Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions, 69222-69294 [2010-27686]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 217 (Wednesday, November 10, 2010)]
[Proposed Rules]
[Pages 69222-69294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27686]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Review of Native Species 
That Are Candidates for Listing as Endangered or Threatened; Annual 
Notice of Findings on Resubmitted Petitions; Annual Description of 
Progress on Listing Actions; Proposed Rule

Federal Register / Vol. 75 , No. 217 / Wednesday, November 10, 2010 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R9-ES-2010-0065; MO-9221050083-B2]


Endangered and Threatened Wildlife and Plants; Review of Native 
Species That Are Candidates for Listing as Endangered or Threatened; 
Annual Notice of Findings on Resubmitted Petitions; Annual Description 
of Progress on Listing Actions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of review.

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SUMMARY: In this Candidate Notice of Review (CNOR), we, the U.S. Fish 
and Wildlife Service (Service), present an updated list of plant and 
animal species native to the United States that we regard as candidates 
for or have proposed for addition to the Lists of Endangered and 
Threatened Wildlife and Plants under the Endangered Species Act of 
1973, as amended. Identification of candidate species can assist 
environmental planning efforts by providing advance notice of potential 
listings, allowing landowners and resource managers to alleviate 
threats and thereby possibly remove the need to list species as 
endangered or threatened. Even if we subsequently list a candidate 
species, the early notice provided here could result in more options 
for species management and recovery by prompting candidate conservation 
measures to alleviate threats to the species.
    The CNOR summarizes the status and threats that we evaluated in 
order to determine that species qualify as candidates and to assign a 
listing priority number (LPN) to each species or to determine that 
species should be removed from candidate status. Additional material 
that we relied on is available in the Species Assessment and Listing 
Priority Assignment Forms (species assessment forms, previously called 
candidate forms) for each candidate species.
    Overall, this CNOR recognizes five new candidates, changes the LPN 
for four candidates, and removes one species from candidate status. 
Combined with other decisions for individual species that were 
published separately from this CNOR in the past year, the current 
number of species that are candidates for listing is 251.
    This document also includes our findings on resubmitted petitions 
and describes our progress in revising the Lists of Endangered and 
Threatened Wildlife and Plants during the period October 1, 2009, 
through September 30, 2010.
    We request additional status information that may be available for 
the 251 candidate species identified in this CNOR.

DATES: We will accept information on any of the species in this 
Candidate Notice of Review at any time.

ADDRESSES: This notice is available on the Internet at https://www.regulations.gov and https://www.fws.gov/endangered/what-we-do/cnor.html. Species assessment forms with information and references on 
a particular candidate species' range, status, habitat needs, and 
listing priority assignment are available for review at the appropriate 
Regional Office listed below in SUPPLEMENTARY INFORMATION or at the 
Branch of Candidate Conservation, Arlington, VA (see address below), or 
on our Web site (https://ecos.fws.gov/tess_public/pub/SpeciesReport.do?listingType=C&mapstatus=1). Please submit any new 
information, materials, comments, or questions of a general nature on 
this notice to the Arlington, VA, address listed below. Please submit 
any new information, materials, comments, or questions pertaining to a 
particular species to the address of the Endangered Species Coordinator 
in the appropriate Regional Office listed in SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: The Endangered Species Coordinator(s) 
in the appropriate Regional Office(s), or Chief, Branch of Candidate 
Conservation, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Room 420, Arlington, VA 22203 (telephone 703-358-2171; facsimile 703-
358-1735). Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: We request additional status information 
that may be available for any of the candidate species identified in 
this CNOR. We will consider this information to monitor changes in the 
status or LPN of candidate species and to manage candidates as we 
prepare listing documents and future revisions to the notice of review. 
We also request information on additional species to consider including 
as candidates as we prepare future updates of this notice.
    You may submit your information concerning this notice in general 
or for any of the species included in this notice by one of the methods 
listed in the ADDRESSES section.
    Species-specific information and materials we receive will be 
available for public inspection by appointment, during normal business 
hours, at the appropriate Regional Office listed below under Request 
for Information in SUPPLEMENTARY INFORMATION. General information we 
receive will be available at the Branch of Candidate Conservation, 
Arlington, VA (see address above).

Candidate Notice of Review

Background

    The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et 
seq.) (Act), requires that we identify species of wildlife and plants 
that are endangered or threatened, based on the best available 
scientific and commercial information. As defined in section 3 of the 
Act, an endangered species is any species which is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species is any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. Through the Federal rulemaking 
process, we add species that meet these definitions to the List of 
Endangered and Threatened Wildlife at 50 CFR 17.11 or the List of 
Endangered and Threatened Plants at 50 CFR 17.12. As part of this 
program, we maintain a list of species that we regard as candidates for 
listing. A candidate species is one for which we have on file 
sufficient information on biological vulnerability and threats to 
support a proposal to list as endangered or threatened, but for which 
preparation and publication of a proposal is precluded by higher 
priority listing actions. We may identify a species as a candidate for 
listing after we have conducted an evaluation of its status on our own 
initiative, or after we have made a positive finding on a petition to 
list a species, in particular we have found that listing is warranted 
but precluded by other higher priority listing action (see the Petition 
Findings section, below).
    We maintain this list of candidates for a variety of reasons: To 
notify the public that these species are facing threats to their 
survival; to provide advance knowledge of potential listings that could 
affect decisions of environmental planners and developers; to provide 
information that may stimulate and guide conservation efforts that will 
remove or reduce threats to these species and possibly make listing 
unnecessary; to request input from interested parties to help us 
identify those candidate species that may not

[[Page 69223]]

require protection under the Act or additional species that may require 
the Act's protections; and to request necessary information for setting 
priorities for preparing listing proposals. We strongly encourage 
collaborative conservation efforts for candidate species, and offer 
technical and financial assistance to facilitate such efforts. For 
additional information regarding such assistance, please contact the 
appropriate Regional Office listed under Request for Information or 
visit our Web site, https://www.fws.gov/endangered/what-we-do/cca.html.

Previous Notices of Review

    We have been publishing candidate notices of review (CNOR) since 
1975. The most recent CNOR (prior to this CNOR) was published on 
November 9, 2009 (74 FR 57804). CNORs published since 1994 are 
available on our Web site, https://www.fws.gov/endangered/what-we-do/cnor.html. For copies of CNORs published prior to 1994, please contact 
the Branch of Candidate Conservation (see ADDRESSES section above).
    On September 21, 1983, we published guidance for assigning an LPN 
for each candidate species (48 FR 43098). Using this guidance, we 
assign each candidate an LPN of 1 to 12, depending on the magnitude of 
threats, immediacy of threats, and taxonomic status; the lower the LPN, 
the higher the listing priority (that is, a species with an LPN of 1 
would have the highest listing priority). Section 4(h)(3) of the Act 
(15 U.S.C. 1533(h)(3)) requires the Secretary to establish guidelines 
for such a priority-ranking guidance system. As explained below, in 
using this system we first categorize based on the magnitude of the 
threat(s), then by the immediacy of the threat(s), and finally by 
taxonomic status.
    Under this priority-ranking system, magnitude of threat can be 
either ``high'' or ``moderate to low.'' This criterion helps ensure 
that the species facing the greatest threats to their continued 
existence receive the highest listing priority. It is important to 
recognize that all candidate species face threats to their continued 
existence, so the magnitude of threats is in relative terms. For all 
candidate species, the threats are of sufficiently high magnitude to 
put them in danger of extinction, or make them likely to become in 
danger of extinction in the foreseeable future. But for species with 
higher magnitude threats, the threats have a greater likelihood of 
bringing about extinction or are expected to bring about extinction on 
a shorter time scale (once the threats are imminent) than for species 
with lower magnitude threats. Since we do not routinely quantify how 
likely or how soon extinction would be expected to occur absent 
listing, we must evaluate factors that contribute to the likelihood and 
time scale for extinction. We therefore consider information such as: 
The number of populations and/or extent of range of the species 
affected by the threat(s); the biological significance of the affected 
population(s), taking into consideration the life-history 
characteristics of the species and its current abundance and 
distribution; whether the threats affect the species in only a portion 
of its range, and if so the likelihood of persistence of the species in 
the unaffected portions; the severity of the effects and the rapidity 
with which they have caused or are likely to cause mortality to 
individuals and accompanying declines in population levels; whether the 
effects are likely to be permanent; and the extent to which any ongoing 
conservation efforts reduce the severity of the threat.
    As used in our priority-ranking system, immediacy of threat is 
categorized as either ``imminent'' or ``nonimminent'' and is not a 
measure of how quickly the species is likely to become extinct if the 
threats are not addressed; rather, immediacy is based on when the 
threats will begin. If a threat is currently occurring or likely to 
occur in the very near future, we classify the threat as imminent. 
Determining the immediacy of threats helps ensure that species facing 
actual, identifiable threats are given priority for listing proposals 
over those for which threats are only potential or species that are 
intrinsically vulnerable to certain types of threats but are not known 
to be presently facing such threats.
    Our priority ranking system has three categories for taxonomic 
status: Species that are the sole members of a genus; full species (in 
genera that have more than one species); and subspecies and distinct 
population segments of vertebrate species (DPS). We also apply this 
last category to species that are threatened or endangered in only 
significant portions of their ranges rather than their entire ranges.
    The result of the ranking system is that we assign each candidate a 
listing priority number of 1 to 12. For example, if the threat(s) is of 
high magnitude, with immediacy classified as imminent, the listable 
entity is assigned an LPN of 1, 2, or 3 based on its taxonomic status 
(i.e., a species that is the only member of its genus would be assigned 
to the LPN 1 category, a full species to LPN 2, and a subspecies, DPS, 
or a species that is threatened or endangered in only a significant 
portion of its range would be assigned to LPN 3). In summary, the LPN 
ranking system provides a basis for making decisions about the relative 
priority for preparing a proposed rule to list a given species. No 
matter which LPN we assign to a species, each species included in this 
notice as a candidate is one for which we have sufficient information 
to prepare a proposed rule to list it because it is in danger of 
extinction or likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range.
    For more information on the process and standards used in assigning 
LPNs, a copy of the 1983 guidance is available on our Web site at: 
https://www.fws.gov/endangered/esa-library/pdf/48fr43098-43105.pdf. For 
more information on the LPN assigned to a particular species, the 
species assessment for each candidate contains the LPN chart and a 
rationale for the determination of the magnitude and immediacy of 
threat(s) and assignment of the LPN; that information is summarized in 
this CNOR.
    This revised notice supersedes all previous animal, plant, and 
combined candidate notices of review.

Summary of This CNOR

    Since publication of the previous CNOR on November 9, 2009 (74 FR 
57804), we reviewed the available information on candidate species to 
ensure that a proposed listing is justified for each species, and 
reevaluated the relative LPN assigned to each species. We also 
evaluated the need to emergency-list any of these species, particularly 
species with high priorities (i.e., species with LPNs of 1, 2, or 3). 
This review and reevaluation ensures that we focus conservation efforts 
on those species at greatest risk first.
    In addition to reviewing candidate species since publication of the 
last CNOR, we have worked on numerous findings in response to petitions 
to list species, and on proposed and final determinations for rules to 
list species under the Act. Some of these findings and determinations 
have been completed and published in the Federal Register, while work 
on others is still under way (see Preclusion and Expeditious Progress, 
below, for details).
    Based on our review of the best available scientific and commercial 
information, with this CNOR we identify five new candidate species (see 
New Candidates, below), change the LPN for four candidates (see Listing 
Priority Changes in Candidates, below) and determine that a listing 
proposal is not warranted for one species and thus remove it from 
candidate status (see

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Candidate Removals, below). Combined with the other decisions published 
separately from this CNOR for individual species that previously were 
candidates, a total of 251 species (including 110 plant and 141 animal 
species) are now candidates awaiting preparation of rules proposing 
their listing. These 251 species, along with the 18 species currently 
proposed for listing (includes 1 species proposed for listing due to 
similarity in appearance), are included in Table 1.
    Table 2 lists the changes from the previous CNOR, and includes 55 
species identified in the previous CNOR as either proposed for listing 
or classified as candidates that are no longer in those categories. 
This includes 54 species for which we published a final rule to list, 
plus the 1 species that we have determined does not meet the definition 
of endangered or threatened and therefore does not warrant listing. We 
have removed this species from candidate status in this CNOR.

New Candidates

    Below we present a brief summary of one new fish, one new snail, 
one new crustacean, and two new plant candidates, which we are 
recognizing in this CNOR. Complete information, including references, 
can be found in the species assessment forms. You may obtain a copy of 
these forms from the Regional Office having the lead for the species, 
or from our Web site (https://ecos.fws.gov/tess_public/pub/SpeciesReport.do?listingType=C&mapstatus=1). For these species, we find 
that we have on file sufficient information on biological vulnerability 
and threats to support a proposal to list as endangered or threatened, 
but that preparation and publication of a proposal is precluded by 
higher priority listing actions (i.e., it met our definition of a 
candidate species). We also note below that nine other species--
Sprague's pipit, greater sage-grouse, Bi-State DPS of greater sage-
grouse, Gunnison sage-grouse, least chub, upper Missouri River DPS of 
Arctic grayling, Tucson shovel-nosed snake, Jemez Mountains salamander, 
and Agave eggersiana--were identified as candidates earlier this year 
as a result of separate petition findings published in the Federal 
Register.

Birds

    Sprague's pipit (Anthus spragueii)--We previously announced 
candidate status for this species, and described the reasons and data 
on which the finding was based, in a separate warranted-but-precluded 
12-month petition finding published on September 14, 2010 (75 FR 
56028).
    Greater sage-grouse (Centrocercus urophasianus)--We previously 
announced candidate status for this species, and described the reasons 
and data on which the finding was based, in a separate warranted-but-
precluded 12-month petition finding published on March 23, 2010 (75 FR 
13910).
    Greater sage-grouse, Bi-State DPS (Centrocercus urophasianus)--We 
previously announced candidate status for this species, and described 
the reasons and data on which the finding was based, in a separate 
warranted-but-precluded 12-month petition finding published on March 
23, 2010 (75 FR 13910).
    Gunnison sage-grouse (Centrocercus minimus)--We previously 
announced candidate status for this species, and described the reasons 
and data on which the finding was based, in a separate warranted-but-
precluded 12-month petition finding published on September 28, 2010 (75 
FR 59803).

Reptiles

    Tucson Shovel-Nosed Snake (Chionactis occipitalis klauberi)--We 
previously announced candidate status for this species, and described 
the reasons and data on which the finding was based, in a separate 
warranted-but-precluded 12-month petition finding published on March 
31, 2010 (75 FR 16050).

Amphibians

    Jemez Mountains salamander (Plethodon neomexicanus)--We previously 
announced candidate status for this species, and described the reasons 
and data on which the finding was based, in a separate warranted-but-
precluded 12-month petition finding published on September 9, 2010 (75 
FR 54822).

Fish

    Least chub (Iotichthys phlegethontis)--We previously announced 
candidate status for this species, and described the reasons and data 
on which the finding was based, in a separate warranted-but-precluded 
12-month petition finding published on June 22, 2010 (75 FR 35398).
    Kentucky arrow darter (Etheostoma sagitta spilotum)--The following 
summary is based on information in our files. The Kentucky arrow darter 
is a rather large (total length of 4.6 inches (116 millimeters)), 
brightly colored darter that is restricted to the upper Kentucky River 
basin in eastern Kentucky. The species' preferred habitat consists of 
pools or transitional areas between riffles and pools (runs and glides) 
in moderate to high gradient streams with bedrock, boulder, and cobble 
substrates. In most recent surveys, the Kentucky arrow darter has been 
observed in streams ranging in size from first to third order, with 
most individuals occurring in second order streams in watersheds 
encompassing 7.7 square miles (20 square kilometers) or less. Kentucky 
arrow darters feed on a variety of aquatic invertebrates, but adults 
feed predominantly on larval mayflies (order Ephemeroptera), 
specifically the families Heptageniidae and Baetidae. Rangewide surveys 
from 2007 to 2009 revealed that the Kentucky arrow darter has 
disappeared from portions of its range. During these surveys, the 
species was observed at only 33 of 68 historical streams and 45 of 100 
historical sites.
    The subspecies' habitat and range have been severely degraded and 
limited by water pollution from surface coal mining and gas-exploration 
activities; removal of riparian vegetation; stream channelization; 
increased siltation associated with poor mining, logging, and 
agricultural practices; and deforestation of watersheds. The threats 
are high in magnitude because they are widespread across the 
subspecies' range. In addition, the magnitude (severity or intensity) 
of these threats, especially impacts from mining and gas-exploration 
activities, is high because these activities have the potential to 
alter stream water quality permanently throughout the range by 
contributing sediment, dissolved metals, and other solids to streams 
supporting Kentucky arrow darters, resulting in direct mortality or 
reduced reproductive capacity. The threats are imminent because the 
effects are manifested immediately and will continue for the 
foreseeable future. Consequently, we assigned an LPN of 3 to this 
subspecies.
    Arctic grayling, Missouri River DPS (Thymallus arcticus)--We 
previously announced candidate status for this species, and described 
the reasons and data on which the finding was based, in a separate 
warranted-but-precluded 12-month petition finding published on 
September 8, 2010 (75 FR 54707).

Snails

    Rosemont talussnail (Sonorella rosemontensis)--the following 
summary is based on information in our files. The petition we received 
on June 24, 2010, provided no new information beyond what we had 
already included in our assessment of this species. The Rosemont 
talussnail, a land snail in the family Helminthoglyptidae, is known

[[Page 69225]]

from three talus slopes in the Santa Rita Mountains, Pima County, 
Arizona. The primary threat to Rosemont talussnail is hard rock mining. 
The entire range of the species is located on patented mining claims 
and can reasonably be expected to be subjected to mining activities in 
the foreseeable future. Hard rock mining typically involves the 
blasting of hillsides and the crushing of ore-laden rock. Such 
activities would kill talussnails and render their habitats unsuitable 
for occupation. Since mining may occur across the entire range of the 
species within the foreseeable future, potentially resulting in 
rangewide habitat destruction and population losses, the threats are of 
a high magnitude. However, mining on patented mining claims, although a 
reasonably anticipated action, is neither currently ongoing nor 
imminent. Although the Rosemont Copper Mine is scheduled to commence as 
soon as 2011, there exists uncertainty regarding its scope, and 
therefore its potential effect on habitat of the Rosemont talussnail. 
Accordingly, we find that overall threats to the Rosemont talussnail 
are nonimminent and we assign an LPN of 5 to this species.

Crustaceans

    Kenk's amphipod (Stygobromus kenki)--Amphipods of the genus 
Stygobromus, occur in groundwater and groundwater-related habitats. In 
the case of Kenk's amphipod, these include seeps, small springs, and 
possibly wells. Kenk's amphipod is a small, eyeless, unpigmented 
crustacean adapted for survival in subterranean habitats. It can be 
found in dead leaves or fine sediment submerged in the waters of its 
spring/seep outflows. The species is currently known only from five 
spring or seep sites in Washington, DC, and Montgomery County, 
Maryland. Four of these sites are within the Rock Creek drainage, and 
the fifth is within the Northwest Branch drainage.
    Within the limited area encompassing the current range of this 
species, the vast majority of potential expanses of habitat large 
enough to support this species have been significantly impacted or 
completely destroyed by urban and suburban development. Kenk's amphipod 
is now vulnerable because of its limited geographic distribution and 
infringement of urban development on its habitat. Degradation of water 
quality and modifications of hydrology are among the principal threats 
to this species' spring or seep habitats. Specific threats include 
toxic spills, non-point source pollution, sanitary sewer leaks, 
excessive stormwater flows, and additional land disturbance. In 
addition, climate change has the potential to adversely affect the 
species, particularly if it results in a significant change in the 
amount of precipitation in the Washington, DC, area.
    Although all five known sites of occurrence face threats to the 
hydrology and water quality of their springs, these threats are chronic 
in nature and appear to be increasing only gradually and are not 
currently resulting in major mortality events or impairment of 
reproduction. Thus, the threats are moderate in magnitude. Several 
threats are imminent because they are ongoing and expected to continue. 
Therefore, we assigned this species LPN of 8.

Flowering Plants

    Agave eggersiana (no common name)--We previously announced 
candidate status for this species, and described the reasons and data 
on which the finding was based, in a separate warranted-but-precluded 
12-month petition finding published on September 22, 2010 (75 FR 
57720).
    Astragalus cusickii var. packardiae (Packard's milkvetch)--The 
following summary is based on information contained in our files. This 
plant is a narrow endemic located in northeastern Payette County, 
Idaho. Its entire known range is only approximately 10 square miles (26 
square kilometers). The light-colored, sparsely vegetated sedimentary 
outcrops to which this species is restricted are found scattered 
throughout the landscape, but are limited in extent. The size of 
occupied outcrops ranges from less than 0.04 hectares (0.1 acre) to 
approximately 1.2 hectares (3 acres). The entire population of A. 
cusickii var. packardiae is currently estimated at 5,000 plants located 
within 26 occurrences (17 on Bureau of Land Management, 4 on State, and 
5 on private land).
    The primary threats to Astragalus cusickii var. packardiae include 
wildfire, nonnative invasive plant species, and more recently, off-road 
vehicle (ORV) use. Vegetation within the range of A. cusickii var. 
packardiae was originally sagebrush-steppe habitat; however, due to 
habitat impacts from a century of wildfires, livestock use, and 
invasive nonnative plant species, much of the area has been converted 
to annual grassland dominated by two nonnative grass species, Bromus 
tectorum (cheatgrass) and Taeniatherum caput-medusae (medusahead). 
Invasive nonnative plants affect A. cusickii var. packardiae directly 
through competition and indirectly by providing continuous fine fuels 
that contribute to the increased frequency and extent of wildfires.
    ORV use, which is currently considered the most immediate threat to 
Astragalus cusickii var. packardiae and its habitat, was not identified 
as a threat during the original 1999 surveys for this species, but 
monitoring conducted in 2008 and 2009 indicate it has since become a 
widespread activity, occurring throughout the limited range of A. 
cusickii var. packardiae. ORVs are traveling directly through outcrops 
occupied by A. cusickii var. packardiae, as well as along the rims, 
spur ridges, and slope bases that form the margins of the occupied 
outcrops, with tracks ranging from single passage treads to major hill 
climbing runways. Based on monitoring data, this use appears to be 
increasing in scope and has resulted in the crushing of A. cusickii 
var. packardiae plants, as well as accelerated erosion of the fine, 
loose substrate occupied by this species.
    Based on this information, the magnitude of the primary threats to 
Astragalus cusickii var. packardiae and its habitat is high because ORV 
use, wildfires, and nonnative invasive species affect the species 
throughout its range, appear to be increasing in extent, and result in 
severe and direct impacts to individuals and population levels., 
Because these threats are ongoing throughout A. cusickii var. 
packardiae's limited range, these threats are imminent. Thus, we assign 
an LPN of 3 to this plant variety.
    Mimulus fremontii var. vandenbergensis (Vandenberg monkeyflower)--
Mimulus fremontii var. vandenbergensis is a small, short-lived annual 
herb in the Phrymaceae family (no common family name). It ranges from 
0.5 to 10 inches (1 to 20 centimeters) tall and produces flowers that 
are bright yellow with reddish brown markings near the mouth. The seeds 
are small and numerous, and seed is likely dispersed by the wind as the 
seed pods open. As with other annual species that are sensitive to 
annual levels of rainfall, germination of resident seed banks may be 
low or nonexistent in unfavorable years, with little or no aboveground 
expression of the species visible.
    Mimulus fremontii var. vandenbergensis occurs only in western Santa 
Barbara County, California, at lower elevations and closer to the 
coast, in sandy openings of coastal scrub, chaparral, and woodlands on 
an old dune sheet known as Burton Mesa. Seven populations occur across 
the mesa over a distance of approximately 6 miles, generally in 
alignment with the prevailing winds. Two populations

[[Page 69226]]

occur on Vandenberg Air Force Base, two occur on State Park lands at La 
Purisima State Historic Park, two occur primarily on Department of Fish 
and Game lands on Burton Mesa Ecological Reserve, and one occurs 
primarily on private lands.
    The threats currently facing Mimulus fremontii var. vandenbergensis 
include alteration and destruction of habitat from development and 
associated secondary impacts, including increased fragmentation, 
alteration of hydrology, competition with nonnative species, and 
alteration of fire regimes. The taxon is also threatened with 
stochastic extinction due to small population size: Of the 7 
populations, 3 have supported fewer than 100 individuals based on at 
least 2 years of observations. We consider competition with nonnative 
plant species to be the largest and most immediate threat: Veldt grass, 
pampas grass, bromes, Sahara mustard, star thistle, Italian thistle, 
and bull thistle are present at various sites where Mimulus fremontii 
var. vandenbergensis occurs. Habitat for one population on private land 
was graded in 2007 in preparation for construction of a housing 
development. Construction has been stalled, and in the meantime, veldt 
grass has become established in the graded lot and has increased the 
rate at which this species is spreading in adjacent habitat for Mimulus 
fremontii var. vandenbergensis, including the Burton Mesa Ecological 
Reserve. Veldt grass is also present and rapidly spreading at 
population sites on Vandenberg Air Force Base and La Purisima State 
Historic Park.
    The threats are of a high magnitude because all three of the 
largest populations are at risk of being lost from the invasion of 
nonnative species. The third largest population is also threatened by 
secondary impacts from a planned development and firefighting 
activities. Losses of some or all of the three largest populations will 
increase the risk of extinction of the taxon as a whole because the 
remaining populations are smaller and more vulnerable to stochastic 
extirpation, which compounds the other threats these small populations 
face. The threats are ongoing and, therefore, imminent. Consequently, 
we have assigned a LPN of 3 to this plant variety.

Listing Priority Changes in Candidates

    We reviewed the LPN for all candidate species and are changing the 
numbers for the following species discussed below. Some of the changes 
reflect actual changes in either the magnitude or immediacy of the 
threats. For some species, the LPN change reflects efforts to ensure 
national consistency as well as closer adherence to the 1983 guidelines 
in assigning these numbers, rather than an actual change in the nature 
of the threats.

Snails

    Page springsnail (Pyrgulopsis morrisoni)--The following summary is 
based on information contained in our files. The Page springsnail is 
known to exist only within a complex of springs located within an 
approximately 0.93-mi (1.5-km) stretch along the west side of Oak Creek 
around the community of Page Springs, and within springs located along 
Spring Creek, tributary to Oak Creek, Yavapai County, Arizona.
    The primary threat to the Page springsnail is modification of 
habitat by domestic, agricultural, ranching, fish hatchery, and 
recreational activities. Many of the springs where the species occurs 
have been subjected to some level of such modification. Based on recent 
survey data, it appears that the Page springsnail is abundant within 
natural habitats and persists in modified habitats, albeit at reduced 
densities. Arizona Game and Fish Department (AGFD) management plans for 
the Bubbling Ponds and Page Springs fish hatcheries include commitments 
to replace lost habitat and to monitor remaining populations of 
invertebrates such as the Page springsnail. The AGFD and the Service 
recently entered into a Candidate Conservation Agreement with 
Assurances that calls for evaluating the restoration and creation of 
natural springhead integrity, including springs on AGFD properties. In 
fact, several conservation measures have already been implemented. 
Also, the National Park Service recently acquired Shea Springs, a site 
that the Page springsnail occupied historically, and has expressed an 
interest in restoring natural springhead integrity to that site. 
Accordingly, implementation of the CCAA reduces the magnitude of 
threats to a moderate level and greatly reduces the chances of 
extirpation or extinction. The immediacy of the threat of groundwater 
withdrawal is uncertain, due to conflicting information regarding 
imminence. However, overall, the threats are imminent, because 
modification of the species' habitat by threats other than groundwater 
withdrawal is currently occurring. Therefore, we are changing the LPN 
for the Page springsnail from a 2 to an 8.

Flowering Plants

    Hibiscus dasycalyx (Neches River rose-mallow)--The following 
summary is based on information contained in our files. This species, 
found in eastern Texas, appears to be restricted to those portions of 
wetlands that are exposed to open sun and normally hold standing water 
early in the growing season, with water levels dropping during late 
summer and fall. This habitat has been affected by drainage or filling 
of floodplain depressions and oxbows, stream channelization, road 
construction, timber harvesting, agricultural activities (primarily 
mowing and grazing), and herbicide use. Threats that continue to affect 
the species include wetland alteration, herbicide use, grazing, mowing 
during the species' growing and flowering period, and genetic swamping 
by other Hibiscus species.
    A 1995 status survey of 10 counties resulted in confirmation of the 
species at only three sites, but in three separate counties and three 
different watersheds, suggesting a relatively wide historical range. 
These three populations were all within highway rights-of-way and 
vulnerable to herbicides and adjacent agricultural activities. As of 
2005, only 20 plants remained at one of these sites. Additional surveys 
for Hibiscus dasycalyx discovered new populations. About 300 plants 
were found on land owned by Temple-Inland Corporation in east Trinity 
County. Smaller plant numbers have been seen at this site and in 2005 
no plants were observed. This site may be too dry to support this 
species, possibly due to changes in the wetland's hydrology. Another 
site discovered on land previously owned by Champion International 
Corporation (near White Rock Creek in west Trinity County) once 
supported 300-400 plants. This site was modified in 2007. In west 
Houston County, a population of 300 to 400 plants discovered on private 
land has been purchased by the Natural Area Preservation Association in 
order to protect this land in perpetuity. In east Houston County, a 
population discovered in Compartment 55 in Davy Crockett National 
Forest numbered over 1,000 in 2006. In 2000, nearly 800 plants were 
introduced into Compartments 16 and 20 of Davy Crockett National Forest 
as part of a reintroduction effort. One population retained high 
numbers (350 in 2006), but was subjected to high water conditions in 
2007 and may have been adversely affected. The second site was affected 
by a change in hydrology and had declined to 50 plants in 2006. In 
2004, 200 plants were placed in a wetland in Compartment 11 of Davy 
Crockett National Forest, but only 10 plants were seen in 2006. High 
water from heavy spring and summer rains

[[Page 69227]]

prevented further assessment of these rose-mallow sites.
    The threats to the species continue to be of a high magnitude 
because all of the populations are severely affected by some 
combination of the threats, and the effectiveness of the re-
introduction and preservation efforts has not been established. After 
evaluating the current conditions of the species' habitat, we now find 
that threats are imminent overall. Threats are currently occurring and 
ongoing for nearly all of the populations (herbicides and adjacent 
agricultural activities for the 3 populations identified in 1995, and 
hydrology alteration and other modifications for the 2 populations in 
east Trinity County and the 3 populations reintroduced in Davy Crockett 
National Forest). Thus, in light of this information and to ensure 
consistency in the application of our listing priority process we have 
changed the LPN from a 5 to a 2 for the Neches River rose-mallow to 
reflect imminent threats of high magnitude.
    Linum arenicola (Sand flax)--The following summary is based on 
information contained in our files. Sand flax is found in pine rockland 
and marl prairie habitats, which require periodic wildfires in order to 
maintain an open, shrub-free subcanopy and reduce leaf-litter levels. 
Based upon available data, there are 11 extant occurrences of sand 
flax; 11 others have been extirpated or destroyed. For the most part, 
only small and isolated occurrences remain in low lying areas in a 
restricted range of southern Florida and the Florida Keys. In general, 
viability is uncertain for 9 of 11 occurrences.
    Sand flax is threatened by habitat loss and degradation due to 
development; climatic changes and sea-level rise, which ultimately are 
likely to substantially reduce the extent of available habitat; fire 
suppression and difficulty in applying prescribed fire; road 
maintenance activities; exotic species; illegal dumping; natural 
disturbances, such as hurricanes, tropical storms, and storm surges; 
and the small and fragmented nature of the current population. Reduced 
pollinator activity and suppression of pollinator populations from 
pesticides used in mosquito control and decreased seed production due 
to increased seed predation in a fragmented wildland urban interface 
may also affect sand flax; however, not enough information is known on 
this species' reproductive biology or life history to assess these 
potential threats. Some of the threats to the species--including fire 
suppression, difficulty in applying prescribed fire, road maintenance 
activities, exotic species, and illegal dumping--threaten nearly all 
remaining populations. However, some efforts are under way to use 
prescribed fire to control exotics on conservation lands where this 
species occurs.
    There are some circumstances that may mitigate the impacts of the 
threats upon the species. For example, a survey conducted in 2009 
showed approximately 74,000 plants on a non-conservation, public site 
in Miami-Dade County; this is far more plants than was previously 
known. Although a portion of the plants will be affected by 
development, approximately 60,000 are anticipated to be protected and 
managed through a Conservation Easement. Consequently, the majority of 
the largest occurrence in Miami-Dade County is expected to be conserved 
and managed. In addition, much of the pine rockland on Big Pine Key, 
the location of the largest occurrence in the Keys, is protected from 
development.
    Nevertheless, due to the small and fragmented nature of the current 
population, stochastic events, disease, or genetic bottlenecks may 
strongly affect this species in the Keys. One example is Hurricane 
Wilma, which inundated most of the species' habitat on Big Pine Key in 
2005, and plants were not found 8-9 weeks post-storm; the density of 
sand flax declined to zero in all management units at The Nature 
Conservancy's preserve in 2006. In a 2007 post-hurricane assessment, 
sand flax was found in northern plots, but not in any of the southern 
plots on Big Pine Key. More current data are not available.
    Overall, the magnitude of threats is high, because the threats 
affect all 11 known occurrences of the species, and can result in a 
precipitous decline to the population levels, particularly when 
combined with the potential impacts from hurricanes or other natural 
disasters. Because development is not immediate for the majority of the 
largest population in Miami-Dade County and another population in the 
Keys is also largely protected from development since much of it is 
within public and private conservation lands, the threat of habitat 
loss is now nonimminent. In addition, sea level rise is a long-term 
threat since we do not have evidence that it is currently affecting any 
population of sand flax. Therefore, based upon new information (new 
survey date showing a much larger population of plants), and reduced 
immediacy of threats, we changed the LPN of this species from a 2 to a 
5.
    Penstemon scariosus var. albifluvis (White River beardtongue)--The 
following summary is based on information contained in our files and 
the petition we received on October 27, 1983. This species is 
restricted to calcareous soils derived from oil shale barrens of the 
Green River Formation in the Uinta Basin of northeastern Utah and 
adjacent Colorado. There are 14 occurrences known in Utah and 1 in 
Colorado. Most of the occupied habitat of the White River beardtongue 
is within developed and expanding oil and gas fields. The location of 
the species' habitat exposes it to destruction from road, pipeline, and 
well site construction in connection with oil and gas development. 
Recreational off-road vehicle use, heavy grazing by livestock, and 
wildlife and livestock trampling are additional threats. A future 
threat (and potentially the greatest threat) to the species is oil 
shale development.
    In the 2009 CNOR, we found the threats were nonimminent and high 
magnitude. However, traditional oil and gas energy development in the 
area has expanded into habitat for this species, and therefore the 
threat is now imminent. In addition, BLM has adopted a Special Status 
Species policy and has included in its current Resource Management Plan 
commitments to protect this species. These protections lessen the 
extent of traditional oil and gas development impacts to this species, 
so that the threat is now of moderate magnitude. The threat from off-
road vehicles is also moderate because BLM limited all vehicles to 
designated routes, thus avoiding beardtongue habitat. Based on current 
information, we are changing the LPN from a 6 to a 9 for this plant 
variety.

Candidate Removals

    As summarized below, we have evaluated the threats to the following 
species and considered factors that, individually and in combination, 
currently or potentially could pose a risk to this species and its 
habitat. After a review of the best available scientific and commercial 
data, we conclude that listing this species under the Endangered 
Species Act is not warranted because the species is not likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its' range. Therefore, we find that 
proposing a rule to list it is not warranted, and we no longer consider 
it to be a candidate species for listing. We will continue to monitor 
the status of this species and to accept additional information and 
comments concerning this finding. We will reconsider our determination 
in the event that new information indicates that the threats to the 
species is of a considerably greater magnitude or imminence than 
identified through

[[Page 69228]]

assessments of information contained in our files, as summarized here.

Mammals

    Palm Springs round-tailed ground squirrel (Xerospermophilus 
tereticaudus chlorus)--The following summary is based on information 
contained in our files. No new information was provided in the petition 
we received on May 11, 2004. The Palm Springs round-tailed ground 
squirrel was believed to be limited in range to the Coachella Valley 
region of Riverside County, California. The primary habitat in the 
Coachella Valley for round-tailed ground squirrel is the dunes and 
mesquite hummocks associated with Prosopis glandulosa var. torreyana 
(honey mesquite) and to a lesser extent those dunes and hummocks 
associated with Larrea tridentata (creosote), or other vegetation. The 
primary threat to X. t. chlorus in the Coachella Valley was from 
habitat loss due to urban development and drops in the groundwater 
table, which eliminated much of the honey mesquite in the Coachella 
Valley and fragmented habitat occupied by this subspecies. The 
Coachella Valley Association of Governments (CVAG) developed a Multiple 
Species Habitat Conservation Plan (MSHCP) that was reviewed and 
approved by the Service in 2008. Habitat conservation and monitoring 
actions that have been implemented since 2008 specifically for X. t. 
chlorus have significantly eliminated the threat of urban development 
to the taxon. To date, conservation for X. t. chlorus includes 
protection of 244 acres of mesquite hummocks as a result of the MSHCP, 
in addition to 104 acres of mesquite hummocks on conservation lands in 
existence prior to permitting the MSHCP. Protection of additional 
habitat (desert shrub communities and other sandy areas with 
appropriate vegetation known to harbor the subspecies at lower 
densities) is also anticipated in other portions of the plan area. 
Although we do not rely upon future implementation of the additional 
habitat protections anticipated in the MSHCP, we do expect conservation 
actions specific to X. t. chlorus to continue as a result of the 
commitment by CVAG and the MSHCP.
    More significant than the ongoing conservation measures is the fact 
that recent results of both morphological and genetic studies indicate 
its range is substantially larger than previously believed. Analysis of 
experimental samples show X. t. chlorus is found in Hinkley Valley and 
Death Valley, expanding the range at minimum 150 miles northward. 
Because X. t. chlorus is more widespread in its range than was 
previously understood, and based on our review of the best available 
information, we no longer conclude that threats across this newly 
expanded range put the taxon in danger of extinction. Moreover, this 
subspecies is not endangered or threatened in a significant portion of 
the range because the conservation actions and current protections 
provided in Death Valley make it so it is not endangered or threatened 
in any portion of the range. In summary, the existing conservation 
provided by MSHCP in the Coachella Valley, along with the data showing 
the subspecies has an expanded range over which the threats are 
nonsignificant to the taxon as a whole, we find listing of the Palm 
Springs round-tailed ground squirrel (X. t. chlorus) throughout all or 
a significant portion of its range is no longer warranted. The 
subspecies no longer meets our definition of a candidate, and we have 
removed it from candidate status.

Petition Findings

    The Act provides two mechanisms for considering species for 
listing. One method allows the Secretary, on his own initiative, to 
identify species for listing under the standards of section 4(a)(1). We 
implement this through the candidate program, discussed above. The 
second method for listing a species provides a mechanism for the public 
to petition us to add a species to the Lists. The CNOR serves several 
purposes as part of the petition process: (1) In some instances (in 
particular, for petitions to list species that the Service has already 
identified as candidates on its own initiative), it serves as the 
petition finding; (2) it serves as a ``resubmitted'' petition finding 
that the Act requires the Service to make each year; and (3) it 
documents the Service's compliance with the statutory requirement to 
monitor the status of species for which listing is warranted-but-
precluded to ascertain if they need emergency listing.
    First, the CNOR serves as a petition finding in some instances. 
Under section 4(b)(3)(A), when we receive a listing petition, we must 
determine within 90 days, to the maximum extent practicable, whether 
the petition presents substantial information indicating that listing 
may be warranted (a ``90-day finding''). If we make a positive 90-day 
finding, we must promptly commence a status review of the species under 
section 4(b)(3)(A); we must then make and publish one of three possible 
findings within 12 months of the receipt of the petition (a ``12-month 
finding''):
    1. The petitioned action is not warranted;
    2. The petitioned action is warranted (in which case we are 
required to promptly publish a proposed regulation to implement the 
petitioned action; once we publish a proposed rule for a species, 
section 4(b)(5) and 4(b)(6) govern further procedures regardless of 
whether we issued the proposal in response to a petition); or
    3. The petitioned action is warranted but (a) the immediate 
proposal of a regulation and final promulgation of a regulation 
implementing the petitioned action is precluded by pending proposals to 
determine whether any species is endangered or threatened, and (b) 
expeditious progress is being made to add qualified species to the 
lists of endangered or threatened species. (We refer to this third 
option as a ``warranted-but-precluded finding.'')
    We define ``candidate species'' to mean those species for which the 
Service has on file sufficient information on biological vulnerability 
and threat(s) to support issuance of a proposed rule to list, but for 
which issuance of the proposed rule is precluded (61 FR 64481; December 
6, 1996). This standard for making a species a candidate through our 
own initiative is identical to the standard for making a warranted-but-
precluded 12-month petition finding on a petition to list, and we add 
all petitioned species for which we have made a warranted-but-precluded 
12-month finding to the candidate list.
    Therefore all candidate species identified through our own 
initiative already have received the equivalent of substantial 90-day 
and warranted-but-precluded 12-month findings. Nevertheless, we review 
the status of the newly petitioned candidate species and through this 
CNOR publish specific section 4(b)(3) findings (i.e., substantial 90-
day and warranted-but-precluded 12-month findings) in response to the 
petitions to list these candidate species. We publish these findings as 
part of the first CNOR following receipt of the petition. Since 
publication of the CNOR in 2009, we received petitions to list three 
candidate species, the Florida bonneted bat, headwater chub, and 
Rosemont talussnail (we received this petition after we initiated our 
assessment of this species for candidate status). We are making 
substantial 90-day findings and warranted-but-precluded 12-month 
findings for these species as part of this notice. We have identified 
the candidate species for which we received petitions by the code 
``C*'' in the category column on the left side of Table 1.

[[Page 69229]]

    Second, the CNOR serves as a ``resubmitted'' petition finding. 
Section 4(b)(3)(C)(i) of the Act requires that when we make a 
warranted-but-precluded finding on a petition, we are to treat such a 
petition as one that is resubmitted on the date of such a finding. 
Thus, we must make a 12-month petition finding in compliance with 
section 4(b)(3)(B) of the Act at least once a year, until we publish a 
proposal to list the species or make a final not-warranted finding. We 
make these annual findings for petitioned candidate species through the 
CNOR.
    Third, through undertaking the analysis requires to complete the 
CNOR, the Service determines if any candidate species needs emergency 
listing. Section 4(b)(3)(C)(iii) of the Act requires us to ``implement 
a system to monitor effectively the status of all species'' for which 
we have made a warranted-but-precluded 12-month finding, and to ``make 
prompt use of the [emergency listing] authority [under section 4(b)(7)] 
to prevent a significant risk to the well being of any such species.'' 
The CNOR plays a crucial role in the monitoring system that we have 
implemented for all candidate species by providing notice that we are 
actively seeking information regarding the status of those species. We 
review all new information on candidate species as it becomes 
available, prepare an annual species assessment form that reflects 
monitoring results and other new information, and identify any species 
for which emergency listing may be appropriate. If we determine that 
emergency listing is appropriate for any candidate we will make prompt 
use of the emergency listing authority under section 4(b)(7). We have 
been reviewing and will continue to review, at least annually, the 
status of every candidate, whether or not we have received a petition 
to list it. Thus, the CNOR and accompanying species assessment forms 
constitute the Service's annual finding on the status of petitioned 
species pursuant to section 4(b)(3)(C)(i).
    A number of court decisions have elaborated on the nature and 
specificity of information that must be considered in making and 
describing the findings in the CNOR. The previous CNOR, which was 
published on November 9, 2009 (74 FR 57804), describes these court 
decisions in further detail. As with previous CNORs, we continue to 
incorporate information of the nature and specificity required by the 
courts. For example, we include a description of the reasons why the 
listing of every petitioned candidate species is both warranted and 
precluded at this time. 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 (see below). Regional priorities can also be 
discerned from Table 1, which includes the lead region and the LPN for 
each species. Our preclusion determinations are further based upon our 
budget for listing activities for unlisted species only, and we explain 
the priority system and why the work we have accomplished does preclude 
action on listing candidate species.
    Pursuant to section 4(b)(3)(C)(ii) and the Administrative Procedure 
Act (5 U.S.C. 551 et seq.), any party with standing may challenge the 
merits of any not-warranted or warranted-but-precluded petition finding 
incorporated in this CNOR. The analysis included herein, together with 
the administrative record for the decision at issue (particularly the 
supporting species assessment form), will provide an adequate basis for 
a court to review the petition finding.
    Nothing in this document or any of our policies should be construed 
as in any way modifying the Act's requirement that we make a 
resubmitted 12-month petition finding for each petitioned candidate 
within 1 year of the date of publication of this CNOR. If we fail to 
make any such finding on a timely basis, whether through publication of 
a new CNOR or some other form of notice, any party with standing may 
seek judicial review.
    In this CNOR, we continue to address the concerns of the courts by 
including specific information in our discussion on preclusion (see 
below). In preparing this CNOR, we reviewed the current status of, and 
threats to, the 166 candidates and 5 listed species for which we have 
received a petition and for which we have found listing or 
reclassification from threatened to endangered to be warranted but 
precluded. We also reviewed the current status of, and threats to, the 
Canada lynx in New Mexico for which we received a petition to add that 
State to the listed range. We find that the immediate issuance of a 
proposed rule and timely promulgation of a final rule for each of these 
species has been, for the preceding months, and continues to be, 
precluded by higher priority listing actions. Additional information 
that is the basis for this finding is found in the species assessments 
and our administrative record for each species.
    Our review included updating the status of, and threats to, 
petitioned candidate or listed species for which we published findings, 
pursuant to section 4(b)(3)(B), in the previous CNOR. We have 
incorporated new information we gathered since the prior finding and, 
as a result of this review, we are making continued warranted-but-
precluded 12-month findings on the petitions for these species.
    The immediate publication of proposed rules to list these species 
was precluded by our work on higher priority listing actions, listed 
below, during the period from October 1, 2009, through September 30, 
2010. We will continue to monitor the status of all candidate species, 
including petitioned species, as new information becomes available to 
determine if a change in status is warranted, including the need to 
emergency-list a species under section 4(b)(7) of the Act.
    In addition to identifying petitioned candidate species in Table 1 
below, we also present brief summaries of why each of these candidates 
warrants listing. More complete information, including references, is 
found in the species assessment forms. You may obtain a copy of these 
forms from the Regional Office having the lead for the species, or from 
the Fish and Wildlife Service's Internet Web site: https://ecos.fws.gov/tess_public/pub/SpeciesReport.do?listingType=C&mapstatus=1. As 
described above, under section 4 of the Act we may identify and propose 
species for listing based on the factors identified in section 4(a)(1), 
and section 4 also provides a mechanism for the public to petition us 
to add a species to the lists of threatened species or endangered 
species under the Act. Below we describe the actions that continue to 
preclude the immediate proposal and final promulgation of a regulation 
implementing each of the petitioned actions for which we have made a 
warranted-but-precluded finding, and we describe the expeditious 
progress we are making to add qualified species to, and remove species 
from, the lists of endangered or threatened species.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and the cost and relative 
priority of competing demands for those resources. Thus, in any given 
fiscal year (FY), multiple factors dictate whether it will be possible 
to undertake work on a listing proposal regulation or whether 
promulgation of such a proposal is precluded by higher priority listing 
actions.
    The resources available for listing actions are determined through 
the annual Congressional appropriations

[[Page 69230]]

process. The appropriation for the Listing Program is 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 of Endangered and Threatened Wildlife and Plants 
(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 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). 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 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 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 critical habitat, $345,000; 
and for a final listing rule with critical habitat, the median cost is 
$305,000.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. 
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since 
then, Congress has placed a statutory cap on funds which may be 
expended for the Listing Program, equal to the amount expressly 
appropriated for that purpose in that fiscal year. This cap was 
designed to prevent funds appropriated for other functions under the 
Act (for example, recovery funds for removing species from the Lists), 
or for other Service programs, from being used for Listing Program 
actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 
1997).
    Since FY 2002, the Service's budget has included a critical habitat 
subcap to ensure that some funds are available for other work in the 
Listing Program (``The critical habitat designation subcap will ensure 
that some funding is available to address other listing activities'' 
(H.R. No. 107-103, 107th Congress, 1st Session, June 19, 2001)). In FY 
2002 and each year until FY 2006, the Service has had to use virtually 
the entire critical habitat subcap to address court-mandated 
designations of critical habitat, and consequently none of the critical 
habitat subcap funds have been available for other listing activities. 
In FY 2007, we were able to use some of the critical habitat subcap 
funds to fund proposed listing determinations for high-priority 
candidate species. In FY 2009, while we were unable to use any of the 
critical habitat subcap funds to fund proposed listing determinations, 
we did use some of this money to fund the critical habitat portion of 
some proposed listing determinations so that the proposed listing 
determination and proposed critical habitat designation could be 
combined into one rule, thereby being more efficient in our w