Background Information

The Monterey Bay National Marine Sanctuary (MBNMS), designated in 1992, is a Federally protected marine area offshore of California's central coast. Stretching from Marin to Cambria, the MBNMS encompasses a shoreline length of 276 miles and 6,094 square miles of ocean, extending an average distance of 30 miles from shore. At its deepest point, the MBNMS reaches down 12,713 feet (more than two miles). The Gulf of the Farallones National Marine Sanctuary (GFNMS) has administrative jurisdiction over the northern portion of the MBNMS from the San Mateo/Santa Cruz County line northward to the existing boundary between the two sanctuaries, and maintains an office in San Francisco.

When the MBNMS was designated, the urban waters of San Francisco, Daly City, and Pacifica were deemed incompatible with sanctuary regulations and excluded from MBNMS designation. This unprotected area is referred to as the San Francisco-Pacifica Exclusion Area. The following activities taking place at the time of MBNMS designation were listed as reasons for excluding the region:

1. Pollution problems stemming from the combined sewer overflow component of the City and County of San Francisco's sewage treatment program;

2. High vessel traffic in the area;

3. Potential pollutants from dredge spoils deposited in the exclusion area.

The Sanctuary has received reports that these three conditions are no longer valid issues for exclusion of this area. The San Francisco Public Utilities Commission (SFPUC) Oceanside Wastewater Treatment Plant has functioned for 17 years without a permit violation and is viewed as a national model of environmental sustainability. Recommended vessel traffic patterns have been moved offshore of the exclusion area and dredge materials are reported to be clean and are permitted under the Environmental Protection Agency.

In 2008, the Joint Management Plan Review for Cordell Bank, Gulf of the Farallones and Monterey Bay National Marine Sanctuaries determined that GFNMS would “facilitate a public process in the next five years to consider whether the exclusion area should be incorporated into the MBNMS.” At the February 23, 2012 and June 7, 2012 GFNMS Advisory Council meetings, the Sanctuary Advisory Council (SAC) unanimously recommended that the sanctuary superintendent explore the option of incorporating the exclusion area into MBNMS boundaries.

In accordance with Section 304 of the NMSA, ONMS is initiating a review of the MBNMS boundaries to “evaluate and assess a proposed expansion” for the sanctuary. NOAA is proposing to administratively add the exclusion area to the sanctuary as a way to protect additional nationally-significant seascape, wildlife, shipwrecks, and to promote ecotourism. An expanded sanctuary could protect up to an additional seventy-seven square nautical miles (101 square statute miles), from the waters west of the Golden Gate Bridge to the current sanctuary boundaries, and would support the Administration's focus on growing travel and tourism in the United States and in particular in the San Francisco Bay Area.

The review process is composed of four primary stages:

1. Information collection and characterization, including public scoping meetings.

2. Preparation and release of a draft environmental impact statement (DEIS) as required by Section 304(a) of the NMSA that identifies boundary expansion alternatives, as well as a notice of proposed rulemaking (NPRM) to amend the sanctuary regulations to reflect any new boundary if proposed.

3. Public review and comment on the DEIS and NPRM; and

4. Preparation and release of a final environmental impact statement, including a response to public comments, with a final rule if appropriate.

NOAA anticipates that the completion of the final environmental impact statement and concomitant documents will require approximately twelve months.

At this time, NOAA is opening a public comment period to:

1. Gather information and public comments from individuals, organizations, and government agencies on whether MBNMS should expand its boundary and the potential effects of a boundary expansion;

2. Help determine the scope of issues to be addressed in the preparation of an environmental impact statement (EIS) pursuant to the NEPA, if warranted; and

3. Conduct a series of public scoping meetings to collect public comment. The public scoping meeting schedule is presented below.

Public Scoping Meetings: The public scoping meetings will be held on the following dates and at the following locations and times:

Date: August 16, 2012.

Location: Louden Nelson Community Center.

Address: 301 Center Street,

Santa Cruz, CA 95060.

Time: 4 p.m. to 6 p.m.

Date: August 23, 2012.

Location: Golden Gate National Recreation Area Headquarters.

Address: Upper Fort Mason, Bldg. 201, San Francisco, CA.

Time: 5:30 p.m. to 7:30 p.m.

Date: September 12, 2012.

Location: Pacifica Community Center, The Card Room.

Address: 540 Crespi Drive Pacifica, CA 94044.

Time: 6 p.m. to 8 p.m.

This notice confirms that NOAA will fulfill its responsibility under section 106 of the NHPA through the ongoing NEPA process, pursuant to 36 CFR 800.8(a), including the use of NEPA documents and public and stakeholder meetings to meet the section 106 requirements. The NHPA specifically applies to any agency undertaking that may affect historic properties. Pursuant to 36 CFR 800.16(1)(1), historic properties includes: “any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.”

In fulfilling its responsibility under the NHPA and NEPA, NOAA intends to identify consulting parties; identify historic properties and assess the effects of the undertaking on such properties; initiate formal consultation with the State Historic Preservation Officer, the Advisory Council of Historic Preservation, and other consulting parties; involve the public in accordance with NOAA's NEPA procedures, and develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects on historic properties and describe them in any environmental assessment or draft environmental impact statement.

Take notice that the Federal Energy Regulatory Commission is making available on its Web site ( http://www.ferc.gov ) a draft of the XML schema that is being developed for use in filing Electric Quarterly Reports as proposed in the Commission's June 21, 2012 Notice of Proposed Rulemaking. The XML schema is still in development, but is being made available as a draft so that interested parties may view the XML schema prior to submitting comments on the proposed rule. The link to the XML schema can be found at both the Events Calendar Web page at, http://www.ferc.gov/EventCalendar/EventDetails.aspx?ID=6411&CalType=&CalendarID=116&Date=&View=Listview, and on the main EQR Web page at, http://www.ferc.gov/docs-filing/eqr.asp.

Background

This document contains proposed amendments to the Income Tax Regulations (26 CFR part 1) relating to the low-income housing credit under section 42 of the Internal Revenue Code. Section 42(a) provides that, for purposes of section 38, the amount of the low-income housing credit determined under section 42 for any taxable year in the credit period is an amount equal to the applicable percentage of the qualified basis of each qualified low-income building. A qualified low-income building is defined in section 42(c)(2) as any building that is part of a qualified low-income housing project at all times during a statutorily prescribed period.

A qualified low-income housing project is defined in section 42(g)(1) as any project for residential rental housing if the project meets one of the following tests elected by the taxpayer: (1) At least 20 percent of the residential units in the project are rent-restricted and occupied by individuals whose income is 50 percent or less of area median gross income; or (2) at least 40 percent of the residential units in the project are rent-restricted and occupied by individuals whose income is 60 percent or less of area median gross income. If a taxpayer does not meet the elected test, the project is not eligible for the section 42 credit.

To qualify as a rent-restricted unit within the meaning of section 42(g), the gross rent for the unit must not exceed 30 percent of the applicable income limitation. If any utilities are paid directly by the tenant, section 42(g)(2)(B)(ii) requires the inclusion in gross rent of a utility allowance determined by the Secretary, after taking into account the procedures under section 8 of the United States Housing Act of 1937.

On March 3, 1994, the Treasury Department and the IRS published in the Federal Register a Treasury Decision containing final regulations under section 42 (59 FR 10067). Among these regulations was § 1.42-10, which provided guidance regarding the proper role of utility allowances in determining gross rent under section 42(g)(2)(B)(i) for rent-restricted units. On July 29, 2008, the Treasury Department and the IRS published in the Federal Register amendments to § 1.42-10 (73 FR 43863).

If gross rent includes a utility allowance, § 1.42-10(b), as amended, provides rules for determining the applicable utility allowance depending upon whether (1) the building receives rental assistance from the Rural Housing Service (RHS) (“RHS-assisted building”), (2) the building has any tenant that receives RHS rental assistance payments (“RHS tenant assistance”), (3) the rents and utility allowances of the building are reviewed by the Department of Housing and Urban Development (HUD) (“HUD-regulated building”), or (4) the building is not described in (1), (2), or (3) (“other building”). For an RHS-assisted building and a building with RHS tenant assistance, § 1.42-10(b)(1) and (b)(2) provides that the applicable utility allowance is the applicable RHS utility allowance. For a HUD-regulated building, § 1.42-10(b)(3) provides that the applicable utility allowance is the applicable HUD utility allowance. In other buildings, for all rent-restricted units occupied by tenants receiving HUD tenant assistance, § 1.42-10(b)(4)(i) provides that the applicable utility allowance is the applicable Public Housing Authority (PHA) utility allowance established for the Section 8 Existing Housing Program. For all other tenants in rent-restricted units in other buildings, § 1.42-10(b)(4)(ii) provides that the applicable utility allowance is the applicable PHA utility allowance under § 1.42-10(b)(4)(ii)(A), a local utility company estimate under § 1.42-10(b)(4)(ii)(B), an estimate from the State or local housing credit agency that has jurisdiction over the building under § 1.42-10(b)(4)(ii)(C), the HUD Utility Schedule Model under § 1.42-10(b)(4)(ii)(D), or an energy consumption model under § 1.42-10(b)(4)(ii)(E).

After the 2008 amendment of the 1994 final regulations, commentators requested clarification about how the regulations apply to submetering arrangements. Some buildings in qualified low-income housing projects are submetered. Submetering measures tenants' actual utility consumption, and tenants pay for the utilities they use. A submetering system typically includes a master meter, which is owned or controlled by the utility company, with overall utility consumption billed to the building owner. In a submetered system, building owners (or their agents) use unit-based meters to measure utility consumption and prepare a bill for each residential unit based on actual consumption. The building owners (or their agents) retain records of utility consumption in each unit, and tenants receive documentation of utility costs as specified in the lease.

Notice 2009-44 (2009-21 IRB 1037) (see § 601.601(d)(2)(ii)( b )) was issued to clarify that, for purposes of § 1.42-10(a), utility costs paid by a tenant based on actual consumption in a submetered rent-restricted unit are treated as paid by the tenant directly to the utility company, and not by or through the owner of the building. Notice 2009-44 provides that, for RHS-assisted buildings under § 1.42-10(b)(1), buildings with RHS tenant assistance under § 1.42-10(b)(2), HUD-regulated buildings under § 1.42-10(b)(3), and rent-restricted units in other buildings occupied by tenants receiving HUD rental assistance under § 1.42-10(b)(4)(i), the applicable RHS or HUD rules apply.

For all other tenants in rent-restricted units in other buildings under § 1.42-10(b)(4)(ii), Notice 2009-44 provides that the utility rates charged to tenants in each submetered rent-restricted unit must be limited to the utility company rates incurred by the building owners (or their agents). Notice 2009-44 also provides that, if building owners (or their agents) charge tenants a reasonable fee for the administrative costs of submetering, then the fee is not considered gross rent under section 42(g)(2). The fee must not exceed an aggregate amount per unit of 5 dollars per month unless State law provides otherwise. If the costs for sewerage are based on the tenants' actual water consumption determined with a submetering system and the sewerage costs are on a combined water and sewerage bill, then the tenants' sewerage costs are treated as paid directly by the tenants for purposes of the utility allowances regulations.

Even though Notice 2009-44 provides that the fee for the administrative costs of submetering is not considered gross rent under section 42(g)(2), the fee must be included in the gross income of the building owner under section 61.

Notice 2009-44 states that the utility allowance regulations would be amended to incorporate the guidance set forth in the notice and requested comments on the provisions of the notice and issues resulting from the notice. Comments were received in response to Notice 2009-44, and the comments were taken into consideration in developing these proposed regulations. The proposed regulations generally incorporate the guidance in Notice 2009-44 with additional modifications as explained in more detail below. Additional comments are invited on the issues discussed in this preamble or on other issues related to utility submetering. See § 601.601(d)(2)(ii)( b ).

A commentator requested that ratio utility billing systems (commonly known as RUBS) be treated like submetering. Unlike submetering, RUBS use a formula that allocates a property's utility bill among its units based on the units' relative floor space, number of occupants, or some other quantitative measure, but not actual use by the unit. The IRS and the Treasury Department believe it is appropriate to treat a tenant's payment of a utility through a building owner (or its agent) as a direct payment to the utility only to the extent the tenant's utility cost is based on the unit's actual consumption. Therefore, the proposed regulations do not permit utility allowances for RUBS.

A commentator recommended that the regulations exclude or restrict “quasi-usage” allocation systems in buildings with a master chiller or boiler where the tenant's use of utilities is partly determined on an assumption not relating to actual use (such as the number of times a tenant turns on the system). Under Notice 2009-44 and these proposed regulations, if a submetering arrangement is not based on a unit's actual consumption of a utility, then the gross rent for that unit cannot include a utility allowance for that particular utility.

A commentator inquired as to the format and length of time records of resident utility consumption should be maintained. Existing rules address record retention. Section 1.42-10(d) provides that the building owner must retain any utility consumption estimates and supporting data as part of the taxpayer's records for purposes of § 1.6001-1(a).

A commentator suggested that the regulations should limit use of a PHA utility allowance for non-Section 8 units that are submetered. The commentator reasoned that the PHA utility allowance does not reflect actual utility consumption in the building, resulting in a low allowance in some cases. In the past, other commentators have stated that PHA utility allowances generally are too high because they are based on older buildings with higher utility costs compared to newly constructed or renovated low-income housing projects. The IRS and the Treasury Department have determined that, if building owners do not wish to expend resources to obtain utility allowances under one of the methods in § 1.42-10(b)(4)(ii)(B), (b)(4)(ii)(C), (b)(4)(ii)(D), or (b)(4)(ii)(E), it is reasonable that they be permitted to use PHA utility allowances for units not subject to § 1.42-10(b)(1), (b)(2), (b)(3), or (b)(4)(i).

Commentators also requested clarification on other rules contained in the § 1.42-10 final regulations. A commentator asked whether State housing agencies are allowed to disapprove of certain methods for determining utility allowances listed in § 1.42-10(b)(4)(ii). Existing rules address the role of State housing agencies in determining utility allowances. Thus, depending on the particular method under § 1.42-10(b)(4)(ii), State housing agencies may require certain information before a method can be used, or they may disapprove use of a method. For example, § 1.42-10(b)(4)(ii)(C) provides that a building owner may obtain a utility estimate for each unit in the building from the agency that has jurisdiction over the building “provided the Agency agrees to provide the estimate.” That is, State housing agencies are not required to provide a utility estimate under § 1.42-10(b)(4)(ii)(C). Also, § 1.42-10(b)(4)(ii)(E) provides that, under the energy consumption model, utility consumption estimates must be calculated by “either a properly licensed engineer or a qualified professional approved by the Agency that has jurisdiction over the building.” Thus, State housing agencies are not required to provide the approval described in § 1.42-10(b)(4)(ii)(E). Comments are requested on whether approval by the agency with jurisdiction over the building should be necessary for both properly licensed engineers and qualified professionals or only for qualified professionals that are not properly licensed engineers.

A commentator asserted that there is confusion concerning mixed-financed properties, which may be subject to multiple Federal programs using different utility allowances. The commentator requested clarification on which methods may be used in buildings with multiple programs. If a building receives assistance from RHS or if any tenant in a building receives RHS rental assistance payments, then the applicable utility allowance for all rent-restricted units in the building is the utility allowance determined under the method prescribed by the RHS for the building (whether or not the building or its tenants receive other state or federal assistance). If neither a building nor any tenant in the building receives RHS housing assistance and the building is a HUD-regulated building, then the applicable utility allowance for all rent-restricted units in the building is the applicable HUD utility allowance. If a building is neither an RHS-assisted nor a HUD-regulated building, no tenant in the building receives RHS tenant assistance, and tenants in a rent-restricted unit in the building receive HUD rental assistance payments, then the applicable utility allowance for that unit is the applicable PHA utility allowance. For all other rent-restricted units not subject to any of the methods in § 1.42-10(b)(1), (b)(2), (b)(3), or (b)(4)(i), the building owner may use the applicable PHA utility allowance or one of the building methods in § 1.42-10(b)(4)(ii)(B), (b)(4)(ii)(C), (b)(4)(ii)(D), or (b)(4)(ii)(E) for calculating utility allowances for all rent-restricted units in the building.

The proposed regulations modify the requirements in Notice 2009-44 in the following manner: First, if two or more utilities such as electricity and water are treated as submetered under the proposed regulations, then the building owner (or its agent or other party acting on behalf of the building owner) must separately state the amount billed to the tenants for each submetered utility.

Second, if a building owner imposes an administrative fee on a unit's tenants for the costs of administering a submetering arrangement, then the fee generally is not included in gross rent for purposes of section 42(g)(2). The exclusion from gross rent does not apply to any amount by which the aggregate monthly fee for all of a unit's utilities under one or more submetering arrangements exceeds the lesser of the following: (A) Five dollars per month or (B) The owner's actual monthly costs paid or incurred for administering the arrangement (whether internal costs or amounts paid to third parties).

For this purpose, the owner's actual costs include internal costs (such as amounts paid to employees) and external costs (such as amounts paid to third-party service providers) for administering the submetering arrangement, as well as that month's portion of costs that relate to the submetering equipment and that are not included in the building's eligible basis under section 42(d). The goal of these restrictions is to disallow any exclusion from gross rent beyond the extent to which a fee represents a reasonable reimbursement to the owner for the owner's otherwise unreimbursed actual costs for administering the submetering arrangement. The IRS and the Treasury Department request comments on whether or not rules are needed to address the building owner's determination of actual costs when a utility company administers a submetering arrangement on behalf of the building owner and includes in the utility rate an amount for its services that is not separately stated.

Third, the proposed regulations remove the requirement in Notice 2009-44 that the administrative fee must not exceed an aggregate amount per unit of 5 dollars per month (unless State law provides otherwise). Instead of that prohibition, the proposed regulations merely require inclusion in gross rent for any amounts charged in excess of the lesser of five dollars or actual administrative costs.

The proposed regulations also amend § 1.42-10(b)(4)(ii)(A). Section 1.42-10(b)(4)(i) provides rules for determining the utility allowance of rent-restricted units occupied by tenants receiving HUD rental assistance. Section 1.42-10(b)(4)(ii)(A) provides that, if none of the rules of § 1.42-10(b)(1), (b)(2), (b)(3), and (b)(4)(i) apply to any rent-restricted units in a building, then the utility allowance for the units may be determined under § 1.42-10(b)(4)(ii)(B), (b)(4)(ii)(C), (b)(4)(ii)(D), or (b)(4)(ii)(E). Some commentators have interpreted § 1.42-10(b)(4)(ii)(A) to mean that, if a tenant receiving HUD rental assistance occupies a rent-restricted unit in a building, then the methods described in § 1.42-10(b)(4)(ii)(B), (b)(4)(ii)(C), (b)(4)(ii)(D), and (b)(4)(ii)(E) are not available for determining utility allowances for any other rent-restricted units in the same building. This result was not intended. The proposed regulations amend § 1.42-10(b)(4)(ii)(A) to clarify that for all rent-restricted units not subject to the rules of § 1.42-10(b)(1), (b)(2), (b)(3), and (b)(4)(i) for determining the appropriate utility allowance for a rent-restricted unit, the owner may choose one of the options under § 1.42-10(b)(4)(ii)(B), (b)(4)(ii)(C), (b)(4)(ii)(D), and (b)(4)(ii)(E) or the applicable PHA utility allowance for determining the utility allowance for those rent-restricted units.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS prescribed in this preamble under the ADDRESSES heading. The IRS and the Treasury Department request comments on all aspects of the proposed rules. All comments will be available at www.regulations.gov or upon request.

A public hearing has been scheduled for Tuesday, November 27, 2012, at 10 a.m. in the Auditorium of the Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by October 9, 2012. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these regulations is David Selig, Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. The following is provided to aid in locating information in this preamble.

EPA is proposing to approve the attainment demonstration element of a SIP revision submitted by DNREC to EPA on June 13, 2007. The June 13, 2007 SIP revision consisted of Delaware's attainment plan for the 1997 8-hour ozone NAAQS for the Philadelphia Area. The ozone attainment plan submitted on June 13, 2007 included the attainment demonstration for the Philadelphia Area and its associated motor vehicle emission budgets (MVEBs) used for transportation conformity purposes in all three Delaware counties (New Castle, Kent and Sussex Counties). The Delaware attainment plan also included a 2002 base year emissions inventory, an analysis of the reasonably available control measures/reasonably available control technology (RACM/RACT), the 2008 rate of progress (ROP) plan and its associated MVEBs, and contingency measures. The ROP plan and its MVEBs, 2002 base year emissions inventory, RACM/RACT analysis, and contingency measures (elements of the June 13, 2007 attainment plan) were approved on April 8, 2010 (75 FR 17763). Therefore, in this action, EPA is only proposing to approve the attainment demonstration for the 1997 8-hour ozone NAAQS for the Philadelphia Area.

In a separate and concurrent process, EPA is conducting a process to find adequate the MVEBs for New Castle, Kent, and Sussex Counties which are associated with the Delaware attainment demonstration for the Philadelphia Area. Concurrently with EPA's proposal to approve the SIP, a notice will be posted on EPA's Web site at http://www.epa.gov/otaq/stateresources/transconf/currsips.htm for the purpose of opening a 30-day public comment period on the adequacy of the MVEBs for New Castle, Kent and Sussex Counties in the June 13, 2007 SIP revision's attainment demonstration for the Philadelphia Area. That notice will inform the public of the availability of the Delaware SIP revision on DNREC's Web site. Interested members of the public could access Delaware's June 13, 2007 SIP revision on line at www.regulations.gov, Docket No. EPA-R03-OAR-2008-0930. Following EPA's public comment period, responses to any comments received will be addressed.

EPA has determined that Delaware's attainment demonstration meets the applicable requirements of the CAA because it demonstrates attainment by the applicable date of June 15, 2011. 1 EPA's analysis and findings are discussed in this proposed rulemaking. In addition, a technical support document (TSD) for this proposal entitled “Technical Support Document for the Modeling and Weight of Evidence Portions of the State of Delaware's Ozone State Implementation Plan,” dated May 2, 2012 (referred to herein as the Attainment TSD) is available on line at www.regulations.gov, Docket No. EPA-R03-OAR-2008-0930. The Attainment TSD provides additional explanation on EPA's analysis supporting this proposed approval of the attainment demonstration.

On June 13, 2007, DNREC submitted a comprehensive SIP revision to meet the requirements for an attainment plan for the 1997 8-hour ozone NAAQS for the Philadelphia Area. On May 8, 2009 (74 FR 21599), EPA proposed to disapprove the ozone attainment demonstration element of the June 13, 2007 attainment plan of the comprehensive SIP revision. EPA proposed to disapprove the attainment demonstration of the 1997 8-hour NAAQS for the Philadelphia Area because EPA determined that the photochemical modeling did not demonstrate attainment, and the weight of evidence analysis used to support the attainment demonstration did not provide sufficient evidence that the Philadelphia Area would attain the 1997 8-hour ozone NAAQS by the June 2010 deadline for the ozone nonattainment areas classified as moderate. On December 9, 2011 (76 FR 76929), EPA withdrew the May 8, 2009 proposed disapproval of the attainment demonstration for the Philadelphia Area based on ambient air quality monitoring data demonstrating attainment.

Moderate areas are required to attain the 1997 8-hour ozone NAAQS by no later than six years after designation. Therefore, the Philadelphia Area was to attain by June 15, 2010. See 40 CFR 51.903 and 69 FR 23951 (April 30, 2004). However, the Philadelphia Area qualified for a one year extension of its attainment date, based on the complete, certified ambient air quality data for the 2009 ozone season. See 40 CFR 51.907. On January 21, 2011 (76 FR 3840), EPA approved a one year extension of the Philadelphia Area's attainment date from June 15, 2010 to June 15, 2011, based in part on air quality data recorded during the 2009 ozone season.

On March 26, 2012 (77 FR 17341), EPA published two determinations regarding the 1997 8-hour ozone NAAQS for the Philadelphia Area. First, EPA made a clean data determination that the Philadelphia Area had attained the 1997 8-hour ozone NAAQS. This determination was based upon complete, quality assured, and certified ambient air monitoring data that showed the Philadelphia Area had monitored attainment of the 1997 8-hour ozone NAAQS for the 2008-2010 monitoring period. Ambient air monitoring data for the 2009-2011 monitoring period is consistent with continued attainment. Second, pursuant to section 181(b)(2)(A) of the CAA, EPA made a determination of attainment that the Philadelphia Area had attained the 1997 8-hour ozone NAAQS by its attainment date of June 15, 2011.

In 1997, EPA revised the health-based NAAQS for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 1997 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 1997 8-hour standard would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.

On April 30, 2004 (69 FR 23951), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 1997 8-hour ozone standard. These actions became effective on June 15, 2004. In addition, on April 30, 2004 (69 FR 23951), EPA promulgated its Phase 1 Implementation Rule which provided how areas designated nonattainment for the 1997 8-hour ozone standard would be classified. Among those nonattainment areas is the Philadelphia Area, which includes all three counties in Delaware, five counties in eastern Pennsylvania, one county in Maryland, and eight counties in southern New Jersey. Therefore, the Philadelphia Area includes New Castle, Kent and Sussex Counties in Delaware. EPA's Phase 2 Implementation Rule published on November 29, 2005 (70 FR 71612) specifies that states must submit attainment demonstrations for their nonattainment areas to EPA by no later than three years from the effective date of designation, that is, by June 15, 2007. See 40 CFR 51.908(a).

Pursuant to the Phase 1 Implementation Rule, an area was classified under subpart 2 of Title I of the CAA based on its 8-hour design value if it had a 1-hour design value at or above 0.12 ppm. Based on this criterion, the Philadelphia Area was classified under subpart 2 as a moderate nonattainment area. The Phase 2 Implementation Rule addressed the control obligations that apply to areas classified under subpart 2. Among other things, the Phase 1 and 2 Implementation Rules outline the required SIP elements and deadlines for those various requirements in areas designated as moderate nonattainment.

On June 13, 2007, Delaware submitted a comprehensive attainment plan as a SIP revision for the 1997 8-hour ozone NAAQS. The SIP revision included an attainment demonstration with MVEBs, the ROP plan with MVEBs, a RACM/RACT analysis, the 2002 base year emissions inventory, and contingency measures. The attainment demonstration of the June 13, 2007 SIP submittal is the only subject of this proposed rulemaking. In a separate and concurrent process, EPA is proposing an adequacy determination for the 2009 MVEBs associated with the ozone attainment demonstration for all three counties of Delaware. The other elements of the June 13, 2007 SIP submittal were approved by EPA on April 8, 2010 (75 FR 17863).

Section 110(a)(2)(K) of the CAA requires states to prepare air quality modeling to show how they will meet ambient air quality standards. EPA determined that areas classified as moderate or above must use photochemical grid modeling or any other analytical method determined by the Administrator to be at least as effective to demonstrate attainment of the ozone health-based standard by the required attainment date (November 29, 2005, 70 FR 71612, and 40 CFR 51.908). On April 30, 2004 (69 FR 23951 and 40 CFR 51.903), EPA specified how areas would be classified with regard to the 8-hour ozone standard set by EPA in 1997. On April 30, 2004 (69 FR 23858), EPA followed these procedures and classified the Philadelphia Area as moderate, and the nonattainment area was required to attain the 1997 8-hour ozone standard by June 2010. Because the attainment date was June 2010 for moderate areas, states had to achieve emission reductions by the ozone season of 2009 in order for ozone concentrations to be reduced and show attainment during the last complete ozone season before the 2010 deadline.

EPA's photochemical modeling guidance is found at Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM 2.5, and Regional Haze, EPA-454/B-07-002, April 2007. The photochemical modeling guidance is divided into two parts. One part describes how to use a photochemical grid model for ozone to assess whether an area will come into attainment of the air quality standard. A second part describes how the user should perform supplemental analyses, using various analytical methods, to determine if the model over predicts, under predicts, or accurately predicts the air quality improvement projected to occur by the attainment date. The guidance indicates that states should review these supplemental analyses, in combination with the modeling analysis, in a “weight of evidence” assessment to determine whether each area is likely to achieve timely attainment.

A description of how the attainment demonstration from the June 13, 2007 SIP revision addresses this EPA modeling guidance for a modeled attainment demonstration can be found in the Attainment TSD, available on line at www.regulations.gov, Docket number EPA-R03-OAR-2008-0930.

In the June 13, 2007 SIP revision, the photochemical grid model used projected emissions for 2009, including emission changes due to regulations Delaware and its neighboring states were planning to implement and expected growth by the 2009 ozone season. Meteorological conditions from 2002, the same as the base year modeling, were used in the projection modeling for 2009. Using the base case meteorology allows the effect of changes in states' emissions to be determined without being influenced by yearly fluctuations in meteorology and is consistent with EPA guidance.

The attainment test used in the Philadelphia Area modeling demonstration involved the application of model-based relative response factors (RRFs) to base year design values at each monitor to produce projected future year design values (2009). The projected 2009 design values represent design values that should result from emission controls Delaware and other states planned to have in place in 2009. As discussed in the Attainment TSD, the 2009 design values should be less than or equal to 84 parts per billion (ppb) at all monitoring stations to meet the attainment test. The SIP modeling predicts that in 2009, the Philadelphia Area will not pass the attainment test since design values are projected to be over the 84 ppb standard.

In summary, the basic photochemical grid modeling presented in the Delaware SIP revision meets EPA's guidelines and when used with the methods recommended in EPA's modeling guidance, is acceptable to EPA. However, when EPA's attainment test is applied to the modeling results, the 2009 ozone design value is predicted to be 91 ppb in the Philadelphia Area. Thus, based on EPA's modeled attainment test, the Philadelphia Area has not demonstrated that it will reach attainment of the 1997 8-hour ozone standard in the attainment year with the modeled emission reduction strategies committed to by Delaware and the neighboring states in the Ozone Transport Region (OTR). Therefore, a weight of evidence (WOE) analysis was used by Delaware and reviewed by EPA to demonstrate attainment of the 1997 8-hour ozone standard in the Philadelphia Area.

EPA's modeling guidance describes how to use a photochemical grid model and additional analytical methods to complete a WOE analysis to estimate if emissions control strategies will lead to attainment of the 1997 8-hour ozone NAAQS. A WOE analysis is a supporting analysis that helps to determine if the results of the photochemical modeling system are correctly (or not correctly) predicting future air quality.

The WOE analysis presented in the Delaware SIP revision describes the analyses performed, databases used, key assumptions and outcomes of each analysis, and why the evidence, viewed as a whole, supports a conclusion that the Philadelphia Area will attain the NAAQS despite the model prediction that some monitors' future design values exceed the 1997 8-hour ozone NAAQS.

EPA's review of the WOE analysis in the Attainment TSD included the following: (1) A comparison of model-predicted 2009 ozone design values to monitored design values for 2006-2011; (2) an analysis of recent ozone trends in the Philadelphia Area; and (3) alternative methods for calculating the 2009 ozone design value. As discussed in detail in the Attainment TSD, the 2009 model over predicted ozone design values for 2006-2011 for most cases. Further, in the Attainment TSD, EPA's analysis concurs with Delaware's analysis of significant declining trends in the Philadelphia Area ozone design values. The Attainment TSD concluded that additional emissions reductions have continued to occur due mostly to local controls in each nonattainment area and to a few reductions in major sources due to initiatives in the OTR. The Attainment TSD noted that monitored ozone design values for each of the Philadelphia Area monitors continued to decline and to show attainment in 2010 and 2011.

As discussed in detail in the Attainment TSD, Delaware's attainment demonstration also asserted an alternative baseline concentration could be used to demonstrate attainment. However, EPA determined in the Attainment TSD that the modeling would still show nonattainment even with this alternative baseline value. Likewise, EPA determined in the Attainment TSD that Delaware's recalculation of 2009 modeled ozone design values with a relative response factor in Delaware's June 13, 2007 SIP revision reduced the modeled 2009 ozone design values slightly but the model still over predicts the actual monitored 2009 design values. In conclusion, in the Attainment TSD, EPA determined with the benefit of 2009 monitored design values that the model in Delaware's June 13, 2007 SIP revision over predicts actual concentrations even when model adjustments are made as discussed herein to attempt to account for model over prediction.

EPA has determined that the Delaware photochemical grid modeling results predict a 2009 projected design value well above the 1997 8-hour ozone NAAQS for the Philadelphia Area. However, after taking into account WOE arguments regarding model over prediction of the 2009 monitored design values and recent ozone design value trends, which show attainment of the standard by 2010, EPA determined that the Delaware SIP has demonstrated attainment of the ozone standard by the extended attainment date of June 2011 as discussed in detail in the Attainment TSD.

EPA is proposing to approve the 1997 8-hour ozone NAAQS attainment demonstration, included in Delaware's June 13, 2007 attainment plan SIP revision, as demonstrating attainment for the Philadelphia Area by the applicable attainment date of June 15, 2011. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, pertaining to the 1997 8-hour ozone attainment demonstration for the Philadelphia Area submitted by Delaware on June 13, 2007, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

In the “Rules and Regulations” section of this Federal Register , the EPA is codifying and incorporating by reference the State's hazardous waste program as a direct final rule. The EPA did not make a proposal prior to the direct final rule because we believe these actions are not controversial and do not expect comments that oppose them. We have explained the reasons for this codification and incorporation by reference in the preamble to the direct final rule. Unless we get written comments which oppose this incorporation by reference during the comment period, the direct final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we get comments that oppose these actions, we will withdraw the direct final rule and it will not take effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time. For additional information, please see the direct final rule published in the “Rules and Regulations” section of this Federal Register .

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 76 FR 8965 in the February 16, 2011, issue of the Federal Register, FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Bolivar County, Mississippi, and Incorporated Areas” addressed the following flooding sources: Jones Bayou, Mississippi River, and Porter Bayou. That table contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for Jones Bayou. In this notice, FEMA is publishing a table containing the accurate information, to address these prior errors. The information provided below should be used in lieu of that previously published.

The Legal Services Corporation (LSC) Act (the Act) provides general authority to the Corporation “to insure the compliance of recipients and their employees with the provisions of [the Act] and the rules, regulations, and guidelines promulgated pursuant to [the Act].”  1 On January 31, 2012, LSC published in the Federal Register at 77 FR 4749 a NPRM proposing changes to LSC's enforcement mechanisms to add a lesser reduction in funding option and extend the time for suspensions from 30 to 90 days. The NPRM provided history and background that is not repeated herein.

Nineteen comments were submitted. The comments are available in the open rulemaking section of LSC's Web site at www.lsc.gov.

http://www.lsc.gov/about/regulations-rules/open-rulemaking.

On June 18, 2012, the Operations and Regulations Committee (Committee) of the LSC Board of Directors (Board) met to discuss the comments. Only the comment of the Office of Inspector General (OIG) supported the proposal as written, although the OIG recommends a rule providing for suspensions to remain in place until corrective actions are taken, and the OIG questioned whether the proposed language regarding imposing immediate special grant conditions was unduly restricted. Seventeen of the other comments opposed the proposed changes. Those comments include ones from LSC recipients, coalitions of legal aid programs, the National Legal Aid and Defender Association (NLADA), and the New York State Bar Association Committee on Legal Aid. The American Bar Association Standing Committee on Legal Aid and Indigent Defendants (SCLAID) did not oppose the rulemaking, but joined with the other seventeen comments in recommended changes to the proposed language if LSC proceeds with rulemaking. These comments had a number of common themes. Fifteen of the comments were two or three pages. The ABA, NLADA, and Colorado Legal Services provided more extensive comments (five to seven pages). The OIG's comments in support of the rule were sixteen pages in length. This further notice of proposed rulemaking (FNPRM) provides revisions to the proposed language for further comment. The final rule will include a discussion of all of the comments received on both the NPRM and the FNPRM.

On July 27, 2012, the Committee met again to discuss the comments and LSC Management's recommendations. The Committee voted to recommend to the Board publication of these further revisions to the proposal based on consideration of the comments and recommendations of Management. On July 27, 2012, the Board voted to publish this FNPRM for public comment on the specific items identified below. In addition to this FNPRM, LSC is publishing on its Web site redlined versions of the regulations showing each change. Those documents are available in the Open Rulemaking section of www.lsc.gov.

http://www.lsc.gov/about/regulations-rules/open-rulemaking.

LSC's principal regulation discussing general enforcement authority and procedures is the Enforcement Procedures regulation at 45 CFR part 1618. In accordance with the requirements of Part 1618, LSC uses a variety of enforcement tools, formal and informal, to ensure compliance. Among these are informal consultations and compliance training, on-site Case Service Report/Case Management System reviews, the imposition of Required Corrective Actions (RCAs), and the imposition of Special Grant Conditions (SGCs) at the beginning or renewal of a grant. Several additional enforcement tools are provided for in LSC-adopted regulations and are available to the Corporation to address significant non-compliance by a recipient. In particular, LSC has adopted suspension procedures (45 CFR part 1623) and questioned-cost procedures (45 CFR part 1630). LSC has also adopted grant termination procedures (45 CFR part 1606) that provide for the termination of funding in whole or in part in cases of a recipient's substantial noncompliance with LSC statutory or regulatory requirements and other policies, instructions, or grant terms and conditions. Under the grant-termination provisions, a reduction of five percent or more of a recipient's funding is considered a termination and can be implemented only in compliance with the termination procedures. 2 Reductions of funding of less than five percent are not considered terminations. In order to reduce a recipient's funding by less than five percent without using the 1606 termination procedures, additional procedures have to be established by rulemaking. 3 LSC has not yet adopted regulations establishing such standards and procedures. LSC also has the authority under Part 1606 to debar recipients from eligibility to receive future grants.

The majority of LSC recipients are in substantial compliance with LSC requirements most of the time. When non-compliance occurs, recipients almost always work diligently and cooperatively with LSC staff to come promptly into compliance, but there have been exceptions. LSC is now considering adding enforcement tools to increase LSC's flexibility in addressing compliance issues.

In light of its experience with the existing enforcement mechanisms, discussed more fully in the NPRM, LSC is proposing to amend its regulations at 45 CFR parts 1606, 1618, and 1623 to adopt standards and procedures for limited reductions in funding, to allow for the imposition of SGCs during a grant year, and to amend the maximum suspension period from 30 to 90 days. LSC is not modifying the proposed changes to Part 1623 as set out in the NPRM; no further comments on Part 1623 are requested. The proposed changes and the modifications to those changes in this FNPRM are discussed in greater detail below.

LSC proposed adding to Part 1606 a new definition for lesser reductions in funding and a new § 1606.15 to provide procedures for imposing them. The proposed procedures were based on the suspension procedures in Part 1623, which provide a significant opportunity for recipient input and due process without being unduly complex. Those proposed procedures would have permitted the recipient to request an informal conference regarding the proposed reduction in funding. There were no further avenues of appeal.

Many comments raised the concern that the proposed procedures were inadequate for lesser reductions in funding because they lacked an appeal of the informal conference and did not include review by an impartial person. Suspensions withhold funds from a recipient with the expectation that the funds will be provided when the suspension ends. In contrast, terminations, disallowed costs, and lesser reductions in funding all involve a nonrecoverable loss of funding for the recipient. For terminations of five percent or greater, the recipient has a right to appeal a determination to an impartial hearing officer appointed by the LSC President. The hearing officer's decision is then reviewed by the LSC President, who makes the final decision. 4 For disallowed costs under Part 1630, the recipient has a right to appeal a disallowed cost decision to the LSC President. The President may act on the appeal only if he or she has not “had prior involvement in the consideration of the disallowed cost * * *.”  5 Otherwise, “the President shall designate another senior Corporation employee who has not had prior involvement to review the recipient's appeal.”  6

LSC agrees that some appeal is appropriate for lesser reductions. That appeal should also provide for review by someone who was not involved in the prior LSC decisions regarding the preliminary and final determinations. The proposed language below would add an appeal to the LSC President, who would decide the matter unless he or she was involved in those prior decisions. Alternately, the LSC President can appoint another LSC senior employee who was not involved in those prior decisions.

The comments also raised a number of questions regarding the proposed definitions and procedures. In reviewing the comments, LSC determined that a separate set of procedures for lesser reductions creates unnecessary confusion in the rule. This revision uses the existing Part 1606 procedures for preliminary determinations and informal hearings. Appeals of terminations and debarments would then continue to have the existing process and rights. Appeals of lesser reductions would go directly to the LSC President.

In the proposed § 1606.15(c), the NPRM cross-referenced the § 1606.3(b) criteria for substantial violations and used those criteria for lesser reductions. The proposed language below eliminates the new § 1606.15 and moves the § 1606.3(b) criteria to a new definition of “substantial violations” for use throughout Part 1606. This approach is designed to improve the structure of the rule. No changes are made to the language, and no substantive changes are intended by this restructuring.

Some deadlines have been adjusted for uniformity in the rule.

Q1: Comments are sought on the question whether the lesser reduction procedures are better handled as proposed in the NPRM or as proposed herein.

Q2: Comments are sought on the changes to the procedures affecting lesser reductions. No further comments are sought regarding the underlying question of the decision to adopt a lesser reductions option or the use of the existing § 1606.3(b) criteria for lesser reductions, which is unchanged from the NPRM. Those comments on the NPRM are already in the rulemaking record. LSC will respond fully to all comments, including those regarding the rationale for the rulemaking, in the preamble to any Final Rule, should one be published.

Q3: There are no substantive changes to the rules for terminations or debarments. Comments are sought on the question whether any of these proposed changes to the structure of the rule would result in substantive changes affecting terminations or debarment. No other comments regarding the existing rules for terminations or debarments are sought.

Q4: There are new definitions added for clarity. Comments are sought on the new definitions but not on definitions that are moved without change from other sections of the existing regulation or from the NPRM proposed language.

Q5: Comments are sought on the proposed final appeal process.

The NPRM did not amend this section. The proposed language below amends paragraph (b) to add to the purpose of the rule lesser reductions in funding. It also states that the procedures provided are proportional to the proposed action rather than uniform for all actions. This takes the place of § 1606.15(1) in the NPRM.

The NPRM added a definition of limited reduction in funding as a new paragraph (c). The proposed language below renumbers the following paragraphs. It also adds language from paragraph (d)(1) for terminations regarding whether a lesser reduction will affect funding beyond the current grant year. That addition makes clear that the two options function the same in this regard. No substantive changes are made to the definition.

New paragraphs (f), (g), and (h) are added to relocate definitions of violations, substantial violations, and substantial noncompliance. No substantive changes are made to these terms. They are moved from § § 1606.3(a)(1), (b), and (c) into the definitions section so that they can be easily referenced for all of the available actions in the rule. This eliminates the cross-reference to these terms in § 1606.15(b) of the NPRM. It also responds to some of the comments by making clear that the threshold for a substantial violation is the same for terminations and for lesser reductions.

New paragraph (i) adds a definition of the “Corporation” for purposes of taking actions under the rule, which permits elimination of the “designated employee” under § 1606.6(a). For purposes of making decisions regarding terminations, debarments, or lesser reductions, the Corporation must act through someone at the level of a deputy director or higher. This change addresses concerns expressed by comments about low-level employees making decisions to reduce funding. It also adds internal consistency to the rule instead of referring to the Corporation in some places and to the designated employee in others. This definition is a change to the NPRM and to the existing rule, although in practice LSC does not make decisions of this magnitude through anyone below the level of a deputy director.

New paragraph (j) defines when materials are considered received for purposes of this part. This is added for clarity. It is intended to make clear that physical delivery with confirmation from the delivery service is always sufficient. Alternate modes of delivery, such as email or fax, are acceptable, but they require confirmation in writing by a person at the recipient. Automated “confirmations” from fax machines or email systems do not guarantee that the document was in fact seen by a person at the receiving end.

New paragraph (k) defines days through reference to the rules for computing time in the Federal Rules for Civil Procedure, with an exception for excluding weekends and legal holidays for computing business days. This is added for clarity. In 2009, the Federal rules eliminated the use of a business days rule for periods of ten days or fewer and lengthened some of the shorter deadlines accordingly. LSC is keeping this distinction here because, unlike the Federal rules, so many of the deadlines are 10 days or fewer. The revised sections of the rule specify time in calendar days or business days. References to days in other sections of the rule should be treated as calendar days, unless specified otherwise.

The proposed grounds for lesser reductions in the NPRM at §§ 1606.15(a) and (b) have been moved into this section, which is renamed accordingly. The definition of a substantial violation has been moved from this section into the new definitions in § 1606.2. As discussed above, no substantive changes are intended, and this restructuring should add clarity to the rule.

There are no changes to this section and it is not reprinted in this notice. LSC considered moving the definition of “good cause” from this section to the definitions for structural consistency. LSC did not do so because the definition applies only to debarments; moving it would not add clarity and might add confusion to the rule.

This section is renamed to make it applicable to all actions under the rule, not only to terminations and debarments. The existing language is renumbered as paragraph (a). Paragraph (b) is added for situations involving lesser reductions in funding. It requires that LSC designate a senior LSC employee who will be able to meet the § 1606.10(d) requirements for handling a final review of a lesser reduction in funding.

In the NPRM, § 1606.15(d) provided requirements for notices of preliminary and final determinations for lesser reductions that were worded slightly differently than this section, but they appeared to be substantively identical. The NPRM language is eliminated and merged in paragraph (a) with the existing language for preliminary determinations in this section to provide a process applicable to terminations, debarments, and lesser reductions. Specific references to procedural rights in other sections are replaced with a general reference to procedural rights. No substantive changes are intended by these changes to paragraph (a).

The references to a “designated employee” are eliminated in favor of a definition of the Corporation for decision-making purposes in § 1606.2(i), as discussed above.

Language is added to paragraph (b) to affirmatively require LSC to provide the recipient with the final determination if there is no further review. This ensures that there is no confusion in situations in which the recipient does not respond to the preliminary determination. Paragraph (b) is also modified to state that LSC has the discretion to make the preliminary determination final when there is no request for a review. This change is intended to ensure that LSC retains the discretion to consider factors that come to light after issuing the preliminary determination. For example, a recipient might be in such turmoil that it fails to request review, but the local bar association requests that LSC forestall issuing a final determination. Under the existing rule and the NPRM, LSC might not have that discretion.

The NPRM provided in § 1606.15(e), (f), and (g) procedures for an informal conference to review a proposed lesser reduction in funding. The NPRM used the language of Part 1623 as the basis for the informal conference review of a proposed lesser reduction in funding. The proposed language was substantively similar to the § 1606.7 informal conference for terminations and debarments. To simplify the rule, the proposed parallel provisions in § 1606.15 are eliminated in favor of using the existing § 1606.7 procedures.

No substantive changes are made to this section with the exception of the addition of an option of a paper review for terminations and debarments and the increase of some time limits from the existing rule and the NPRM. The current rule for terminations and debarments provides for an informal conference. Part 1623 also provides for an informal conference for review of proposed suspensions, but it adds an option of submission of written materials without a conference. The NPRM used the same language for lesser-reductions conferences. The revised language adds the option of a review of written materials for terminations and debarments as well as for lesser reductions. The NPRM provided that the informal conference would take place within five days of the recipient's request. This revision provides that LSC will notify the recipient within five business days of the time and place of the conference. This provides more scheduling flexibility.

Paragraph (b) provides the recipient with the right to request an in-person conference, but otherwise allows the conference to be held through alternative methods such as a teleconference. For an in-person meeting, some of the participants may attend through alternative methods. This is added to ensure that the recipient has the right to a face-to-face meeting, but it also makes clear that the recipient and LSC can reduce the cost and burden of the conference through alternative methods.

Paragraph (e) provides that the final determination must provide the same type of details as the preliminary determination. This is similar to the requirements of § 1606.9(b), which apply to recommended decisions by hearing officers.

No substantive changes are made to this section. The title and paragraph (a) are updated to state that this section applies only to terminations and debarments. These hearings are not available for lesser reductions in funding. As discussed in the NPRM, the purpose of lesser reductions is to provide LSC with a means of taking financial action against a recipient in an amount of less than five percent, without the full hearing procedures required for terminations of five percent or greater.

No substantive changes are made to this section. The title and paragraph (a) are updated to state that this section applies only to terminations and debarments. This section involves decisions after hearings under § 1606.8, which are not available for lesser reductions in funding.

This section is updated to add direct review by the LSC President of final determinations of lesser reductions in funding. Currently this section provides only for review by the LSC President of recommended decisions of impartial hearing officers under § 1606.9, which are not available for lesser reductions. The time limits of ten calendar days are expanded to ten business days to ensure there is sufficient time for the recipient to draft and deliver the request for review by the President, which “shall state in detail the reasons for seeking review.”  7 At the end of the year, the holidays of December 25 and January 1 can reduce ten calendar days to only six business days.

Paragraph (c) adds a requirement that the recipient be able to obtain a copy of the written record on which the President based his or her decision. This requirement is based on a similar provision in § 1630.7(g) regarding disallowed costs reviews.

A new paragraph (d) is added providing for appeals of final determinations for lesser reductions in funding. The LSC President, or other senior LSC employee, will conduct the review and make a final decision regarding the proposed lesser reduction in funding. As discussed above, prior to the section-by-section analysis, the final review should be handled by someone who did not actively participate in making the decisions regarding the preliminary determination or the final determination. This requirement ensures that there is at least one level of review involving a fresh look at the situation, similar to the § 1606.8 requirements for terminations and the § 1630.7 requirements for disallowed costs.

Normally, this final review and decision would be handled by the President. LSC expects that the Vice President for Grants Management or the Director of the Office of Compliance and Enforcement will usually handle preliminary determinations, informal conferences, and final determinations for lesser reductions in funding. Nonetheless, these are significant actions that the President is likely to be kept informed about throughout the process. The President is not disqualified under paragraph (d) merely because he or she is briefed about the situation and options, asks questions, and did not object to the prior lesser reduction decisions and proceedings. Nor is he or she disqualified if the recipient or other parties contact him or her directly prior to a final appeal.

Paragraph (e) (renumbered) adds a requirement that a final decision reviewing a determination of a lesser reduction shall meet the specificity requirements of § 1606.6(a). This provides a parallel requirement to the existing requirement that final decisions reviewing a hearing officer's recommendation shall meet the specificity requirements of § 1606.9(b).

There are no changes to this section from the NPRM. They are repeated here in order to provide all of the revisions of Part 1606 proposed by both the NPRM and this FNPRM. No comments are sought on this section.

The NPRM proposed adding a new section. As discussed above, all of the proposed provisions are now incorporated into the existing provisions of this part. There is no proposed § 1606.15 in this FNPRM.

The NPRM proposed amending Part 1618 to provide clear authority to impose special grant conditions in the middle of a grant, rather than only at renewal or competition. The OIG expressed concern that the Part 1618 threshold might unduly restrict the use of these immediate special grant conditions. The proposal has been revised to specify that immediate special grant conditions are available for corrective actions after LSC has determined that a violation exists. This enables LSC to convert corrective actions required by the Office of Compliance and Enforcement into special grant conditions immediately rather than waiting for the next grant renewal or award. This addition does not affect LSC's existing authority to impose special grant conditions during renewal, competition, or otherwise.

Additionally, during review of Part 1618 it became apparent that the language of Part 1618 is outdated. It has not been amended since 1976. Both Part 1606—Terminations and Part 1623—Suspensions refer to compliance with “a provision of the LSC Act, the Corporation's appropriations act or other law applicable to LSC funds, a Corporation rule, regulation, guideline or instruction, or the terms and conditions of the recipient's grant or contract with the Corporation.”  8 These rules were extensively updated in 1998. Part 1618 refers only to violations of “the Legal Services Corporation Act or the rules and regulations issued by the Corporation.”  9 LSC proposes amending Part 1618 to conform to the language used in the other, later adopted, regulations to conform to existing practice.

Proposed § 1618.5(b) permits LSC to impose a lesser reduction in funding after “attempts at informal resolution have been unsuccessful.” Informal resolution includes remedial actions, preventive actions, and sanctions. So, for example, if a recipient has persistently and intentionally used LSC funds for grassroots lobbying, then LSC could ultimately proceed to termination or debarment. Section 1618.5(b) requires LSC to attempt to resolve the situations informally before beginning an enforcement action. LSC could demand that the recipient cease such activities, put in place measures to ensure that such activities do not recur, and accept a lesser reduction in funding as a sanction. If the recipient did not agree to all three actions during attempts at informal resolution, then LSC could proceed with suspension, termination, and/or a lesser reduction in funding. Furthermore, if attempts at informal resolution are unsuccessful, then LSC may proceed with actions that are more consequential than those pursued during those unsuccessful attempts. Thus, in this example, LSC could proceed with a termination of five percent or greater, even if it offered the recipient the option of resolving the matter through acceptance of a reduction in funding of less than five percent. There are no changes to the rule required for this application.

Q6: Comments are sought on the new proposed language for Part 1618.

Reference to the requirements of the LSC Act are updated to refer to the provisions of the LSC Act, the Corporation's appropriations act or other law applicable to LSC funds, a Corporation rule, regulation, guideline, or instruction, or the terms and conditions of the recipient's grant or contract with the Corporation. This conforms Part 1618 to Part 1606 and Part 1623.

The existing definition of the term “Act” as referring to the LSC Act, rules, and regulations is removed because it was confusing and inconsistent with LSC's current governing laws, many of which appear in appropriations statutes and not the LSC Act, and with Part 1606 and Part 1623. A new paragraph (a) is added defining the term “LSC requirements” using the language from Part 1606 and Part 1623. A new paragraph (b) is added to make clear that a violation refers to a violation of the LSC requirements.

The reference to a violation of “the LSC Act” is replaced with reference to the new definition of a “violation.”

References to a violation of the LSC Act are replaced with references to the new definition of a violation. Paragraphs (a) and (b) are renumbered as (1) and (2) of a new paragraph (a). The former paragraph (b) is split into (a)(2) and (a)(3). These changes add clarity without substantive alterations to the rule. The new (a)(2) is amended to clarify that the recipient has the discretion to determine whether a violation by a recipient's employee merits a sanction imposed by the recipient on the employee under the circumstances. Some violations can be fully addressed by the recipient without any sanction. This is not meant to change the substantive requirements of this paragraph. Paragraph (c) is renumbered as paragraph (b). A new paragraph (c) is added to clarify that these requirements do not, by themselves, create substantive rights for recipient employees. A failure to consult with LSC under this section does not nullify a recipient's employment action. Rather, it is a matter between LSC and the recipient.

References to a violation of the LSC Act are replaced with references to the new definition of a violation. Paragraph (a) is amended to make clear that the Corporation's investigation may be limited to determining that the recipient is taking sufficient action. This is not a substantive change. Paragraph (c) is added regarding immediate special grant conditions. As discussed above, these would be available for any violation for which LSC has determined that corrective action is necessary. Currently LSC makes those determinations through normal procedures by the Office of Compliance and Enforcement. The thresholds in paragraph (b) for further actions such as suspensions or terminations would not apply to immediate special grant conditions.

For reasons set forth above, and under the authority of 42 U.S.C. § 2996g(e), LSC proposes to amend 45 CFR chapter XVI as follows:

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly initiate review of the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the two Spring Mountains dark blue butterflies from governmental agencies, Native American tribes, the scientific community, industry, and any other interested parties. We seek information on:

(1) The species' biology, range, and population trends, including:

(a) Habitat requirements for feeding, breeding, and sheltering;

(b) Genetics and taxonomy;

(c) Historical and current range including distribution patterns;

(d) Historical and current population levels, and current and projected trends; and

(e) Past and ongoing conservation measures for the species, its habitat, or both.

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

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

If, after the status review, we determine that listing either or both of the two Spring Mountains dark blue butterflies is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, we also request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;

(2) Where these features are currently found;

(3) Whether any of these features may require special management considerations or protection;

(4) Specific areas outside the geographical area occupied by the species that are “essential for the conservation of the species”; and

(5) What, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the requirements of section 4 of the Act.

Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register .

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly initiate a species status review, which we subsequently summarize in our 12-month finding.

On October 6, 2011, we received a petition dated September 30, 2011, from Wild Earth Guardians, requesting that the two Spring Mountains dark blue butterflies ( Euphilotes ancilla purpura and Euphilotes ancilla cryptica ) be listed as endangered or threatened, and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a December 20, 2011, letter to the petitioner, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that we are currently required to complete a significant number of listing and critical habitat actions by the end of Fiscal Year 2016 pursuant to court orders, judicially approved settlement agreements, and other statutory deadlines, and that we might conduct a review of the petition prior to that time should budget and workload permit. This finding addresses the petition.

On November 1, 2011, we received a petition dated October 28, 2011, from Bruce M. Boyd, requesting that Morand's checkerspot butterfly ( Euphydryas anicia morandi ) be listed as endangered or threatened. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(a). In a November 16, 2011, letter to the petitioner, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that we are currently required to complete a significant number of listing and critical habitat actions in Fiscal Year 2016 pursuant to court orders, judicially approved settlement agreements, and other statutory deadlines, and that we would conduct a review of the petition once we secured funds for this action. This finding addresses the petition.

On November 21, 1991 (56 FR 58804), we added Euphilotes enoptes ssp. (dark blue butterfly) to our list of candidate species as a Category 2 candidate species. Euphilotes enoptes ssp. is currently recognized as E. ancilla. A Category 2 candidate species was a species for which we had information indicating that a proposal to list it as threatened or endangered under the Act may be appropriate, but for which additional information on biological vulnerability and threat was needed to support the preparation of a proposed rule. Euphilotes enoptes ssp. (dark blue butterfly) (= E. ancilla ssp.) was again included in our Category 2 candidate list on November 15, 1994 (59 FR 58982).

In the February 28, 1996, Candidate Notice of Review (CNOR) (61 FR 7595), we adopted a single category of candidate species defined as follows: “Those species for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list but issuance of the proposed rule is precluded.” In previous CNORs, species meeting this definition were known as Category 1 candidates for listing. Thus, the Service no longer considered Category 2 species as candidates, including Euphilotes enoptes ssp. (dark blue butterfly) (= E. ancilla ssp.), and did not include it in the 1996 list or any subsequent CNORs. The decision to stop considering Category 2 species as candidates was designed to reduce confusion about the status of these species and to clarify that we no longer regarded these species as candidates for listing.

On January 6, 1989, we added Morand's checkerspot butterfly ( Euphydryas anicia morandi ) to our list of candidate species as a Category 2 candidate species (54 FR 554-579). Morand's checkerspot butterfly was again included in our Category 2 candidate list on November 21, 1991 (56 FR 58804), and in our Category 2 candidate list on November 15, 1994 (59 FR 58982). Morand's checkerspot butterfly was not included in the 1996 list or any subsequent CNORs.

The three butterfly subspecies included in the two petitions and evaluated in this finding are invertebrates endemic to the Spring Mountains in Nevada. All three of the petitioned butterflies are from the phylum Arthropoda, class Insecta, order Lepidoptera. The two dark blue butterflies are members of the family Lycaenidae. The Morand's checkerspot butterfly is a member of the family Nymphalidae. In specific sections below, we have included a short summary of available population and life-history information for each subspecies, as provided in the petitions, their references, and our files.

The two Spring Mountains dark blue butterflies petition provides information regarding the subspecies ranking for Euphilotes ancilla purpura according to NatureServe (WildEarth Guardians 2011, p. 4). Euphilotes ancilla purpura is considered at the subspecies taxonomic level and is ranked imperiled at the subspecies and national levels, and imperiled/critically imperiled at the State level, whereas E. a. cryptica is not ranked by Natureserve (Natureserve, 2012). In addition, Natureserve considers Morand's checkerspot butterfly at the subspecies taxonomic level and ranks it as imperiled at the subspecies, national, and State levels (Natureserve, 2012). According to the NatureServe Web site, assessment of any species “does not constitute a recommendation by NatureServe for listing [that species]” under the Act (NatureServe 2012). In addition, NatureServe's assessment procedures include “different criteria, evidence requirements, purposes and taxonomic coverage [from those of] government lists of endangered and threatened species, and therefore these two types of lists should not be expected to coincide” (NatureServe 2012).

The taxonomy of the two Spring Mountains dark blue butterflies was recently changed, and this change has been accepted by local experts. Prior to 2008, both subspecies were grouped together as Euphilotes ancilla purpura, whereas after 2008, E. a. purpura was split into E. a. purpura and E. a. cryptica. Austin et al. (2008) notes the differences in phenology and host plants between the two Spring Mountains dark blue butterflies ( E. a. purpura and E. a. cryptica ) and describes them as two subspecies centered around these biological differences. Based upon the information in the petition and in our files discussed above, we accept the characterization of the two Spring Mountains dark blue butterflies as subspecies.

The two Spring Mountains dark blue butterflies ( Euphilotes ancilla purpura and E. a. cryptica ) are endemic to the Spring Mountains in southern Nevada; E. a. purpura only occurs in Clark County, whereas E. a. cryptica occurs in both Clark and Nye Counties (Austin et al. 2008, p. 151). Austin et al. (2008) describe the two dark blue butterflies as separate subspecies based on differences in phenology and host plants. For example, E. a. purpura uses Eriogonum umbellatum var. juniporinum (juniper buckwheat) as its larval host plant and has a flight season from early May to early July (Austin et al. 2008, p. 156). On the other hand, E. a. cryptica uses Eriogonum umbellatum var. subaridum (sulphur-flower buckwheat) as its larval host plant and has a flight season from mid-July to mid-August (Austin et al. 2008, p. 156). The two subspecies also differ in the length of their flight seasons, their frequencies of visitations to mud, and the length of different life stages (pupation, diapause, and emergence); however they look identical (Austin et al. 2008, p. 156). Euphilotes ancilla purpura is known only from the east slope of the Spring Mountains between Willow Creek and West Mud Spring and lower Macks Canyon near the northern end of the Spring Mountains in Clark County at an elevation range of 1,775-1,950 meters (m) (2,543-6,398 feet (ft)) (Austin et al. 2008, p. 158). Euphilotes ancilla cryptica is known from several sites on both slopes of the Spring Mountains in Nye and Clark Counties, Nevada, from Big Timber Spring to Potosi Mountain at an elevation range of 1,800-3,000 m (5,906-9,843 ft) (Austin et al. 2008, p. 158). The distributions of E. a. purpura and E. a. cryptica overlap in Clark County (Austin et al. 2008, p. 151).

Gunder (1928) first described Morand's checkerspot butterfly as a subspecies. Based upon the information in the petition and in our files discussed above, we accept the characterization of Morand's checkerspot butterfly as a subspecies.

Morand's checkerspot butterfly is endemic to the Spring Mountains in southern Nevada and occurs in Clark County. It is locally common in the meadows on the ridge to Mt. Charleston and above the ski area in Lee Canyon, and it generally occurs above 2,012 m (6,601 ft) in elevation (Austin and Austin 1980, p. 44). The flight period for Morand's checkerspot butterfly is from late June to July (Austin and Austin 1980, p. 44). The larval host plants for Morand's checkerspot butterfly are Castilleja linariifolia (narrow leaved paint brush), Castilleja applegatei ssp. martini (= C. martinii var. clokeyi, wavy leaved paint brush), Penstemon eatonii (scarlet bugler, firecracker penstemon), P. leiophyllus var. keckii (Charleston beardtongue), and P. rostriflorus (scarlet penstemon, beaked beard-tongue) (Weiss et al. 1995, p. 4; Niles and Leary 2007, p. 55-56; Austin and Leary 2008, p. 106-107). Morand's checkerspot butterfly appears in three distinct phenotypes (the observable properties of an organism) on the Spring Mountains (Weiss et al. 1995, p. 4).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

In making this 90-day finding, we evaluated whether information regarding threats to the two Spring Mountains dark blue butterflies and the Morand's checkerspot butterfly, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned actions may be warranted. Our evaluation of this information is presented below.

The petition states that both subspecies of dark blue butterfly are at risk from wildfire exacerbated by invasive weeds, habitat degradation from recreation, off-road vehicle use, and equestrian use (WildEarth Guardians 2011, p. 10; Austin et al. 2008, p. 158). Specifically, cheatgrass ( Bromus tectorum ) and red brome ( B. rubens ) are described as being present in the Spring Mountains National Recreation Area (SMNRA) and are known to alter natural fire regimes and convert landscapes to annual grasslands (WildEarth Guardians 2011, p. 10). In addition, the petition states that a fire fuels reduction project was approved by the Humboldt-Toiyabe National Forest in 2007 with targeted sites in Euphilotes ancilla purpura and E. a. cryptica locations (WildEarth Guardians 2011, p. 10). The fuels reduction project plan analyzed the potential impacts to E. a. purpura, concluding that it may impact E. a. purpura, but impacts to E. a. cryptica were not separately analyzed (WildEarth Guardians 2011, p. 10).

The petition also notes that ungulates may affect the two Spring Mountains dark blue butterflies (WildEarth Guardians 2011, p. 17). Specifically, the petition states that Eriogonum spp. are palatable to native ungulates and domestic livestock, and Austin et al. (2008, p. 153) found that ungulates heavily grazed Eriogonum umbellatum subaridum and severely reduced the number of flowers available to Euphilotes (WildEarth Guardians 2011, p. 17).

The petition does not present any specific supporting information that wildfire exacerbated by invasive weeds may be impacting the two Spring Mountains dark blue butterflies or is likely to in the future. The petition does not present specific information concerning past, present, or projected intensity of wildfire in or near areas occupied by the two Spring Mountains dark blue butterflies. The petition does not present specific information as to whether this potential threat has affected, is affecting, or is likely to affect the subspecies, their host plants, or nectar sources. The petition also does not report loss of populations or reductions in numbers of either of the subspecies as a result of wildfire exacerbated by invasive weeds. We have information in our files related to vegetation and fire history in the Spring Mountains (Hall 2006; Craig 2010); however, we have no information in our files about the impacts of wildfire upon either of the two Spring Mountains dark blue butterflies or their habitats.

The petition states that ungulates may affect the two Spring Mountains dark blue butterflies, and the petition cites Austin et al. (2008, p. 153) regarding ungulate grazing and its effect on Eriogonum umbellatum subaridum and Euphilotes (WildEarth Guardians 2011, p. 17). Austin et al. (2008, p. 153) states that ungulate grazing was heavy in 2002, “severely reducing the number of flowers available to any Euphilotes present.” However, the information in the petition and in our files does not provide specific supporting information that ungulate grazing may be affecting the two Spring Mountains dark blue butterflies now or in the future. The petition does not present specific information concerning past, present, or projected intensity of ungulate grazing in or near occupied or suitable locations. The petition does not present specific information as to whether this potential threat has affected, is affecting, or is likely to affect either of the two subspecies, their host plants, or their nectar sources, other than saying that ungulate grazing did occur in 2002 at one site. We have no information in our files related to ungulate grazing and its impacts to either of the two Spring Mountains dark blue butterflies or their habitats.

Information in our files confirms that the 2007 Spring Mountains Hazardous Fuels Reduction Project analyzed the potential impacts to Euphilotes ancilla purpura, concluding that the project “may impact individuals, but is not likely to cause a trend to Federal listing or loss of viability of the subspecies” (USDA 2007, p. 18). In addition, the project states that “long-term benefits to larval host and nectaring plant populations may occur” (USDA 2007, p. 18). These projects have been implemented, but no post-implementation assessment of impacts to these butterfly species has occurred.

Information in our files references a 2010 Blue Tree Trails Project to be conducted in Lee Canyon with the goal of “diversifying the trail experience on the National Recreation Area by designating additional multiple-use trails to meet visitor needs for trails outside of Wilderness, at lower elevations for a year-round experience that are easier to navigate, and located to avoid adverse impacts to natural resources” (USDA 2010, p. 1). The trails system is intended for nonmotorized recreation opportunities for equestrians, mountain bike users, and hikers, and includes improving 45 miles (mi) (72 kilometers (km)), rerouting 17 mi (27 km), and closing 8.5 mi (14 km) of trails, resulting in a trail system of approximately 53.5 mi (86 km) in length, constructed to meet United States Forest Service pack and saddle trail standards (USDA 2010, p. 1). The Blue Tree Trails Project aimed to minimize the loss of individual sensitive plants and covered butterfly host plants, and minimize the loss of habitat (USDA 2010, Appendix C). The Blue Tree Trails Project analyzed the potential impacts to the species covered in the Spring Mountains Conservation Agreement and Clark County Multiple Species Habitat Conservation Plan; Euphilotes enoptes ssp. (Spring Mountains dark blue butterfly) was listed as a covered species in the 1998 Conservation Agreement. The Blue Tree Trails Project analysis determined that the project “may impact individuals, but is not likely to cause a trend to federal listing or loss of viability” (USDA 2010, p. 4).

Information in our files describes a 2011 Archery Range Restoration Project that is designed to “correct and prevent soil compaction and erosion problems, restore and protect natural resource habitat, and eliminate unauthorized use of NFS lands” (USDA 2011, p. 5). This project analyzed the impacts to the Spring Mountains dark blue butterfly ( Euphilotes ancilla purpura and E. a. cryptica ), and the analysis showed that the project may impact individuals, but is not likely to cause a trend to Federal listing or loss of viability of the two subspecies (USDA 2011, p. 3).

Information in our files reveals that three projects have taken place in areas that have the potential to impact the two Spring Mountains dark blue butterflies, however, there is no information in the petition or in our files regarding post-project conditions to indicate that any of these projects may have negatively impacted habitat for either of the two Spring Mountains dark blue butterflies such that the petitioned action may be warranted.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to a fuels reduction project, wildfire exacerbated by invasive weeds or ungulate grazing, or recreational activities. However, we will further evaluate all factors, including the present or threatened destruction, modification, or curtailment of their habitat or ranges, in our 12-month status review and finding for these subspecies.

The petition states that collection of the two Spring Mountains dark blue butterflies has taken place by scientists and amateur collectors for many years (WildEarth Guardians 2011, p. 16). In addition, the petitioner claims to have encountered an individual who illegally captured a protected butterfly species in the Spring Mountains range (WildEarth Guardians 2011, p. 16).

The petition states that collection of butterflies in the Spring Mountains has taken place for a long time and that illegal capture of Spring Mountains butterflies has occurred. However, the petition does not provide information that overutilization for commercial, recreational, scientific, or educational purposes has negatively impacted either of the two Spring Mountains dark blue butterflies. In addition, we have no information in our files related to overutilization for these two subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes. However, we will further evaluate all factors, including overutilization for commercial, recreational, scientific, or educational purposes, in our 12-month status review and finding for these subspecies.

The petition notes that parasitism of Euphilotes larvae is expected, although there has been no evidence of parasitism of larvae in samples collected from the Spring Mountains (WildEarth Guardians 2011, p. 16). The petition states that parasitism of butterfly larvae by tachnid flies (Diptera) and braconid wasps (Hymenoptera) has been recorded at rates of 60 percent in California and Washington (WildEarth Guardians 2011, p. 16). The petition also notes that, generally, larvae and adult butterflies are preyed upon by many vertebrate and invertebrate wildlife (for example, birds, herptofauna, and other insects), but it is not known whether predation is a threat to the two Spring Mountains dark blue butterflies (WildEarth Guardians 2011, p. 16). The petition states that disease is not known to be a threat to the two Spring Mountains dark blue butterflies (WildEarth Guardians 2011, p. 16).

The petition does not present any specific supporting information to suggest that disease or predation are threats that may be impacting the two Spring Mountains dark blue butterflies or are likely to impact either of the subspecies in the future. Disease and predation are listed in the petition, but the petition does not associate either of these threats to actual locations in the Spring Mountains known to be occupied by either of the two Spring Mountains dark blue butterflies. The threats are generally listed in the petition, but there is no information on existing or probable impacts to either of the subspecies associated with these potential threats in the petition or in our files. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation. However, we will further evaluate all factors, including disease or predation, in our 12-month status review and finding for these subspecies.

The petition does not provide any information to suggest that an inadequacy of existing regulatory mechanisms may be a threat to the two Spring Mountains dark blue butterflies.

The petition does not provide information that an inadequacy of existing regulatory mechanisms has negatively impacted the two Spring Mountains dark blue butterflies. In addition, we have no information in our files related to the inadequacy of existing regulatory mechanisms for these two subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to an inadequacy of existing regulatory mechanisms. However, we will further evaluate all factors, including the inadequacy of existing regulatory mechanisms in our 12-month status review and finding for these subspecies.

The petition discusses drought and its potential effects on the two Spring Mountains dark blue butterflies. First, the petition states that drought may become even more common in the Great Basin as climate change alters future precipitation (WildEarth Guardians 2011, p. 16). Specifically, the petition references Austin et al. (2008) who states that exposed larval host plants ( Eriogonum umbellatum ) may dry out before blooming or seed production, and drought may kill host plants, especially at lower elevations or in marginal settings (WildEarth Guardians 2011, p. 17). Secondly, the petition states that drought may contribute to increased atmospheric CO 2 by reducing the amount of CO 2 that is annually taken up by terrestrial vegetation; this situation may favor invasive annual grasses, including cheatgrass (WildEarth Guardians 2011, p. 17). Third, the petition states that climate change could affect bloom phenology in butterfly host plants which could disrupt the butterfly's use of the plants (WildEarth Guardians 2011, p. 17). Fourth, the petition states that butterflies in the Great Basin that exist in small, isolated populations will not likely be able to shift to other habitats to adapt to climate change (WildEarth Guardians 2011, p. 18).

The petition states that hundreds of larval host plants were found dead, likely a result of drought and exposure, at a site that is considered a source for Euphilotes ancilla purpura, although no year was associated with this information in the petition (WildEarth Guardians 2011, p. 6). In addition, the petition claims that very few butterflies (approximately 20 individuals) were observed over six trips to this same site, representing perhaps 5 percent of annual peak numbers from the same location 10 years before (WildEarth Guardians 2011, p. 6).

The petition also discusses the biological vulnerability of the two Spring Mountains dark blue butterflies due to their limited distribution and apparently small and/or small number of populations (WildEarth Guardians 2011, p. 18). The petition cites Brook et al. (2008, p. 455) as evidence that population size matters and small populations are more likely to go extinct as a result of chance events (WildEarth Guardians 2011, p. 18). In addition, the petition notes that characteristic butterfly population fluctuations and short generation times, combined with small populations, can influence genetic diversity and long-term persistence (Britten et al. 2003, pp. 229, 233). The petition further asserts that Euphilotes ancilla purpura and E. a. cryptica apparently occur as small populations that may be more vulnerable to extirpation (WildEarth Guardians 2011, p. 18).

The petition states that very few butterflies (approximately 20 individuals) were observed during six trips to one location, representing perhaps 5 percent of the annual peak numbers at that location (likely Euphilotes ancilla purpura ) compared with the same location 10 years before (WildEarth Guardians 2011, p. 6). However, the petition does not state the year in which these surveys took place. Overall, the petition provides little information related to the distribution, numbers of populations, size of populations, or population trends for the two Spring Mountains dark blue butterflies. The petition provides little to no specific information that indicates that biological vulnerability may be a threat to the two Spring Mountains dark blue butterflies.

Information in the literature and in our files on numbers of individuals reported during various years has most likely grouped all individuals of E. a. purpura and E. a. cryptica together in some years because the subspecies was not split into two subspecies until 2008 (Austin et al. 2008). It is therefore difficult to separate out the discussions of the distribution, abundance, number and size of populations, population trends, and threats by subspecies. For some data years, we are able to distinguish which subspecies was observed during the surveys based on the sample date (each subspecies has a different flight season so we were able to determine which subspecies was observed based on the date it was flying). In addition, survey methods were not identical between years and sampling efforts for all sites.

Information in our files reveals 9 observations of Euphilotes ancilla purpura in 1995, and 13 observations of E. a. cryptica in 1996 (Weiss et al. 1995, p. 21; Weiss et al. 1997, Map 2.1) (Table 1). In 1998, there was 1 observation of E. a. purpura and 28-60 individuals of E. a. cryptica (Boyd and Austin 1999, Tables 1-12). In 1999, records indicate observations of seven individuals which likely included both E. a. purpura and E. a. cryptica (Dewberry et al. 2002, p. Appendix 1). In 2000, researchers observed 9-13 E. a. cryptica, and E. a. purpura was observed but no numbers were given (Boyd and Austin 2001, p. 7). No E. a. purpura or E. a. cryptica were detected in 2002 (Dewberry et al. 2002, p. Appendix 1), and only a single E. a. purpura was seen in 2007 (Datasmiths 2007, p. 17). Two studies have recently been conducted on dark blue butterflies in the Spring Mountains. The first study observed a single E. a. purpura in 2010, and 12 E. a. purpura in 2011, although additional survey areas were included in 2011 (Pinyon 2010, p. 2; Pinyon 2011, p. 22). The second study observed 11 E. a. cryptica and no E. a. purpura in 2010 (Thompson et al. 2010, pp. 1-7). Service files contain a record of a phone conversation with species experts where they indicated that “decent” numbers of the early-flying population of dark blue butterflies (now considered E. a. purpura ) were detected in 2006, whereas the late-flying population of the dark blue butterfly (now considered E. a. cryptica ) was present only at Cold Creek in very low numbers (Service 2006, p. 2).

The information in our files presents butterfly observations from a number of years, but these observations represent varying survey efforts and various survey methodologies (Table 1). Therefore, it is not possible to compare the observation numbers in our files to the petitioner's claim that the population numbers have declined over time. While we lack specific survey information about population numbers or population declines for the two Spring Mountains dark blue butterflies at this time, the information that is available may represent a cause for concern about the population size and potential declining trend of these butterflies because they are endemic to the Spring Mountains, exist in small, isolated populations, are biologically vulnerable, and have limited distributions. Therefore, given the above concerns and the information in the petition indicating a potential decline in population numbers, we find that there is substantial information that the petitioned action may be warranted.

Based on the information in our files, recent projections of climate change in the Great Basin over the next century include: (1) Increased temperatures, with an increased frequency of extremely hot days in summer; (2) more variable weather patterns and more severe storms; (3) more winter precipitation in the form of rain, with potentially little change or decreases in summer precipitation; and (4) earlier, more rapid snowmelt (United States Environmental Protection Agency 1998, pp. 1-4; Chambers and Pellant 2008, pp. 29-33). It is difficult to predict local climate change impacts, due to substantial uncertainty in trends of hydrological variables, limitations in spatial and temporal coverage of monitoring networks, and differences in the spatial scales of global climate models and hydrological models (Bates et al. 2008, p. 3). Thus, while the information in the petition and our files indicates that climate change has the potential to affect vegetation and habitats used by butterflies in the Great Basin in the long term, there is much uncertainty regarding which habitat attributes could be affected, and the timing, magnitude, and rate of changes relevant to the two Spring Mountain dark blue butterflies. Therefore, the information in the petition and our files does not provide substantial information that the petitioned action may be warranted because neither the petition nor our files provides specific information regarding how climate change is likely to impact the two Spring Mountains dark blue butterflies in the future. Overall, the petition and the information in our files presents general information about potential impacts to the two Spring Mountains dark blue butterflies from climate change, and we will assess those impacts further in the status review.

General biological information in our files indicates that the combination of few populations, small ranges, and restricted habitats can make a species susceptible to extinction or extirpation from portions of its range due to random events such as fire, drought, disease, or other occurrences (Shaffer 1987, pp. 71-74; Meffe and Carroll 1994, pp. 190-197). We have limited information related to the overall abundance, distribution, number and size of populations, or population trends for the two Spring Mountains dark blue butterflies in our files. We do not have additional information in our files related to biological vulnerability as a threat to either of the two subspecies.

In summary, we find that the information provided in the petition, as well as other information in our files, presents substantial scientific or commercial information indicating that the petitioned action may be warranted due to other natural or manmade factors affecting its continued existence, especially given the low numbers of individuals observed of both subspecies and the petitioner's claim that the butterfly's (believed to be Euphilotes ancilla purpura ) peak numbers are at 5 percent of the numbers from 10 years before. Because of the recent (2008) taxonomic change that split E. a. purpura into E. a. purpura and E. a. cryptica, we cannot determine with certainty to which subspecies much of the data and information in the petition refers. As a result, we cannot separate the effects and trend data between these two subspecies, and, therefore, without more information, we are assuming that any potential impacts and declining trends regarding either of these two subspecies actually applies to both subspecies. We will further evaluate all factors, including other natural or manmade factors affecting its continued existence, in our 12-month status review and finding for these subspecies.

Based on our review of the information in the petition and readily available in our files, we find that the petition presents substantial scientific or commercial information indicating that listing the two Spring Mountains dark blue butterflies ( Euphilotes ancilla purpura and E. a. cryptica ) throughout their ranges may be warranted. This finding is based on information provided under factor E (see above). We determine that the information provided under factors A, B, C, and D is not substantial.

Because we have found that the petition presents substantial information indicating that listing the two Spring Mountains dark blue butterflies ( Euphilotes ancilla purpura and E. a. cryptica ) may be warranted, we will initiate status reviews to determine whether listing the two Spring Mountains dark blue butterflies ( Euphilotes ancilla purpura and E. a. cryptica ) under the Act is warranted.

The “substantial information” standard for a 90-day finding, under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations, differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.

The petition states that Morand's checkerspot butterfly is recognized as a priority species by the United States Forest Service (USFS), and it is recognized as a species of concern in the Conservation Agreement for the SMNRA and in the Clark County Multiple Species Habitat Conservation Plan (Boyd 2011, p. 1). The petition also notes that the Nevada Natural Heritage Program is tracking the species (Boyd 2011, p. 1).

The petition lists several threats to the Morand's checkerspot butterfly including the proliferation of invasive plants (weeds), an elevated risk of wildland fires associated with invasive plants, and the loss of larval and adult resources caused by feral horses (Boyd 2011, p. 2). In addition, the petition discusses concern with the survey methods used, the qualifications of the surveyors, and the use of data.

The petition states that a fuels reduction project took place from 2007 to 2010 and drastically modified a site where Morand's checkerspot butterflies occurred (Boyd 2011, p. 4). In addition, the petition claims that hundreds of thousands of larval host plants and nectar plants were destroyed as a result of this fuels reduction project, and the butterfly was impacted by worker trampling, vehicle crushing, moving equipment, and the disposal of cut waste (Boyd 2011, p. 4).

The petition does not present any specific supporting information that invasive plants, wildland fires, and feral horses are threats that may be impacting Morand's checkerspot butterfly or are likely to impact the subspecies in the future. These threats are listed in the petition, but the petition does not associate any of these threats to actual locations known to be occupied by the subspecies. The threats are generally listed in the petition, but there is no information on existing or probable impacts to the subspecies associated with these potential threats in the petition or in our files. In addition, the petition discusses concern with the survey methods used, the qualifications of the surveyors, and the decipherability of data. Our files contain information indicating that qualified biologists have used accepted methodologies to conduct surveys (USDA 2007, pp. 1-7; Thompson et al. 2010, pp. 72-73).

Information in our files indicates that the 2007 Spring Mountains Hazardous Fuels Reduction Project analyzed the potential impacts to the Morand's checkerspot butterfly, concluding that the project “may impact individuals, but is not likely to cause a trend to Federal listing or loss of viability of the subspecies” (USDA 2007, p. 18). Even though the petition states that a Morand's checkerspot butterfly site was drastically modified, the petition does not provide specific information on the location of the site or evidence to show that the butterfly was affected by this project. There is no information in the petition or in our files to show that Morand's checkerspot butterfly numbers declined after the fuel reduction project or that butterflies were impacted as a result of this project.

In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range.

The petition does not provide any information to suggest that overutilization for commercial, recreational, scientific, or educational purposes may be a threat to the Morand's checkerspot butterfly.

The petition does not provide information that overutilization for commercial, recreational, scientific, or educational purposes has negatively impacted the Morand's checkerspot butterfly. In addition, we have no information in our files related to overutilization for this subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to overutilization for commercial, recreational, scientific, or educational purposes.

The petition does not provide any information to suggest that disease or predation may be a threat to the Morand's checkerspot butterfly.

The petition does not provide information that disease or predation has negatively impacted the Morand's checkerspot butterfly. In addition, we have no information in our files related to disease or predation for this subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to disease or predation.

The petition does not provide any information to suggest that an inadequacy of existing regulatory mechanisms may be a threat to the Morand's checkerspot butterfly.

The petition does not provide information that an inadequacy of existing regulatory mechanisms has negatively impacted the Morand's checkerspot butterfly. In addition, we have no information in our files related to the inadequacy of existing regulatory mechanisms for this subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to an inadequacy of existing regulatory mechanisms.

The petition claims that general declines in the numbers of all covered butterfly species (covered means that the species is included in the Conservation Agreement for the SMNRA and in the Clark County Multiple Species Habitat Conservation Plan) in the Spring Mountains were evident in 2005 and that decreases in the numbers of Morand's checkerspot butterfly at some locations were identified by 2003 (Boyd 2011, p. 2). Specifically, the petition states that at one location, 104 individuals were recorded on a single survey day in 2001, whereas 65 were recorded in 2002, and 19 were recorded in 2003. The petition states that they believe the highest number recorded in 2010 was 11, but the petition states that this number is not verified (Boyd 2011, p. 2). At another location in 2002, many hundreds were seen on each of two visits, whereas none were found in 2007 during a single day survey. In addition, no pre-diapause larvae were found and no earlier post-diapause larval feeding on the host plants was seen during that same survey day (Boyd 2011, p. 2). At a third location in 2002, the petition states that 46 Morand's checkerspot butterflies were seen during a protocol survey and an additional 200-300 individuals were seen outside of the transect area, whereas the petition claims that only 1-3 individuals were recorded on a given day in 2010 in the same two areas (Boyd 2011, p. 2).

The petition lists drought as a threat to the Morand's checkerspot butterfly (Boyd 2011, p. 4).

The petition claims that declines of Morand's checkerspot butterfly have occurred since 2003 as evidenced by declines in survey numbers at three unspecified locations (Boyd 2011, p. 2). Information in our files leads us to believe that two of these unspecified locations are Griffith Peak and Lee Canyon based on similarity of results reported in Dewberry et al. (2002, Appendix 1). Information in our files reveals that Morand's checkerspot butterfly surveys found 129 in 2010, and 1,040 in 2011 (Pinyon 2011, p. 22). In addition, Pinyon (2011, p. 23) states that Morand's checkerspot butterflies were observed throughout the survey period in all three areas surveyed in 2010 and 2011. The most observed in a single day in 2010 was 76, and the most observed in a single day in 2011 was 343 (Pinyon 2011, p. 23). Given that butterfly populations are highly dynamic, and butterfly distributions can be highly variable from year to year (Weiss et al. 1997, p. 2), the widely varying information in the petition and in our files does not provide evidence to show a declining trend in Morand's checkerspot butterflies since 2003, as claimed by the petition.

Drought is listed as a threat in the petition, but the petition does not provide any specific information that drought has negatively impacted the Morand's checkerspot butterfly, or is likely to impact the subspecies in the future. In addition, we have no information in our files related to drought as it relates to the effects of climate change for this subspecies. In summary, we find that the information provided in the petition, as well as other information in our files, does not present substantial scientific or commercial information indicating that the petitioned action may be warranted due to other natural or manmade factors affecting its continued existence.

Based on our review of the information in the petition and readily available in our files, we find that the petition does not present substantial scientific or commercial information to indicate that listing the Morand's checkerspot butterfly under the Act as endangered or threatened may be warranted at this time. We base this conclusion on finding no specific information on threats to the subspecies. Additionally, we have more recent information in our files that does not support the petitioner's claim that Morand's checkerspot butterfly has experienced a decrease in its numbers since 2003. The information does not suggest that threats are acting on the Morand's checkerspot butterfly such that the species may be endangered or become endangered now or in the foreseeable future. We make this finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations.

Although we will not review the status of the species at this time, we encourage interested parties to continue to gather data that will assist with the conservation of the Morand's checkerspot butterfly. If you wish to provide information regarding the Morand's checkerspot butterfly, you may submit your information or materials to the Field Supervisor/Listing Coordinator, Nevada Fish and Wildlife Office (see ADDRESSES ), at any time.

A complete list of references cited is available on the Internet at http://www.regulations.gov and upon request from the Nevada Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this notice are the staff members of the Nevada Fish and Wildlife Office and the Pacific Southwest Regional Office.

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

Executive Summary I. Purpose of the Regulatory Action

We are proposing to reclassify the straight-horned markhor from endangered to threatened under the Endangered Species Act of 1973, as amended (Act) due to recovery actions in the Torghar Hills of Pakistan. Conservation actions involving implementation of a trophy hunting conservation plan in 1985 have eliminated impacts from poaching in this population. Since 1985, the population has been steadily increasing and is considered the stronghold of the subspecies. In light of this substantial population growth in the Torghar Hills, we have determined that the subspecies no longer meets the definition of an “endangered species” under the Act; therefore, we find that reclassifying the subspecies in its entirety from endangered to threatened is warranted. Thus, in this action, we are issuing a proposed rule to reclassify the subspecies ( C. f. jerdoni ) as threatened under the Act.

We are also proposing a special rule that would allow for the import of sport-hunted straight-horned markhor trophies under certain conditions. This regulation would support and encourage conservation actions of the straight-horned markhor.

If adopted as proposed, this action would reclassify the straight-horned markhor from endangered to threatened in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h), and would allow the import of sport-hunted straight-horned markhor trophies under certain conditions at 50 CFR 17.40. This action is authorized by the Act.

Section 4(b)(3)(B) of the Endangered Species Act (Act) (16 U.S.C. 1531 et seq. ) requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month finding”). In this finding, we determine whether the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register .

In this document, we announce that reclassifying the straight-horned markhor as threatened is warranted, and we propose to reclassify this subspecies as threatened in the Federal List of Endangered and Threatened Wildlife. Additionally, we are proposing a special rule under section 4(d) of the Act that, if adopted as proposed, would allow the import of straight-horned markhor trophies from conservation programs that meet certain criteria.

Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses of commenters, will become part of the administrative record.

On August 18, 2010, we received a petition dated August 17, 2010, from Conservation Force, on behalf Dallas Safari Club, Houston Safari Club, African Safari Club of Florida, The Conklin Foundation, Grand Slam Club/Ovis, Wild Sheep Foundation, Jerry Brenner, Steve Hornaday, Alan Sackman, and Barbara Lee Sackman, requesting the Service downlist the Torghar Hills population of the Suleiman markhor ( Capra falconeri jerdoni or C. f. megaceros ), in the Balochistan Province of Pakistan, from endangered to threatened under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In a September 15, 2010, letter to Conservation Force, we acknowledged receipt of the petition.

On June 14, 1976, we published in the Federal Register a rule listing the straight-horned markhor, or the Suleiman markhor ( Capra falconeri jerdoni ), and the Kabul markhor ( C. f. megaceros ), as well as 157 other U.S. and foreign vertebrates and invertebrates, as endangered under the Act (41 FR 24062). All species were found to have declining numbers due to the present or threatened destruction, modification, or curtailment of their habitats or ranges; overutilization for commercial, sporting, scientific, or educational purposes; the inadequacy of existing regulatory mechanisms; or some combination of the three. However, the main concerns were the high commercial importance and the inadequacy of existing regulatory mechanisms to control international trade.

Later, the Suleiman markhor and the Kabul markhor were considered by some authorities to be the single subspecies C. f. megaceros (straight-horned markhor). These subspecies currently remain listed as separate entities under the Act.

On March 4, 1999, we received a petition from Sardar Naseer A. Tareen, on behalf of the Society for Torghar Environmental Protection and the International Union for Conservation of Nature (IUCN) Central Asia Sustainable Use Specialist Group, requesting that the Suleiman markhor ( Capra falconeri jerdoni or C. f. megaceros ) population of the Torghar Hills region of the Balochistan Province, Pakistan, be reclassified from endangered to threatened under the Act. On September 23, 1999 (64 FR 51499), we published in the Federal Register a finding, in accordance with section 4(b)(3)(A) of the Act, that the petition had presented substantial information indicating that the requested reclassification may be warranted, and we initiated a status review. We opened a comment period, which closed January 21, 2000, to allow all interested parties to submit comments and information. A 12-month finding was never completed.

On June 2, 2011, we published in the Federal Register a finding that the petition received on August 18, 2010, from Conservation Force (discussed above under “ Petition History” ), had presented substantial information indicating that the requested reclassification may be warranted, and we initiated a status review (76 FR 31903). We opened a comment period, which closed August 1, 2011.

On February 1, 2012, Conservation Force, Dallas Safari Club, and other organizations and individuals filed suit against the Service for failure to conduct a 5-year status review pursuant to section 4(c)(2)(A) under the Act ( Conservation Force, et al. v. Salazar, Case No. 11 CV 02008 D. D. C.). On March 30, 2012, a settlement agreement was approved by the Court (11-CV-02008, D. D. C.), in which the Service agreed to submit to the Federal Register by July 31, 2012, a 12-month finding on the August 2010 petition. This 12-month finding also constitutes our 5-year review of the straight-horned markhor.

Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. A 5-year review is a periodic process conducted to ensure that the classification of a listed species is appropriate. Section 4(c)(2)(B) requires that we determine: (1) Whether a species no longer meets the definition of endangered or threatened and should be removed from the List (delisted); (2) whether a species more properly meets the definition of threatened and should be reclassified from endangered to threatened; or (3) whether a species more properly meets the definition of endangered and should be reclassified from threatened to endangered. Our determination is based on the best scientific and commercial data available at the time of the review. This 12-month finding serves as our 5-year review of this species.

We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, or any other interested parties concerning this proposed rule. We particularly seek clarifying information concerning:

(1) Taxonomy. Specifically, we are interested in information relating to the correct classification of the Capra falconeri subspecies.

(2) Distribution, habitat selection, diet, and population abundance and trends of this subspecies.

(3) The effects of habitat loss and changing land uses on the distribution and abundance of this subspecies.

(4) The factors that are the basis for making a listing/delisting/downlisting determination for a species under section 4(a) of the Act, which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

(5) Information on management programs for straight-horned markhor conservation, including mitigation measures related to conservation programs, and any other private, nongovernmental, or governmental conservation programs that benefit this species.

(6) Information on whether changing climatic conditions are affecting the subspecies or its habitat.

Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

At this time, we do not have a public hearing scheduled for this proposed rule. The main purpose of most public hearings is to obtain public testimony or comment. In most cases, it is sufficient to submit comments through the Federal eRulemaking Portal, described above in the ADDRESSES section. If you would like to request a public hearing for this proposed rule, you must submit your request, in writing, to the person listed in the FOR FURTHER INFORMATION CONTACT section by September 21, 2012.

Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, a species may be determined to be endangered or threatened based on any of the following five factors:

In considering whether a species may warrant listing under any of the five factors, we look beyond the species' exposure to a potential threat or aggregation of threats under any of the factors, and evaluate whether the species responds to those potential threats in a way that causes actual impact to the species. The identification of threats that might impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence indicating that the threats are operative and, either singly or in aggregation, affects the status of the species. Threats are significant if they drive, or contribute to, the risk of extinction of the species, such that the species warrants listing as endangered or threatened, as those terms are defined in the Act.

The focus of this status review is the straight-horned markhor ( Capra falconeri jerdoni ). For most of the populations, there is no detailed information on distribution, population estimates, or threats to the subspecies; information that is available is over 30 years old. However, the Torghar Hills population of the straight-horned markhor has been extensively studied since the mid-1980s due to the implementation of a conservation plan in this area. Therefore, this status review mainly consists of information related to this population. When possible, we have included general information on the status of the populations outside of the Torghar Hills. For these particular populations, which we lack information, we request additional information from the public during this proposed rule's comment period (see Information Requested, above).

The markhor ( Capra falconeri ) is a species of wild goat belonging to the Family Bovidae and Subfamily Caprinae (sheep and goats) (Valdez 2008, unpaginated). When the markhor was first listed under the Act in 1975, seven subspecies of markhor were generally recognized: Capra falconeri jerdoni (straight-horned or Suleiman markhor), C. f. megaceros (Kabul markhor), C. f. cashmirensis (Kashmir markhor), C. f. falconeri (Aston markhor), C. f. ognevi (Uzbek markhor), C. f. heptneri (Tajik markhor), and C. f. chialtanensis (Chiltan markhor) (64 FR 51499, September 23, 1999; Roberts 1977, p. 196). In 1975, Schaller and Khan (1975, pp. 188, 191) recognized 3 subspecies of markhor based on horn shape and body characteristics: C. f. jerdoni and C. f. megaceros were combined into C. f. megaceros (straight-horned markhor); C. f. cashmirensis and C. f. falconeri were combined into C. f. falconeri (flare-horned markhor); and C. f. ognevi and C. f. heptneri were combined into C. f. heptneri (Heptner's markhor). Many authorities consider C. f. chialtanensis to be Capra aegagrus chialtanensis (Chiltan wild goat) (64 FR 51500, September 23, 1999).

In our June 2, 2011, 90-day petition finding, we requested information on the taxonomy of C. f. jerdoni and C. f. megaceros to determine if these constitute a single subspecies. We did not receive any information regarding the correct nomenclature that should be followed. During our status review, we did not find consistency in the use of C. f. jerdoni or C. f. megaceros. We found that papers published around the same time as each other often used both classifications to describe subspecies of markhor. Therefore, until it is clear, we will continue to recognize the distinct subspecies of C. f. jerdoni and C. f. megaceros, as they are currently listed under the Act, with the straight-horned markhor ( C. f. jerdoni ) being the focus of our status review. We are again requesting from the public additional information on the taxonomy of Capra falconeri to determine the proper nomenclature that should be followed (see Information Requested for details).

Markhor are sturdy animals with strong, relatively short, thick legs and broad hooves. They are a reddish-grey color, with more buff tones in the summer and grey in the winter. The legs and belly are a cream color with a conspicuous dark brown pattern on the forepart of the shank interrupted by a white carpal patch. They also have a dark brown mid-dorsal stripe that extends from the shoulders to the base of the tail. The tail is short, is sparsely covered with long black hairs, but is naked underneath. Adult males have an extensive black beard followed by a shaggy mane of long hairs extending down the chest and from the fore part of the neck. There is also a crest of long black and dark brown hairs that hang like a mane down either side of the spine from the shoulders to the croup (Roberts 1977, p. 197). Horns are straight with an open, tight spiral resembling a corkscrew (Schaller and Khan 1975, p. 189).

Historically, the straight-horned markhor inhabited the mountains of Pakistan and Afghanistan, just inside the Afghanistan border. Today, the straight-horned markhor is only found in the mountains of Balochistan Province, Pakistan; no markhor occur in Afghanistan. Although it is considered widely distributed, the straight-horned markhor has been reduced to small, scattered populations on all the mountain ranges immediately to the north and east of Quetta, including Murdar, Takhatu, Zarghun, Kaliphat, Phil Garh, and Suleiman. It is reported that the straight-horned markhor still survives in the Shingar Range on the border of Balochistan and South Waziristan. The greatest concentration is in the Torghar Hills of the Toba Kakar Range on the border with Afghanistan, within a community-based management program, the Torghar Conservation Project. This project area covers approximately 1,000 km 2 (386 mi 2 ) within the Torghar Hills (Frisina and Tareen 2009, pp. 142-143; Johnson 1994b, p. 16; Roberts 1977, p. 198; Schaller and Khan 1975, p. 196).

Limited information is available for populations throughout most of the straight-horned markhor's range. Many historical populations were extirpated due to over-hunting (Johnson 1994b, p. 5; Johnson 1994, p. 10). Schaller and Khan (1975, p. 196) estimated 150 in Takhatu, 20 to 30 in Kalifat, 20 in Zarghum, and 20 in Shinghar. Few were estimated to survive in the Murdar Range, and a remnant population may have existed near Loralei in the Gadabar Range. Roberts (1969 in Valdez, 2008, unpaginated) believed the number of markhor in the Toba Kakar range was fewer than 500. In 1984, Tareen estimated fewer than 200 remained in the Torghar Hills (Mitchell, 1989, p. 9). Overall, Schaller and Khan (1975, p. 196) estimated as few as 1,000 straight-horned markhor survived throughout the subspecies' range.

In general, markhor populations are reported as declining (Valdez 2008, unpaginated). Hess et al. (1997, p. 255), based on the general status of wildlife in Pakistan, concluded that the straight-horned markhor had likely not increased in recent years. Current estimates for populations of straight-horned markhor are lacking, with the exception of the population in the Torghar Hills of the Toba Kakar Range. This population has been extensively studied due to the implementation of a community-based management program. In addition, as part of the use of annual export quotas for markhor sport-hunted trophies granted to Pakistan at the 10th meeting of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Pakistan submits annual surveys of markor populations, including populations within the Torghar Conservation Area (Resolution Conf. 10.15 (Rev. CoP 14); See discussion below under Overutilization for commercial, recreational, scientific, or educational purposes ). Based on surveys conducted from 1985-1988, Mitchell (1989, p. 9) estimated 450 to 600 markhor inhabited the Torghar Hills. Regular surveys of the managed area have taken place since 1994, when Johnson (1994b, p. 12) estimated the population of markhor to be 695. Later surveys estimated the population to be 1,296 in 1997; 1,684 in 1999; 2,541 in 2005; and 3,158 in 2008 (Arshad and Khan 2009, p. 9; Shafique 2006, p. 6; Frisina 2000, p. 8; Frisina et al. 1998, p. 6). Although most of the mountain ranges in Balochistan have not been formally surveyed, Johnson (1994b, p. 16) concluded that Torghar was one of the last remaining strongholds for the subspecies.

Straight-horned markhor are associated with extremely rugged terrain with precipitous cliffs, rocky caves, and bare rock surfaces interspersed with patches of arid, steppe vegetation. They can be found from 600 meters (m) (1,969 feet (ft)) up to 3,300 m (10,827 ft) in elevation (Woodford et al. 2004, p. 181; Mitchell 1989, p. 8; Johnson 1994b, p. 5).

The Torghar Hills, a chain of rugged sandstone ridges located within the Toba Kakar Range, lies in the Balochistan juniper and pistachio scrub forest and dry sub-tropical semi-evergreen forest (Woodford et al. 2004, pp. 178-179; Frisina 2000, p. 3). The higher elevations (2,000-3,300 m; 6,562-9,843 ft) have some Chilgoza pine ( Pinus gerardiana ) and juniper ( Juniperus macropoda or excelsa ). Rugged upland slopes have not experienced as much grazing pressure and still have bunchgrasses, forbs, wild almond trees ( Amygdalus brahnica ), Ephedra sp., Artemisia sp., and other shrubs, while lower slopes (1,000-2,000 m; 3,281-6,562 ft) have been denuded of trees. Widely scattered olive ( Olea cuspidate ), wild pistachio ( Pistacia khinjuk ), juniper, and ash ( Fraxinus xanthoxyloides ) are all that remain on the lower slope. Tamarisk ( Tamarix sp.) and Cargana sp. occur along stream beds and drainage lines where water is available. Overgrazing has resulted in xerophytic scrub vegetation consisting of Acacia, Artemisia, Haloxylon, and Rosa (Woodford et al. 2004, p. 179; Ahmed et al. 2001, p. 3; Johnson 1994b, p. 3; Tareen 1990, p. 2; Mitchell 1989, p. 5).

The climate in Torghar varies considerably in temperature and precipitation by season. Summers are hot, with a mean temperature of 26 °C (79 °F), but temperatures often rise to 50 °C (122 °F). Winters are cold, with a mean temperature of 4 °C (39.2 °F), but temperatures sometimes fall to -15 °C (5 °F). Day and night temperatures also vary considerably. Annual precipitation is around 200 to 250 millimeters (mm) (7.9 to 9.8 inches (in)), which mainly falls in March and April. In winter, most precipitation occurs as snow. Violent thunderstorms and dust storms occur in summer, with rain occurring in July and August (Arshad and Khan 2009, p. 2; Woodford et al. 2004, p. 179; Ahmed et al. 2001, p. 2; Frisina et al. 1998, p. 3; Mitchell 1989, p. 4). Periodic droughts are common and may last for several years at a time (Frisina and Tareen 2009, p. 143).

Markhor are diurnal in feeding activity. They are most active in the early morning and late evening (Mitchell 1989, p. 8). Wild pistachios are a preferred food for straight-horned markhor (Johnson 1994, p. 12; Roberts 1977, p. 198), although in general they are known to feed on grasses and leaves, and twigs of bushes. Markhor seek water in the late afternoon; however, they may need to descend to valley bottoms for water, but only after darkness (Roberts 1977, p. 198). Markhor in the Torghar Hills are mostly sedentary, although extensive local movements may occur due to deteriorating grazing conditions or disturbance (Woodford et al. 2004, p. 181).

Markhor are gregarious, with females, their young, and immature males associating in small herds, but competition with domestic goat flocks may drive markhor populations to higher terrain and result in larger herds. Adult males live solitary lives, taking shelter under rock overhangs or natural caves. They only join the females and young during the rut, which for the straight-horned markhor peaks around mid-November and lasts about 2 weeks. Males may attach themselves to one particular territory or herd. Fighting between rival males also occurs during this time. Markhor reach sexual maturity around 3 years of age. Gestation lasts from 162 to 170 days. Females usually give birth to one young, but twins are not uncommon. For the first few days, the newborn will remain in a sheltered hollow. Mothers have been observed making a special characteristic call when approaching their young. A young markhor will remain with its mother until the rutting season or until the next young is born. After this, the female will drive the older young away if it approaches too closely. In the wild, it is possible that markhor can live up to 18 years of age, but perhaps few males live beyond 11 or 12 years (Ali 2008, p. 16; Mitchell 1989, p. 9; Roberts 1977, pp. 198-199).

The markhor ( Capra falconeri ) is currently classified as “endangered” by the International Union for Conservation of Nature (IUCN) due to a low number of mature individuals (estimated at fewer than 2,500), a continuing rate of decline, and severely fragmented subpopulations all with fewer than 250 individuals (Valdez 2008, unpaginated). However, we note that this IUCN assessment is at the species level and appears to consider the combined status of 3 subspecies, as recognized by Schaller and Khan in 1975. Furthermore, given the basis of the “endangered” classification stated above, it appears that the status of the Torghar Hills population is not considered. Although the increasing population estimates of Torghar Hills are briefly referenced, the assessment does not appear to recognize the biological significance of these individuals in this portion of the range in relation to the subspecies. In a subspecies discussion on the population of straight-horned markhor ( C. f. megaceros ), the population status is listed as declining. Thus, it appears that the increasing Torghar Hills population is masked by the assumed decline of the remaining populations of the whole subspecies.

The straight-horned markhor is also listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Species included in CITES' Appendix I are considered threatened with extinction which are or may be affected by trade, and international trade is permitted only under exceptional circumstances. Commercial trade in Appendix I specimens is generally precluded (see Factor D discussion, below). The straight-horned markhor is also listed on the Third Schedule of the 1974 Balochistan Wildlife Protection Act (Frisina and Tareen 2009, p. 145; Ahmed et al. 2001, p.5). The Third Schedule of this law is a list of protected animals that cannot be hunted, killed, or captured (BWPA 1977, p. 15).

Across the range of the straight-horned markhor, populations have declined partly due to habitat modification, and habitat continues to be threatened due to drought and overgrazing of domestic livestock, deforestation from logging (which has occurred over hundreds of years), and collection of wood for building materials, fuel, charcoal, and food (WWF 2011, unpaginated; Valdez 2008, unpaginated; WWF 2008, unpaginated; Hess et al. 1997, p. 255; CITES 1997, p. 895).

Much of the land where straight-horned markhor occur is owned by local tribes whose subsistence is largely dependent on keeping large herds of primarily sheep and goats. Rangelands often support livestock beyond their carrying capacity, leading to overgrazing, a halt to natural regeneration, and subsequent desertification of native vegetation. Overgrazing by domestic livestock is known to have resulted in the decline of wild ungulates and pushed their occurrence to range edges (WWF 2011, unpaginated; Frisina and Tareen 2009, pp. 145, 154; Valdez 2008, unpaginated; WWF 2008, unpaginated; Woodford et al. 2004, p. 180; Tareen 1990, p. 4; Mitchell 1989, pp. 4-5; Schaller and Khan 1975, p. 197).

On the tribal lands of the Torghar Hills, livestock grazing is a dominant land use. Lower slopes and valleys have been denuded of trees and continue to be degraded by the collection of fuel wood and heavy grazing (Ahmed et al. 2001, pp. 3, 8; Frisina et al. 1998, pp. 9-10). The demand on wood and forage resources along valley bottoms and lower slopes increases during a bi-annual migration of local and nearby tribes and their herds through the Torghar Hills (Woodford et al. 2004, p. 180; Ahmed et al. 2001, p. 4). Although markhor concentrate in the upland slopes, the lower slopes are utilized as foraging ground and may be important in supporting an increasing population of markhor.

The steeper, upland slopes and higher elevation areas of the Torghar Hills are key areas for this population of markhor. These areas are not easily accessible, and because they are so steep and rocky, there is little human settlement or grazing pressure. As a result, there is good quality habitat for markhor spread over large upland areas (Ahmed et al. 2001, pp. 3, 8; Frisina et al. 1998, p 10). However, grazing pressure may increase in these upland areas due to a combination of drought conditions and the tradition of keeping large herds of domestic livestock. Drought is more the norm than the exception in the Torghar Hills (Frisina et al. 2002, p. 15). As forage becomes limited in lower slopes and valleys, due to drought conditions and/or significant grazing pressure, domestic herds may move to higher elevations in search of forage (Frisina et al. 2002, p. 13).

In the Torghar Hills, locals have implemented a wildlife management plan, the Torghar Conservation Project (TCP), and created financial incentives for community-based conservation to combat years of drought, habitat loss, and substantial losses in their livestock herds. Specifically, the Torghar Hills tribal council recognized that protecting markhor and its habitat can generate greater income for the community, rather than relying solely on traditional livestock production.

The TCP began in 1985, and originally focused on the development of a game guard system to protect the markhor from poaching (see Factor B discussion, below) (Frisina and Tareen 2009, pp. 141-142; Woodford et al. 2004, p. 178; Frisina 2000, p. 1; Frisina et al. 1998, p. 1; Johnson 1994b, p. 2; Tareen 1990, p. 3). However, in 2000, tribesmen requested that the Society for Torghar Environmental Protection (STEP), the community-based, nongovernmental organization established to administer the TCP, integrate habitat management measures to protect markhor and create better habitat for both markhor and their domestic animals. A habitat management plan for both wildlife and domestic livestock was developed in 2001. The plan emphasizes range management, improved agriculture, and water storage projects to improve habitat conditions, reduce grazing pressure, eliminate the need for domestic herds to utilize upper slope areas, and, therefore, reduce interactions between domestic livestock and markhor around forage and water resources (Frisina and Tareen 2009, p. 152; Woodford et al. 2004, pp. 180, 184; Frisina et al. 2002, pp. 3, 8, 16; Ahmed et al. 2001, pp. 7, 11).

In addition to livestock management, STEP plans to plant woodlots of indigenous trees to meet the fuel wood and timber requirements of the local tribes and develop orchards and croplands. Agriculture is seen as an alternative to raising livestock and reducing grazing pressure (Frisina and Tareen 2009, p. 152; Ahmed et al. 2001, p. 11). STEP will also train locals in livestock management and agricultural practices (Frisina and Tareen 2009, p. 152).

Although we do not know the current status of the management plans described above, if implemented, natural resources would be managed for sustainable use, which would improve the condition of the habitat, and remove the risk of large domestic livestock herds moving into the higher elevation areas in search of forage. Improved management of livestock and improved agricultural practices would reduce grazing pressure and deforestation in the lower slopes and valleys of the Torghar Hills. Without implementation of the management plans, the habitat of the Torghar Hills will continue to be impacted by grazing pressure and deforestation.

Habitat modification is thought to have partially contributed to the decline of the straight-horned markhor. We do not have information on the current extent of habitat modification or effects on the straight-horned markhor in much of its range. In general, habitat throughout the range of the straight-horned markhor is threatened by deforestation for logging, fuel, charcoal, and building materials and by overgrazing of domestic livestock. In the Torghar Hills, however, the topography of the upland slopes and high-elevation areas has minimized human influence and grazing pressure. The habitat in these areas is in good condition; however, in drought conditions, or if the number and size of domestic herds are not controlled, these areas may experience increased grazing pressure from domestic sheep and goats in search of additional forage. The lower slopes and valleys, which are utilized by markhor and may become more important in supporting an increasing population, have experienced heavy grazing pressure and deforestation for building materials and fuel.

Plans are in place by STEP to address habitat management and protection in the Torghar Hills. If implemented, these plans would reduce grazing pressure and deforestation in the lower slopes and valleys of the Torghar Hills, eliminate the need for herds to graze in upland slopes, and manage the natural resources for sustainable use. As part of this proposed rule, we are requesting information from the public about the efficacy of these plans and the effect they are having on improving markhor habitat.

Although we have minimum information on habitat modification in much of the range of the straight-horned markhor, habitat modification is thought to have partially contributed to the decline of the subspecies across its range and has been identified as a current threat to the straight-horned markhor. In the Torghar Hills, habitat modification is not currently a threat to the straight-horned markhor in the upland slopes, but may become a threat in the future if herds and rangelands are not properly managed. The lower slopes and valleys have been subject to heavy grazing pressure and deforestation. Without information to indicate whether the condition of the habitat in the rest of the range of the straight-horned markhor has improved or is being managed, we conclude that habitat modification remains a threat to the subspecies. Therefore, we find that habitat modification is a threat to the straight-horned markhor.

Tribes that live within the range of the straight-horned markhor have a long tradition of hunting on their land (Frisina and Tareen 2009, p. 146; Ahmed et al. 2001, p. 2). Prior to the beginning of the Soviet-Afghan War in 1979, few animals were hunted, as weapons were primitive and ammunition scarce and expensive (Ahmed et al. 2001, p. 2). However, after the beginning of the war, there was an influx of more sophisticated weapons, such as semi- and fully-automatic rifles, and cheap ammunition was more accessible. This, along with millions of refugees moving into the area, led to indiscriminate killing of wildlife throughout Pakistan and critically low populations of straight-horned markhor (Frisina and Tareen 2009, p. 145; Woodford et al. 2004, p. 181; Ahmed et al. 2001, pp. 2, 4; Johnson 1994b, p. 1).

In an effort to manage the diminishing wildlife populations, the National Council for Conservation of Wildlife (the Scientific and Management Authorities for CITES in Pakistan) implemented a 3-year ban on hunting of all big game species in Pakistan, including markhor, in 1988. In 1991, the ban was extended for another 3 years. However, the ban had little impact on the recovery of wildlife populations (Ahmed et al. 2001, p. 5). In 1999, the Federal Cabinet decided to reinstate the ban for the 2000-2001 hunting season. In 2000, community trophy hunting programs were exempted from this ban (Shackleton 2001, p. 14). We did not find information on whether a ban on hunting of big game species is currently in place.

The straight-horned markhor has been extirpated from much of its former range due to over-hunting (Johnson 1994b, p. 5; Johnson 1994, p. 10). There is no current information on the extent of poaching taking place in most of the subspecies' range. However, markhor populations significantly increased only in conservation areas managed for trophy hunting, and the only conservation plan being implemented for the straight-horned markhor is in the Torghar Hills (Government of Pakistan 2009, p. viii).

In the early 1980s, local tribal leaders became alarmed at the significant decline in the markhor population in the Torghar Hills (Frisina and Tareen 2009, p. 145; Ahmed et al. 2001, p. 4; Johnson 1994b, p. 1). At this time, the population had reached a critical level, estimated at fewer than 200 (Ahmed et al. 2001, p. 4; Johnson 1994b, p. 14; Mitchell, 1989, p. 9). The tribal leaders attributed the decline to an increase in poaching due to the significant increase in weapons in the area during the Afghan War (Frisina and Tareen 2009, p. 145; Johnson 1994b, p. 1). After unsuccessful attempts to receive assistance from the Balochistan Forest Department, they turned to wildlife biologists in the United States, including the U.S. Fish and Wildlife Service. Together, they developed the TCP, an innovative, community-based conservation program that allows for limited trophy hunting to conserve local populations of markhor, improve habitat for both markhor and domestic livestock, and improve the economic conditions for local tribes in Torghar (Frisina and Tareen 2009, p. 146; Woodford et al. 2004, p. 182; Ahmed et al. 2001, p. 4 Johnson 1994b, pp. 1-2).

In 1985, the TCP was launched and covered most of the Torghar area (approximately 1,000 square kilometers (386 square miles)). First, tribal leaders implemented a ban on all hunting activities by tribesmen in the Torghar Hills. Then, local tribesmen were hired as game guards to assist in population surveys and prevent poachers from entering the Torghar Hills. Guards were placed at points of entry into the protected area to inform migrating tribesmen of the hunting ban, who, in turn, agreed to the ban so as not to jeopardize their passage through the Torghar Hills. Support for the program, including salaries for the game guards, is raised through fees for limited trophy hunting of markhor within the TCP, mostly by foreign game hunters. Currently, markhor fees are $35,000 U.S. dollars, 80 percent of which goes to the TCP and the other 20 percent goes to the Pakistani government. In the beginning, 7 game guards were hired; currently, 82 game guards are employed. The number of markhor allowed to be hunted each year is based on surveys conducted by game guards and wildlife biologists (Frisina and Tareen 2009, pp. 142, 146-147; Ahmed et al. 2001, p. 5; Johnson 1994b, p. 3). Numbers of animals taken have ranged from 1 to 5 animals per hunting season, or less than the 1 or 2 percent of the total male population recommended by Harris (1993 in Woodford et al. 2004, p. 182) annually for trophy hunting (Frisina and Tareen 2009, pp. 146-147, 149; Ali 2008, p. 20; Woodford et al. 2004, p. 182; Johnson 1997, pp. 403-404). Because markhor have a polygynous mating system, reproduction rates have not been affected by the removal of a limited number of adult males (Woodford et al. 2004, p. 182), as evidenced by the continuing increase in the Torghar Hills population.

As a result of the TCP, poaching has essentially been eliminated in the Torghar Hills (Woodford et al. 2004, p. 182; Johnson 1994b, p. 3). Johnson (1994b, p. 15) attributed the markhor population growth (estimated to be fewer than 200 animals in the mid-1980s and is now (2012) estimated to be more than 3,000 animals) to the substantial reduction in mortality when uncontrolled hunting was stopped. The TCP is the oldest community-controlled program in Pakistan and has been so successful that tribal groups in other mountain ranges of Balochistan have expressed interest in setting up similar programs (Frisina and Tareen 2009, p. 147; Ahmed et al. 2001, p. 11).

Straight-horned markhor in the Torghar Hills, and other subspecies of markhor within community-managed conservation areas in Pakistan, may be legally hunted and exported. In 1997, at the 10th meeting of the Conference of the Parties to CITES, the Government of Pakistan submitted a proposal for approval of an annual export quota for sport-hunted markhor trophies to act as an incentive to communities to conserve markhor. During that same meeting, the Conference of the Parties approved an annual export quota of 6 sport-hunted markhor trophies for Pakistan (Resolution Conf. 10.15). Due to the success of conservation programs in Pakistan, CITES increased the annual export quota to 12 markhor in 2002, to further encourage community-based conservation (Ali 2008, p. 24; Resolution Conf. 10.15 (Rev. CoP 14)).

Data obtained from the United Nations Environment Programme—World Conservation Monitoring Center (UNEP-WCMC) CITES Trade Database show that, from July 1975, when the straight-horned markhor was listed in Appendix I, through 2010, a total of 47 specimens of this subspecies were reported to UNEP-WCMC as (gross) exports. Of those 47 specimens, 34 were trophies, and 13 were live animals. In analyzing these data, it appears that one record may be an over-count due to a slight difference in the manner in which the importing and exporting countries reported their trade. It is likely that the actual number of straight-horned markhor specimens in international trade during this period was 45, including 34 trophies and 11 live animals. Thirty-three of the trophies were reported as wild, and 1 was reported with the source unknown. Exports from range countries included: 33 trophies from Pakistan and 1 trophy from Afghanistan.

Because the straight-horned markhor is listed as an Appendix-I species under CITES, legal international trade is very limited. Because there has been very limited trade in straight-horned markhor, totaling 45 specimens over 36 years, we believe that international trade controlled via valid CITES permits is not a threat to the subspecies.

Over-hunting is known to have devastated populations of straight-horned markhor to critically low populations throughout Pakistan. In conservation areas managed for trophy hunting, populations of ungulates have significantly increased. Due to the formation of the TCP, the subsequent ending of uncontrolled poaching, and the hunting of only a limited number of trophies in the Torghar Hills, the population has increased substantially since 1985. Consequently, we find that poaching and hunting are not threats to the straight-horned markhor population in the Torghar Hills. There are no other populations of straight-horned markhor under management plans. Although the Torghar Hills population is increasing, the other populations of straight-horned markhor are reported as declining. Given that the cessation of poaching in the Torghar Hills was a direct result of the TCP, and the other populations are not under a management plan, it seems likely that poaching remains a threat to the straight-horned markhor outside of the Torghar Hills. Based on the UNEP-WCMC CITES Trade Database, few straight-horned markhor have been reported in trade from 1975 to 2010. Therefore, we believe that international trade controlled via valid CITES permits is not a threat to this subspecies. Overall, we find that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the straight-horned markhor, with the exception of the Torghar Hills population.

Information on diseases that occur in straight-horned markhor or the risk of disease transmission to straight-horned markhor is very limited. The information we obtained comes from studies and observations in the Torghar Hills. In this population, the potential for disease transmission comes from livestock-wildlife interactions due to overgrazing of large herds of livestock, drought conditions, and the migration of flocks through the Torghar Hills. Habitat management plans, if implemented, could reduce this risk. See discussion under Present or threatened destruction, modification, or curtailment of habitat or range.

Overlap between domestic livestock and markhor appears to be minimal (Frisina et al. 2002, p. 8; Mitchell 1989, p. 11), and currently, there is no evidence of disease transmission between livestock and markhor (Woodford et al. 2004, p. 184; Frisina et al. 2002, p. 13). However, Woodford et al. (2004, p. 183) identified disease transmission from domestic livestock as a future threat to the markhor of Torghar Hills. It appears that the risk of disease transmission is linked to future and continued habitat and livestock management. The risk of disease transmission is particularly severe with uncontrolled numbers of domestic livestock or during periods of drought. During these circumstances, resources are limited, interactions are more frequent around available water sources, and domestic herds may be forced to utilize upper slopes. Additionally, incidents of interaction may increase with larger domestic livestock herds and the expanding markhor population (Woodford et al. 2004, p. 183).

STEP has discussed the establishment of a community-based Animal Health Service, and the herdsmen within the TCP have agreed to this measure. As it is not feasible to vaccinate markhor in mountainous terrain, STEP will train and equip tribesmen to act as “barefoot vets” with the responsibility of traveling through the TCP vaccinating domestic sheep and goats, and administering appropriate anthelmintics (drugs that expel parasitic worms). However, veterinary care will only be effective if range and livestock management plans are implemented, resulting in smaller, healthier domestic livestock herds (Woodford et al. 2004, p. 185).

Although there is currently no evidence of disease transmission between livestock and markhor (Woodford et al. 2004, p. 184; Frisina et al. 2002, p. 13), if implemented, the plans developed by STEP to improve habitat for markhor will also improve livestock management and agriculture practices, will minimize interaction between domestic livestock and wildlife, and will therefore lower the risk of disease transmission. Coupled with the planned Animal Health Service, the risk of diseases being transferred from domestic livestock to markhor will be significantly reduced. However, at this time, we do not know the status of the habitat management plans or the Animal Health Service, or the effect that the actions have had on reducing the risk of disease to the straight-horned markhor.

In the rest of the straight-horned markhor's range, we have no information on the occurrence of disease or the risk of disease transmission from domestic sheep and goats. Over-grazing of domestic livestock has contributed to habitat loss in other mountain ranges, suggesting large livestock herds have also been maintained in these areas, but we do not have information on herd size or the likelihood of livestock-wildlife interactions. Given the extremely small population estimates of straight-horned markhor outside of the Torghar Hills, it may be that interactions are rare.

The main predators of all subspecies of markhor are Himalayan lynx ( Felis lynx ), snow leopards ( Uncia uncia ), wolves ( Canis lupus ), and Asian black bears ( Ursus tibetanus ). Golden eagles ( Aquila chrysaetos ) are also reported to prey on young markhor (Ali 2008, pp. 20-21). Although once abundant in the mountains of northern Balochistan, many big game species, like leopards and black bears, suffered severe declines due to overhunting. In the Torghar Hills, these species were extirpated or near extirpation by the mid-1980s. Today, the only potential predators that remain in the Torghar Hills are small populations of wolves ( Canis lupus ) and hyaenas ( Hyaena hyaena ) (Woodford et al. 2004, p. 181). We found no reports on predation of straight-horned markhor specifically or information indicating predation is a threat to this subspecies.

Although livestock-wildlife interactions are minimal in the Torghar Hills, and currently there is no evidence of disease transmission between livestock and markhor, if habitat and livestock management are not implemented, the risk of disease transmission to markhor will increase. STEP has developed plans to address range management and reduce the risk of disease transmission, and has developed an Animal Health Service, which would further reduce the risk of disease in straight-horned markhor; however, we do not know the status of these plans and the effect they may have on reducing the risk of disease to straight-horned markhor. Therefore, we find that disease is a threat to the straight-horned markhor in the Torghar Hills. In the other mountains of the straight-horned markhor's range, we do not have information on the occurrence of disease, the size of domestic herds, the likelihood of livestock-wildlife interactions, or, therefore, the risk of disease transmission. We also found no information suggesting that disease is a threat to these populations of straight-horned markhor. However, the scattered populations of straight-horned markhor outside of Torghar Hills occur at low densities such that interactions with livestock are likely to be minimal. As a result, we find that disease is not a threat to the straight-horned markhor in the rest of its range.

Although predators of markhor have been identified, and some potential predators remain in the Torghar Hills, we do not have any information suggesting that predation is affecting the status of the straight-horned markhor; therefore we find that predation is not a threat to the straight-horned markhor.

Both the federal and provincial governments of Pakistan are allowed to legislate on matters governing resources; however, the federal government does not legislate on natural resource conservation and use, except in cases of international trade and national security (Ahmed and Kazi 2008, pp. 13, 24). There is no federal law that establishes principles of wildlife conservation and use to be applied in all provinces. Additionally, there is no federal legislation that provides a framework for managing forests as ecosystems, to conserve them as habitat for wildlife, or to protect rare or threatened species (Ahmed and Kazi 2008, pp. 14, 36, 38). Federal laws do exist to govern the process of those institutions that affect natural resources to ensure orderly conduct and achievement of commercial objectives or the prospecting and exploitation of those resources for continued availability for future exploitation (Ahmed and Kazi 2008, pp. 13-14, 32, 36).

The British Glanders and Farcy Act of 1899, enacted when the area that is now modern-day Pakistan was under British rule, addresses communicable diseases within domestic livestock. This federal law allows steps to be taken to control the spread of disease among domestic animals. Specified precautionary measures also prevent the spread of disease to wild animals. However, the provisions apply to horses, camels, and mules, but not to sheep and goats (Aurangzaib and Pastakia 2008, pp. 57, 64).

In general, federal laws do not apply in Federally Administered Tribal Areas (FATAs), Provincially Administered Tribal Areas (PATAs), or the Northern Areas (Ahmed and Khazi 2008, pp. 13, 24). Balochistan does not have any FATAs, but has several PATAs. According to the Pakistan Constitution, PATAs in Balochistan include the Zhob District, where the Torghar Hills is located, and the Laralai District (Aurangzaib and Pastakia 2008, p. 23). However, even in areas where federal laws are applicable, laws related to natural resources do not address conservation or use, but focus on commercial objectives and future exploitation. Additionally, the federal law addressing the spread of communicable diseases within domestic livestock and to wild animals is not applicable to sheep and goats, and therefore, does not provide any protections to the straight-horned markhor. Therefore, there are no federal laws that provide protections adequate to ameliorate threats to the straight-horned markhor from habitat loss, poaching, or disease.

Legislating for natural resource protection, including the protection of wildlife and forests, is left primarily to provincial governments (Ahmed and Kazi 2008, p. 13; Aurangzaib and Pastakia 2008, pp. 6-8, 24). Balochistan has one wildlife act, the Balochistan Wildlife Protection Act of 1974 (BWPA) (Aurangzaib and Pastakia 2008, p. 28). Under this law, the straight-horned markhor is listed as a protected animal under the Third Schedule (BWPA 1977, p. 15). Species listed under this Schedule shall not be hunted, killed, or captured (Aurangzaib and Pastakia 2008, p. 58). Penalties for violations include a maximum of 2 years in prison and/or a fine of 1,000 rupees ($18.27 U.S. dollars). All second and subsequent violations are punishable with a 1-year prison term and/or a fine of 1,000 rupees ($18.27 U.S. dollars), plus confiscation of weapons, vehicles, and equipment used in the violation. The violator's hunting license is also revoked, and the violator is barred from obtaining a new hunting license for 10 years (Aurangzaib and Pastakia 2008, p. 60). Under the Second Schedule, possession, transfer, or export of markhor horns requires a certificate of lawful possession (BWPA 1977, p. 14). The First Schedule lists game animals that may only be hunted, killed, or captured by license (BWPA 1977, p. 11).

The BWPA does not provide specifically for conservation of wildlife, and the protections are weak due to broad exemptions. For example, the government retains the right to allow the killing or hunting of animals for scientific or public purposes (Frisina and Tareen 2009, p. 145; Aurangzaib and Pastakia 2008, pp. 28, 58; Ahmed et al. 2001, p. 5; Johnson 1997, p. 397).

The BWPA also allows for the designation of protected areas, such as national parks, sanctuaries, and game reserves, and prohibits certain activities within these areas (Aurangzaib and Pastakia 2008, p. 65). Sanctuaries are to serve as undisturbed breeding grounds for the protection of wildlife, but the purposes of national parks and game reserves are not specified. Although this law allows for the designation of protected areas, it does not specify criteria for designation (Aurangzaib and Pastakia 2008, pp. 65-66).

Within a sanctuary, or within 500 yards (1,500 ft) of its perimeter, hunting, killing, or capture of wild animals is prohibited. In those areas, it is also illegal to take up residence, cultivate land, damage vegetation, light fires, pollute water, or introduce livestock or allow domestic animals to graze (Aurangzaib and Pastakia 2008, pp. 65-66). Within a national park, or within a half-mile of its boundary, it is unlawful to hunt, kill, or capture wildlife. In those areas, clearing or breaking up of land for cultivation, mining, or other purposes; felling, tapping, damaging, or destroying plants and trees; and collecting or removing plants or trees is prohibited. The BWPA also prohibits acts like discharging a weapon, which may disturb an animal or interfere with breeding (Aurangzaib and Pastakia 2008, pp. 58, 67). These prohibitions, however, are subject to broad exemptions. Within a national park, exemptions may be granted for scientific purposes, betterment of the national park, or any other purpose. Vegetation may be destroyed in wildlife sanctuaries and game reserves for scientific purposes, aesthetic enjoyment, or the betterment of the sanctuary or reserve. Additionally, the government may allow the exploitation of forest produce (Aurangzaib and Pastakia 2008, pp. 45, 59).

In Balochistan, there are 2 national parks and over 20 wildlife sanctuaries and game reserves (Aurangzaib and Pastakia 2008, p. 65). The straight-horned markhor has been recorded in the Hazarganji Chiltan National Park (Wildlife of Pakistan 2002, unpaginated). We do not have information on the location of the wildlife sanctuaries or game reserves or if the straight-horned markhor occurs within any of these areas.

The Land Preservation Act of 1900 is a Punjab law that, by default, was applied to the newly created Balochistan province in 1970. This law allows the government to provide for the prevention of soil erosion and the conservation of sub-soil water. Activities such as clearing, breaking up, or cultivating land not ordinarily under cultivation; quarrying stone or burning lime; cutting trees or removing forest produce; setting fire to trees, timber, or forest produce; and herding or pasturing goats and sheep are prohibited. However, the government may permit inhabitants to carry out such activities (Aurangzaib and Pastakia 2008, p. 39).

In Balochistan, the forest sector is governed by the Forest Act of 1927, a federal statute that operates as provincial law. Other forest laws exist, but none covers all aspects of forest management (Aurangzaib and Pastakia 2008, p. 42). The Forest Act of 1927 allows for the creation of various classes of forests, the reservation of state-owned forest land, and for the provincial government to assume control of privately owned forest land and declare government-owned land to be a protected area. It also prohibits grazing, hunting, quarrying, or clearing for cultivation; removal of forest produce; or the felling or lopping of trees and branches in reserved or protected forests (Aurangzaib and Pastakia 2008, p. 46). In protected forests, cutting or damaging trees, quarrying, cultivation, and setting fires is punishable by up to 6 months in prison and or a fine of 500 rupees ($9.13 U.S. dollars) (Aurangzaib and Pastakia 2008, p. 46).

Special provisions are in place for juniper forests. It is illegal to fell or girdle a juniper tree, or to lop, tap, burn, damage, or strip bark from a juniper tree, regardless of whether the tree is standing, felled, or fallen. It is also illegal to remove a felled or fallen juniper tree or its parts for sale. Offenses related to juniper trees are punishable by imprisonment for 1 year and/or a fine of 5,000 rupees ($91.33 U.S. dollars). The Forest Act also allows the government to regulate privately owned forests under certain circumstances. In these cases, the government may prohibit grazing, setting fires, and clearing land for cultivation (Aurangzaib and Pastakia 2008, p. 46).

The Forest Act of 1927 does not provide for sustainable use, conservation, or the protection of endangered wildlife within forests. Legislation related to forests restricts subsistence use, but focuses on maximizing commercial exploitation. This may be because current laws date back to the early 20th century and reflect priorities of that time. Provincial amendments have done little to alter the focus of these laws. Enforcement of forest laws is lacking, and where enforcement is possible, penalties are not severe enough to serve as a deterrent to violators. Furthermore, these laws may be overridden by other laws in favor of development and commercial uses (Aurangzaib and Pastakia 2008, pp. 42-43).

There are some laws that provide protection to trees rather than forests. As described above, the BWPA prohibits the clearing of trees, although this protection only applies within protected areas. The Land Preservation Act restricts the felling of trees to prevent soil erosion (Aurangzaib and Pastakia 2008, p. 42).

Despite provincial laws, Pakistani authorities have not been able to slow the decline of important wildlife species, such as the markhor (Johnson 1997, p. 394). Enforcement is very difficult to achieve due to the remoteness of many areas, the political situation in remote areas, conflicting policies, lack of understanding of the need and importance of conservation, and economic constraints (Hess et al. 1997, p. 243). Additionally, like federal laws, provincial laws do not apply in FATAs, PATAs, or the Northern Areas (Ahmed and Khazi 2008, pp. 13, 24). According to the Pakistan Constitution, PATAs in Balochistan include the Zhob and Laralai districts (Aurangzaib and Pastakia 2008, p. 23). For a federal or provincial law to apply, the provincial governor must, with the approval of the president, issue a directive to that effect (Aurangzaib and Pastakia 2008, p. 24). The BWPA states specifically in section 1(2) that the law extends to all of Balochistan except for the tribal areas. Although we do not have specific information on whether the other laws described above were directed to tribal areas, it appears that many of the areas where the straight-horned markhor occur are not subject to these laws as they are located in the PATAs of the Zhob and Laralai districts. In areas where the laws may be applicable, it does not appear that provincial laws have provided adequate protection given the severe declines in straight-horned markhor caused by habitat loss and poaching, and given the threats the markhor continues to face from habitat loss, poaching, and disease.

In 1975, the straight-horned markhor was listed in Appendix I of CITES. CITES is an international agreement between governments to protect plant and animal species listed in its Appendices from over-exploitation through international trade. There are currently 175 CITES Parties (member countries or signatories to the Convention). CITES Parties regulate the import, export, and reexport of live or dead plants or animals as well as parts and products of Appendix-listed plant and animal species, through a system of permits and certificates administered by the designated CITES Scientific and Management Authorities of each Party.

An Appendix-I listing includes species threatened with extinction which are or may be affected by trade; trade of these species is permitted only under exceptional circumstances. Commercial trade in Appendix-I specimens is generally precluded. Trade in Appendix-I species requires the issuance of both import and export permits. Import permits for Appendix-I species are issued only if findings are made that the import would be for purposes that are not detrimental to the survival of the species, the proposed recipient of a live specimen is suitably equipped to house and care for it, and that the specimen will not be used for primarily commercial purposes (CITES Article III(3)). Export permits for Appendix-I species are issued only if findings are made that the specimen was legally acquired; the trade is not detrimental to the survival of the species; any specimen will be prepared and shipped to minimize the risk of injury, damage to health or cruel treatment; and if the issuing authority is satisfied that an import permit has been granted for the specimen (CITES Article III(2)).

In the United States, CITES is implemented through the U.S. Endangered Species Act of 1973, as amended (Act). The Act designates the Secretary of the Interior (Secretary) as having the lead responsibility to implement CITES for the United States, with the functions of the Management and Scientific Authorities to be carried out by the Service.

Hunting and export of markhor trophies is allowed from community-managed conservation areas in Pakistan. See discussion above under Overutilization for commercial, recreational, scientific, or educational purposes. To encourage communities to conserve populations of markhor, the Conference of the Parties to CITES approved an annual export quota of 12 sport-hunted trophies of markhor to be taken through trophy-hunting programs. As discussed above under Factor B, due to the limited number of specimens reported in trade, we do not consider international trade to be a threat impacting this subspecies.

In addition to CITES, Pakistan is Party to other major multilateral treaties that address natural resource conservation and management (Ahmed and Khazi 2008, p. 31). Among these are the Convention on Biological Diversity, World Heritage Convention, and the Convention on Combating Desertification (Ahmed and Khazi 2008, pp. 14, 31). In becoming a Party to these treaties, Pakistan assumed obligations to implement the treaties' provisions, which in many cases requires legislation. However, Pakistan has no federal law to implement these obligations (Ahmed and Khazi 2008, pp. 14, 31; Aurangzaib and Pastakia 2008, p. 65). Provincial governments are responsible for legislating natural resources. Balochistan's single wildlife law, the BWPA, does not meet the country's obligations regarding conservation of biodiversity or trade in endangered species (Aurangzaib and Pastakia 2008, p. 58). Therefore, these treaties, in and of themselves, do not provide adequate protections to ameliorate threats faced by the straight-horned markhor.

Populations of ungulates in Pakistan have significantly increased under trophy hunting programs (Government of Pakistan 2009, p. viii). The only conservation program of any type for the straight-horned markhor is the TCP, which covers the Torghar Hills population. The population here has been under this conservation program since 1985. As previously described, the TCP began after local tribal leaders were concerned over the diminished markhor population.

The main cause of declines in markhor populations was thought to be uncontrolled poaching. The TCP effectively eliminated this threat and has allowed the straight-horned markhor population in the Torghar Hills to steadily increase. The TCP not only addresses the threat of hunting, but agriculture and range management plans have been recently developed to address habitat loss and disease (see discussions under Factors A and C, above). Therefore, we find that the TCP provides adequate protection to the markhor from poaching, but we do not yet have information indicating that it provides adequate protection against habitat loss and disease.

Although the federal government of Pakistan could legislate on matters relating to natural resources, this matter is left to provincial governments. There are several provincial laws in place meant to give some protection to natural resources; however, they are subject to broad exemptions, allowing for overriding laws favoring development and commercial use. Given the threats faced by the straight-horned markhor from habitat loss, poaching, and disease, it appears that these regulatory mechanisms do not provide adequate protections to the subspecies. In the Torghar Hills, effective implementation and enforcement of the TCP has led to the cessation of poaching of markhor and a persistent growth in the markhor population; therefore, the TCP has provided adequate protection against poaching. Habitat modification and disease remain current and potential threats to the straight-horned markhor of the Torghar Hills. Management plans are being developed to address habitat loss and disease prevention; however, we do not know the status or effectiveness of these plans. Therefore, we find that, overall, inadequate regulatory mechanisms are a threat to the straight-horned markhor.

Consideration of ongoing and projected climate change is a component of our analyses to determine the appropriate status of the markhor under the Act. Described in general terms, “climate change” refers to a change in the state of the climate (whether due to natural variability, human activity, or both) that can be identified by changes in the mean or variability of its properties (e.g., temperature, precipitation) and that persists for an extended period, typically decades or longer (Intergovernmental Panel on Climate Change (IPCC) 2007, p. 30). Various types of changes in climate can have direct or indirect effects on species, and these may be positive or negative depending on the species and other relevant considerations, such as the effects of interactions with non-climate conditions (e.g., habitat fragmentation). We use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change that are relevant to the straight-horned markhor.

Since the beginning of the 20th century, Pakistan has experienced a consistent rising trend in mean surface temperatures (Farooqi et al. 2005, p. 13). Ahmed et al. (2010, pp. 17, 21) found that temperatures in January, a core winter month in Pakistan, increased over a 46-year time period (1961-2006) across Pakistan and especially in northwestern Balochistan. Projections through 2050 for Pakistan include increasing surface temperatures, increasing magnitude and frequency of extreme rainfall events, and strengthening monsoon circulation. Additionally, arid and semi-arid regions could experience severe droughts (Farooqi et al. 2005, pp. 16-18).

Drought is a common occurrence in Balochistan; as such, we do not know if climate change will affect markhor and their habitat. STEP has developed habitat and range management plans, which could help minimize effects of climate change by reducing the number of domestic livestock, decreasing habitat loss, and increasing water availability through water storage projects. Although we do not know the effectiveness of these plans under changing climatic conditions, we did not find any information that rising temperatures have had an effect on the status of the markhor such that climate change rises to the level of a threat, nor did we find any information indicating that climate change may become a threat to the straight-horned markhor.

To date, Pakistan has experienced a warming trend, yet there is no information to indicate that the straight-horned markhor has been negatively affected. Although information indicates changes in the climate of Balochistan could affect mountain habitat, we do not have information on the extent of these changes or the projected response of straight-horned markhor. Drought is a common occurrence in Balochistan, and it is reasonable to assume that the markhor has evolved with varying degrees of drought.

We are not aware of any other scientific or commercial information that indicates other natural or manmade factors pose a threat to this subspecies. We also do not find that climate change is or may become a threat to the straight-horned markhor. As a result, we find that other natural or manmade factors are not threats to the straight-horned markhor.

As required by the Act, we conducted a review of the status of the species and considered the five factors in assessing whether the straight-horned markhor is endangered or threatened throughout all or a significant portion of its range. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the straight-horned markhor. We reviewed the 1999 petition submitted by Tareen, the 2010 petition submitted by Jackson, information available in our files, and other available published and unpublished information.

The straight-horned markhor occurs in small, scattered populations in extremely rugged terrain of the mountains of Balochistan, including the Murdar, Takhatu, Zarghun, Kaliphat, Phil Garh, Suleiman, Shingar, and Toba Kakar ranges. In 1975, as few as 1,000 straight-horned markhor were estimated to survive throughout the subspecies' range. It is unlikely that the number of straight-horned markhor has increased in much of its range, and, in general, markhor populations are reported as declining, but there is one exception, the Torghar Hills population in the Toba Kakar Range. Due to the implementation of a conservation plan, the Torghar Hills population has increased from fewer than 200 in the mid-1980s to 3,158 currently.

Throughout the range of the straight-horned markhor, deforestation for logging, livestock grazing, and collection for building materials, fuel, charcoal, and food threaten straight-horned markhor habitat.

Due to the formation of the TCP, the cessation of uncontrolled poaching, and the hunting of only a limited number of trophies in the Torghar Hills, the population has increased substantially since TCP's inception in 1985. We are not aware of other populations of straight-horned markhor under the same level of management. Given that the cessation of poaching in the Torghar Hills was a direct result of the TCP and we are unaware of any other portions of the subspecies' range that are subject to a management program that protects against uncontrolled hunting, we find that poaching remains a threat in the rest of the straight-horned markhor's range.

Disease has been identified as a future threat to the Torghar Hills population. The risk of disease transmission comes from forced interactions between livestock and markhor around limited forage and water resources, due either to drought conditions and/or overgrazing of large domestic herds of sheep and goats.

There are several provincial laws in place meant to give some protection to natural resources, but they are subject to broad exemptions, allowing for overriding laws favoring development and commercial use, and enforcement is lacking. However, in the Torghar Hills, the population of straight-horned markhor has been effectively managed by the TCP such that poaching is no longer a threat to this population and the population has increased. Given the success of the TCP in ameliorating threats faced by the straight-horned markhor from poaching, it appears that this regulatory mechanism for the Torghar Hills population of straight-horned markhor is providing adequate protection to the subspecies from poaching, which was once the markhor's greatest threat.

Lastly, Pakistan has experienced warming trends that are projected to continue, and could lead to more frequent and severe droughts. However, markhor have evolved within habitat that experiences frequent and sustained drought events. We do not have enough information to determine that climate change is a threat to the straight-horned markhor.

Section 3 of the Act defines an “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Some of the straight-horned markhor populations are small and declining. Threats to this subspecies from habitat loss, poaching, and disease still exist and will likely continue into the foreseeable future. At the same time, regulatory mechanisms are inadequate to ameliorate the negative effects of these threats on the subspecies. However, in the Torghar Hills, the greatest cause of the significant declines in markhor populations, poaching, has been virtually eliminated due to the implementation of the TCP. The population here has been increasing since the inception of the TCP and, today, is the stronghold of the subspecies. Due to the conservation measures and the incentives of the TCP, the straight-horned markhor has increased from approximately 1,000 markhor across its range to at least 3,158 individuals, which are represented by the Torghar Hills population. The success of this program has contributed greatly to the conservation of the subspecies by recovering the straight-horned markhor from the brink of extinction. This increase in abundance has contributed to the subspecies' overall resiliency such that it is less susceptible to the threats that we have identified. Additionally, information suggests that intermountain exchange or movement is occurring between the Torghar Hills and other mountain range areas, thereby providing a margin of safety for the species to withstand catastrophic events. See discussion under Distinct Vertebrate Population Segment. Thus, we find that threats identified under Factors A, B, C, and D, when combined with the increase in the straight-horned markhor population and the protective measures provided to the Torghar Hills population by the TCP, are not of sufficient imminence, intensity, or magnitude to indicate that the straight-horned markhor is presently in danger of extinction, and, therefore, the straight-horned markhor does not meet the definition of endangered under the Act. On the basis of the best scientific and commercial information, we find that the straight-horned markhor meets the definition of a “threatened species” under the Act, and we are proposing to list the straight-horned markhor as threatened throughout its range.

Section 3(16) of the Act defines “species” to include any species or subspecies of fish and wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). Under the Service's “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” (61 FR 4722, February 7, 1996), three elements are considered in the decision concerning the establishment and classification of a possible distinct population segment (DPS). These elements, which are applied similarly for additions to or removals from the Federal List of Endangered and Threatened Wildlife, include:

(1) The discreteness of a population in relation to the remainder of the species to which it belongs;

(2) The significance of the population segment to the species to which it belongs; and

(3) The population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (i.e., is the population segment endangered or threatened?).

Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:

(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.

(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.

We reviewed available information to determine whether any population, including the Torghar Hills population, of the straight-horned markhor meets the first discreteness condition of our 1996 DPS policy. We found no evidence that any population was markedly separated from other markhor populations as a consequence of physical, physiological, ecological, or behavioral factors. Additionally, we are not aware of measures of genetic or morphological discontinuity that provide evidence of marked separation. With respect to Torghar Hills, the boundaries are unclear and appear to grade into other ranges within the Toba Kakar Mountains. Additionally, Johnson (1994b, p. 15) noted that if the Torghar Hills population reaches carrying capacity, it could become a source of emigrants for other mountain ranges in the area and that intermountain movement is probably already taking place. Since that publication, the Torghar Hills population has increased from 695 markhor to 3,158, indicating a greater likelihood that intermountain movement of markhor is taking place. We currently do not know the extent, if any, that markhor are moving from the Torghar Hills into other mountain ranges; however, it appears that they could. Movement may require markhor to cross unsuitable habitat (e.g., the TCP is surrounded by less severe topography and valleys typically not preferred by markhor), but there is no reason that they could not cross, especially if carrying capacity is met and there is a need to emigrate to other suitable areas in adjacent ranges. Therefore, without evidence of marked separation, we determine that none of the populations of the straight-horned markhor meet the first discreteness condition of the 1996 DPS policy.

We next evaluate whether any of the straight-horned markhor populations meet the second discreteness condition of our 1996 DPS policy. A population segment may be considered discrete if it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. Straight-horned markhor are only found in Pakistan and do not cross international boundaries; therefore, none of the populations of the straight-horned markhor meet the second discreteness condition of the 1996 DPS policy.

We determine, based on a review of the best available information, that none of the populations of the straight-horned markhor, including the Torghar Hills population, meet the discreteness conditions of the 1996 DPS policy. Because we found that the straight-horned markhor populations do not meet the discreteness element under the Service's DPS policy, we need not conduct an evaluation of significance under that policy. We conclude that none of the straight-horned markhor populations qualify as a DPS under the Act.

Having determined that the straight-horned markhor meets the definition of threatened throughout its range, we must next consider whether the straight-horned markhor is in danger of extinction within a significant portion of its range.

The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The phrase “significant portion of its range” (SPR) is not defined by the statute, and we have never addressed in our regulations either: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as “significant.”

For the purposes of this finding, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing: a species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, then that species is an “endangered species.” The same analysis applies to “threatened species.” Based on this interpretation and supported by existing case law, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species will be listed as endangered or threatened, respectively, and the Act's protections will be applied across the species' entire range.

We conclude, for the purposes of this finding, that interpreting the SPR phrase as providing an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice, as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.

Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this finding, and as explained further below, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction.

We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation. Resiliency describes the characteristics of a species and its habitat that allow it to recover from periodic disturbance. Redundancy (having multiple populations distributed across the landscape) may be needed to provide a margin of safety for the species to withstand catastrophic events. Representation (the range of variation found in a species) ensures that the species' adaptive capabilities are conserved. Redundancy, resiliency, and representation are not independent of each other, and some characteristic of a species or area may contribute to all three. For example, distribution across a wide variety of habitat types is an indicator of representation, but it may also indicate a broad geographic distribution contributing to redundancy (decreasing the chance that any one event affects the entire species), and the likelihood that some habitat types are less susceptible to certain threats, contributing to resiliency (the ability of the species to recover from disturbance). None of these concepts is intended to be mutually exclusive, and a portion of a species' range may be determined to be “significant” due to its contributions under any one or more of these concepts.

For the purposes of this finding, we determine whether a portion qualifies as “significant” by asking whether without that portion, the representation, redundancy, or resiliency of the species would be so impaired that the species would have an increased vulnerability to threats to the point that the overall species would be in danger of extinction (i.e., would be “endangered”). Conversely, we would not consider the portion of the range at issue to be “significant” if there is sufficient resiliency, redundancy, and representation elsewhere in the species' range that the species would not be in danger of extinction throughout its range if the population in that portion of the range in question became extirpated (extinct locally).

We recognize that this definition of “significant” (a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction) establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: Listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001).

The definition of “significant” used in this finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase “in a significant portion of its range” loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the Defenders litigation. Under that interpretation, the portion of the range would have to be so important that current imperilment there would mean that the species would be currently imperiled everywhere. Under the definition of “significant” used in this finding, the portion of the range need not rise to such an exceptionally high level of biological significance. (We recognize that if the species is imperiled in a portion that rises to that level of biological significance, then we should conclude that the species is in fact imperiled throughout all of its range, and that we would not need to rely on the SPR language for such a listing.) Rather, under this interpretation we ask whether the species would be endangered everywhere without that portion, i.e., if that portion were completely extirpated. In other words, the portion of the range need not be so important that even the species being in danger of extinction in that portion would be sufficient to cause the species in the remainder of the range to be endangered; rather, the complete extirpation (in a hypothetical future) of the species in that portion would be required to cause the species in the remainder of the range to be endangered.

The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant or to analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be “significant,” and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.” In practice, a key part of the determination that a species is in danger of extinction in a significant portion of its range is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats to the species occurs only in portions of the species' range that clearly would not meet the biologically based definition of “significant,” such portions will not warrant further consideration.

After reviewing the potential threats throughout the range of the straight-horned markhor, we find that threats appear to be affecting the subspecies in the portion of the range outside of the Torghar Hills more severely, particularly with respect to poaching. Applying the process described above for determining whether this subspecies is endangered in a significant portion of its range, we consider significance first to determine if this portion of the straight-horned markhor's range warrants further consideration.

As stated above, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that without that portion, the species would be in danger of extinction rangewide. We find that if there was a loss of the straight-horned markhor populations outside of the Torghar Hills, the remaining population in the Torghar Hills would not be in danger of extinction. The Torghar Hills population, under the management of the TCP, has been steadily increasing since the inception of the TCP in 1985. Poaching, the greatest cause of substantial markhor declines, has been virtually eliminated in the Torghar Hills. Given the level of the abundance within Torghar Hills as a result of management under the TCP, we find that this population would be large enough to persist in the face of threats associated with habitat destruction, disease, and inadequate regulatory mechanisms, despite the hypothetical loss of the range outside of Torghar Hills. In contrast, based on the information available, the populations outside of Torghar Hills are small and fragmented. We have no information to suggest that habitat for populations outside of Torghar Hills is optimal, and, instead, the information suggests that these populations likely exist on tribal lands that are subject to overgrazing by domestic livestock, which is the dominant land use and the primary means of subsistence for local tribes. Therefore, the portion of the range outside of the Torghar Hills does not meet the definition of “significant” and does not warrant further consideration.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is being designated. However, given that the straight-horned markhor is not native to the United States, we are not designating critical habitat for this species under section 4 of the Act.

Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered or threatened wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species and 17.32 for threatened species. For endangered wildlife, a permit may be issued for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the Act.

Section 4(d) of the Act states that the Secretary may, by regulation, extend to threatened species prohibitions provided for endangered species under section 9 of the Act. Our implementing regulations for threatened wildlife (50 CFR 17.31) incorporate the section 9 prohibitions for endangered wildlife, except when a special rule is promulgated. For threatened species, section 4(d) of the Act gives the Secretary discretion to specify the prohibitions and any exceptions to those prohibitions that are appropriate for the species, and provisions that are necessary and advisable to provide for the conservation of the species. A special rule allows us to include provisions that are tailored to the specific conservation needs of the threatened species and which may be more or less restrictive than the general provisions at 50 CFR 17.31.

The Service recognizes that there is a reasonable argument for the proposition that controlled sport hunting (i.e., noncommercial) may provide economic incentives that contribute to the conservation of certain wildlife populations. These incentives may be direct, such as generating funding for essential conservation measures through licensing fees. They may also be indirect, such as focusing governmental attention on the need to protect species of economic value.

Well-managed conservation programs, including those that incorporate sport hunting, can significantly contribute to the conservation of wildlife, improve wildlife populations, and greatly enhance the livelihoods of the local people. The primary objective of a well-managed trophy-hunting program is not hunting, but the conservation of large mammals (Shackleton 2001, p. 7). The key lies in ensuring a sufficient number of mature males remain in the population to maintain normal reproduction rates. For species with polygynous mating systems, removing some of the males from a population does not necessarily affect the growth rate of the population. If a fraction of the mature males (approximately 2 percent) are removed, normal reproduction can be maintained and any long-term genetic impacts from removing “genetically superior” individuals from a population can be minimized (Shackleton 2001, p. 10).

Many hunters are willing to pay relatively large fees for the privilege to hunt. If the money is used to conserve the species that is the focus of the conservation program, the program may be sustainable. Additionally, habitat restoration may also be achieved. Incorporating the needs of the local people creates an incentive to conserve wildlife and ensures the success of the program (Shackleton 2001, pp. 7, 10).

In recognizing the potential of conservation programs, including those based on sport hunting, we are proposing a special rule to allow the import of sport-hunted markhor trophies taken from established conservation programs without a threatened species permit issued under 50 CFR 17.32, provided that certain criteria are met. Importation of a personal sport-hunted straight-horned markhor may be authorized by the Director of the U.S. Fish and Wildlife Service (Director) without a threatened species permit if the trophy is taken from a conservation program that meets the following criteria: (1) Populations of straight-horned markhor within the conservation program's areas can be shown to be sufficiently large to sustain sport-hunting and the populations are stable or increasing; (2) regulating authorities have the capacity to obtain sound data on populations; (3) the conservation program can demonstrate a benefit to both the communities surrounding or within the area managed by the conservation program and the species, and the funds derived from sport hunting are applied toward benefits to the community and the species; (4) regulating authorities have the legal and practical capacity to provide for the long-term survival of the populations; (5) regulating authorities can determine that the trophies have in fact been legally taken from the populations under an established conservation program. The Director may, consistent with the purposes of the Act, authorize by publication of a notice in the Federal Register the importation of personal sport-hunted straight-horned markhor, taken legally from the established conservation program after the date of such notice, without a threatened species permit, provided that the applicable provisions of 50 CFR part 23 have been met.

As discussed above under Factors B and D, hunting of markhor is allowed through a Pakistani government exemption, and export of markhor in Pakistan is allowed only from community-managed conservation areas in accordance with CITES provisions. To encourage communities to conserve populations of markhor, the Conference of the Parties to CITES granted Pakistan an annual export quota of 12 markhor sport-hunted trophies taken through community-based programs. CITES Resolution Conf. 10.15 (Rev. CoP 14) recommends that CITES Authorities in the State of import approve permits of sport-hunted markhor trophies from Pakistan if they meet the terms of the Resolution. This proposed special rule, if made final, would similarly facilitate support for these conservation programs. Therefore, we find this special rule would provide necessary and advisable conservation measures that are needed for this subspecies.

In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” that was published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate independent specialists regarding this proposed rule. The purpose of such review is to ensure listing decisions are based on scientifically sound data, assumptions, and analysis. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register . We will invite these peer reviewers to comment, during the public comment period, on the specific assumptions and the data that are the basis for our conclusions regarding the proposal to reclassify the straight-horned markhor as threatened under the Act and to promulgate the proposed special rule.

We will consider all comments and information we receive during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, our final decision may differ from this proposal.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES . To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

We have determined that we do not need to prepare an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

This rule does not contain any new information collections or recordkeeping requirements for which Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

A list of all references cited in this document is available at http://www.regulations.gov at Docket No. FWS-R9-ES-2011-0003, or upon request from the U.S. Fish and Wildlife Service, Endangered Species Program, Branch of Foreign Species (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this proposed rule are staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.

Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: