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

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

******* Fishes

******* Darter, trispot ...... trisella ...... Wherever found ...... T [Federal Register citation when published as a final rule.]

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Dated: September 7, 2017. shown in FOR FURTHER INFORMATION revisions of critical habitat can be James W. Kurth, CONTACT by November 20, 2017. completed only by issuing a rule. Acting Director, U.S. Fish and Wildlife ADDRESSES: You may submit comments This rule proposes adding the candy Service. by one of the following methods: darter () as a [FR Doc. 2017–21350 Filed 10–3–17; 8:45 am] (1) Electronically: Go to the Federal threatened species to the List of BILLING CODE 4333–15–P eRulemaking Portal: http:// Endangered and Threatened Wildlife in www.regulations.gov. In the Search box, title 50 of the Code of Federal enter FWS–R5–ES–2017–0056, which is Regulations (50 CFR 17.11(h)). DEPARTMENT OF THE INTERIOR the docket number for this rulemaking. The basis for our action. Under the Then, in the Search panel on the left Fish and Wildlife Service Act, we can determine that a species is side of the screen, under the Document an endangered or threatened species Type heading, click on the Proposed 50 CFR Part 17 based on any of five factors: (A) The Rules link to locate this document. You may submit a comment by clicking on present or threatened destruction, [Docket No. FWS–R5–ES–2017–0056; modification, or curtailment of its 4500030113] ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail habitat or range; (B) Overutilization for RIN 1018–BC44 or hand-delivery to: Public Comments commercial, recreational, scientific, or Processing, Attn: FWS–R5–ES–2017– educational purposes; (C) Disease or Endangered and Threatened Wildlife 0056; U.S. Fish and Wildlife Service predation; (D) The inadequacy of and Plants; Proposed Threatened Headquarters, MS: BPHC, 5275 Leesburg existing regulatory mechanisms; or (E) Species Status for the Candy Darter Pike, Falls Church, VA 22041–3803. Other natural or manmade factors We request that you send comments affecting its continued existence. We AGENCY: Fish and Wildlife Service, have determined that hybridization Interior. only by the methods described above. We will post all comments on http:// (Factor E) with the variegate darter ACTION: Proposed rule; 12-month www.regulations.gov. This generally (Etheostoma variatum) is the primary finding. means that we will post any personal threat to the candy darter. SUMMARY: We, the U.S. Fish and information you provide us (see Public Peer review. A team of Service Wildlife Service (Service), announce a Comments below for more information). biologists prepared a Species Status 12-month finding on a petition to list FOR FURTHER INFORMATION CONTACT: John Assessment Report (SSA Report) for the the candy darter (Etheostoma osburni) Schmidt, Project Leader, West candy darter. The SSA Report as a threatened or endangered species Ecological Services Field Office, 694 represents a compilation and under the Endangered Species Act, as Beverly Pike, Elkins, WV 26241–9475; assessment of the best scientific and amended (Act), and to designate critical by telephone 304–636–6586 or by commercial information available habitat. After review of the best facsimile 304–636–7824. Persons who concerning the status of the candy available scientific and commercial use a telecommunications device for the darter, including the past, present, and information, we find that listing the deaf (TDD) may call the Federal Relay future factors influencing the species. candy darter is warranted. Accordingly, Service at 800–877–8339. We solicited independent peer review of we propose to list the candy darter SUPPLEMENTARY INFORMATION: the SSA Report by six individuals with (Etheostoma osburni), a freshwater fish expertise in darters; fisheries, species from Virginia and , Executive Summary population, or landscape ecology; as a threatened species under Act. If we Why we need to publish a rule. Under genetics and conservation genetics; and/ finalize this rule as proposed, it would the Act, if a species is determined to be or speciation and conservation biology; extend the Act’s protections to this an endangered or threatened species we received comments from four of the species. The effect of this regulation will throughout all or a significant portion of six peer reviewers. The SSA Report can be to add this species to the List of its range, we are required to promptly be found in http://www.regulations.gov Endangered and Threatened Wildlife. publish a proposal in the Federal under the FWS–R5–ES–2017–0056 DATES: We will accept comments Register and make a determination on docket; on the Southwest Virginia received or postmarked on or before our proposal within 1 year. Critical Ecological Services Field Office Web December 4, 2017. Comments submitted habitat shall be designated, to the site at: https://www.fws.gov/northeast/ electronically using the Federal maximum extent prudent and virginiafield/svfo/ eRulemaking Portal (see ADDRESSES determinable, for any species southwesternvirginia.html; and on the below) must be received by 11:59 p.m. determined to be an endangered or West Virginia Ecological Services Field Eastern Time on the closing date. We threatened species under the Act. Office Web site at: https://www.fws.gov/ must receive requests for public Listing a species as an endangered or westvirginiafieldoffice/endangered hearings, in writing, at the address threatened species and designations and species.html.

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Information Requested (a) Specific instream and bank habitat Comments and materials we receive, restoration activities that will benefit as well as supporting documentation we Public Comments the candy darter, including revegetation used in preparing this proposed rule, We intend that any final action of riparian corridors, natural stream will be available for public inspection resulting from this proposed rule will be channel design, and redesigning and on http://www.regulations.gov, or by based on the best scientific and removal of stream crossing structures; appointment, during normal business commercial data available and be as (b) water quality improvement actions hours, at the U.S. Fish and Wildlife accurate and as effective as possible. such as stream liming; Service, West Virginia Ecological Therefore, we request comments or (c) genetic and population Services Field Office (see FOR FURTHER information from the public, other monitoring; INFORMATION CONTACT). concerned governmental agencies, (d) captive propagation in conjunction Public Hearing Native American tribes, the scientific with a Service-approved Captive community, industry, or any other Propagation Plan; Section 4(b)(5) of the Act provides for interested parties concerning this (e) sustainable forestry practices that one or more public hearings on this proposed rule. We particularly seek new primarily occur adjacent to, or upslope proposal, if requested. Requests must be information not already included in the from, but do not occur within streams received within 45 days after the date of SSA Report concerning: occupied or likely to be occupied by the publication of this proposed rule in the (1) The candy darter’s biology, range, candy darter and that are implemented Federal Register. Such requests must be FOR and population trends, including: according to well-defined and sent to the address shown in (a) Biological or ecological enforceable best management practices FURTHER INFORMATION CONTACT. We will requirements of the species, including (e.g., Sustainable Forestry Initiative, schedule public hearings on this proposal, if any are requested, and habitat requirements for feeding, Forest Stewardship Council); and announce the dates, times, and places of breeding, and sheltering; (f) other activities that do not: (b) Genetics and ; those hearings, as well as how to obtain (i) Facilitate the spread of candy (c) Historical and current range reasonable accommodations, in the darter/variegate darter hybridization; including distribution patterns; Federal Register and local newspapers (ii) increase sedimentation that (d) Historical and current population at least 15 days before the hearing. levels and current and projected trends; negatively affects feeding, breeding, Peer Review and sheltering, or dispersal; and (e) Past and ongoing conservation (iii) cause a change in water In accordance with our joint policy on measures for the species, its habitat, or temperature that negatively affects peer review published in the Federal both. feeding, breeding, sheltering, or Register on July 1, 1994 (59 FR 34270), (2) Factors that may affect the dispersal. we sought the expert opinions of six continued existence of the species, Please include sufficient information appropriate and independent specialists which may include habitat modification with your submission (such as scientific regarding the SSA Report that supports or destruction, overutilization, disease, journal articles or other publications) to this proposed rule and received predation, the inadequacy of existing allow us to verify any scientific or comments from four of the six peer regulatory mechanisms, or other natural commercial information you include. reviewers. These peer reviewers have or manmade factors. Please note that submissions merely expertise in freshwater fisheries, aquatic (3) Biological, commercial trade, or stating support for or opposition to the ecology, and genetics. The purpose of other relevant data concerning any action under consideration without peer review is to ensure that our listing threats (or lack thereof) to this species providing supporting information, determinations and critical habitat and existing regulations that may be although noted, will not be considered designations are based on scientifically addressing those threats. in making a determination, as section sound data, assumptions, and analyses. (4) The historical and current status, 4(b)(1)(A) of the Act directs that See the Executive Summary—Peer range, distribution, and population size determinations as to whether any Review section above. of this species, including the locations species is a threatened or endangered Previous Federal Action of any additional populations of this species must be made ‘‘solely on the species. basis of the best scientific and We identified the candy darter as a (5) The occurrence of variegate darters commercial data available.’’ Category 2 candidate species in the within the range of candy darters and You may submit your comments and December 30, 1982, Review of evidence of further hybridization materials concerning this proposed rule Vertebrate Wildlife; Notice of Review between the two species. by one of the methods listed in (50 FR 58454). Category 2 candidates (6) The potential for, and timeframe ADDRESSES. We request that you send were defined as species for which we associated with, additional comments only by the methods had information that proposed listing introductions of the variegate darter into described in ADDRESSES. was possibly appropriate, but unaffected watersheds. If you submit information via http:// conclusive data on biological (7) Specific prohibitions and www.regulations.gov, your entire vulnerability and threats were not exceptions to those prohibitions that submission—including any personal available to support a proposed rule at may be necessary and advisable for the identifying information—will be posted that time. The species remained so candy darter’s conservation. We intend on the Web site. If your submission is designated in subsequent annual to publish, as appropriate, a more made via a hardcopy that includes Candidate Notices of Review (CNOR) tailored proposed rule with provisions personal identifying information, you (50 FR 37958, September 18, 1985; 54 set forth under section 4(d) of the Act may request at the top of your document FR 554, January 6, 1989; 56 FR 58804, for public review and comment in the that we withhold this information from November 21, 1991; and 59 FR 58982, future. Activities we are considering for public review. However, we cannot November 15, 1994). In the February 28, potential exemption under a section guarantee that we will be able to do so. 1996, CNOR (61 FR 7596), we 4(d) rule include, but are not necessarily We will post all hardcopy submissions discontinued the designation of limited to, exceptions for: on http://www.regulations.gov. Category 2 species as candidates;

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therefore, the candy darter was no boulders are surrounded by, or covered factors influencing the species, framed longer a candidate species. with, fine sediment particles). in the context of the 3Rs, to inform our In 2010, the Center for Biological The available candy darter occurrence determination of whether the candy Diversity (CBD) petitioned the Service data, all of which were collected after darter meets the definition of a to list 404 aquatic, riparian, and wetland the aquatic habitat in the region was threatened or an endangered species species from the Southeastern United degraded in the late 1800s by (see the Determination section below). States under the Act. The candy darter widespread forest clearing, indicate that Because we have included was among these 404 species. On the species prefers cool or cold water information below about the candy September 27, 2011, the Service temperatures, but that warm water darter’s 3Rs, we further define those published a substantial 90-day finding conditions may also be tolerated. The terms here. Resiliency means having for 374 of the 404 species, including the fish are opportunistic feeders, eating sufficiently large populations for the candy darter, soliciting information mostly benthic macroinvertebrates such species to withstand stochastic events about, and initiating status reviews for, as mayflies and caddisflies. In streams (arising from random factors). We can those species (76 FR 59836). In 2015, maintaining favorable habitat measure resiliency based on metrics of CBD filed a complaint against the conditions, candy darters can be population health; for example, birth Service for failure to complete a 12- abundant throughout the stream versus death rates and population size, month finding for the candy darter continuum. if that information exists. Resilient within the statutory timeframe. The Candy darters are sexually mature at populations are better able to withstand Service entered into a settlement 2 years of age and live to a maximum disturbances such as random agreement with CBD to address the age of 3 years. They are classified as fluctuations in birth rates (demographic complaint; the court-approved brood-hiding, benthic spawners. In this stochasticity), variations in rainfall settlement agreement specified that a reproductive strategy, the female (environmental stochasticity), or the 12-month finding for the candy darter deposits her eggs in the pebble and effects of human activities. Redundancy would be delivered to the Federal gravel substrate between larger cobbles means having a sufficient number of Register by September 30, 2017. and boulders, and an attendant male populations for the species to withstand We will also be providing a proposal simultaneously fertilizes the eggs as catastrophic events (such as a rare to designate critical habitat for the they are released. During spawning, destructive natural event or episode candy darter under the Act in the near males become aggressively territorial, involving many populations). future. and in all observed instances of Redundancy is about spreading the risk spawning aggression, the larger male Background and can be measured through the prevailed and fertilized the female’s duplication and distribution of A thorough review of the taxonomy, eggs. Female candy darters produce a populations across the range of the life history, and ecology of the candy relatively low number of eggs (average species. Generally, the greater the darter (Etheostoma osburni) is presented 170 per individual) as compared to number of populations a species has in the species status assessment (U.S. other fish, with no significant deviation distributed over a larger landscape, the Fish & Wildlife Service 2017, entire; from 1:1 sex ratios. better it can withstand catastrophic available http://www.regulations.gov We are uncertain whether individual events. Representation means having under the FWS–R5–ES–2017–0056 candy darters complete their lifecycle the breadth of genetic makeup of the docket). The candy darter is recognized within single riffles or riffle complexes species to adapt to changing by the American Fisheries Society (Page spanning just a few hundred meters or environmental conditions. et al. 2013, p. 139) as a valid taxon and are capable of longer, seasonally Representation can be measured is listed as such in the Integrated mediated movements within suitable through the genetic diversity within and Taxonomic Information System (ITIS) habitat. While data are sparse regarding among populations and the ecological database (http://www.itis.gov, 2016). We the minimum habitat size and degree of diversity (also called environmental have no information to suggest there is genetic connectivity required for candy variation or diversity) of populations scientific disagreement about the candy darter population viability, the across the species’ range. The more darter’s taxonomy; therefore, we accept historical distribution of the species and representation, or diversity, a species that the candy darter is a valid taxon the fundamentals of conservation has, the more it is capable of adapting based upon its recognition by the biology suggest these factors are to changes (natural or human caused) in American Fisheries Society and its ITIS important to the species. its environment. designation. In the absence of species-specific Summary of Biological Status and The candy darter is a small, genetic and ecological diversity Threats freshwater fish endemic to second order information, we evaluate representation and larger streams and rivers within The Act directs us to determine based on the extent and variability of portions of the upper Kanawha River whether any species is an endangered habitat characteristics within the basin, which is synonymous with the species or a threatened species because geographical range. We define viability Gauley and greater New River of any factors affecting its continued here as the ability of the species to watersheds in Virginia and West existence. We completed a persist in the wild over time and, Virginia. The species is described as a comprehensive assessment of the conversely, to avoid extinction. habitat specialist, being most often biological status of the candy darter and In this section, we summarize the associated with faster flowing stream prepared a report of the assessment conclusions of that assessment, which segments with coarse bottom substrate (SSA Report), which provides a can be accessed at Docket FWS–R5–ES– (e.g., gravel, cobble, rocks, and thorough account of the species’ overall 201X–0056 on http:// boulders), which provides shelter for viability using the conservation biology www.regulations.gov, at https:// individual darters and breeding habitat principles of resiliency, redundancy, www.fws.gov/westvirginiafieldoffice/ (see below). Candy darters are intolerant and representation (collectively, the endangeredspecies.html, and at https:// of excessive sedimentation and stream ‘‘3Rs’’). We have used the SSA Report’s www.fws.gov/northeast/virginiafield/ bottom embeddedness (the degree to assessment of the candy darter’s current svfo/southwesternvirginia.html. The which gravel, cobble, rocks, and and potential future status, based on the SSA Report documents the results of

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our comprehensive biological status Plateaus physiographic province and redundancy scores. While the candy review for the candy darter, including the Upper New River in the Valley and darter is present in the two an assessment of the factors influencing Ridge physiographic province) maintain physiographic provinces from which it its continued existence. The SSA report populations with moderate or low is historically known, the species is does not represent a decision by the resiliency. Therefore, we conclude the absent from some ecological settings in Service on whether the candy darter candy darter’s populations currently which it once existed. This fact leads us should be proposed for listing as an have moderate to low resiliency because to conclude the candy darter’s endangered or threatened species under the majority of metapopulations fall into representation is also moderate to low. the Act. Rather, the SSA Report those categories. Therefore, our analysis under the 3Rs provides the scientific basis that informs This loss of candy darter populations leads us to conclude that the condition our regulatory decision, which involves and the areas they represented within of the candy darter is currently the further application of standards the species’ historical range, as well as moderate to low. within the Act and its implementing the fragmentation of extant populations, Risk Factors for the Candy Darter regulations and policies. The Act directs has compromised the species’ ability to us to determine whether any species is repatriate those areas or avoid species- Based on the candy darter’s life an endangered species or a threatened level effects of a catastrophic event. history and habitat needs, and in species because of any factors affecting Based on the species’ current consultation with species’ experts from its continued existence (i.e., whether it distribution across its historical range Virginia and West Virginia State and meets the definition of a threatened or and the species’ distribution and Federal agencies and academic an endangered species). In this section, condition within each of the seven institutions, we identified the potential we review the biological condition of historical metapopulations (one with stressors (negative influences), the the species and its resources and the moderate to high internal redundancy, contributing sources of those stressors, factors influencing the species and one with moderate internal redundancy, and conservation measures to address resources to assess the species’ overall one with low internal redundancy, two those stressors that are likely to affect viability and the risks to that viability. with no internal redundancy, and two the species’ current condition and that have been extirpated), we conclude viability (Service 2017, pp. 31–43). We Summary of Current Condition that the candy darter’s current evaluated how these stressors may be Historically, the candy darter redundancy is moderate to low (Service currently affecting the species and occurred in 35 populations distributed 2017, pp. 27–28, 43–49). whether, and to what extent, they would across 7 metapopulations located in the While the candy darter currently affect the species in the future (Service Bluestone, Lower New River, Upper maintains representation in both the 2017, pp. 50–65). Water temperature, Gauley, Lower Gauley, and Middle New Appalachian Plateaus and Valley and excessive sedimentation, habitat watersheds in the Appalachian Plateaus Ridge physiographic provinces, only a fragmentation, water chemistry, water physiographic province and the Upper single metapopulation in each province flow, and nonnative competition likely New River and Greenbrier watersheds in has a moderate to high resiliency score. influenced the species in the past and the Valley and Ridge physiographic As related to the species’ occupation in contributed to its current condition, and province. a diversity of environmental settings, may continue to affect some individual Within these two physiographic candy darters have lost representation populations in the future. Hybridization provinces, the candy darter has been from lower mainstem rivers and with the closely related variegate darter extirpated from almost half of its tributaries. Researchers have noted () appears to be historical range; (17 (49 percent) of 35 differences in the genetic, physical, having, and will continue to have, the known populations and 2 (29 percent) behavioral, or developmental greatest influence on candy darter of 7 known metapopulations), with the characteristics of some stream fish populations and its overall viability extirpations representing a complete species based on the species’ within the next 25 years (Service 2017, loss of resiliency in those populations longitudinal position in the watershed pp. 50–65). While we acknowledge (or metapopulations). We qualitatively (e.g., stream size) (Neville et al. 2006, there is uncertainty regarding some of assessed the remaining (extant) pp. 911–913), but we have no data the scientific data and assumptions used populations, placing them in ‘‘low,’’ indicating candy darters exhibit similar to assess the biological condition of the ‘‘moderate,’’ or ‘‘high’’ categories that differences based on their particular candy darter, the species’ experts represent the populations’ potential to environmental setting. Although the generally agreed with the overall bounce back after stochastic events. candy darter retains representation in methodology and confirmed that the These categories were based on a both the Appalachian Plateaus and results were reflective of their combination of physical habitat metrics, Valley and Ridge physiographic observations of the candy darter and its nonnative competition metrics, and provinces, the species has a different habitat. candy darter demographic metrics (see distribution than it had historically (e.g., As mentioned above, the primary Service 2017, pp. 45, B1–B16). Of the 18 its presence or absence in headwater vs. stressor to the candy darter is extant populations, 6 (33 percent) have tributary streams), and likely a different hybridization with the variegate darter a current score of high resiliency, 6 (33 ability to respond to stochastic and (Service 2017, pp. 31–36, 50), a species percent) have moderate resiliency, and catastrophic events, thereby putting the that is native to the Kanawha River 6 (33 percent) have low or moderate to species at increased risk of extinction basin below the Kanawha Falls in low resiliency. The six populations with from any such events. Therefore, we Fayette County, West Virginia. The high resiliency occur in two conclude that the species’ Kanawha Falls serve as a natural barrier metapopulations (the Upper Gauley in representation is currently moderate to to fish dispersal from the lower the Appalachian Plateaus physiographic low (Service 2017, pp. 27–28, 43–49). Kanawha River basin (and greater province and the Greenbrier in the The candy darter is currently River basin) upstream into the range of Valley and Ridge physiographic distributed in five of the historical seven the candy darter in the upper Kanawha province); the remaining three extant metapopulations. The populations River basin. However, in the late 20th metapopulations (the Lower Gauley and within those metapopulations generally century, the variegate darter was Middle New in the Appalachian have moderate to low resiliency and introduced into the upper Kanawha

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basin, likely by ‘‘bait bucket transfer.’’ species experts and peer reviewers and Gauley watershed in West Virginia and Since their introduction in 1982 and their affiliations). the Middle New and Upper New 2002, variegate darters have expanded watersheds in Virginia). However, the Determination approximately 3 to 9 stream miles per risk is moderately high that the year over the course of the last 20 or Section 4 of the Act (16 U.S.C. 1533), variegate darter will eventually be more years within the range of the and its implementing regulations at 50 introduced into these watersheds and candy darter. Genetic studies have CFR part 424, set forth the procedures ultimately replace most candy darter demonstrated that where variegate and for adding species to the Federal Lists populations throughout the candy candy darter ranges now overlap, the of Endangered and Threatened Wildlife darter’s range. two species will hybridize, quickly and Plants. Under section 4(a)(1) of the The Act defines an endangered resulting in ‘‘genetic swamping’’ (the Act, we may list a species based on: (A) species as any species that is ‘‘in danger homogenization or replacement of The present or threatened destruction, of extinction throughout all or a native genotypes) of the endemic candy modification, or curtailment of its significant portion of its range.’’ We find darter population and eventually its habitat or range; (B) Overutilization for that an endangered species status is not complete replacement by variegate commercial, recreational, scientific, or appropriate for the candy darter because darters or hybrids (Service 2017, pp. 31– educational purposes; (C) Disease or the species still occurs throughout 36). predation; (D) The inadequacy of approximately half of its historical range existing regulatory mechanisms; or (E) and the risk is low that the species Summary of Future Conditions Analysis Other natural or manmade factors would not persist in the near term; in We modeled a total of five scenarios affecting its continued existence. other words, the risk of the candy darter to assess the potential viability of the We have carefully assessed the best significantly declining in the near term candy darter at a point up to 25 years scientific and commercial information is low given that it has persisted despite in the future (Service 2017, pp. 50–65). available regarding the past, present, historical levels of habitat loss. Further, Two scenarios were focused on habitat and future threats to the candy darter. variegate darters are not known to be change (one positive and the other Our analysis of this information present in the Virginia areas of the negative), and three scenarios were indicates that, at the species level, species’ range, thus the risk of focused on variegate darter invasion. hybridization with variegate darters significant declines in the near term due However, the habitat change scenarios, (Factor E) is the most influential factor to hybridization is low in those areas. by themselves, are not plausible affecting the candy darter now and into The persistence of occupied habitat scenarios because variegate darter the future. Excessive sedimentation and within the species’ range provides hybridization is ongoing and likely to increased water temperatures degraded redundancy, resiliency, and continue (see Chapter 4 and Appendix once-suitable habitat (Factor A) and representation levels that are likely B of the SSA Report for additional likely caused historical declines of the sufficient to sustain the species beyond information). We chose to model all candy darter; these factors continue to the near term. Therefore, we conclude scenarios out to 25 years because we affect some of the remaining that the current risk of extinction of the have data to reasonably predict populations despite regulatory candy darter is sufficiently low that it potential habitat and variegate darter mechanisms (Factor D) to reduce or does not meet the definition of an changes and their effects on the candy eliminate sedimentation. There may be endangered species under the Act. darter within this timeframe. additional infrastructure projects (e.g. The Act defines a threatened species Under the three most plausible roads, pipeline, etc.) that increase as any species that is ‘‘likely to become scenarios, the predicted rate of variegate sediment loading within the range of the endangered throughout all or a darter expansion and hybridization candy darter as a result of forest clearing significant portion of its range within remains the same, and at the end of 25 for permanent rights of way and stream the foreseeable future.’’ We find that the years, the candy darter will likely occur crossings. Additionally, the current status of the candy darter meets the in four isolated populations and level of habitat fragmentation (Factor A) definition of a threatened species. maintain little resilience, redundancy, isolates some populations, which Because the risk is high that or representation. The effects of reduces gene flow and limits the hybridization between the candy darter significant positive or negative habitat potential for the species to colonize or and the variegate darter will continue to changes do not alter this outcome; recolonize streams if habitat conditions occur, we can reasonably predict that although it is possible that, because change. Other factors such as flow within 20 years hybridization between variegate darters may be more tolerant alterations and water quality the two species is likely to increase of a wider range of habitat conditions, degradation that affect habitat (Factor within the range of the candy darter to negative habitat changes could A), and the stocking of nonnative an extent causing the species to become selectively benefit variegate darters and species that can eat (Factor C) or in danger of extinction (see table 6 and therefore increase the rate at which outcompete (Factor E) candy darter are Chapter 4 in the SSA report). We cannot candy darters are extirpated. not expected to cause species-level precisely predict the timing of The candy darter SSA Report contains effects. In addition, we have no introduction of the variegate darter into a more detailed discussion of our evidence that overutilization (Factor B) additional areas within the candy evaluation of the biological status of the or disease (Factor C) is affecting darter’s range, the rate of hybridization candy darter and the influences that individuals or populations of candy once introduction occurs, and the time may affect its continued existence. Our darters. at which candy darters will be replaced conclusions are based upon the best Hybridization with variegate darters by variegate darters or hybrids; available scientific and commercial has occurred or is currently occurring in however, the time period over which data, including the expert opinion of the multiple streams within the Lower New, the variegate darter has spread into the species’ experts (fishery biologists, Lower Gauley, and candy darter’s range in the past and the aquatic ecologists, and geneticists from watersheds in West Virginia (Service documented effects of hybridization State and Federal agencies and 2017, p. 34). Variegate darters have not between the two species give us academic institutions). Please see the yet been detected in the remainder of reasonable confidence in our SSA report for a complete list of the the candy darter’s range (i.e., the Upper determination that the candy darter is

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likely to experience additional effects of the States and other countries and calls accomplished solely on Federal lands hybridization within 20 years to an for recovery actions to be carried out for because their range may occur primarily extent that will cause the species to listed species. The protection required or solely on non-Federal lands. To become in danger of extinction. by Federal agencies and the prohibitions achieve recovery of these species Therefore, on the basis of the best against certain activities are discussed, requires cooperative conservation efforts available scientific and commercial in part, below. on private, state, and tribal lands. If this information, we propose listing the The primary purpose of the Act is the species is listed, funding for recovery candy darter as threatened in conservation of endangered and actions will be available from a variety accordance with sections 3(6) and threatened species and the ecosystems of sources, including Federal budgets, 4(a)(1) of the Act. upon which they depend. The ultimate state programs, and cost share grants for Under the Act and our implementing goal of such conservation efforts is the non-Federal landowners, the academic regulations, a species may warrant recovery of these listed species, so that community, and nongovernmental listing if it is endangered or threatened they no longer need the protective organizations. In addition, pursuant to throughout all or a significant portion of measures of the Act. Subsection 4(f) of section 6 of the Act, the States of its range. Because we have determined the Act calls for the Service to develop Virginia and West Virginia would be that the candy darter is threatened and implement recovery plans for the eligible for Federal funds to implement throughout all of its range, no portion of conservation of endangered and management actions that promote the its range can be ‘‘significant’’ for threatened species. The recovery protection or recovery of the candy purposes of the definitions of planning process involves the darter. Information on our grant ‘‘endangered species’’ and ‘‘threatened identification of actions that are programs that are available to aid species.’’ See the Final Policy on necessary to halt or reverse the species’ species recovery can be found at: http:// Interpretation of the Phrase ‘‘Significant decline by addressing the threats to its www.fws.gov/grants. Portion of Its Range’’ in the Endangered survival and recovery. The goal of this Although the candy darter is only Species Act’s Definitions of process is to restore listed species to a proposed for listing under the Act at ‘‘Endangered Species’’ and ‘‘Threatened point where they are secure, self- this time, please let us know if you are Species’’ (79 FR 37577, July 1, 2014). sustaining, and functioning components interested in participating in recovery While it is the Service’s position under of their ecosystems. efforts for this species. Additionally, we the SPR Policy that undertaking no Recovery planning includes the invite you to submit any new further analysis of ‘‘significant portion development of a recovery outline information on this species whenever it of its range’’ in this circumstance is shortly after a species is listed and becomes available and any information consistent with the language of the Act, preparation of a draft and final recovery you may have for recovery planning we recognize that the Policy is currently plan. The recovery outline guides the purposes (see FOR FURTHER INFORMATION under judicial review, so we also took immediate implementation of urgent CONTACT). the additional step of considering recovery actions and describes the Section 7(a) of the Act requires whether there could be any significant process to be used to develop the Federal agencies to evaluate their portions of the species’ range where the recovery plan. A recovery team actions with respect to any species that species is in danger of extinction. We (composed of species experts, Federal is proposed or listed as an endangered evaluated whether there is substantial and state agencies, nongovernmental or threatened species and with respect information indicating that there are any organizations, and stakeholders) is to its critical habitat, if any is portions of the species’ range: (1) that sometimes established to develop the designated. Regulations implementing may be ‘‘significant,’’ and (2) where the recovery plan. The recovery plan this interagency cooperation provision species may be in danger of extinction. identifies recovery criteria that indicate of the Act are codified at 50 CFR part In practice, a key part of identifying when a species may be ready for 402. Section 7(a)(4) of the Act requires portions appropriate for further analysis downlisting or delisting, actions Federal agencies to confer with the is whether the threats are geographically necessary to achieve recovery and their Service on any action that is likely to concentrated. The threats affecting the estimated costs, and methods for jeopardize the continued existence of a species are throughout its entire range; monitoring recovery progress. The species proposed for listing or result in therefore, there is not a meaningful recovery plan may be revised to address destruction or adverse modification of geographical concentration of threats. continuing or new threats to the species, proposed critical habitat. If a species is As a result, even if we were to as new substantive information becomes listed subsequently, section 7(a)(2) of undertake a detailed SPR analysis, there available. When completed, the the Act requires Federal agencies to would not be any portions of the recovery outline, draft recovery plan, ensure that activities they authorize, species’ range where the threats are and final recovery plan will be available fund, or carry out are not likely to harming the species to a greater degree on our Web site (http://www.fws.gov/ jeopardize the continued existence of such that it is in danger of extinction in endangered), or from our West Virginia the species or destroy or adversely that portion. Ecological Services Field Office (see FOR modify its critical habitat. If a Federal FURTHER INFORMATION CONTACT). action may affect a listed species or its Available Conservation Measures Implementation of recovery actions critical habitat, the responsible Federal Conservation measures provided to generally requires the participation of a agency must enter into consultation species listed as endangered or broad range of partners, including other with the Service. threatened species under the Act Federal agencies, states, tribes, Federal agency actions within the include recognition, recovery actions, nongovernmental organizations, species’ habitat that may require requirements for Federal protection, and businesses, and private landowners. conference or consultation or both as prohibitions against certain practices. Examples of recovery actions include described in the preceding paragraph Recognition through listing results in habitat restoration (e.g., restoration of include, but are not limited to, public awareness, and conservation by native vegetation), research, captive management and any other landscape- Federal, state, tribal, and local agencies, propagation and reintroduction, and altering activities on lands administered private organizations, and individuals. outreach and education. The recovery of by the U.S. Forest Service, National Park The Act encourages cooperation with many listed species cannot be Service, and the U.S. Army Corps of

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Engineers (ACOE); issuance of section It is our policy, as published in the species, at the time it is listed in 404 Clean Water Act permits by the Federal Register on July 1, 1994 (59 FR accordance with the Act, on which are ACOE; issuance or oversight of coal 34272), to identify to the maximum found those physical or biological mining permits by the Office of Surface extent practicable at the time a species features: Mining; and construction and is listed, those activities that would or (a) Essential to the conservation of the maintenance of roads, bridges, or would not constitute a violation of species, and highways by the Federal Highway section 9 of the Act. The intent of this (b) Which may require special Administration. policy is to increase public awareness of management considerations or Under section 4(d) of the Act, the the effect of a proposed listing on protection; and Service has discretion to issue proposed and ongoing activities within (2) Specific areas outside the regulations that we find necessary and the range of the species proposed for geographical area occupied by the advisable to provide for the listing. Based on the best available species at the time it is listed, upon a conservation of threatened species. The information, the following actions are determination that such areas are Act and its implementing regulations set unlikely to result in a violation of essential for the conservation of the forth a series of general prohibitions and section 9, if these activities are carried species. Conservation, as defined under exceptions that apply to threatened out in accordance with existing section 3 of the Act, means to use all wildlife. The prohibitions of section regulations and permit requirements; methods and procedures that are 9(a)(1) of the Act, as applied to this list is not comprehensive: necessary to bring an endangered or threatened wildlife and codified at 50 • Normal agricultural practices, threatened species to the point at which CFR 17.31, make it illegal for any person including herbicide and pesticide use, the measures provided pursuant to the which are carried out in accordance subject to the jurisdiction of the United Act are no longer necessary. Such with any existing regulations, permit States to take (which includes harass, methods and procedures include, but and label requirements, and best harm, pursue, hunt, shoot, wound, kill, are not limited to, all activities management practices. trap, capture, or collect; or to attempt associated with scientific resources Based on the best available any of these) threatened wildlife within management such as research, census, information, the following activities the United States or on the high seas. In law enforcement, habitat acquisition may potentially result in a violation of addition, it is unlawful to import; and maintenance, propagation, live section 9 of the Act; this list is not export; deliver, receive, carry, transport, trapping, and transplantation, and, in comprehensive: or ship in interstate or foreign the extraordinary case where population (1) Introduction of variegate darters commerce in the course of commercial pressures within a given ecosystem into suitable candy darter habitat. activity; or sell or offer for sale in cannot be otherwise relieved, may (2) Stocking of nonnatives into interstate or foreign commerce any include regulated taking. listed species. It is also illegal to suitable candy darter habitat. Critical habitat receives protection possess, sell, deliver, carry, transport, or (3) Unlawful destruction or alteration under section 7 of the Act through the ship any such wildlife that has been of the habitat of the candy darter (e.g., requirement that Federal agencies taken illegally. Certain exceptions apply unpermitted instream dredging, ensure, in consultation with the Service, to employees of the Service, the impoundment, water diversion or that any action they authorize, fund, or National Marine Fisheries Service, other withdrawal, channelization, discharge carry out is not likely to result in the Federal land management agencies, and of fill material) that impairs essential destruction or adverse modification of state conservation agencies. behaviors such as breeding, feeding, or critical habitat. The designation of We may issue permits to carry out sheltering, or results in killing or critical habitat does not affect land otherwise prohibited activities injuring a candy darter. ownership or establish a refuge, involving threatened wildlife under (4) Unauthorized discharges or wilderness, reserve, preserve, or other certain circumstances. Regulations dumping of toxic chemicals or other conservation area. Such designation governing permits are codified at 50 pollutants into waters supporting the does not allow the government or public CFR 17.32. With regard to threatened candy darter that kills or injures to access private lands. Such wildlife, a permit may be issued for the individuals, or otherwise impairs designation does not require following purposes: For scientific essential life-sustaining behaviors such implementation of restoration, recovery, purposes, to enhance the propagation or as breeding, feeding, or finding shelter. or enhancement measures by non- survival of the species, and for Questions regarding whether specific Federal landowners. Where a landowner incidental take in connection with activities would constitute a violation of requests Federal agency funding or otherwise lawful activities. There are section 9 of the Act should be directed authorization for an action that may also certain statutory exemptions from to the appropriate office: • affect a listed species or critical habitat, the prohibitions, which are found in Southwestern Virginia Ecological the consultation requirements of section sections 9 and 10 of the Act. Services Field Office, 330 Cummings 7(a)(2) of the Act would apply, but even For the candy darter, we are Street, Abingdon, VA 24210; telephone in the event of a destruction or adverse considering developing a rule under (276) 623–1233; facsimile (276) 623– modification finding, the obligation of section 4(d) of the Act that is tailored to 1185. the Federal action agency and the • West Virginia Ecological Services the specific threats and conservation landowner is not to restore or recover Field Office (see FOR FURTHER needs of this species. Please see the the species, but to implement INFORMATION CONTACT). Information Requested—Public reasonable and prudent alternatives to Comments section above for a list of Critical Habitat for the Candy Darter avoid destruction or adverse activities we are considering exempting modification of critical habitat. under a section 4(d) rule in the future. Background Section 4 of the Act requires that we If appropriate, we will develop and then Critical habitat is defined in section 3 designate critical habitat on the basis of announce the availability of a proposed of the Act as: the best scientific data available. tailored section 4(d) rule for public (1) The specific areas within the Further, our Policy on Information review and comment. geographical area occupied by the Standards Under the Endangered

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Species Act (published in the Federal that the designation of critical habitat us the numbers of the sections or Register on July 1, 1994 (59 FR 34271)), will not likely increase the degree of paragraphs that are unclearly written, the Information Quality Act (section 515 threat to these species and may provide which sections or sentences are too of the Treasury and General some measure of benefit, we find that long, the sections where you feel lists or Government Appropriations Act for designation of critical habitat is prudent tables would be useful, etc. Fiscal Year 2001 (Pub. L. 106–554; H.R. for the candy darter. 5658)), and our associated Information National Environmental Policy Act (42 Critical Habitat Determinability Quality Guidelines, provide criteria, U.S.C. 4321 et seq.) establish procedures, and provide Having determined that designation is We have determined that guidance to ensure that our decisions prudent, under section 4(a)(3) of the Act environmental assessments and are based on the best scientific data we must find whether critical habitat for environmental impact statements, as available. They require our biologists, to the species is determinable. Our defined under the authority of the the extent consistent with the Act and regulations at 50 CFR 424.12(a)(2) state National Environmental Policy Act with the use of the best scientific data that critical habitat is not determinable (NEPA; 42 U.S.C. 4321 et seq.), need not available, to use primary and original when one or both of the following be prepared in connection with listing sources of information as the basis for situations exist: (i) Information a species as an endangered or recommendations to designate critical sufficient to perform required analyses threatened species under the habitat. of the impacts of the designation is Endangered Species Act. We published lacking, or (ii) The biological needs of Prudency Determination a notice outlining our reasons for this the species are not sufficiently well determination in the Federal Register Section 4(a)(3) of the Act, as known to permit identification of an on October 25, 1983 (48 FR 49244). amended, and implementing regulations area as critical habitat. (50 CFR 424.12), require that, to the As discussed above, we have References Cited maximum extent prudent and reviewed the available information A complete list of references cited in determinable, the Secretary designate pertaining to the biological needs of the this rulemaking is available on the critical habitat at the time the species is candy darter and habitat characteristics Internet at http://www.regulations.gov determined to be endangered or where the species is located. Because and upon request from the West threatened. Our regulations (50 CFR we are seeking, through this document, Virginia Ecological Services Field Office 424.12(a)(1)) state that the designation additional information regarding (see FOR FURTHER INFORMATION CONTACT). of critical habitat is not prudent when updated candy darter occurrence one or both of the following situations records, updated documentation of Authors exist: (1) The species is threatened by variegate darter presence and risk for taking or other human activity, and additional variegate darter The primary authors of this proposed identification of critical habitat can be introductions, and other analyses, we rule are the staff members of the expected to increase the degree of threat conclude that the designation of critical Northeast Regional Office. to the species, or (2) such designation of habitat is not determinable for the candy List of Subjects in 50 CFR Part 17 critical habitat would not be beneficial darter at this time. We will make a to the species. determination on critical habitat no later Endangered and threatened species, There is currently no imminent threat than 1 year following any final listing Exports, Imports, Reporting and of take attributed to collection or determination. recordkeeping requirements, vandalism under Factor B for the candy Transportation. Required Determinations darter, and identification and mapping Proposed Regulation Promulgation of critical habitat is not likely to Clarity of the Rule increase any such threat. In the absence Accordingly, we propose to amend We are required by Executive Orders of finding that the designation of critical part 17, subchapter B of chapter I, title 12866 and 12988 and by the habitat would increase threats to a 50 of the Code of Federal Regulations, Presidential Memorandum of June 1, species, if there are any benefits to a as set forth below: 1998, to write all rules in plain critical habitat designation, then a language. This means that each rule we prudent finding is warranted. The PART 17—ENDANGERED AND publish must: THREATENED WILDLIFE AND PLANTS potential benefits of designation (1) Be logically organized; include: (1) Triggering consultation (2) Use the active voice to address ■ under section 7 of the Act in new areas 1. The authority citation for part 17 readers directly; continues to read as follows: for actions in which there may be a (3) Use clear language rather than Federal nexus where it would not jargon; Authority: 16 U.S.C. 1361–1407; 1531– otherwise occur because, for example, it (4) Be divided into short sections and 1544; and 4201–4245; unless otherwise noted. is or has become unoccupied or the sentences; and occupancy is in question; (2) focusing (5) Use lists and tables wherever ■ 2. In § 17.11(h), add an entry for conservation activities on the most possible. ‘‘Darter, candy’’ in alphabetical order essential features and areas; (3) If you feel that we have not met these under FISHES to read as set forth below: providing educational benefits to State requirements, send us comments by one or county governments or private of the methods listed in ADDRESSES. To § 17.11 Endangered and threatened entities; and (4) preventing people from better help us revise the rule, your wildlife. causing inadvertent harm to the species. comments should be as specific as * * * * * Therefore, because we have determined possible. For example, you should tell (h) * * *

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

******* FISHES

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

*******

Dated: September 7, 2017. this proposed rule and Amendment 17B by the Council and implemented James W. Kurth, is to protect federally managed Gulf through regulations at 50 CFR part 622 Acting Director, U.S. Fish and Wildlife shrimp stocks while maintaining catch under the authority of the Magnuson- Service. efficiency, economic efficiency, and Stevens Fishery Conservation and [FR Doc. 2017–21351 Filed 10–3–17; 8:45 am] stability in the fishery. Management Act (Magnuson-Stevens BILLING CODE 4333–15–P DATES: Written comments must be Act). received on or before November 3, 2017. This document also proposes to designate the unidentified tables in ADDRESSES: You may submit comments DEPARTMENT OF COMMERCE on the proposed rule, identified by § 622.55 to bring the section into ‘‘NOAA–NMFS–2017–0040’’ by either compliance with the requirements of 1 National Oceanic and Atmospheric CFR 8.1 and 8.2 and with the Office of Administration of the following methods: • Electronic Submission: Submit all the Federal Register’s Document Drafting Handbook (https:// 50 CFR Part 622 electronic public comments via the Federal e-Rulemaking Portal. Go to www.archives.gov/files/federal-register/ [Docket No. 170823802–7802–01] www.regulations.gov/ write/handbook/ddh.pdf) section 7.4. RIN 0648–BG82 #!docketDetail;D=NOAA-NMFS-2017- Background 0040, click the ‘‘Comment Now!’’ icon, From 2003 to 2006, the Gulf shrimp Fisheries of the Caribbean, Gulf of complete the required fields, and enter fishery experienced significant Mexico, and South Atlantic; Shrimp or attach your comments. • economic losses, primarily as a result of Fishery of the Gulf of Mexico; Mail: Submit written comments to high fuel costs and reduced prices Amendment 17B Frank Helies, Southeast Regional Office, caused by competition with imports. NMFS, 263 13th Avenue South, St. These economic losses contributed to a AGENCY: National Marine Fisheries Petersburg, FL 33701. Service (NMFS), National Oceanic and reduction in the number of vessels in Instructions: Comments sent by any the fishery, and consequently, a Atmospheric Administration (NOAA), other method, to any other address or Commerce. reduction of commercial effort. During individual, or received after the end of that time, commercial vessels in the ACTION: Proposed rule; request for the comment period, may not be comments. Gulf shrimp fishery were required to considered by NMFS. All comments have an open-access permit. In 2006, to received are a part of the public record SUMMARY: NMFS proposes regulations to prevent overcapitalizing the fishery implement Amendment 17B to the and will generally be posted for public when it became profitable again, the Fishery Management Plan for the viewing on www.regulations.gov Council established a 10-year freeze on Shrimp Fishery of the Gulf of Mexico without change. All personal identifying the issuance of new shrimp permits and U.S. Waters, (FMP), as prepared and information (e.g., name, address, etc.), created a limited access Federal Gulf submitted by the Gulf of Mexico (Gulf) confidential business information, or shrimp moratorium permit (moratorium Fishery Management Council (Council). otherwise sensitive information permit) (71 FR 56039, September 26, This proposed rule would allow for the submitted voluntarily by the sender will 2006). In 2016, the Council extended the creation of a Federal Gulf shrimp be publicly accessible. NMFS will duration of the Gulf shrimp moratorium reserve pool permit when certain accept anonymous comments (enter permit program for another 10 years in conditions are met, and would allow ‘‘N/A’’ in the required fields if you wish Amendment 17A to the FMP (81 FR non-federally permitted Gulf shrimp to remain anonymous). 47733, July 22, 2016). vessels to transit through the Gulf Electronic copies of Amendment 17B, During the development of exclusive economic zone (EEZ). which includes an environmental Amendment 17A, the Council identified Amendment 17B would also define the assessment, a Regulatory Flexibility Act several other issues with the Gulf aggregate maximum sustainable yield (RFA) analysis, and a regulatory impact shrimp fishery that it wanted addressed. (MSY) and aggregate optimum yield review, may be obtained from the First, MSY and OY (equal to MSY), are (OY), and determine a minimum Southeast Regional Office Web site at defined individually for the three http://sero.nmfs.noaa.gov/sustainable_ number of commercial vessel _ penaeid shrimp species and for royal moratorium permits in the fishery. This fisheries/gulf fisheries/shrimp/2017/ red shrimp. Second, the number of proposed rule also would make am17b/index.html. moratorium permits has continued to technical corrections to the regulations FOR FURTHER INFORMATION CONTACT: decline and the Council is concerned that would revise the coordinates for the Frank Helies, telephone: 727–824–5305, that the decline in total permits will Tortugas shrimp sanctuary in the Gulf, or email: [email protected]. continue indefinitely. Finally, transit and correct the provisions regarding the SUPPLEMENTARY INFORMATION: The through Federal waters (Gulf EEZ) with harvest and possession of wild live rock shrimp fishery in the Gulf is managed shrimp on board currently requires a in Gulf Federal waters. The purpose of under the FMP. The FMP was prepared moratorium permit, which limits the

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