least seasonally, contains of Lost River sucker populations that are rearing, and adult habitat caused by past primary constituent elements 1, 2, and needed for conservation. Additionally, land management practices; and the 3. This unit represents a large this unit contains areas for both river forage base to prevent predation by or population of shortnose sucker and and spring spawning life histories, competition with nonnative fish that provides redundancy in the number of which is not known to occur elsewhere shortnose sucker populations that are throughout the range of the species. The may reduce available forage for shortnose sucker. needed for conservation. Additionally, physical and biological features which this unit is essential because it ensures may require special management or Unit 2: Lost River Basin shortnose sucker are distributed across protection include maintaining: Water Lost River Sucker various habitat types required by quality by preventing the deleterious different life stages. The physical and effects of nuisance algal blooms, The Lost River Basin unit is located in south-central Oregon in Klamath and biological features which may require increased sedimentation, excess special management or protection nutrients, and other factors affecting Lake Counties as well as northeastern California in Modoc County and include maintaining: Water quality by water quality; water quantity to prevent preventing the deleterious effects of reductions in water levels that may limit consists of 27,432 ac (11,102 ha) and 26 mi (42 km) of proposed critical habitat. nuisance algal blooms, increased access to spawning locations or refugia sedimentation, excess nutrients, and and reduce the depth of water used as This unit includes Clear Lake Reservoir and its principal tributary. This unit is other factors affecting water quality; cover, and cause a lack of access to water quantity to prevent reductions in essential rearing habitat (i.e., marsh and proposed as critical habitat for Lost River sucker because it contains those water levels that may limit access to wetland areas); gravel and cobble spawning locations or refugia and substrata to prevent the degradation of physical and biological features essential to the conservation of the reduce the depth of water used as cover, spawning, rearing, and adult habitat and cause a lack of access to essential caused by past land management species and which may require special management or protection. This unit, at rearing habitat (i.e., marsh and wetland practices; and the forage base to prevent areas); gravel and cobble substrata to predation by or competition with least seasonally, contains primary constituent elements 1, 2, and 3. This prevent the degradation of spawning, nonnative fish that may reduce available rearing, and adult habitat caused by past forage for Lost River sucker. unit supports a large population of Lost River sucker and provides redundancy land management practices; and the Shortnose Sucker in the number of Lost River sucker forage base to prevent predation by or The unit is the same as for Lost River populations that are needed for competition with nonnative fish that sucker, except that it contains 40 mi (63 conservation. Additionally, this unit may reduce available forage for km) of streams in proposed critical ensures Lost River sucker are shortnose sucker. habitat (because shortnose sucker are distributed across various habitat types Effects of Critical Habitat Designation not known to occur as far upstream required by different life stages. The within the Sprague River), along with physical and biological features which Section 7 Consultation the 90,415 ac (36,590 ha) of lakes and may require special management or Section 7(a)(2) of the Act requires reservoirs. This unit is proposed as protection include maintaining: Water Federal agencies, including the Service, critical habitat for shortnose sucker quality by preventing the deleterious to ensure that action they fund, because it contains those physical and effects of nuisance algal blooms, authorize, or carry out is not likely to biological features essential to the increased sedimentation, excess jeopardize the continued existence of conservation of the species and which nutrients, and other factors affecting any endangered species or threatened may require special management or water quality; water quantity to prevent species or result in the destruction or protection. This unit, at least seasonally, reductions in water levels that may limit adverse modification of designated contains primary constituent elements access to spawning locations or refugia critical habitat of such species. In

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76348 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

addition, section 7(a)(4) of the Act reasonable and prudent alternatives to Section 4(b)(8) of the Act requires us requires Federal agencies to confer with the project, if any are identifiable, that to briefly evaluate and describe, in any the Service on any agency action which would avoid the likelihood of jeopardy, proposed or final regulation that is likely to jeopardize the continued or destruction or adverse modification designates critical habitat, activities existence of any species proposed to be of critical habitat, or both. We define involving a Federal action that may listed under the Act or result in the ‘‘reasonable and prudent alternatives’’ destroy or adversely modify such destruction or adverse modification of (at 50 CFR 402.02) as alternative actions habitat, or that may be affected by such proposed critical habitat. identified during consultation that: designation. Decisions by the 5th and 9th Circuit (1) Can be implemented in a manner Activities that may affect critical Courts of Appeals have invalidated our consistent with the intended purpose of habitat, when carried out, funded, or regulatory definition of ‘‘destruction or the action, authorized by a Federal agency, should adverse modification’’ (50 CFR 402.02) (2) Can be implemented consistent result in consultation for the Lost River (see Gifford Pinchot Task Force v. U.S. with the scope of the Federal agency’s sucker and shortnose sucker. These Fish and Wildlife Service, 378 F. 3d legal authority and jurisdiction, activities include, but are not limited to: 1059 (9th Cir. 2004) and Sierra Club v. (3) Are economically and (1) Actions that would significantly U.S. Fish and Wildlife Service et al., 245 technologically feasible, and alter the level of lakes or reservoirs. F.3d 434, 442 (5th Cir. 2001)), and we (4) Would, in the Director’s opinion, Such activities could include, but are do not rely on this regulatory definition avoid the likelihood of jeopardizing the not limited to, water diversions or water when analyzing whether an action is continued existence of the listed species withdrawals. These activities could likely to destroy or adversely modify and/or avoid the likelihood of reduce the amount of habitat necessary critical habitat. Under the statutory destroying or adversely modifying for rearing of larvae and juvenile Lost provisions of the Act, we determine critical habitat. River sucker and shortnose sucker, destruction or adverse modification on Reasonable and prudent alternatives preclude access to spawning habitat, the basis of whether, with can vary from slight project reduce or prevent access to refugia, and implementation of the proposed Federal modifications to extensive redesign or reduce the amount of water needed to action, the affected critical habitat relocation of the project. Costs provide the physical and biological would continue to serve its intended features necessary for adult Lost River conservation role for the species. associated with implementing a reasonable and prudent alternative are sucker and shortnose sucker. If a Federal action may affect a listed (2) Actions that would significantly species or its critical habitat, the similarly variable. Regulations at 50 CFR 402.16 require increase sediment deposition within responsible Federal agency (action stream channels. Such activities could agency) must enter into consultation Federal agencies to reinitiate consultation on previously reviewed include, but are not limited to, excessive with us. Examples of actions that are sedimentation from livestock grazing, subject to the section 7 consultation actions in instances where we have listed a new species or subsequently road construction, channel alteration, process are actions on State, tribal, timber harvest and management, off- local, or private lands that require a designated critical habitat that may be affected and the Federal agency has road vehicle use, and other watershed Federal permit (such as a permit from and floodplain disturbances. These the U.S. Army Corps of Engineers under retained discretionary involvement or control over the action (or the agency’s activities could reduce and degrade section 404 of the Clean Water Act (33 spawning habitat of Lost River sucker U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is authorized by law). Consequently, and shortnose sucker by increasing the Service under section 10 of the Act) or sediment deposition to deleterious that involve some other Federal action Federal agencies may sometimes need to request reinitiation of consultation with levels. (such as funding from the Federal (3) Actions that would significantly Highway Administration, Federal us on actions for which formal consultation has been completed, if alter lake, reservoir, and/or channel Aviation Administration, or the Federal morphology or geometry. Such activities Emergency Management Agency). those actions with discretionary involvement or control may affect could include, but are not limited to, Federal actions not affecting listed channelization, impoundment, road and species or critical habitat, and actions subsequently listed species or designated critical habitat. bridge construction, mining, dredging, on State, tribal, local, or private lands and destruction of riparian vegetation. that are not federally funded or Application of the ‘‘Adverse These activities may lead to changes in authorized, do not require section 7 Modification’’ Standard water flows and levels that would consultation. degrade or eliminate Lost River sucker As a result of this consultation, we The key factor related to the adverse modification determination is whether, and shortnose sucker habitats. These document compliance with the actions can also lead to increased requirements of section 7(a)(2) through with implementation of the proposed Federal action, the affected critical sedimentation and degradation in water our issuance of: quality to levels that are beyond the (1) A concurrence letter for Federal habitat would continue to serve its tolerances of Lost River sucker and actions that may affect, but are not intended conservation role for the shortnose sucker. likely to adversely affect, listed species species. Activities that may destroy or or critical habitat; or adversely modify critical habitat are Exemptions (2) A biological opinion for Federal those that alter the physical and actions that may affect, and are likely to biological features to an extent that Application of Section 4(a)(3) of the Act adversely affect, listed species or critical appreciably reduces the conservation The Sikes Act Improvement Act of habitat. value of critical habitat for Lost River 1997 (Sikes Act) (16 U.S.C. 670a) When we issue a biological opinion sucker and shortnose sucker. As required each military installation that concluding that a project is likely to discussed above, the role of critical includes land and water suitable for the jeopardize the continued existence of a habitat is to support life-history needs of conservation and management of listed species or destroy or adversely the species and provide for the natural resources to complete an modify critical habitat, we provide conservation of the species. integrated natural resources

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76349

management plan (INRMP) by designate such area as critical habitat analysis concluded by determining the November 17, 2001. An INRMP will result in the extinction of the effect of designation would be neutral. integrates implementation of the species. In making that determination, Additional details can be found in that military mission of the installation with the statute on its face, as well as the 1994 proposed rule (59 FR 61750– stewardship of the natural resources legislative history, are clear that the 61753; December 1, 1994). found on the base. Each INRMP Secretary has broad discretion regarding We are conducting a new economic includes: which factor(s) to use and how much analysis for this proposed rule, and we (1) An assessment of the ecological weight to give to any factor. will announce the availability of that needs on the installation, including the Under section 4(b)(2) of the Act, we draft economic analysis as soon as it is need to provide for the conservation of may exclude an area from designated completed, at which time we will seek listed species; critical habitat based on economic public review and comment. At that (2) A statement of goals and priorities; impacts, impacts on national security, time, copies of the draft economic (3) A detailed description of or any other relevant impacts. In analysis will be available for management actions to be implemented considering whether to exclude a downloading from the Internet at to provide for these ecological needs; particular area from the designation, we http://www.regulations.gov, or by and must identify the benefits of including contacting the Klamath Falls Fish and (4) A monitoring and adaptive the area in the designation, identify the Wildlife Office directly (see FOR management plan. benefits of excluding the area from the FURTHER INFORMATION CONTACT section). Among other things, each INRMP designation, and determine whether the During the development of a final must, to the extent appropriate and benefits of exclusion outweigh the designation, we will consider economic applicable, provide for fish and wildlife benefits of inclusion. If the analysis impacts, public comments, and other management; fish and wildlife habitat indicates that the benefits of exclusion new information, and areas may be enhancement or modification; wetland outweigh the benefits of inclusion, the excluded from the final critical habitat protection, enhancement, and Secretary may exercise his discretion to designation under section 4(b)(2) of the restoration where necessary to support exclude the area only if such exclusion Act and our implementing regulations at fish and wildlife; and enforcement of would not result in the extinction of the 50 CFR 424.19. species. applicable natural resource laws. Exclusions Based on National Security The National Defense Authorization Exclusions Based on Economic Impacts Impacts Act for Fiscal Year 2004 (Pub. L. 108– 136) amended the Act to limit areas Under section 4(b)(2) of the Act, we Under section 4(b)(2) of the Act, we eligible for designation as critical consider the economic impacts of consider whether there are lands owned habitat. Specifically, section 4(a)(3)(B)(i) specifying any particular area as critical or managed by the Department of of the Act (16 U.S.C. 1533(a)(3)(B)(i)) habitat. In order to consider economic Defense where a national security now provides: ‘‘The Secretary shall not impacts, we are preparing an analysis of impact might exist. In preparing this designate as critical habitat any lands or the economic impacts of the proposed proposal, we have determined that the other geographical areas owned or critical habitat designation and related lands within the proposed designation controlled by the Department of factors. of critical habitat for Lost River sucker An economic analysis was conducted Defense, or designated for its use, that and shortnose sucker are not owned or for the December 1, 1994, proposed rule are subject to an integrated natural managed by the Department of Defense, (59 FR 61744) to estimate the economic resources management plan prepared and, therefore, we anticipate no impact effects of the proposed critical habitat on national security. Consequently, the under section 101 of the Sikes Act (16 designation. The previous economic U.S.C. 670a), if the Secretary determines Secretary does not propose to exercise analysis acknowledges the proposed his discretion to exclude any areas from in writing that such plan provides a designation would constrain the ability benefit to the species for which critical the final designation based on impacts of Federal agencies to engage in on national security. habitat is proposed for designation.’’ activities, or to support the activities of There are no Department of Defense others, that would adversely modify or Exclusions Based on Other Relevant lands within the proposed critical destroy critical habitat. Major Federal Impacts habitat designation; as a result no lands agencies in the upper Klamath River Under section 4(b)(2) of the Act, we are being exempted under section basin indicated their activities would be consider any other relevant impacts, in 4(a)(3) of the Act. altered to protect Lost River sucker and addition to economic impacts and Exclusions shortnose sucker. However, different impacts on national security. We conclusions were reached by these consider a number of factors, including Application of Section 4(b)(2) of the Act agencies as to whether these changes whether the landowners have developed Section 4(b)(2) of the Act states that were a result of Lost River sucker and any HCPs or other management plans the Secretary shall designate and make shortnose sucker being listed as for the area, or whether there are revisions to critical habitat on the basis endangered, from proposed critical conservation partnerships that would be of the best available scientific data after habitat designation, or both. The encouraged by designation of, or taking into consideration the economic economic analysis further indicated exclusion from, critical habitat. In impact, national security impact, and critical habitat designation would addition, we look at any tribal issues, any other relevant impact of specifying negatively affect local employment due and consider the government-to- any particular area as critical habitat. to a change in the output of goods and government relationship of the United The Secretary may exclude an area from services, primarily from the resource States with tribal entities. We also critical habitat if he determines that the extraction businesses. Conversely, consider any social impacts that might benefits of such exclusion outweigh the designation also would enhance natural occur because of the designation. benefits of specifying such area as part resource amenities, causing economic In preparing this proposal, we have of the critical habitat, unless he growth as a result of immigration of determined that there are currently no determines, based on the best scientific people seeking a heightened local and HCPs or other management plans for data available, that the failure to regional quality of life. The economic Lost River sucker and shortnose sucker,

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76350 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

and the proposed designation does not (2) Whether the rule will create adjustment to the proposed designation include any tribal lands or trust inconsistencies with other Federal would be essentially imperceptible as resources. We anticipate no impact on agencies’ actions. the U.S. economy redeployed labor and tribal lands, partnerships, or HCPs from (3) Whether the rule will materially other resources that might become this proposed critical habitat affect entitlements, grants, user fees, unemployed because of the designation. designation. Accordingly, the Secretary loan programs, or the rights and Further, the analysis stated that as does not propose to exercise his obligations of their recipients. buyers, sellers, workers, firms, (4) Whether the rule raises novel legal discretion to exclude any areas from the households, and communities adjusted or policy issues. final designation based on other to the proposed designation, its relevant impacts. Regulatory Flexibility Act (5 U.S.C. 601 economic impacts would be spread over Peer Review et seq.) a broad economic and spatial landscape. Under the Regulatory Flexibility Act In accordance with our joint policy on We have concluded that deferring the (RFA; 5 U.S.C. 601 et seq.) as amended peer review published in the Federal RFA finding until completion of the by the Small Business Regulatory new draft economic analysis is Register on July 1, 1994 (59 FR 34270), Enforcement Fairness Act (SBREFA) of we are seeking the expert opinions of at necessary to meet the purposes and 1996 (5 U.S.C. 801 et seq.), whenever an requirements of the RFA. Deferring the least three appropriate and independent agency must publish a notice of specialists regarding this proposed rule. RFA finding in this manner will ensure rulemaking for any proposed or final that we make a sufficiently informed The purpose of peer review is to ensure rule, it must prepare and make available determination based on adequate, that our critical habitat designation is for public comment a regulatory based on scientifically sound data, flexibility analysis that describes the current economic information and assumptions, and analyses. We have effects of the rule on small entities provide the necessary opportunity for invited these peer reviewers to comment (small businesses, small organizations, public comment. during this public comment period on and small government jurisdictions). our specific assumptions and Energy Supply, Distribution, or Use— However, no regulatory flexibility Executive Order 13211 conclusions in this proposed analysis is required if the head of the designation of critical habitat. agency certifies the rule will not have a Executive Order 13211 (Actions We will consider all comments and significant economic impact on a Concerning Regulations That information we receive during the substantial number of small entities. Significantly Affect Energy Supply, comment period on this proposed rule The SBREFA amended RFA to require Distribution, or Use) requires agencies during our preparation of a final Federal agencies to provide a to prepare Statements of Energy Effects determination. Accordingly, the final certification statement of the factual when undertaking certain actions. We decision may differ from this proposal. basis for certifying that the rule will not do not expect that the proposed critical Public Hearings have a significant economic impact on habitat designation for the Lost River a substantial number of small entities. sucker and shortnose sucker would At this time, we lack the available Section 4(b)(5) of the Act provides for significantly affect energy supplies, one or more public hearings on this economic information necessary to distribution, or use. proposal, if requested. Requests must be provide an adequate factual basis for the received within 45 days after the date of required RFA finding. Therefore, we Although there is a large natural gas publication of this proposed rule in the defer the RFA finding until completion pipeline within the Lost River Basin Federal Register. Such requests must be of the draft economic analysis prepared Unit, the Federal Energy Regulatory sent to the address shown in the FOR under section 4(b)(2) of the Act and Commission recently completed a FURTHER INFORMATION CONTACT section. Executive Order 12866. This draft formal biological opinion and We will schedule public hearings on economic analysis will provide the conference report with the Service this proposal, if any are requested, and required factual basis for the RFA regarding the effect of those operations announce the dates, times, and places of finding. Upon completion of the draft on Lost River sucker and shortnose those hearings, as well as how to obtain economic analysis, we will announce sucker and proposed critical habitat. reasonable accommodations, in the availability of the draft economic The biological opinion (Service 2010) Federal Register and local newspapers analysis of the proposed designation in established strict Terms and Conditions at least 15 days before the hearing. the Federal Register and reopen the for the conservation of Lost River sucker public comment period for the proposed Required Determinations and shortnose sucker in those habitats designation. We will include with this that would be impacted by pipeline announcement, as appropriate, an initial Regulatory Planning and Review— operations; several of these habitats are regulatory flexibility analysis or a Executive Order 12866 included in this proposal. The certification that the rule will not have designation of critical habitat in the The Office of Management and Budget a significant economic impact on a (OMB) has determined that this rule is substantial number of small entities areas adjacent to the pipeline will not not significant and has not reviewed accompanied by the factual basis for change current Lost River sucker and this proposed rule under Executive that determination. shortnose sucker conservation practices Order 12866 (Regulatory Planning and The previous economic analysis (see surrounding pipeline operations. Review). OMB bases its determination our 1994 proposed rule at 59 FR 61750– Therefore, this action is not a significant upon the following four criteria: 61753, December 1, 1994) indicated energy action, and no Statement of (1) Whether the rule will have an dislocation of workers in the local Energy Effects is required. However, we annual effect of $100 million or more on resource extraction industries would be will further evaluate this issue as we the economy or adversely affect an offset, in the long run, by the creation conduct our economic analysis, and economic sector, productivity, jobs, the of additional jobs in other sectors review and revise this assessment as environment, or other units of the locally or in other areas. At that time, warranted. government. the analysis determined the national

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76351

Unfunded Mandates Reform Act critical habitat rests squarely on the incremental impact on State and local (2 U.S.C. 1501 et seq. Federal agency. Furthermore, to the governments and their activities. The In accordance with the Unfunded extent that non-Federal entities are designation may have some benefit to Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they these governments because the areas seq.), we make the following findings: receive Federal assistance or participate that contain the physical and biological (1) This rule would not produce a in a voluntary Federal aid program, the features essential to the conservation of Federal mandate. In general, a Federal Unfunded Mandates Reform Act would the species are more clearly defined, mandate is a provision in legislation, not apply, nor would critical habitat and the elements of the features of the statute, or regulation that would impose shift the costs of the large entitlement habitat necessary to the conservation of an enforceable duty upon State, local, or programs listed above onto State the species are specifically identified. tribal governments, or the private sector, governments. This information does not alter where and includes both ‘‘Federal (2) We do not believe that this rule and what federally sponsored activities would significantly or uniquely affect intergovernmental mandates’’ and may occur. However, it may assist local small governments because, based in ‘‘Federal private sector mandates.’’ governments in long-range planning part on an analysis conducted for the These terms are defined in 2 U.S.C. (rather than having them wait for case- previous proposed designation of 658(5)–(7). ‘‘Federal intergovernmental by-case section 7 consultations to critical habitat and extrapolated to this mandate’’ includes a regulation that occur). designation, we do not expect this rule ‘‘would impose an enforceable duty Where State and local governments to significantly or uniquely affect small upon State, local, or tribal governments’’ require approval or authorization from a governments. Therefore, a Small with two exceptions. It excludes ‘‘a Federal agency for actions that may Government Agency Plan is not condition of Federal assistance.’’ It also affect critical habitat, consultation required. However, we will further under section 7(a)(2) would be required. excludes ‘‘a duty arising from evaluate this issue as we conduct our participation in a voluntary Federal While non-Federal entities that receive economic analysis, and review and Federal funding, assistance, or permits, program,’’ unless the regulation ‘‘relates revise this assessment if appropriate. to a then-existing Federal program or that otherwise require approval or under which $500,000,000 or more is Takings—Executive Order 12630 authorization from a Federal agency for provided annually to State, local, and In accordance with Executive Order an action, may be indirectly impacted tribal governments under entitlement 12630 (Government Actions and by the designation of critical habitat, the authority,’’ if the provision would Interference with Constitutionally legally binding duty to avoid ‘‘increase the stringency of conditions of Protected Private Property Rights), we destruction or adverse modification of assistance’’ or ‘‘place caps upon, or have analyzed the potential takings critical habitat rests squarely on the otherwise decrease, the Federal implications of designating critical Federal agency. Government’s responsibility to provide habitat for Lost River sucker and Civil Justice Reform—Executive Order funding,’’ and the State, local, or tribal shortnose sucker in a takings 12988 governments ‘‘lack authority’’ to adjust implications assessment. Critical habitat accordingly. At the time of enactment, designation does not affect landowner In accordance with Executive Order these entitlement programs were: actions that do not require Federal 12988 (Civil Justice Reform), the Office Medicaid; Aid to Families with funding or permits, nor does it preclude of the Solicitor has determined that the Dependent Children work programs; development of habitat conservation rule does not unduly burden the judicial Child Nutrition; Food Stamps; Social programs or issuance of incidental take system and that it meets the Services Block Grants; Vocational permits to permit actions that do require requirements of sections 3(a) and 3(b)(2) Rehabilitation State Grants; Foster Care, Federal funding or permits to go of the Order. We have proposed Adoption Assistance, and Independent forward. The takings implications designating critical habitat in Living; Family Support Welfare assessment concludes that this proposed accordance with the provisions of the Services; and Child Support designation of critical habitat for Lost Act. This proposed rule uses standard Enforcement. ‘‘Federal private sector River sucker and shortnose sucker does property descriptions and identifies the mandate’’ includes a regulation that not pose significant takings implications elements of physical and biological ‘‘would impose an enforceable duty for lands within or affected by the features essential to the conservation of upon the private sector, except (i) A designation. the Lost River sucker and shortnose condition of Federal assistance or (ii) a sucker within the designated areas to duty arising from participation in a Federalism—Executive Order 13132 assist the public in understanding the voluntary Federal program.’’ In accordance with Executive Order habitat needs of the species. The designation of critical habitat 13132 (Federalism), this proposed rule Paperwork Reduction Act of 1995 does not impose a legally binding duty does not have significant Federalism (44 U.S.C. 3501 et seq.) on non-Federal Government entities or effects. A federalism summary impact private parties. Under the Act, the only statement is not required. In keeping This rule does not contain any new regulatory effect is that Federal agencies with Department of the Interior and collections of information that require must ensure that their actions do not Department of Commerce policy, we approval by OMB under the Paperwork destroy or adversely modify critical requested information from, and Reduction Act of 1995 (44 U.S.C. 3501 habitat under section 7. While non- coordinated development of, this et seq.). This rule will not impose Federal entities that receive Federal proposed critical habitat designation recordkeeping or reporting requirements funding, assistance, or permits, or that with appropriate State resource agencies on State or local governments, otherwise require approval or in Oregon and California. The individuals, businesses, or authorization from a Federal agency for designation of critical habitat in areas organizations. An agency may not an action, may be indirectly impacted currently occupied by the Lost River conduct or sponsor, and a person is not by the designation of critical habitat, the sucker and shortnose sucker imposes no required to respond to, a collection of legally binding duty to avoid additional restrictions to those currently information unless it displays a destruction or adverse modification of in place and, therefore, has little currently valid OMB control number.

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76352 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

National Environmental Policy Act written, which sections or sentences are References Cited (42 U.S.C. 4321 et seq.) too long, the sections where you feel A complete list of references cited is lists or tables would be useful, etc. It is our position that, outside the available on the Internet at http:// jurisdiction of the U.S. Court of Appeals Government-to-Government www.regulations.gov and upon request for the Tenth Circuit, we do not need to Relationship With Tribes from the Klamath Falls Fish and prepare environmental analyses Wildlife Office (see FOR FURTHER In accordance with the President’s pursuant to the National Environmental INFORMATION CONTACT). Policy Act (NEPA; 42 U.S.C. 4321 et memorandum of April 29, 1994 seq.) in connection with designating (Government-to-Government Relations Authors critical habitat under the Act. We with Native American Tribal The primary authors of this package published a notice outlining our reasons Governments; 59 FR 22951), Executive are the staff members of the Klamath for this determination in the Federal Order 13175 (Consultation and Falls Fish and Wildlife Office. Register on October 25, 1983 (48 FR Coordination With Indian Tribal 49244). This position was upheld by the Governments), and the Department of List of Subjects in 50 CFR Part 17 U.S. Court of Appeals for the Ninth the Interior’s manual at 512 DM 2, we Endangered and threatened species, Circuit (Douglas County v. Babbitt, 48 readily acknowledge our responsibility Exports, Imports, Reporting and F.3d 1495 (9th Cir. 1995), cert. denied to communicate meaningfully with recordkeeping requirements, 516 U.S. 1042 (1996)). recognized Federal Tribes on a Transportation. government-to-government basis. In Clarity of the Rule accordance with Secretarial Order 3206 Proposed Regulation Promulgation We are required by Executive Orders of June 5, 1997 (American Indian Tribal Accordingly, we propose to amend 12866 and 12988 and by the Rights, Federal-Tribal Trust part 17, subchapter B of chapter I, title Presidential Memorandum of June 1, Responsibilities, and the Endangered 50 of the Code of Federal Regulations, 1998, to write all rules in plain Species Act), we readily acknowledge as set forth below: language. This means that each rule we our responsibilities to work directly publish must: with Tribes in developing programs for PART 17—ENDANGERED AND (1) Be logically organized; healthy ecosystems, to acknowledge that THREATENED WILDLIFE AND PLANTS (2) Use the active voice to address tribal lands are not subject to the same readers directly; controls as Federal public lands, to 1. The authority citation for part 17 (3) Use clear language rather than remain sensitive to Indian culture, and continues to read as follows: jargon; to make information available to Tribes. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. (4) Be divided into short sections and We determined that there are no tribal 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– sentences; and lands that were occupied by the Lost 625, 100 Stat. 3500; unless otherwise noted. (5) Use lists and tables wherever River sucker and shortnose sucker at the 2. In § 17.11(h), revise the entry for possible. time of listing that contain the features ‘‘Sucker, Lost River’’ and ‘‘Sucker, If you feel that we have not met these essential for conservation of the species, shortnose’’ under ‘‘FISHES’’ in the List requirements, send us comments by one and no tribal lands unoccupied by the of Endangered and Threatened Wildlife of the methods listed in the ADDRESSES Lost River sucker and shortnose sucker to read as follows: section. To better help us revise the that are essential for the conservation of rule, your comments should be as the species. Therefore, we are not § 17.11 Endangered and threatened specific as possible. For example, you proposing to designate critical habitat wildlife. should tell us the numbers of the for the Lost River sucker and shortnose * * * * * sections or paragraphs that are unclearly sucker on tribal lands. (h) * * *

Species Vertebrate population where Critical Special Historic range endangered or Status When listed habitat rules Common name Scientific name threatened

******* FISHES

******* Sucker, Lost River ... Deltistes luxatus ..... U.S.A. (CA, OR) ..... Entire ...... E 313 17.95(e) NA

******* Sucker, shortnose .... Chasmistes U.S.A. (CA, OR) ..... Entire ...... E 313 17.95(e) NA brevirostris.

*******

3. In § 17.95, amend paragraph (e) by appear in the table at § 17.11(h), to read (e) Fishes. adding entries for ‘‘Lost River Sucker as follows: * * * * * (Deltistes luxatus)’’ and ‘‘Shortnose Sucker (Chasmistes brevirostris),’’ in the § 17.95 Critical habitat—fish and wildlife. Lost River Sucker (Deltistes luxatus) * * * * * same alphabetical order that the species (1) Critical habitat units are depicted for Klamath and Lake Counties, Oregon,

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76353

and Modoc County, California, on the ammonia (less than 0.5 mg per L). (3) Critical habitat does not include maps below. Elements also include natural flow manmade structures (such as buildings, (2) Within these areas, the primary regimes that provide flows during the aqueducts, runways, roads, and other constituent elements of the physical and appropriate time of year or, if flows are paved areas) and the land on which they biological features essential to the controlled, minimal flow departure from are located existing within the legal conservation of Lost River sucker a natural hydrograph. boundaries on the effective date of this consist of three components: (ii) Spawning and rearing habitat. rule. (i) Water. Areas with sufficient water Streams and shoreline springs with (4) Critical habitat map units. Data quantity and depth within lakes, gravel and cobble substrate at depths layers defining map units were created reservoirs, streams, marshes, springs, typically less than 1.3 m (4.3 ft) with on a base of the U.S. Geological Survey groundwater sources, and refugia adequate stream velocity to allow 2009 National Hydrography Dataset, and habitats with minimal physical, spawning to occur. Areas identified in critical habitat was then mapped using biological, or chemical impediments to PCE1 containing emergent vegetation North American Datum (NAD) 83, connectivity. Water should exhibit adjacent to open water that provides Universal Transverse Mercator Zone depths ranging from less than 1.0 m habitat for rearing . This facilitates 10N coordinates. (3.28 ft) up to 4.5 m (14.8 ft) to growth and survival of suckers, as well accommodate each life stage. The water as protection from predation and (5) Unit 1: Upper Klamath Lake Unit, quality characteristics should include protection from currents and Klamath County, Oregon. water temperatures of less than 28.0 turbulence. (i) [Reserved for textual description of °Celsius (82.4 °F); pH less than 9.75; (iii) Food. Areas that contain an Unit 1.] dissolved oxygen levels greater than 4.0 abundant forage base, including a broad (ii) Note: Map of Unit 1, Upper mg per L; algal toxins (less than 1.0 array of chironomidae, crustacea, and Klamath Lake, follows: microgram (mg) per L); and un-ionized other aquatic macroinvertebrates. BILLING CODE 4310–55–P

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS 76354 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

(6) Unit 2: Lost River Basin Unit, (i) [Reserved for textual description of (ii) Note: Map of Unit 2, Lost River Modoc County, California. Unit 2.] Basin, follows:

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS ep07de11.005 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76355

* * * * * conservation of the shortnose sucker quality characteristics should include consist of three components: water temperatures of less than 28.0 Shortnose Sucker (Chasmistes °Celsius (82.4 °F); pH less than 9.75; brevirostris) (i) Water. Areas with sufficient water quantity and depth within lakes, dissolved oxygen levels greater than 4.0 (1) Critical habitat units are depicted reservoirs, streams, marshes, springs, mg per L; algal toxins (less than 1.0 for Klamath and Lake Counties, Oregon, groundwater sources, and refugia microgram (mg) per L); and un-ionized and Modoc County, California, on the habitats with minimal physical, ammonia (less than 0.5 mg per L). maps below. biological, or chemical impediments to Elements also include natural flow connectivity. Water should exhibit regimes that provide flows during the (2) Within these areas, the primary depths ranging from less than 1.0 m appropriate time of year or, if flows are constituent elements of the physical and (3.28 ft) up to 4.5 m (14.8 ft) to controlled, minimal flow departure from biological features essential to the accommodate each life stage. The water a natural hydrograph.

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS ep07de11.006 76356 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

(ii) Spawning and rearing habitat. (iii) Food. Areas that contain an on a base of the U.S. Geological Survey Streams and shoreline springs with abundant forage base, including a broad 2009 National Hydrography Dataset, and gravel and cobble substrate at depths array of chironomidae, crustacea, and critical habitat was then mapped using typically less than 1.3 m (4.3 ft) with other aquatic macroinvertebrates. North American Datum (NAD) 83, adequate stream velocity to allow (3) Critical habitat does not include Universal Transverse Mercator Zone spawning to occur. Areas identified in manmade structures (such as buildings, 10N coordinates. PCE1 containing emergent vegetation aqueducts, runways, roads, and other (5) Unit 1: Upper Klamath Lake Unit, adjacent to open water that provides paved areas) and the land on which they Klamath County, Oregon. habitat for rearing . This facilitates are located existing within the legal growth and survival of suckers, as well boundaries on the effective date of this (i) [Reserved for textual description of as protection from predation and rule. Unit 1.] protection from currents and (4) Critical habitat map units. Data (ii) Note: Map of Unit 1, Upper turbulence. layers defining map units were created Klamath Lake, follows:

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules 76357

(6) Unit 2: Lost River Basin Unit, (i) [Reserved for textual description of (ii) Note: Map of Unit 2, Lost River Klamath and Lake Counties, Oregon, Unit 2.] Basin, follows: and Modoc County, California.

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS ep07de11.007 76358 Federal Register / Vol. 76, No. 235 / Wednesday, December 7, 2011 / Proposed Rules

* * * * * Dated: November 22, 2011. Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011–31380 Filed 12–6–11; 8:45 am] BILLING CODE 4310–55–C

VerDate Mar<15>2010 16:21 Dec 06, 2011 Jkt 226001 PO 00000 Frm 00037 Fmt 4702 Sfmt 9990 E:\FR\FM\07DEP1.SGM 07DEP1 emcdonald on DSK5VPTVN1PROD with PROPOSALS ep07de11.008