[Federal Register Volume 81, Number 65 (Tuesday, April 5, 2016)]
[Proposed Rules]
[Pages 19527-19542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07809]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[4500030113]


Endangered and Threatened Wildlife and Plants; 12-Month Findings 
on Petitions To List Island Marble Butterfly, San Bernardino Flying 
Squirrel, Spotless Crake, and Sprague's Pipit as Endangered or 
Threatened Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition findings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 12-
month findings on petitions to list the island marble butterfly, the 
San Bernardino flying squirrel, the American Samoa population of the 
spotless crake, and the Sprague's pipit as endangered species or 
threatened species under the Endangered Species Act of 1973, as amended 
(Act). After review of the best available scientific and commercial 
information, we find that listing the island marble butterfly as an 
endangered or threatened species is warranted. Currently, however, 
listing the island marble butterfly is precluded by higher priority 
actions to amend the Lists of Endangered and Threatened Wildlife and 
Plants. Upon publication of this 12-month petition finding, we will add 
the island marble butterfly to our candidate species list. We will 
develop a proposed rule to list the island marble butterfly as our 
priorities allow. After review of the best available scientific and 
commercial information, we find that listing the San Bernardino flying 
squirrel, the American Samoa population of the spotless crake, and the 
Sprague's pipit is not warranted at this time. However, we ask the 
public to submit to us any new information that becomes available 
concerning the stressors to the San Bernardino flying squirrel, the 
American Samoa population of the spotless crake, the Sprague's pipit, 
or their habitats at any time.

DATES: The findings announced in this document were made on April 5, 
2016.

ADDRESSES: These findings are available on the Internet at http://www.regulations.gov at the following docket numbers:

------------------------------------------------------------------------
           Species                             Docket No.
------------------------------------------------------------------------
Island marble butterfly......  FWS-R1-ES-2014-0025.
San Bernardino flying          FWS-R8-ES-2016-0046.
 squirrel.
American Samoa population of   FWS-HQ-ES-2016-0048.
 the spotless crake.
Sprague's pipit..............  FWS-R6-ES-2009-0081.
------------------------------------------------------------------------

    Supporting information used in preparing these findings is 
available for public inspection, by appointment, during normal business 
hours, by contacting the appropriate person, as specified under FOR 
FURTHER INFORMATION CONTACT. Please submit any new information, 
materials, comments, or questions concerning these findings to the 
appropriate person, as specified under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT:

------------------------------------------------------------------------
              Species                        Contact information
------------------------------------------------------------------------
Island marble butterfly...........  Eric V. Rickerson, State Supervisor,
                                     Washington Fish and Wildlife
                                     Office, 360-753-9440;
                                     [email protected].
San Bernardino flying squirrel....  Mendel Stewart, Field Supervisor,
                                     Carlsbad Fish and Wildlife Office,
                                     760-731-9440;
                                     [email protected].
American Samoa population of the    Mary Abrams, Project Leader, Pacific
 Spotless crake.                     Islands Fish and Wildlife Office,
                                     808-792-9400; [email protected].

[[Page 19528]]

 
Sprague's pipit...................  Kevin Shelley, State Supervisor,
                                     North Dakota Ecological Services
                                     Field Office, 701-250-4402;
                                     [email protected].
------------------------------------------------------------------------

If you use a telecommunications device for the deaf (TDD), please call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the 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 indicating that listing an animal or plant 
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 listing the island marble butterfly, the 
San Bernardino flying squirrel, the American Samoa population of the 
spotless crake, and the Sprague's pipit is: (1) Not warranted; (2) 
warranted; or (3) warranted, but the immediate proposal of a regulation 
implementing the petitioned action is precluded by other pending 
proposals to determine whether species are endangered or threatened 
species, and expeditious progress is being made to add or remove 
qualified species from the Federal Lists of Endangered and Threatened 
Wildlife and Plants (warranted but precluded). 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.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in part 424 of title 50 of the Code of Federal 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 an endangered species or a 
threatened species based on any of the following five factors:
    (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.
    We summarize below the information on which we based our evaluation 
of the five factors provided in section 4(a)(1) of the Act in 
determining whether the island marble butterfly, the San Bernardino 
flying squirrel, the American Samoa population of the spotless crake, 
and the Sprague's pipit are endangered species or threatened species. 
More detailed information about these species is presented in the 
species-specific assessment forms found on http://www.regulations.gov 
under the appropriate docket number (see ADDRESSES). In considering 
what stressors under the five 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. In that case, we determine if that stressor rises to the 
level of a threat, meaning that it may drive or contribute to the risk 
of extinction of the species such that the species warrants listing as 
an endangered or threatened species 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 affected could suffice. The mere identification of 
stressors that could affect a species negatively is not sufficient to 
compel a finding that listing is appropriate; we require evidence that 
these stressors are operative threats that act on the species to the 
point that the species meets the definition of an endangered species or 
a threatened species under the Act.
    In making our 12-month findings, we considered and evaluated the 
best available scientific and commercial information.

Island Marble Butterfly (Euchloe ausonides insulanus)

Previous Federal Actions

    On December 11, 2002, we received a petition dated December 10, 
2002, from the Xerces Society for Invertebrate Conservation (Xerces), 
Center for Biological Diversity, Friends of the San Juans, and 
Northwest Ecosystem Alliance, requesting that we emergency list the 
island marble butterfly as an endangered species, and that we designate 
critical habitat concurrently with the listing. The petition clearly 
identified itself as such and included the requisite identification 
information from the petitioner, required at 50 CFR 424.14(a). Because 
the Act does not provide for petitions to emergency list species, we 
treat emergency listing petitions as petitions to list the species. On 
February 13, 2006, we published a 90-day finding in the Federal 
Register (71 FR 7497) concluding that the petition presented 
substantial scientific information indicating that listing the island 
marble butterfly may be warranted. On November 14, 2006, we published a 
notice of 12-month petition finding, concluding that the island marble 
butterfly did not warrant listing (71 FR 66292). Please see that 12-
month finding for a complete summary of all previous Federal actions 
for this subspecies.
    On August 24, 2012, we received a second petition from Xerces dated 
August 22, 2012, requesting that we emergency list the island marble 
butterfly as an endangered species and that we designate critical 
habitat concurrently with the listing. The petition clearly identified 
itself as such and included the requisite identification information 
from the petitioner, required at 50 CFR 424.14(a). Included in the 
petition was supporting information regarding the subspecies' taxonomy, 
ecology, historical and current distribution, current status, and what 
the petitioner identified as actual and potential causes of decline. We 
acknowledged the receipt of the petition in a letter to Xerces, dated 
September 27, 2012. In that letter we also stated that we would, to the 
maximum extent practicable, issue a finding within 90 days stating 
whether the petition presented substantial information indicating that 
listing may be warranted.
    On March 6, 2013, we received a notice of intent to sue from Xerces 
for failure to complete the finding on the petition within 90 days. On 
January 28, 2014, we entered into a settlement agreement with Xerces 
stipulating that

[[Page 19529]]

we would complete the 90-day finding before September 30, 2014. We 
published our 90-day finding in the Federal Register on August 19, 2014 
(79 FR 49045). In that finding, we concluded that the petition 
presented substantial scientific information indicating that listing 
the island marble butterfly may be warranted. The settlement agreement 
did not specifically stipulate a deadline for a subsequent 12-month 
finding.
    We received a notice of intent to sue from Xerces dated September 
5, 2014, stating the organization's intent to file suit to compel the 
Service to issue a 12-month finding as to whether listing the island 
marble butterfly is warranted, not warranted, or warranted but 
precluded. We entered into a settlement agreement with Xerces on April 
6, 2015, stipulating that we would submit a 12-month finding to the 
Federal Register on or before March 31, 2016. This document constitutes 
the 12-month finding on the August 22, 2012, petition to list the 
island marble butterfly as an endangered species.
    To ensure the status review was based on the best scientific and 
commercial information available, the Service requested any new or 
updated information available for the island marble butterfly when we 
published our 90-day finding on August 19, 2014. On February 13, 2016, 
we published a correction to our 90-day finding (80 FR 5719) to address 
a clerical error affecting the closing date for the initial public 
comment period; the comment period on the 90-day finding closed on 
April 6, 2015.

Summary of Status Review

    In making our 12-month finding on the petition, we consider and 
evaluate the best available scientific and commercial information. This 
evaluation includes information from all sources, including Federal, 
State, tribal, academic, and private entities and the public. However, 
because we completed a status review for the subspecies in 2006, we 
started our evaluation for this 2016 status review and 12-month finding 
by considering the November 14, 2006, 12-month finding (71 FR 66292) on 
the island marble butterfly.
    We then considered studies and information that have become 
available since that finding. A supporting document entitled ``Notice 
of 12-month petition finding on a petition to list the Island marble 
butterfly'' provides a summary of the current (post 2006) literature 
and information regarding the island marble butterfly's distribution, 
habitat requirements, life history, and stressors, as well as a 
detailed account of our five-factor threat analysis. The assessment is 
available as a supplemental document at Docket No. FWS-R1-ES-2014-0025.
    The island marble butterfly is an early-flying Pierid butterfly 
(meaning that it is in the family of butterflies that includes 
``whites'' and ``sulfurs'') and only produces a single brood a year. 
The island marble butterfly is now only found on San Juan Island in a 
single population centered on American Camp. There are three known 
plants that can serve as larval host plants for the island marble 
butterfly, all in the mustard family (Brassicaceae): Lepidium 
virginicum var. menziesii (Menzies' pepperweed), a native species; 
Brassica rapa (field mustard), a nonnative species; and Sisymbrium 
altissimum L. (tumble mustard), a nonnative species. Each larval host 
plant is associated with a specific habitat type, and each is subject 
to different stressors; for example, Menzies' pepperweed grows in 
coastal, nearshore habitat and is subject to inundation and storm surge 
damage, whereas tumble mustard grows primarily in higher elevation 
sand-dune habitat where dune stabilization and competition with weedy 
species degrade habitat quality. The island marble butterfly primarily 
nectars on its larval host plants, but also nectars on a wide variety 
of additional native and nonnative species.
    The island marble butterfly progresses from egg to chrysalis over 
the course of 38 days, on average, and may spend greater than 330 days 
in diapause before emerging as adults in late April or early May. Males 
generally emerge a few days before females and adults live between 6 
and 9 days. The adult flight season generally begins in late April to 
early May and may extend into late June or early July.
    Our 2006 12-month finding and the status review conducted for our 
2016 12-month finding both considered a number of stressors (natural or 
human-induced negative pressures affecting individuals or 
subpopulations of a species) on the island marble butterfly. These 
include habitat loss attributed to: Development; road construction; 
road maintenance activities; grassland restoration; agricultural 
practices; herbivory by black-tailed deer, livestock, European rabbits, 
and brown garden snails; storm surges; recreation; plant succession; 
and competition with invasive species. We also evaluated the stressors 
of over-collection; disease and predation; inadequacy of regulatory 
mechanisms; small population size and vulnerability to stochastic 
events; vehicular collisions; insecticide application; and the 
cumulative effects of these stressors, including small population size 
and restricted range combined with any stressor that removes 
individuals from the population or decreases the island marble 
butterfly's reproductive success.
    Habitat loss for the island marble butterfly is extensive and 
ongoing, and has resulted in the extirpation of the island marble 
butterfly from much of its former range due, in large part, to: (1) 
Development; (2) road maintenance activities; (3) agricultural 
practices; and (4) herbivory by black-tailed deer and livestock. The 
last known population of the island marble butterfly is centered on 
American Camp, a unit of the San Juan Island National Historical Park 
that is managed by the National Park Service, and we evaluated 
stressors to habitat within the current range of the subspecies. We 
conclude that herbivory by black-tailed deer and European rabbits, 
plant succession and competition with invasive species, and a projected 
increased frequency in storm surges reduce or destroy habitat for the 
island marble butterfly at American Camp and constitute a threat to the 
subspecies.
    We did not find substantive evidence to conclude that habitat loss 
attributable to development, road construction, road maintenance 
activities, agricultural practices, herbivory by livestock and brown 
garden snails, or recreation are threats at this time. The island 
marble butterfly occurs almost entirely in National Park Service land. 
The National Park Service constructed deer exclusion fencing around 
virtually all suitable island marble butterfly habitat in the park. The 
fencing has the additional benefit of discouraging park visitors from 
inadvertently walking through areas potentially occupied by the island 
marble butterfly. While it is possible that recreation may cause a loss 
of larval habitat and trampling of individuals in some small portions 
of the park, we find that the effects of recreation alone do not rise 
to the level of a threat to the island marble butterfly at this time.
    We further considered whether predation is a threat to the island 
marble butterfly. Direct predation by spiders (on larvae and adults) 
and wasps (on larvae) accounts for a significant proportion of 
mortality for the island marble butterfly where grazers are excluded. 
Where grazers cannot be excluded, incidental predation by browsing 
black-tailed deer accounts for a high proportion of mortality for eggs 
and larvae of the island marble butterfly, as deer preferentially eat 
the flowering heads of the larval host plants where the island marble 
butterflies lay

[[Page 19530]]

their eggs. We conclude that direct and incidental predation is a 
threat to the island marble butterfly.
    We reviewed all Federal, State, and local laws, regulations, and 
other regulatory mechanisms, as well as any conservation efforts, that 
could reduce or minimize the threats we have identified to the 
subspecies; we found that existing regulatory mechanisms are being 
implemented within their scope and provide some benefit to the island 
marble butterfly.
    American Camp, as part of San Juan Island National Historic Park, 
is managed under the National Park Service's Organic Act and 
implementing regulations, which promote natural resource conservation 
in the park and prohibit the collection of the island marble butterfly 
on lands managed by the park In addition, under the General Management 
Plan for the park, the National Park Service is required to follow the 
2006 Conservation Agreement and Strategy for the Island Marble 
Butterfly. Conservation actions for the island marble butterfly include 
restoring native grassland ecosystem components at American Camp; 
avoiding management actions that would destroy host plants; avoiding 
vegetation treatments in island marble butterfly habitat when early 
life-stages are likely to be present; and implementing a monitoring 
plan for the subspecies.
    The island marble butterfly is currently classified as a candidate 
species by the State of Washington. The Washington Department of 
Natural Resources owns the Cattle Point Natural Resources Conservation 
Area consisting of 112 acres directly to the east of American Camp, a 
portion of which provides potentially suitable habitat for island 
marble butterflies. Natural Resource Conservation Areas are managed to 
protect outstanding examples of native ecosystems; habitat for 
endangered, threatened, and sensitive plants and animals; and scenic 
landscapes. Removal of any plants or soil is prohibited unless written 
permission is obtained from Washington Department of Natural Resources. 
In addition, state- and county-level regulatory mechanisms that 
influence development and zoning on San Juan and Lopez islands are 
generally beneficial to suitable habitat that could be occupied by the 
island marble butterfly in the future.
    Given that the very small population at American Camp is likely the 
only remaining population of the subspecies, we conclude that small 
population size makes it particularly vulnerable to a number of likely 
stochastic events that remove individuals from the population or 
decrease its reproductive success. We further find that the increased 
frequency and strength of storm surges associated with climate change 
is a threat to the island marble butterfly.
    The scope of the regulatory mechanisms that are currently in place 
is not sufficient to ameliorate these threats to the subspecies, 
including habitat loss from herbivory, plant succession, competition 
with invasive species, and increased frequency and strength of storm 
surges; predation; and small population size. Therefore, the habitat 
loss and mortality due to these stressors, when considered in 
conjunction with small population size and the restricted range of the 
subspecies, results in cumulative effects that pose a threat to the 
island marble butterfly.
    There is no substantiated evidence that overutilization, either 
scientific or commercial, is a threat to the island marble butterfly. 
Similarly, there is no evidence that disease is a threat to the 
subspecies. Vehicle collisions are a likely stressor, but there is 
significant uncertainty regarding the extent of negative impacts on the 
island marble butterfly attributable to vehicular collisions. The best 
available information does not indicate that vehicular collisions pose 
a threat to the subspecies at this time. Insecticide application could 
negatively affect the island marble butterfly, if it were to take place 
in occupied habitat, but the best available information does not 
indicate that insecticide use is a threat at this time.

Finding

    Based on our review of the best available scientific and commercial 
information pertaining to the five factors, we identified the following 
threats: (1) Habitat loss attributable to plant succession and 
competition with invasive species, herbivory by deer and European 
rabbits, and storm surges; (2) direct predation by spiders and wasps, 
and incidental predation by deer; (3) small population size and 
vulnerability to stochastic events; and (4) the cumulative effects of 
small population size and restricted range combined with any other 
stressor that removes individuals from the population or decreases the 
island marble butterfly's reproductive success. These threats have 
affected the island marble butterfly throughout the entirety of its 
range, are ongoing, and are likely to persist into the foreseeable 
future. When considered individually and cumulatively, these threats 
are of a high magnitude. Despite existing regulatory mechanisms and 
other conservation efforts, the threats to the subspecies remain 
sufficient to put the subspecies is in danger of extinction or likely 
to become so in the foreseeable future.
    On the basis of the best scientific and commercial information 
available, we find that the petitioned action to list the island marble 
butterfly as an endangered or a threatened species is warranted. We 
will make a determination on the status of the subspecies as an 
endangered or threatened species when we publish a proposed listing 
determination. However, the immediate proposal of a regulation 
implementing this action is precluded by higher-priority listing 
actions, and progress is being made to add or remove qualified species 
from the Lists of Endangered and Threatened Wildlife and Plants.
    We reviewed the available information to determine if the existing 
and foreseeable threats render the subspecies at risk of extinction now 
such that issuing an emergency regulation temporarily listing the 
subspecies under section 4(b)(7) of the Act is warranted. We determined 
that issuing an emergency regulation temporarily listing the island 
marble butterfly is not warranted for this subspecies at this time 
because there are no imminent threats that immediate Federal protection 
would feasibly ameliorate. However, if at any time we determine that 
issuing an emergency regulation temporarily listing the island marble 
butterfly is warranted, we will initiate emergency listing at that 
time.
    We assigned the island marble butterfly a listing priority number 
(LPN) of 3 based on our finding that the subspecies faces threats that 
are imminent and of high magnitude. These threats include: (1) Habitat 
loss attributable to plant succession and competition with invasive 
species, herbivory by deer and European rabbits, and storm surges; (2) 
direct predation by spiders and wasps, and incidental predation by 
deer; (3) small population size and vulnerability to stochastic events; 
and (4) the cumulative effects of small population size and restricted 
range combined with any other stressor that removes individuals from 
the population or decreases the island marble butterfly's reproductive 
success. This is the highest priority that can be provided to a 
subspecies under our guidance.
    The island marble butterfly will be added to the list of candidate 
species upon publication of this 12-month finding. We will continue to 
evaluate this subspecies as new information becomes available. 
Continuing review

[[Page 19531]]

will determine if a change in status is warranted, including the need 
to make prompt use of emergency listing procedures.
    We intend that any proposed listing determination for the island 
marble butterfly will be as accurate as possible. Therefore, we will 
continue to accept additional information and comments from all 
concerned governmental agencies, the scientific community, industry, or 
any other interested party concerning this finding.

Preclusion and Expeditious Progress

    To make a finding that a particular action is warranted-but-
precluded, the Service must make two findings: (1) That the immediate 
proposal and timely promulgation of a final regulation is precluded by 
pending listing proposals; and (2) that expeditious progress is being 
made to add qualified species to either of the Lists of Endangered and 
Threatened Wildlife and Plants (Lists) and to remove species from the 
Lists (16 U.S.C. 1533(b)(3)(B)(iii)).
Preclusion
    A listing proposal is precluded if the Service does not have 
sufficient resources available to complete the proposal, because there 
are competing demands for those resources, and the relative priority of 
those competing demands is higher. Thus, in any given fiscal year (FY), 
multiple factors dictate whether it will be possible to undertake work 
on a proposed listing regulation or whether promulgation of such a 
proposal is precluded by higher-priority listing actions: (1) The 
amount of resources available for completing the proposed listing; (2) 
the estimated cost of completing the proposed listing; and (3) the 
Service's workload and prioritization of the proposed listing in 
relation to other actions.
Available Resources
    The resources available for listing actions are determined through 
the annual Congressional appropriations process. In FY 1998 and for 
each fiscal year since then, Congress has placed a statutory cap on 
funds that may be expended for the Listing Program. This spending cap 
was designed to prevent the listing function from depleting funds 
needed for other functions under the Act (for example, recovery 
functions, such as removing species from the Lists), or for other 
Service programs (see House Report 105-163, 105th Congress, 1st 
Session, July 1, 1997). The funds within the spending cap are available 
to support work involving the following listing actions: Proposed and 
final listing rules; 90-day and 12-month findings on petitions to add 
species to the Lists or to change the status of a species from 
threatened to endangered; annual ``resubmitted'' petition findings on 
prior warranted-but-precluded petition findings as required under 
section 4(b)(3)(C)(i) of the Act; critical habitat petition findings; 
proposed and final rules designating or revising critical habitat; and 
litigation-related, administrative, and program-management functions 
(including preparing and allocating budgets, responding to 
Congressional and public inquiries, and conducting public outreach 
regarding listing and critical habitat).
    We cannot spend more for the Listing Program than the amount of 
funds within the spending cap without violating the Anti-Deficiency Act 
(see 31 U.S.C. 1341(a)(1)(A)). In addition, since FY 2002, the 
Service's budget has included a subcap for critical habitat to ensure 
that some funds within the spending cap for listing are available for 
completing Listing Program actions other than critical habitat 
designations for already-listed species (``The critical habitat 
designation subcap will ensure that some funding is available to 
address other listing activities'' (House Report No. 107-103, 107th 
Congress, 1st Session. June 19, 2001)). In FY 2002 and each year until 
FY 2006, the Service had to use virtually all of the funds within the 
critical habitat subcap to address court-mandated designations of 
critical habitat, and consequently none of the funds within the 
critical habitat subcap were available for other listing activities. In 
some FYs since 2006, we have not needed to use all of the funds within 
the critical habitat subcap to comply with court orders, and we 
therefore could use the remaining funds within the subcap towards 
additional proposed listing determinations for high-priority candidate 
species. In other FYs, while we did not need to use all of the funds 
within the critical habitat subcap to comply with court orders, we did 
not use the remaining funds towards additional proposed listing 
determinations, and instead used the remaining funds towards completing 
critical habitat determinations concurrently with proposed listing 
determinations; this allowed us to combine the proposed listing 
determination and proposed critical habitat designation into one rule, 
thereby being more efficient in our work. In FY 2014, based on the 
Service's workload, we were able to use some of the funds within the 
critical habitat subcap to fund proposed listing determinations.
    For FY 2012, Congress also put in place two additional subcaps 
within the listing cap: One for listing actions for foreign species and 
one for petition findings. As with the critical habitat subcap, if the 
Service does not need to use all of the funds within either subcap, we 
are able to use the remaining funds for completing proposed or final 
listing determinations. In FY 2016, based on the Service's workload and 
available funding, we may use some of the funds within the critical 
habitat subcap, foreign species subcap, and/or the petitions subcap to 
fund proposed listing determinations if necessary.
    We make our determinations of preclusion on a nationwide basis to 
ensure that the species most in need of listing will be addressed first 
and also because we allocate our listing budget on a nationwide basis. 
Through the listing cap, the three subcaps, and the amount of funds 
needed to complete court-mandated actions within those subcaps, 
Congress and the courts have in effect determined the amount of money 
available for listing activities nationwide. Therefore, the funds in 
the listing cap--other than those within the subcaps needed to comply 
with court orders or court-approved settlement agreements requiring 
critical habitat actions for already-listed species, listing actions 
for foreign species, and petition findings--set the framework within 
which we make our determinations of preclusion and expeditious 
progress.
    For FY 2016, on December 18, 2015, Congress passed a Consolidated 
Appropriations Act (Pub. L. 114-113), which provides funding through 
September 30, 2016. In particular, it includes an overall spending cap 
of $20,515,000 for the listing program. Of that, no more than 
$4,605,000 can be used for critical habitat determinations; no more 
than $1,504,000 can be used for listing actions for foreign species; 
and no more than $1,501,000 can be used to make 90-day or 12-month 
findings on petitions. The Service thus has $12,905,000 available to 
work on proposed and final listing determinations for domestic species. 
In addition, if the Service has funding available within the critical 
habitat, foreign species, or petition subcaps after those workloads 
have been completed, it can use those funds to work on listing actions 
other than critical habitat designations or foreign species.
    Costs of Listing Actions. The work involved in preparing various 
listing documents can be extensive, and may include, but is not limited 
to: Gathering and assessing the best scientific and commercial data 
available and conducting analyses used as the basis

[[Page 19532]]

for our decisions; writing and publishing documents; and obtaining, 
reviewing, and evaluating public comments and peer review comments on 
proposed rules and incorporating relevant information from those 
comments into final rules. The number of listing actions that we can 
undertake in a given year also is influenced by the complexity of those 
listing actions; that is, more complex actions generally are more 
costly. The median cost for preparing and publishing a 90-day finding 
is $39,276; for a 12-month finding, $100,690; for a proposed rule with 
proposed critical habitat, $345,000; and for a final listing rule with 
final critical habitat, $305,000.
    Prioritizing Listing Actions. The Service's Listing Program 
workload is broadly composed of four types of actions, which the 
Service prioritizes as follows: (1) Compliance with court orders and 
court-approved settlement agreements requiring that petition findings 
or listing or critical habitat determinations be completed by a 
specific date; (2) section 4 (of the Act) listing and critical habitat 
actions with absolute statutory deadlines; (3) essential litigation-
related, administrative, and listing program-management functions; and 
(4) section 4 listing actions that do not have absolute statutory 
deadlines. In FY 2010, the Service received many new petitions and a 
single petition to list 404 species, significantly increasing the 
number of actions within the second category of our workload--actions 
that have absolute statutory deadlines. As a result of the petitions to 
list hundreds of species, we currently have over 460 12-month petition 
findings yet to be initiated and completed.
    To prioritize within each of the four types of actions, we 
developed guidelines for assigning a listing priority number (LPN) for 
each candidate species (48 FR 43098, September 21, 1983). Under these 
guidelines, we assign each candidate an LPN of 1 to 12, depending on 
the magnitude of threats (high or moderate to low), immediacy of 
threats (imminent or nonimminent), and taxonomic status of the species 
(in order of priority: Monotypic genus (a species that is the sole 
member of a genus); a species; or a part of a species (subspecies or 
distinct population segment)). The lower the listing priority number, 
the higher the listing priority (that is, a species with an LPN of 1 
would have the highest listing priority). A species with a higher LPN 
would generally be precluded from listing by species with lower LPNs, 
unless work on a proposed rule for the species with the higher LPN can 
be combined with work on a proposed rule for other high-priority 
species. This is not the case for the island marble butterfly. Thus, in 
addition to being precluded by the lack of available resources, the 
island marble butterfly, with an LPN of 3, is also precluded by work on 
proposed listing determinations for those candidate species with a 
higher listing priority.
    Finally, proposed rules for reclassification of threatened species 
to endangered species are lower priority, because as listed species, 
they are already afforded the protections of the Act and implementing 
regulations. However, for efficiency reasons, we may choose to work on 
a proposed rule to reclassify a species to endangered if we can combine 
this with work that is subject to a court-determined deadline.
    Since before Congress first established the spending cap for the 
Listing Program in 1998, the Listing Program workload has required 
considerably more resources than the amount of funds Congress has 
allowed for the Listing Program. It is therefore important that we be 
as efficient as possible in our listing process. Therefore, as we 
implement our listing work plan and work on proposed rules for the 
highest-priority species in the next several years, we are preparing 
multi-species proposals when appropriate, and these may include species 
with lower priority if they overlap geographically or have the same 
threats as one of the highest priority species. In addition, we take 
into consideration the availability of staff resources when we 
determine which high-priority species will receive funding to minimize 
the amount of time and resources required to complete each listing 
action.
    Listing Program Workload. Each FY we determine, based on the amount 
of funding Congress has made available within the Listing Program 
spending cap, specifically which actions we will have the resources to 
work on in that FY. We then prepare Allocation Tables that identify the 
actions that we are funding for that FY, and how much we estimate it 
will cost to complete each action; these Allocation Tables are part of 
our record for this notice document and the listing program. Our 
Allocation Table for FY 2012, which incorporated the Service's approach 
to prioritizing its workload, was adopted as part of a settlement 
agreement in a case before the U.S. District Court for the District of 
Columbia (Endangered Species Act Section 4 Deadline Litigation, No. 10-
377 (EGS), MDL Docket No. 2165 (``MDL Litigation''), Document 31-1 (D. 
DC May 10, 2011) (``MDL Settlement Agreement'')). The requirements of 
paragraphs 1 through 7 of that settlement agreement, combined with the 
work plan attached to the agreement as Exhibit B, reflected the 
Service's Allocation Tables for FY 2011 and FY 2012. In addition, 
paragraphs 2 through 7 of the agreement require the Service to take 
numerous other actions through FY 2017--in particular, complete either 
a proposed listing rule or a not-warranted finding for all 251 species 
designated as ``candidates'' in the 2010 candidate notice of review 
(``CNOR'') before the end of FY 2016, and complete final listing 
determinations within one year of proposing to list any of those 
species. Paragraph 10 of that settlement agreement sets forth the 
Service's conclusion that ``fulfilling the commitments set forth in 
this Agreement, along with other commitments required by court orders 
or court-approved settlement agreements already in existence at the 
signing of this Settlement Agreement (listed in Exhibit A), will 
require substantially all of the resources in the Listing Program.'' As 
part of the same lawsuit, the court also approved a separate settlement 
agreement with the other plaintiff in the case; that settlement 
agreement requires the Service to complete additional actions in 
specific fiscal years--including 12-month petition findings for 11 
species, 90-day petition findings for 477 species, and proposed listing 
determinations or not-warranted findings for 39 species.
    These settlement agreements have led to a number of results that 
affect our preclusion analysis. First, the Service has been, and will 
continue to be, limited in the extent to which it can undertake 
additional actions within the Listing Program through FY 2017, beyond 
what is required by the MDL settlement agreements. Second, because the 
settlement is court-approved, two broad categories of actions now fall 
within the Service's highest priority (compliance with a court order): 
(1) The Service's entire prioritized workload for FY 2012, as reflected 
in its Allocation Table; and (2) completion, before the end of FY 2016, 
of proposed listings or not-warranted findings for the candidate 
species identified in the 2010 CNOR for which we have not yet proposed 
listing or made a not-warranted finding. Therefore, each year, one of 
the Service's highest priorities is to make steady progress towards 
completing by the end of 2017 proposed and final listing determinations 
for the 2010 candidate species--based on its LPN prioritization system, 
preparing multi-species actions when appropriate, and taking into 
consideration the availability of staff resources.

[[Page 19533]]

    The island marble butterfly was not listed as a candidate in the 
2010 CNOR, nor was the proposed listing for the island marble butterfly 
included in the Allocation Tables that were reflected in the MDL 
settlement agreement. As we have discussed above, we have assigned an 
LPN of 3 to the island marble butterfly. Therefore, even if the Service 
has some additional funding after completing all of the work required 
by court orders and court-approved settlement agreements, we would 
first fund actions with absolute statutory deadlines for species that 
have LPNs of 1 or 2. In light of all of these factors, funding a 
proposed listing for the island marble butterfly is precluded by court-
ordered and court-approved settlement agreements, listing actions with 
absolute statutory deadlines, and work on proposed listing 
determinations for those candidate species with a lower LPN.
Expeditious Progress
    As explained above, a determination that listing is warranted but 
precluded must also demonstrate that expeditious progress is being made 
to add and remove qualified species to and from the Lists. As with our 
``precluded'' finding, the evaluation of whether progress in adding 
qualified species to the Lists has been expeditious is a function of 
the resources available for listing and the competing demands for those 
funds. (Although we do not discuss it in detail here, we are also 
making expeditious progress in removing species from the list under the 
Recovery program in light of the resources available for delisting, 
which is funded by a separate line item in the budget of the Endangered 
Species Program. Thus far, during FY 2016, we have completed four 
delisting rules.) As discussed below, given the limited resources 
available for listing, we find that we are making expeditious progress 
in adding qualified species to the Lists in FY 2016.
    We provide below tables cataloguing the work of the Service's 
Listing Program in FY 2016. Making progress towards adding qualified 
species to the lists includes all three of the steps necessary for 
adding species to the Lists: (1) Identifying species that warrant 
listing; (2) undertaking the evaluation of the best available 
scientific information about those species and the threats they face, 
and preparing proposed and final listing rules; and (3) adding species 
to the Lists by publishing proposed and final listing rules that 
include a summary of the data on which the rule is based and show the 
relationship of that data to the rule. After taking into consideration 
the limited resources available for listing, the competing demands for 
those funds, and the completed work catalogued in the tables below, we 
find that we are making expeditious progress to add qualified species 
to the Lists in FY 2016.
    Our accomplishments this year should also be considered in the 
broader context of our commitment to reduce the number of candidate 
species in the 2010 CNOR for which we have not made final 
determinations whether or not to list. The MDL Settlement Agreement, 
which the court approved on May 10, 2011, required, among other things, 
that for all 251 species that were included as candidates in the 2010 
CNOR, the Service submit to the Federal Register proposed listing rules 
or not-warranted findings by the end of FY 2016, and that for any 
proposed listing rules, the Service complete final listing 
determinations within the statutory time frame. Paragraph 6 of the 
agreement provided indicators that the Service is making adequate 
progress towards meeting that requirement. To date, the Service has 
completed proposed listing rules or not-warranted findings for 200 of 
the 2010 candidate species, as well as final listing rules for 143 of 
those proposed rules, and is therefore is making adequate progress 
towards meeting all of the requirements of the MDL settlement 
agreement. Both by entering into the settlement agreement and by 
implementing the settlement agreement--including making adequate 
progress towards making final listing determinations for the 251 
species on the 2010 candidate list--the Service is making expeditious 
progress to add qualified species to the lists.
    The Service's progress in FY 2016 included completing and 
publishing the following determinations:

                                        FY 2016 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
      Publication date                 Title                   Actions                      FR Pages
----------------------------------------------------------------------------------------------------------------
12/22/2015..................  90-day and 12-month      90-day and 12-month      80 FR 79533-79554.
                               Findings on a Petition   petition findings--
                               to List the Miami        substantial and
                               Tiger Beetle as an       warranted.
                               Endangered or           Proposed listing.......
                               Threatened Species;     Endangered.............
                               Proposed Endangered
                               Species Status for the
                               Miami Tiger Beetle.
1/6/2016....................  12-Month Finding on a    12 month petition        81 FR 435-458.
                               Petition to List the     finding.
                               Alexander Archipelago   Not warranted..........
                               Wolf as an Endangered
                               or Threatened Species.
1/12/2016...................  90-Day Findings on 17    90-day petition          81 FR 1368-1375.
                               Petitions.               findings.
                                                       Substantial and not
                                                        substantial.
3/16/2016...................  90-Day Findings on 29    90-day petition          81 FR 14058-14072.
                               Petitions.               findings.
                                                       Substantial and not
                                                        substantial.
----------------------------------------------------------------------------------------------------------------

    Our expeditious progress also included work on listing actions that 
we funded in previous fiscal years, and in FY 2016, but have not yet 
been completed to date. For these species, we have completed the first 
step, and have been working on the second step, necessary for adding 
species to the Lists. These actions are listed below. Actions in the 
table are being conducted under a deadline set by a court through a 
court order or settlement agreement.

    Actions Funded in Previous FYs and FY 2016 But Not Yet Completed
------------------------------------------------------------------------
           Species                               Action
------------------------------------------------------------------------
Actions Subject to Court
 Order/Settlement Agreement:.
    Fisher (West Coast DPS)..  Final listing.
    Washington ground          Proposed listing.
     squirrel.

[[Page 19534]]

 
    Xantus's murrelet........  Proposed listing.
    4 Florida plants (Florida  Proposed listing.
     pineland crabgrass,
     Florida prairie clover,
     pineland sandmat, and
     Everglades bully).
    Black warrior waterdog...  Proposed listing.
    Black mudalia............  Proposed listing.
    Highlands tiger beetle...  Proposed listing.
    Sicklefin redhorse.......  Proposed listing.
    Texas hornshell..........  Proposed listing.
    Guadalupe fescue.........  Proposed listing.
    Stephan's riffle beetle..  Proposed listing.
    Huachuca springsnail.....  Proposed listing.
Actions Subject to Statutory
 Deadline:.
    11 DPSs of green sea       Final listing.
     turtle.
    Big Sandy and Guyandotte   Final listing.
     River crayfishes.
    Virgin Islands coqui.....  12-month petition finding.
------------------------------------------------------------------------

    Another way that we have been expeditious in making progress to add 
qualified species to the Lists is that we have endeavored to make our 
listing actions as efficient and timely as possible, given the 
requirements of the relevant law and regulations, and constraints 
relating to workload and personnel. We are continually considering ways 
to streamline processes or achieve economies of scale, such as by 
batching related actions together. Given our limited budget for 
implementing section 4 of the Act, these efforts also contribute 
towards finding that we are making expeditious progress to add 
qualified species to the Lists.

San Bernardino Flying Squirrel (Glaucomys sabrinus californicus)

Previous Federal Actions

    We recognized in four notices of review published in the Federal 
Register that listing the San Bernardino flying squirrel was 
potentially warranted. On September 18, 1985, the Service issued the 
first notice identifying vertebrate animal taxa native to the United 
States being considered for possible addition to the List of Endangered 
and Threatened Wildlife (List), including the San Bernardino flying 
squirrel (50 FR 37958). Subsequently, we issued three additional 
notices, dated January 6, 1989 (54 FR 554), November 21, 1991 (56 FR 
58804), and November 15, 1994 (59 FR 58982), that presented an updated 
compilation of vertebrate and invertebrate animal taxa native to the 
United States, including the San Bernardino flying squirrel, that we 
were reviewing for possible addition to the List. This subspecies was 
categorized in these reviews as a category 2 (C2) taxon, meaning that 
listing was possibly appropriate but more information was needed before 
a final decision to list could be made. In the February 28, 1996, 
notice of review (61 FR 7596), we discontinued the designation of C2 
species. Most C2 species were removed from the candidate list, 
including the San Bernardino flying squirrel.
    On August 25, 2010, we received a petition dated August 24, 2010, 
from the Center for Biological Diversity (CBD), requesting that we list 
the San Bernardino flying squirrel as endangered or threatened and 
designate critical habitat concurrent with listing under the Act. The 
petition clearly identified itself as a petition, was dated, and 
included the requisite identification information required at 50 CFR 
424.14(a). On October 5, 2010, we sent the petitioner a letter 
acknowledging our receipt of the petition, and responded that we had 
reviewed the information presented in the petition and had not 
identified any emergency posing a significant risk to the well-being of 
the species that would make immediate listing of the species under 
section 4(b)(7) of the Act necessary. We also stated that, due to court 
orders and court-approved settlement agreements for other listing and 
critical habitat determinations under the Act, our listing and critical 
habitat funding for Fiscal Year 2011 was committed to other projects. 
We said that we would be unable to make an initial finding on the 
petition at that time, but would complete the action when workload and 
funding allowed. On February 1, 2012, we published in the Federal 
Register a 90-day finding (77 FR 4973) that the petition presented 
substantial information indicating that listing may be warranted and 
initiated a status review.
    On June 17, 2014, CBD sent a notice of intent to sue on our failure 
to complete a 12-month finding on the San Bernardino flying squirrel. 
On September 22, 2014, we reached a settlement with CBD (Center for 
Biological Diversity v. Jewell et al., No. 1:14-cv-01021-EGS). The 
settlement stipulated that we would submit our 12-month finding to the 
Federal Register by April 29, 2016. This document constitutes the 12-
month finding on the August 24, 2010, petition to list the San 
Bernardino flying squirrel as an endangered or threatened species and 
fulfills our settlement obligation.
    This finding is based upon the Species Status Assessment titled 
``Final Species Status Assessment for San Bernardino Flying Squirrel 
(Glaucomys sabrinus californicus)'' (Service 2016) (Species Status 
Assessment), a scientific analysis of available information prepared by 
a team of Service biologists from the Service's Carlsbad Fish and 
Wildlife Office, Pacific Southwest Regional Office, and National 
Headquarters Office. The purpose of the Species Status Assessment is to 
provide the best available scientific and commercial information about 
San Bernardino flying squirrel so that we can evaluate whether or not 
the subspecies warrants protection under the Act. In the Species Status 
Assessment, we present the best scientific and commercial data 
available concerning the status of the subspecies, including past, 
present, and future stressors. As such, the Species Status Assessment 
provides the scientific basis that informs our regulatory decision in 
this document. In this 12-month finding, we apply the standards of the 
Act and its regulations and policies. The Species Status Assessment can 
be found on the Internet at http://www.regulations.gov, under Docket 
No. FWS-R8-ES-2016-0046.

Summary of Status Review

    In making our 12-month finding on the petition, we consider and 
evaluate the best available scientific and

[[Page 19535]]

commercial information. This evaluation includes information from all 
sources, including State, Federal, tribal, academic, and private 
entities and the public.
    The San Bernardino flying squirrel is 1 of 25 recognized subspecies 
of the northern flying squirrel. It is currently only known from the 
San Bernardino Mountains region. It was previously known to occur in 
the San Jacinto Mountains. The San Bernardino flying squirrel has not 
been observed in the San Jacinto Mountain since the 1990s; however, 
extensive surveys have not been conducted in this area. The habits and 
population biology of the San Bernardino flying squirrel have not been 
extensively studied throughout its presumed range.
    The San Bernardino flying squirrel is an arboreal (lives in trees) 
rodent, active year-round, and primarily nocturnal. Individual 
characteristics of mature or older forested habitat indicate that 
large-diameter trees, large snags, coarse woody debris, and truffle 
abundance have been found to be directly related to population 
densities of the northern flying squirrel. The San Bernardino flying 
squirrel has been observed in many residential settings and appears to 
be adaptable to lower density development and residential-forest 
habitats, as reported in other flying squirrel populations, as long as 
habitat features such as den sites and canopy cover are available.
    The potential threats (identified in the Species Status Assessment 
as ``stressors'' or ``potential stressors'') that may be acting upon 
the San Bernardino flying squirrel currently or in the future (and 
consistent with the five listing factors identified in section 4(a)(1) 
of the Act) were described in the Species Status Assessment (Service 
2016, pp. 27-66) (available at http://www.regulations.gov under Docket 
No. FWS-R8-ES-2016-0046). Our 2016 Species Status Assessment included 
summary evaluations of six potential stressors to the San Bernardino 
flying squirrel that may have low or medium-level impacts on the 
subspecies or its habitat, including habitat loss from urban 
development (Factor A), habitat fragmentation (Factor A), wildland fire 
fuel treatment (Factor A), wildland fire (Factor A and Factor E), urban 
air pollution (Factor A), and climate change (Factor A). We evaluated 
potential impacts associated with overutilization (Factor B), disease 
(Factor C), and predation (Factor C), but found that the subspecies has 
not been exposed to these stressors at a level sufficient to result in 
more than low or no impacts, overall, across the subspecies' range (see 
Service 2016, pp. 36-39).
    Where possible, we analyzed whether potential stressors are acting 
upon the subspecies for both the San Bernardino Mountains and the San 
Jacinto Mountains, though the occupancy status of the San Jacinto 
Mountains is unconfirmed at this time. Given that detailed occupancy 
and life history data for the San Bernardino flying squirrel are 
unavailable, we estimated or modeled the extent of habitat suitable to 
support the San Bernardino flying squirrel using positive detections, 
vegetation data layers, elevation range, and potential home range size 
(Service 2016, pp. 27-28). A complete description of the analysis and 
our methodology is available in the Species Status Assessment (Service 
2016, pp. 27-28) and in our GIS procedures summary document (Service 
2015a), which are available on http://www.regulations.gov under docket 
number FWS-R8-ES-2016-0046.
    Within our estimated suitable San Bernardino flying squirrel 
habitat in the San Bernardino Mountains we analyzed the effects of 
habitat loss and fragmentation. We found that 77 percent of land in the 
San Bernardino Mountains and 65 percent of land in the San Jacinto 
Mountains is owned by the U.S. Forest Service (USFS). In the San 
Jacinto Mountains region, approximately 22 percent of San Bernardino 
flying squirrel suitable habitat is under private ownership, but all 
but a very small portion of those lands are encompassed within the 
boundaries of two habitat conservation plans: the Western Riverside 
County Multi Species Habitat Conservation Plan (MSHCP) and the 
Coachella Valley MSHCP.
    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional, 75-year habitat conservation plan approved in 2004 that 
addresses 146 listed and unlisted ``Covered Species'' including the San 
Bernardino flying squirrel within a 1,260,000 ac (599,904 ha) Plan Area 
in western Riverside County, California. Conservation objectives 
identified in the Western Riverside County MSHCP for the San Bernardino 
flying squirrel include the following: (1) Include within the Western 
Riverside County MSHCP Conservation Area at least 19,476 ac (7,882 ha) 
(67 percent) of suitable montane coniferous forest and deciduous 
woodland and forest habitats within the San Jacinto Mountains Bioregion 
for breeding, foraging, wintering, and dispersal movement, and (2) 
confirm occupation of 2,470 ac (1,000 ha) with a mean density of at 
least 2 individuals per 2.47 ac (2 individuals per ha) in the San 
Jacinto Mountains; and, in the San Bernardino Mountains, confirm 
occupation of 247.11 ac (100 ha) within the Western Riverside County 
MSHCP Conservation Area (Service 2016, pp. 73-74).
    The Coachella Valley MSHCP is a large-scale, multijurisdictional, 
75-year habitat conservation plan approved in 2008 encompassing about 
1.1 million ac (445,156 ha) in the Coachella Valley of central 
Riverside County, California. The Coachella Valley MSHCP is also a 
Subregional Plan under the State of California's Natural Community 
Conservation Planning (NCCP) Act, as amended. The Coachella Valley 
MSHCP/NCCP addresses 27 listed and unlisted covered species; however, 
these species do not include the San Bernardino flying squirrel.
    The Coachella Valley MSHCP/NCCP was designed to establish a 
multiple-species habitat conservation program that minimizes and 
mitigates the expected loss of habitat and incidental take of covered 
species. The associated permit covers incidental take resulting from 
habitat loss and disturbance associated with urban development and 
other proposed covered activities. These activities include public and 
private development within the plan area that requires discretionary 
and ministerial actions by permittees subject to consistency with the 
Coachella Valley MSHCP/NCCP policies. Though the San Bernardino flying 
squirrel is not a covered species, it will likely receive ancillary 
benefits from habitat protection measures included in the plan.
    A review of applications for development projects in the San 
Bernardino Mountains found six planned activities; the total area for 
these projects covers only a small fraction of San Bernardino flying 
squirrel suitable habitat in this mountain region. Similar project data 
were not available for the San Jacinto Mountains. In order to analyze 
the potential impacts of fragmentation, we conducted a spatial analysis 
using life-history and the most important habitat features associated 
with northern flying squirrels. We found only 1.3 percent of our 
estimated suitable habitat in the San Bernardino Mountains and only 5 
percent of our estimated suitable habitat in the San Jacinto Mountains 
to be fragmented due to residential development or other activities 
(Service 2015a, entire).
    The San Bernardino flying squirrel relies on features in the 
landscape that may be modified or removed by fuel treatment activities; 
these activities may

[[Page 19536]]

result in loss or modification of habitat structure and removal of nest 
trees. However, fuel treatment can provide desirable results to 
understory plant diversity in forests where fire has been suppressed. 
We evaluated data from the USFS summarizing their thinning practices 
and found that the total area subject to this activity over the past 10 
years represents only 6 percent of all USFS lands within the San 
Bernardino Mountains (or about 1,045 ac (423 ha) per year); we are 
unaware of any thinning activities by the USFS in the San Jacinto 
Mountains area.
    San Bernardino flying squirrel habitat is downwind from 
California's densely populated South Coast Air Basin. Impacts from air 
pollution, such as nitrogen deposition and increased ozone, may result 
in habitat effects including soil acidification, loss of understory 
diversity, accelerated leaf turnover, and decreased allocation 
belowground and fine root biomass. Local air quality monitoring has 
recorded declines in ozone levels in the past 30 years, and local and 
State regulations on urban air pollution are expected to further reduce 
ozone levels and nitrogen deposition. However, additional analyses are 
needed to assess the effects of nitrogen and the combination of 
nitrogen emissions in combination with ozone level to San Bernardino 
flying squirrel habitat, as well as to the extent to which the 
subspecies will respond to any effects.
    As a result of fire suppression activities since the early 20th 
century, forested habitat in the San Bernardino and San Jacinto 
Mountains is at moderate to high risk of wildland fire. However, this 
stressor is being reduced by ongoing fuel reduction management 
techniques. Furthermore, results from a study of habitat use of the San 
Bernardino flying squirrel following fire has found that they return to 
moderately burned areas within 7 years after a wildland fire. The 
subspecies has persisted in the region since its first detection in 
1897, despite numerous, periodic, and often large fires.
    Downscaled climate projections forecast an overall increase in 
temperature for the Southern California mountains region, which 
includes the San Bernardino and San Jacinto mountain ranges. Climate 
models for southern California also project a small annual mean 
decrease in precipitation for southern California; however, these 
models do not show consistent results for future precipitation 
patterns. Recent studies have shown that ongoing changes in 
precipitation and temperature have exacerbated the effects of the 
recent California drought. Given the projections of increased 
temperature and decreased precipitation, drought may in the future 
continue to be exacerbated by climate change. The effects of climate 
change may result in decrease of the forested habitat that supports the 
San Bernardino flying squirrel and of food resources utilized by the 
subspecies.
    We reviewed all Federal, State, and local laws, regulations, and 
other regulatory mechanisms intended to minimize the threats to the 
subspecies and found that existing regulatory mechanisms are being 
implemented within their scope and provide some benefit to the San 
Bernardino flying squirrel. We conclude that the best available 
scientific and commercial information overall indicates that the 
existing regulatory mechanisms are adequate to address impacts to the 
San Bernardino flying squirrel from the stressors for which governments 
may have regulatory control (habitat loss, habitat fragmentation, 
wildland fire fuel treatment, and urban air pollution).
    Cumulative impacts are currently occurring from the combined 
effects from wildland fire and climate-related changes. Studies have 
found that that the likelihood and frequency of large wildfires are 
expected to increase in southwestern California due to rising surface 
temperatures. The mixed conifer forests ecosystems in the San 
Bernardino and San Jacinto Mountains are likely currently experiencing 
the cumulative effects of wildland fire and the warming effects of 
climate change.

Finding

    As required by the Act, we considered the five factors in assessing 
whether the San Bernardino flying squirrel is an endangered or 
threatened species throughout all of its range. We examined the best 
scientific and commercial information available regarding the past, 
present, and future stressors faced by the San Bernardino flying 
squirrel. We reviewed the petition, information available in our files, 
and other available published and unpublished information, and we 
coordinated with recognized species and habitat experts and other 
Federal, State, tribal, and local agencies. Listing is warranted if, 
based on our review of the best available scientific and commercial 
data, we find that the stressors to the San Bernardino flying squirrel 
are so severe or broad in scope that the subspecies is in danger of 
extinction (endangered), or likely to become endangered within the 
foreseeable future (threatened), throughout all or a significant 
portion of its range.
    We evaluated in the Species Status Assessment (Service 2016, pp. 
27-66) whether each of the potential stressors is acting upon the 
subspecies, and we determined that the following are stressors that 
have acted upon the subspecies and have minimally or moderately 
affected, or in the future may potentially affect, individuals or 
portions of suitable habitat: Habitat loss from urban development 
(Factor A), habitat fragmentation (Factor A), wildland fire fuel 
treatment (Factor A), wildland fire (Factor A and Factor E), urban air 
pollution (Factor A), and climate change (Factor A). In our Species 
Status Assessment, we evaluated potential impacts associated with 
overutilization (Factor B), disease (Factor C), and predation (Factor 
C). We found that these potential stressors impacted individual San 
Bernardino flying squirrels, but that the subspecies has not been 
exposed to these stressors at a level sufficient to result in more than 
low or no impacts, overall, across the subspecies' range (see Service 
2016, pp. 36-39); thus, we did not discuss them in this document.
    Effects from urban development (Factor A) and habitat fragmentation 
(Factor A) are considered low at this time and are not expected to 
change in the future based on our assessment of the limited scope of 
proposed developments in the region, the large percentage of habitat 
that is owned and managed by the USFS, and our analysis of the small 
amount of fragmentation of current suitable habitat. Urban air 
pollution (Factor A) presents a low-level stressor to San Bernardino 
flying squirrel habitat, and existing regulatory mechanisms such as the 
California Global Warming Solutions Act of 2006 and the California 
Clean Air Act are helping to ameliorate any impacts and decrease the 
overall levels of nitrogen and ozone deposition within the San 
Bernardino and San Jacinto Mountains. Though impacts from these three 
stressors--urban development, habitat fragmentation, and urban air 
pollution--are ongoing and expected to continue, they pose only low-
level impacts that are not likely to drive or contribute to the risk of 
extinction now or in the foreseeable future, and therefore do not rise 
to the level of a threat.
    Wildland fire (Factor A and Factor E) presents a moderate, but 
periodic, stressor to the San Bernardino flying squirrel and its 
habitat. Analysis of fire data indicates that forested areas within San 
Bernardino flying squirrel habitat are burning less frequently than 
reference conditions, and several fires (reported since the 1980s) in 
this habitat have burned at moderate to high burn

[[Page 19537]]

severity. However, despite these conditions, results from an ongoing 
study to evaluate habitat use by the San Bernardino flying squirrel 
after a 2007 fire have shown that 35 percent of all detected 
individuals were found in areas that had been moderately burned 7 years 
prior to the study, indicating that San Bernardino flying squirrels are 
resilient to impacts from wildland fire and are able to repopulate 
burned areas in a short timeframe. Furthermore, resource management 
actions, such as fuel reduction practices and thinning, that are being 
implemented by the USFS within the San Bernardino National Forest 
provide a benefit to the San Bernardino flying squirrel and its habitat 
by reducing potential wildland fire fuel loads. The San Bernardino Land 
Management Plan contains specific design criteria and conservation 
strategies to benefit the San Bernardino flying squirrel and its 
habitat. These and other management actions currently being implemented 
by the USFS within the San Bernardino National Forest will continue to 
provide important conservation benefits to the San Bernardino flying 
squirrel. Therefore, we conclude that wildland fire is not a threat to 
the species, because it poses only a low-level stressor that we do not 
expect to drive or contribute to the risk of extinction of the 
subspecies now or in the foreseeable future.
    Wildland fire fuel treatment (Factor A) may remove habitat 
structure used by nesting San Bernardino flying squirrels; however, 
habitat modification and thinning from fuel treatment activities 
provide a net benefit by reducing the overall risk of wildfire. 
Furthermore, San Bernardino flying squirrels and other northern flying 
squirrel subspecies are known to persist in fragmented and edge 
habitat. Therefore, we find that wildland fire fuel treatment is a low-
level stressor that we do not expect to rise to the level of a threat 
now or in the foreseeable future.
    Based on computer model projections, potential effects to the 
habitat occupied by the San Bernardino flying squirrel from climate 
change (Factor A) appear to be minimal; however, cumulative impacts 
from climate change and wildland fire may have an effect on the 
subspecies and its habitat (Factor A and Factor E). However, we expect 
these impacts will be mitigated by wildland fire fuel treatment 
activities. Therefore, we find that climate change and the cumulative 
effects of climate change and wildland fires together pose a low to 
moderate stressor to the San Bernardino flying squirrel and its 
habitat. Though these stressors are ongoing and expected to continue, 
they do not rise to the level of a threat now or in the foreseeable 
future.
    We also evaluated existing regulatory mechanisms (Factor D) and did 
not determine an inadequacy of existing regulatory mechanisms for the 
San Bernardino flying squirrel. Specifically, we found that management 
actions currently being implemented by the USFS within the San 
Bernardino National Forest will continue to provide important 
conservation benefits to the San Bernardino flying squirrel. Additional 
important Federal mechanisms include protections provided under the 
Wilderness Act of 1964 (16 U.S.C. 1131 et seq.); USFS Organic 
Administration Act of 1897, as amended (16 U.S.C. 473-478, 479-482, and 
551); and other USFS management policies, practices, and procedures 
that guide management within San Bernardino National Forest. State 
review of projects through the California Environmental Quality Act 
(CEQA) provides an additional layer of protection for the San 
Bernardino flying squirrel through restrictions on take and through the 
inclusion of its designation as a ``Species of Special Concern'' within 
State (CEQA) planning processes. Additional protections and 
conservation measures that benefit San Bernardino flying squirrel 
habitat in the San Jacinto Mountains are provided by the Western 
Riverside County MSHCP.
    The USFS manages approximately 76 percent of the suitable habitat 
within the San Bernardino Mountains region and 65 percent in the San 
Jacinto Mountains, and these lands are therefore protected from large-
scale urban development and rangewide habitat fragmentation. 
Furthermore, 33 percent of suitable San Bernardino flying squirrel 
habitat within the San Jacinto Mountains region is designated as either 
Federal or State Parks and State Wilderness, which provides an 
important conservation benefit to the subspecies and its habitat. The 
subspecies is locally abundant; it has been observed in many 
residential settings and appears to be adaptable to lower density 
development and residential-forest habitats, as reported in other 
flying squirrel populations, as long as habitat features such as 
available den sites (large trees and snags) and canopy cover are 
available.
    None of the stressors, as summarized above was found to 
individually or cumulatively affect the San Bernardino flying squirrel 
to such a degree that listing is warranted at this time. Therefore, 
based on the analysis contained within the Species Status Assessment 
(Service 2016, pp. 27-66), we conclude that the best available 
scientific and commercial information indicates that these stressors 
are not singly or cumulatively sufficient to cause the San Bernardino 
flying squirrel to be in danger of extinction, nor are the stressors 
likely to cause the subspecies to be in danger of extinction in the 
foreseeable future.

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
throughout all or 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 term ``species'' includes ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment [DPS] of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' We published a final policy interpreting the 
phrase ``significant portion of its range'' (SPR) (79 FR 37578; July 1, 
2014). The final policy states that (1) if a species is found to be 
endangered or threatened throughout a significant portion of its range, 
the entire species is listed as an endangered or a threatened species, 
respectively, and the Act's protections apply to all individuals of the 
species wherever found; (2) a portion of the range of a species is 
``significant'' if the species is not currently endangered or 
threatened throughout all of its range, but the portion's contribution 
to the viability of the species is so important that, without the 
members in that portion, the species would be in danger of extinction, 
or likely to become so in the foreseeable future, throughout all of its 
range; (3) the range of a species is considered to be the general 
geographical area within which that species can be found at the time 
the Service or the National Marine Fisheries Service (NMFS) makes any 
particular status determination; and (4) if a vertebrate species is 
endangered or threatened throughout an SPR, and the population in that 
significant portion is a valid DPS, we will list the DPS rather than 
the entire taxonomic species or subspecies.
    The SPR policy is applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. The procedure for analyzing whether 
any portion is an SPR is similar, regardless of the type of status 
determination we are making.

[[Page 19538]]

The first step in our analysis of the status of a species is to 
determine its status throughout all of its range. If we determine that 
the species is in danger of extinction, or likely to become so in the 
foreseeable future, throughout all of its range, we list the species as 
an endangered or a threatened species, respectively, and no SPR 
analysis will be required. If the species is neither in danger of 
extinction nor likely to become so throughout all of its range, we 
determine whether the species is in danger of extinction or likely to 
become so throughout a significant portion of its range. If it is, we 
list the species as an endangered or a threatened species, 
respectively; if it is not, we conclude that listing the species is not 
warranted.
    When we conduct an SPR analysis, we first identify any portions of 
the species' range that warrant further consideration. 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 are not reasonably likely to be significant and 
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 in those portions or likely 
to become so within the foreseeable future. We emphasize that answering 
these questions in the affirmative is not a determination that the 
species is endangered or threatened throughout a significant portion of 
its range--rather, it is a step in determining whether a more detailed 
analysis of the issue is required. In practice, a key part of this 
analysis is whether the threats are geographically concentrated in some 
way. If the threats to the species are affecting it uniformly 
throughout its range, no portion is likely to warrant further 
consideration. Moreover, if any concentration of threats apply only to 
portions of the range that clearly do not meet the biologically based 
definition of ``significant'' (i.e., the loss of that portion clearly 
would not be expected to increase the vulnerability to extinction of 
the entire species), those portions will not warrant further 
consideration.
    If we identify any portions that may be both (1) significant and 
(2) endangered or threatened, we engage in a more detailed analysis to 
determine whether these standards are indeed met. The identification of 
an SPR does not create a presumption, prejudgment, or other 
determination as to whether the species in that identified SPR is 
endangered or threatened. We must go through a separate analysis to 
determine whether the species is endangered or threatened in the SPR. 
To determine whether a species is endangered or threatened throughout 
an SPR, we will use the same standards and methodology that we use to 
determine if a species is endangered or threatened throughout its 
range.
    Depending on the biology of the species, its range, and the threats 
it faces, it may be more efficient to address the ``significant'' 
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.''
    We evaluated the current range of the San Bernardino flying 
squirrel to determine if there is any apparent geographic concentration 
of potential threats. In this document, we discussed suitable habitat 
in two geographically separated mountain ranges. We examined potential 
threats from habitat loss or fragmentation, wildland fire fuel 
treatment activities, urban air pollution, wildland fire, climate 
change, the inadequacy of existing regulatory mechanisms, and any 
cumulative effects from wildland fire and climate-related changes. We 
found no concentration of threats that suggests that the San Bernardino 
flying squirrel may be in danger of extinction in a portion of its 
range. We found no portions of its range where potential threats are 
significantly concentrated or substantially greater than in other 
portions of its range, and that there was no higher concentration of 
threats in the San Bernardino or San Jacinto Mountains. Therefore, we 
find that factors affecting the San Bernardino flying squirrel are 
essentially uniform throughout its range, indicating no portion of its 
range is likely to be in danger of extinction or likely to become so. 
Therefore, no portion warrants further consideration to determine 
whether the species may be endangered or threatened in a significant 
portion of its range.

Conclusion

    Our review of the best available scientific and commercial 
information indicates that the San Bernardino flying squirrel is 
neither in danger of extinction (endangered) nor likely to become 
endangered within the foreseeable future (threatened), throughout all 
or a significant portion of its range. Therefore, we find that listing 
the San Bernardino flying squirrel as an endangered or threatened 
species under the Act is not warranted at this time.

Spotless Crake (Porzana tabuensis)

Previous Federal Actions

    In our CNOR published on November 15, 1994 (59 FR 58982), we 
recognized the American Samoa population of the spotless crake as a 
candidate for which the Service had sufficient information on the 
biological vulnerability of, and threats to, the species to determine 
that listing as endangered or threatened was warranted, but development 
of a proposal was precluded by other listing actions. Subsequently, we 
published similar findings on the American Samoa population of the 
spotless crake in our CNOR on February 28, 1996 (61 FR 7596), September 
19, 1997 (62 FR 49398), October 25, 1999 (64 FR 57534), October 30, 
2001 (66 FR 54808), and June 13, 2002 (67 FR 40657). In the 2002 CNOR, 
we identified the American Samoa population of the spotless crake as a 
distinct population segment (DPS) for the first time, in accordance 
with our Policy Regarding the Recognition of Distinct Vertebrate 
Population Segments Under the Endangered Species Act (DPS Policy), 
which published in the Federal Register on February 7, 1996 (61 FR 
4722). Throughout this period, the American Samoa population of the 
spotless crake retained the same status (the Service's label for that 
status changed from ``1'' to ``C,'' but the status remained the same).
    Through 2004, the spotless crake had an LPN of 6, reflecting the 
taxonomic identity of the listable entity as a population, with threats 
that we did not consider to be imminent, in accordance with our 1983 
guidance on establishing listing priorities (48 FR 43103; September 21, 
1983). In the 2005 CNOR, we changed the LPN from 6 to 3, indicating 
that, based on new information about the occurrence of nonnative 
predators in the only known location of the spotless crake in American 
Samoa, we now considered the threats to this population to be imminent 
(70 FR 24870; May 11, 2005). Listing the American Samoa population of 
the spotless crake continued to be precluded by higher-priority listing 
actions.
    On May 4, 2004, the Center for Biological Diversity petitioned the 
Secretary of the Interior to list 225 species of plants and animals, 
including the American Samoa population of the spotless crake, as an 
endangered or threatened species under the provisions of the Act. Since 
then, we have published our annual findings on this population, with 
the LPN of 3, in the

[[Page 19539]]

CNORs dated May 11, 2005 (70 FR 24870), September 12, 2006 (71 FR 
53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 
75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 
69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 
69994), November 22, 2013 (78 FR 70104), December 5, 2014 (79 FR 
72450), and December 24, 2015 (80 FR 80584).
    As a result of the Service's 2011 multidistrict litigation 
settlement with petitioners, the Service is required to submit a 
proposed listing rule or a not-warranted 12-month finding to the 
Federal Register by September 30, 2016 (In re: Endangered Species Act 
Section 4 Deadline Litigation, No. 10-377 (EGS), MDL Docket No. 2165 
(D.D.C. May 10, 2011)). This 12-month finding satisfies the 
requirements of that settlement agreement for the American Samoa 
population of the spotless crake, and constitutes the 12-month finding 
on the May 4, 2004, petition to list this population as an endangered 
or threatened species.

Summary of Status Review

    In making our 12-month finding on the petition, we consider and 
evaluate the best available scientific and commercial information. This 
evaluation includes information from all sources, including State, 
Federal, tribal, academic, and private entities and the public.
    The spotless crake (Porzana tabuensis) is a very small (length: 6 
inches (15 centimeters)), blackish rail, with a gray head, neck, and 
underparts; dark brown wings and back; black bill; and red iris 
(Watling 2001, p. 113). In American Samoa, the fossil record indicates 
the prehistoric occurrence of the spotless crake on the island of 
Tutuila (Steadman and Pregill 2004, p. 620). In modern times, the 
spotless crake was first known from a series of 10 specimens that were 
collected from Tau in 1923, during the Whitney South Sea Expedition 
(Murphy 1924, p. 124; Banks 1984, p. 156). The population of the 
species in American Samoa today is presumed to be very small and 
restricted to the mid-elevation forest and the summit of Tau Island, 
but a population estimate does not exist because of challenges in 
monitoring this species, which is extremely shy and occurs in dense 
vegetation in very remote areas (Badia 2014a, in litt.). Prior to the 
establishment of survey transects and audio playback surveys conducted 
in 2013 on Tau, recent observations of the crake were few, primarily 
opportunistic, and infrequent (Rauzon and Fialua 2003, p. 490; Seamon, 
in litt. 2004, 2007; Tulafono 2011, in litt.). Based on 2013 surveys 
and presumed potential for birds to occur in suitable habitat areas not 
surveyed, Badia (2014b, in litt.) estimated a population size of 130 
individuals on Tau. In addition to American Samoa, the global range of 
the spotless crake includes Australia and island nations throughout the 
tropical Pacific and Southeast Asia: Cook Islands, Federated States of 
Micronesia, Fiji, French Polynesia, Indonesia, New Caledonia, New 
Zealand, Niue, Papua New Guinea, the Philippines Pitcairn Islands, 
Samoa, Solomon Islands, and Tonga (BirdLife International 2016).
    We evaluated the American Samoa population of the spotless crake 
under our DPS Policy, which published in the Federal Register on 
February 7, 1996 (61 FR 4722). Under this policy, we evaluate two 
elements of a vertebrate population segment, its discreteness and its 
significance to the taxon as a whole, to assess whether the population 
segment may be recognized as a DPS. If we determine that a population 
segment being considered for listing is a DPS, then the population 
segment's conservation status is evaluated based on the five listing 
factors established by the Act to determine if listing the DPS as 
either an endangered or threatened species is warranted.
    To meet the discreteness element, a population segment of a 
vertebrate taxon must be either (1) markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors, or (2) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act. The available 
scientific information indicates that the American Samoa population of 
the spotless crake is markedly separate from other populations of the 
species due to geographic (physical) isolation from spotless crake 
populations on other islands in the oceanic Pacific, the Philippines, 
and Australia. Although the spotless crake (and other rails) are 
distributed widely in the Pacific (del Hoyo 1996, p. 134; Steadman 
2006, pp. 134, 458), exhibit long-distance vagrancy, and are apparently 
excellent colonizers of islands on an evolutionary timescale (Ripley 
1977, p. 17; Steadman 2006, p. 458), the spotless crake is currently 
not known for regular migration or frequent long-distance dispersal on 
an ecological timescale (Taylor 2016). Despite being capable of flight 
and widely distributed, the spotless crake has been described either as 
``rarely flying'' or a ``reluctant flier'' (Muse and Muse 1982, p. 83; 
Watling 2001, p. 113). The distance between the American Samoa 
population of the spotless crake and the nearest populations of the 
species makes the probability of accidental immigration low: Samoa lies 
100 miles (mi) (160 kilometers (km)) to the west, Tonga approximately 
300 to 560 mi (500 to 900 km) to the southwest, and Niue 333 mi (536 
km) to the southeast. For the reasons described above, we conclude that 
long-distance ocean crossings and mixing among populations of the 
spotless crake and other island rails is extremely rare or highly 
improbable on an ecological timescale (i.e., decades to centuries). 
Therefore, we have determined that the American Samoa population of the 
spotless crake is markedly separate from other populations of the 
species due to its geographic isolation, and meets the requirements 
criteria for discreteness under our DPS Policy.
    Under our DPS Policy, once we have determined that a population 
segment is discrete, we consider its biological and ecological 
significance to the larger taxon to which it belongs, in light of 
congressional guidance that the authority to list DPSs be used 
``sparingly'' while encouraging the conservation of genetic diversity 
(see U.S. Congress 1979, Senate Report 151, 96th Congress, 1st 
Session). This consideration may include, but is not limited to: (1) 
Evidence of the persistence of the discrete population segment in an 
ecological setting that is unusual or unique for the taxon; (2) 
evidence that loss of the population segment would result in a 
significant gap in the range of the taxon; (3) evidence that the 
population segment represents the only surviving natural occurrence of 
a taxon that may be more abundant elsewhere as an introduced population 
outside its historical range; or (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics. In this case, we considered 
available information about the biological and ecological significance 
of the spotless crake in American Samoa relative to the spotless crake 
throughout the remainder of its range in Oceania, Australia, the 
Philippines, and Southeast Asia. We have not found evidence that the 
loss of the American Samoa population of the spotless crake would be 
biologically or ecologically significant to the taxon as a whole, and 
thus this population does

[[Page 19540]]

not meet our criteria for significance under our DPS Policy.
    Unique ecological setting. This population does not occur in an 
unusual or unique ecological setting. In American Samoa, the spotless 
crake occurs in dense, sometimes rank vegetation, similar to habitats 
used in other parts of the species' range (Pratt et al. 1987, p. 126; 
del Hoyo 1996, p. 189; Watling et al. 2001, p. 113; Badia in litt. 
2014a, 2014b, 2015; BirdLife International 2016).
    Gap in the range. In our original DPS analysis for the American 
Samoa population of the spotless crake, we stated that the loss of the 
population could reduce connectivity within the range of the spotless 
crake in Oceania and thus would constitute a gap in the range of 
species as a whole (71 FR 53756, September 12, 2006, on p. 53779). Upon 
review of the available information, we have concluded that our 
original analysis was in error. The spotless crake is widespread 
throughout Oceania, Southeast Asia, and Australia. Some populations 
across the Pacific Islands occur at distances from each other similar 
to or greater than the distance between populations that would be 
created if the American Samoa population were lost. Moreover, as noted 
above, another population is thought to occur in Samoa (Watling 2001, 
p. 114; Avibase 2016), about 100 mi (160 km) from Tau Island, where the 
spotless crake occurs in American Samoa. Our original evaluation of the 
significance of the American Samoa population to the species as a whole 
did not properly take into consideration the nearby population in Samoa 
or the relative distribution of other populations.
    As described above, the species' distribution today most likely 
reflects historical connectivity over time scales of thousands of years 
or longer, as a result of chance dispersal rather than contemporary 
migration or frequent intermixing among populations. In our original 
analysis we did not consider the differing influence between migration 
or frequent dispersal in ecological time, and chance dispersal in 
evolutionary time on a species' distribution. Given the poor flight 
ability of rails generally and the spotless crake's probable low rate 
of dispersal between islands on an ecological timescale (Ripley 1977, 
pp. 17-18; Muse and Muse 1982, p. 83; Watling 2001, p. 113), the loss 
of this population would neither interrupt movement among adjacent 
populations in ecological time (which is unlikely to occur in any 
case), nor interfere with the chance or waif dispersal events on an 
evolutionary timescale (e.g., events that lead to colonization of new 
islands; Ripley 1977, p. 17). Because American Samoa lies roughly in 
the center of the species' range in the Pacific Basin, the loss of the 
American Samoa population would not result in a truncation or shift in 
the species' distribution, another consideration we did not include in 
our original analysis. Therefore, loss of the American Samoa population 
would not result in a significant gap in the species' range.
    Only surviving natural occurrence. This criterion does not apply to 
the American Samoa population of the spotless crake because it is one 
of many natural occurrences of the species.
    Differs markedly from other populations. Our review of the best 
available information does not indicate that the American Samoa 
population of the spotless crake is markedly different from populations 
of the species elsewhere in its behavior, morphology, or genetic 
characteristics. However, detailed study of the species' behavior and 
morphology across its range is lacking, and no genetic research exists.
    Other considerations. Finally, given the very wide distribution of 
the spotless crake, the loss of the American Samoa population would not 
substantively affect the species' conservation status rangewide.
    The American Samoa population is geographically isolated from other 
populations of the species and thus meets discreteness criteria under 
the DPS policy. It does not, however, meet the criteria for 
significance to the taxon as a whole. Therefore, the American Samoa 
population of the spotless crake is not a valid DPS as defined by our 
DPS Policy, and thus is not a listable entity under the Act.
    This determination about the regulatory status of the spotless 
crake under the Act does not negate the considerable threats faced by 
the population of this species in American Samoa. Invasive, nonnative 
plants, such as Clidemia hirta, and ungulates, such as feral pigs (Sus 
scrofa) and cattle (Bos taurus), damage and degrade the spotless 
crake's habitat on Tau (Whistler 1992, p. 22; O'Connor and Rauzon 2004, 
pp. 10-11; Togia pers. comm. in Loope et al. 2013, p. 321; Badia 2014a, 
2015, in litt.). Nonnative predators such as rats (Rattus spp.) and 
feral cats (Felis catus) have caused the extinction and extirpation of 
numerous island bird species and populations, especially of ground-
nesting species such as rails (Steadman 1995, pp. 1,123, 1,127; Medina 
et al. 2011, p. 6). These predators are common and widespread on Tau, 
including on Tau summit (Rauzon and Fialua 2003, p. 491; (O'Connor and 
Rauzon 2004, pp. 57-59; Adler et al. 2011, pp. 216-217; Badia 2014a, in 
litt.). Populations that undergo significant decline in numbers and 
range reduction are inherently highly vulnerable to extinction from 
chance environmental or demographic events (Shaffer 1981, p. 131; 
Gilpin and Soul[eacute] 1986, pp. 24-34; Pimm et al. 1988, p. 757; 
Mangel and Tier 1994, p. 607; Lacey 2000, pp. 40, 44-46). Owing to its 
low total number of individuals, restricted distribution, and 
distribution on a single island, the American Samoa population of the 
spotless crake is susceptible to natural catastrophes such as 
hurricanes, demographic fluctuations, or inbreeding depression. 
Existing regulatory mechanisms may provide some conservation benefit to 
the American Samoa population of the spotless crake, but they do not 
address the ongoing threats of habitat loss and degradation or 
predation by nonnative predators.

Finding

    The American Samoa population of the spotless crake was originally 
placed on the candidate list because of the threats to the species in 
American Samoa and its apparently very low numbers. Those threats still 
exist. After review of all available scientific and commercial 
information and upon closer consideration of the significance of this 
population to the species as a whole, we find that the American Samoa 
population of the spotless crake does not meet the significance 
criteria under our DPS policy, and thus does not constitute a listable 
entity under the Act. Consequently we are removing the American Samoa 
population of the spotless crake from candidate status. This 
determination about the regulatory status of the spotless crake under 
the Act and our DPS Policy does not alter the threats faced by the 
population of this species in American Samoa or its conservation needs 
there. Therefore, we ask the public to continue to submit to us any new 
information that becomes available concerning the taxonomy, biology, 
ecology, and status of the spotless crake, and we encourage local 
agencies and stakeholders to continue cooperative monitoring and 
conservation efforts for this rare member of American Samoa's avifauna.

Sprague's Pipit (Anthus spragueii)

Previous Federal Actions

    On October 10, 2008, we received a petition dated October 9, 2008, 
from WildEarth Guardians, requesting that we list the Sprague's pipit 
as

[[Page 19541]]

endangered or threatened under the Act and designate critical habitat. 
We published a 90-day finding that the petition presented substantial 
scientific or commercial information indicating that listing the 
Sprague's pipit may be warranted in the Federal Register on December 3, 
2009 (74 FR 63337). On May 19, 2010, the Service and WildEarth 
Guardians entered into a settlement agreement. According to the 
agreement, the Service was to submit a 12-month finding to the Federal 
Register on or before September 10, 2010. On September 15, 2010, we 
published the 12-month petition finding (75 FR 56028). We found that 
listing the Sprague's pipit as endangered or threatened was warranted. 
However, listing the Sprague's pipit was precluded by higher-priority 
actions to amend the Lists of Endangered and Threatened Wildlife and 
Plants, and the Sprague's pipit was added to our candidate species 
list. We have since addressed the status of the candidate taxon through 
our annual CNOR (November 10, 2010 (75 FR 69222), October 26, 2011 (76 
FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 
70104), December 5, 2014 (79 FR 72450), and December 24, 2015 (80 FR 
80584)). As a result of the Service's 2011 multidistrict litigation 
settlement, the Service is required to submit a proposed listing rule 
or a withdrawal of the 12-month finding to the Federal Register by 
September 30, 2016 (In re: Endangered Species Act Section 4 Deadline 
Litigation, No. 10--377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 
2011)).

Summary of Status Review

    In making our 12-month finding on the petition, we consider and 
evaluate the best available scientific and commercial information. This 
evaluation includes information from all sources, including State, 
Federal, tribal, academic, and private entities and the public.
    The Sprague's pipit (Anthus spragueii) is a small passerine first 
described by John James Audubon that breeds exclusively in the Northern 
Great Plains. Sprague's pipits have an affinity for grasslands 
throughout their range; however they can show flexibility in their use 
of habitat types in different portions of their range.
    The Sprague's pipit breeding range is throughout North Dakota, 
except for the easternmost counties; northern and central Montana east 
of the Rocky Mountains; northern portions of South Dakota; north 
central and northeastern portions of Wyoming; and occasionally 
northwestern Minnesota. In Canada, Sprague's pipits breed in 
southeastern Alberta, the southern half of Saskatchewan, and in 
southwest Manitoba. The Sprague's pipit's wintering range includes 
south-central and southeast Arizona, Texas, southern Oklahoma, southern 
Arkansas, northwest Mississippi, southern Louisiana, and northern 
Mexico.
    In 2010, the Sprague's pipit was listed as a candidate species. The 
major threats to the species identified at that time were native 
prairie conversion of breeding grounds and energy development, 
primarily from oil and gas and associated infrastructure. A recent 
model evaluating habitat use on the breeding grounds allowed us to 
evaluate the threats facing the species more specifically for this 
finding and focus on that part of the range where the Sprague's pipit 
is concentrated (hereafter the core area). Available models indicate 
that most of the core area is unlikely to be converted because it is 
relatively low-value land for row-crop agriculture. The most likely 
future scenario predicts that only about 13 percent of the population 
will be affected by future habitat conversion on the breeding grounds. 
In addition, the response to oil and gas development appears to be more 
nuanced than we previously thought, with less avoidance behavior 
reported in Canada, where infrastructure is already in place, than had 
been expected. This suggests the overall disturbance impacts from oil 
and gas development are lower than we anticipated in our 2010 finding.
    We evaluated the Sprague's pipit population trend both within and 
outside of the core area in the breeding range, as well as for the 
population overall. Inside the breeding range core area, population 
estimates from 2005-2014 have a range of uncertainty that means numbers 
may have slightly increased or decreased, with a somewhat more likely 
possibility that they decreased. Outside of the breeding range core 
area, the analysis more clearly indicated a decline from 2005-2014. As 
noted above, however, current Sprague's pipit populations are 
concentrated within the core area of the breeding range, and therefore 
evaluation of the overall population trends from 2005-2014 suggests a 
more slight population decline than the rates solely outside the core 
area.
    Because recent population declines appear to have been largely 
outside of the breeding range core area, while the current population 
is concentrated within the core area where population trends have been 
more stable, continued overall population decreases at the same rate 
appear unlikely. In addition, with decreasing commodity prices and 
changes to crop insurance for conversion of native grassland, we 
anticipate conversion rates will decrease in the future, rather than 
continue at the 10-year trend rate. Finally, as noted above, the extent 
of exposure to threats within the core appears to be less than for 
exposure to threats outside the core area. For all these reasons, the 
overall population trends are likely to be more stable in the future 
than over the last 10 years.
    We note that little is known about this species' distribution and 
habitat use on the wintering grounds in Mexico, where grassland 
conversion and woody vegetation encroachment into grasslands are 
occurring. However, the available evidence suggests that the Sprague's 
pipit is more flexible in its habitat use on the wintering grounds in 
comparison to breeding rounds. For example, a study in the Chihuahuan 
Desert found that the Sprague's pipit is broadly distributed and 
apparently mobile in response to annual habitat conditions. 
Additionally, in the United States, experts report that Sprague's 
pipits use a wide variety of native and nonnative grassland types.

Finding

    Based on our review of the best available scientific and commercial 
information pertaining to the five factors, we find that the stressors 
acting on the species and its habitat, either singly or in combination, 
are not of sufficient imminence, intensity, or magnitude to indicate 
that the Sprague's pipit is in danger of extinction (an endangered 
species), or likely to become endangered within the foreseeable future 
(a threatened species), throughout all of its range. Threats identified 
in 2010 are now believed to have lower impacts on the Sprague's pipit 
than understood at that time; recent downward population trends are 
unlikely to continue at the same rate, and even if they do, they would 
not indicate the species is likely to become an endangered species in 
the foreseeable future; and while unknowns remain, especially regarding 
wintering grounds, the species' adaptability appears greater than 
previously understood. Because the distribution of the species is 
relatively stable across its range and stressors are similar throughout 
the species' range, we found no concentration of stressors that 
suggests that the Sprague's pipit may be in danger of extinction in any 
portion of its range. Therefore, we find that listing the Sprague's 
pipit as an endangered or a threatened species is not warranted

[[Page 19542]]

throughout all or a significant portion of its range at this time, and 
consequently we are removing this species from candidate status.

New Information

    We request that you submit any new information concerning the 
status of, or stressors to, the San Bernardino flying squirrel, the 
American Samoa population of the spotless crake or the Sprague's pipit 
to the appropriate person, as specified under FOR FURTHER INFORMATION 
CONTACT, whenever it becomes available. New information will help us 
monitor these species and encourage their conservation. If an emergency 
situation develops for any of these species, we will act to provide 
immediate protection.

References Cited

    Lists of the references cited in the petition findings are 
available on the Internet at http://www.regulations.gov and upon 
request from the appropriate person, as specified under FOR FURTHER 
INFORMATION CONTACT.

Authors

    The primary authors of this document are the staff members of the 
Branch of Listing, Ecological Services Program.

Authority

    The authority for this section is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 29, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-07809 Filed 4-4-16; 8:45 am]
 BILLING CODE 4333-15-P