Endangered and Threatened Wildlife and Plants; Removing the Magazine Mountain Shagreen From the Federal List of Endangered and Threatened Wildlife, 36460-36476 [2012-14502]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 77, Number 118 (Tuesday, June 19, 2012)]
[Proposed Rules]
[Pages 36460-36476]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14502]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0002; FXES11130900000C6-123-FF09E30000]
RIN 1018-AX59


Endangered and Threatened Wildlife and Plants; Removing the 
Magazine Mountain Shagreen From the Federal List of Endangered and 
Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft post-delisting monitoring 
plan.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to remove the terrestrial snail Magazine Mountain shagreen 
(Inflectarius magazinensis; formerly Mesodon magazinensis) from the 
Federal List of Endangered and Threatened Wildlife. This proposed 
action is based on a thorough review of the best available scientific 
and commercial data, which indicate that this species has recovered and 
no longer meets the definition of threatened under the Endangered 
Species Act of 1973, as amended (Act). Our review of the status of this 
species shows that all of the threats to the species have been 
eliminated or reduced, adequate regulatory mechanisms exist, and 
populations are stable so that the species is not currently, and is not 
likely to again become, a threatened species within the foreseeable 
future in all or a significant portion of its range. We seek 
information, data, and comments from the public regarding this proposal 
to delist Magazine Mountain shagreen and on the draft post-delisting 
monitoring plan.

DATES: We will accept comments received or postmarked on or before 
August 20, 2012. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is 11:59 p.m. Eastern Time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in the FOR FURTHER INFORMATION CONTACT section by August 3, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. Search for Docket No. FWS-R4-ES-2012-0002, which 
is the docket number for this rulemaking. After you have located the 
correct docket, you may submit a comment by clicking on ``Submit a 
Comment.''
    By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2012-0002; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    Copies of Documents: The proposed rule and draft post-delisting 
monitoring plan are available on https://www.regulations.gov. In 
addition, the supporting file for this proposed rule will be available 
for public inspection, by appointment, during normal business hours, at 
the Arkansas Ecological Services Field Office, 110 South Amity Road, 
Suite 300, Conway, AR 72032; telephone 501-513-4470. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Jim Boggs, Field Supervisor, U.S. Fish 
and Wildlife Service, Arkansas Ecological Services Field Office, 110 
South Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470. 
Individuals who are hearing-impaired or speech-impaired may call the 
Federal Information Relay Service (FIRS) at 800-877-8339 for TTY 
assistance 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best available scientific and commercial data and will 
be as accurate and as effective as possible. Therefore, we request 
data, comments, and new information from other concerned governmental 
agencies, the scientific community, Tribes, industry, or other 
interested parties concerning this proposed rule. The comments that 
will be most useful and likely to influence our decisions are those 
that are supported by data or peer-reviewed studies and those that 
include citations to, and analyses of, applicable laws and regulations. 
Please make your comments as specific as possible and explain the basis 
for them. In addition, please include sufficient information with your 
comments to allow us to authenticate any scientific or commercial data 
you reference or provide. In particular we seek comments concerning the 
following:
    (1) Biological data regarding Magazine Mountain shagreen.
    (2) Relevant data concerning any threats (or lack thereof) to 
Magazine Mountain shagreen, including but not limited to:
    (a) Whether or not climate change is a threat to the species;
    (b) What regional climate change models are available, and whether 
they are reliable and credible to use as step-down models for assessing 
the effect of climate change on the species and its habitat; and
    (c) The extent of Federal and State protection and management that 
would be provided to Magazine Mountain shagreen as a delisted species.
    (3) Additional information concerning the range, distribution, 
population size, and trends of Magazine Mountain shagreen, including 
the locations of any additional populations of this species.
    (4) Current or planned activities within the geographic range of 
Magazine Mountain shagreen that may affect or benefit the species.
    (5) The draft post-delisting monitoring plan.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1531 et seq.) directs that a determination as to whether any species is 
an endangered or threatened species must be made ``solely on the basis 
of the best scientific and commercial data available.''
    Prior to issuing a final rule on this proposed action, we will take 
into consideration all comments and any additional information we 
receive. Such information may lead to a final rule that differs from 
this proposal. All comments and recommendations, including names and 
addresses, will become part of the administrative record.

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    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. Comments 
must be submitted to https://www.regulations.gov before 11:59 p.m. 
(Eastern Time) on the date specified in the DATES section. We may not 
consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in the DATES 
section.
    We will post your entire comment--including your personal 
identifying information--on https://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Arkansas Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public 
hearings on this proposal, if requested. We must receive requests for 
public hearings, in writing, at the address shown in the FOR FURTHER 
INFORMATION CONTACT section within 45 days after the date of this 
Federal Register publication (see DATES). We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register at least 15 days 
before the first hearing.

Previous Federal Actions

    On April 28, 1976, we published a proposed rule in the Federal 
Register (41 FR 17742) to list 32 snail species, including Magazine 
Mountain shagreen, as endangered or threatened under section 4 of the 
Act. However, the proposal was withdrawn in 1979 (44 FR 70796, December 
10, 1979) for administrative reasons stemming from the new listing 
requirements of the 1978 amendments to the Act. On July 5, 1988, we 
published a second proposed rule in the Federal Register (53 FR 25179) 
to list Magazine Mountain shagreen as threatened. On April 17, 1989, we 
published a final rule in the Federal Register (54 FR 15206) listing 
Magazine Mountain shagreen as threatened. The final rule identified the 
following threats to Magazine Mountain shagreen: Loss of habitat due to 
a military proposal to conduct troop and heavy equipment movements and 
artillery operations on Magazine Mountain; loss of habitat due to 
development of a new State park on Magazine Mountain that would include 
construction of new buildings, roads, and trails; increased 
recreational use due to development of the State park; U.S. Department 
of Agriculture Forest Service (USFS) use of the land; and increased 
vulnerability to collecting and adverse habitat modification due to the 
species' restricted range. On February 1, 1994, we approved the 
Magazine Mountain Shagreen Recovery Plan (Service 1994, 12 pp.). On 
July 6, 2009, we initiated a 5-year status review of this species (74 
FR 31972). This rule, if finalized, would complete the status review. 
For additional details on previous Federal actions, see discussion 
under the Recovery section below.

Species Information

    Magazine Mountain shagreen (Inflectarius magazinensis) is a medium-
sized, dusky brown or buff-colored snail, measuring approximately 0.5 
inches (in.; 13 millimeters (mm)) wide and 0.3 in. (7 mm) high. 
Magazine Mountain shagreen was originally described as a subspecies of 
Polygyra edentatus (Pilsbry and Ferriss 1907, p. 545). In 1940, Pilsbry 
(1940 in Service 1994, p. 1) placed the snail into the genus Mesodon 
and elevated it to the status of a species based on genitalia. In 1991, 
Emberton (1991, p. 90) showed there were internal genitalic differences 
among Mesodon species and placed Magazine Mountain shagreen in the 
genus Inflectarius, thereby removing it from Mesodon. The morphology of 
Magazine Mountain shagreen has been summarized by Caldwell et al. 
(2009, p. 2). While the taxonomic name has changed since it was listed 
in 1989, Magazine Mountain shagreen has not been split from or combined 
with any other land snail species or subspecies. The entity that is now 
called Inflectarius magazinensis is the same entity that was known as 
Mesodon magazinensis.
    Magazine Mountain shagreen is historically known from only the 
north slope of Magazine Mountain, Logan County, Arkansas (Pilsbry and 
Ferriss 1907, p. 545; Caldwell et al. 2009, p. 4). The south slopes of 
Magazine Mountain were surveyed extensively by Caldwell (1986 in 
Service 1994, p. 3) and Caldwell et al. (2009, p. 4), but they did not 
find Magazine Mountain shagreen on the south slopes. Populations occur 
in the portion of talus (a sloping mass of loose rocks) covered by 
vegetation or leaf litter at an elevation of 2,200 feet (ft) (670.6 
meters (m)) to 2,600 ft (792.5 m) in the Savanna Sandstone formation 
calved (broken off or splintered into pieces) due to weathering and 
erosion of interbedded shales (Caldwell et al. 2009, p. 4; Service 
1994, p. 3). The majority of talus is above 2,200 ft (670.6 m) 
elevation on the north and west slopes, with Magazine Mountain shagreen 
populations occurring between 2,400 ft (731.5 m) and 2,600 ft (792.5 
m). In the north slope of Bear Hollow, the talus begins at 
approximately 2,200 ft (670.6 m) and in some calved areas extends to 
near 2,265 ft (690.4 m) elevation. In Bear Hollow, Magazine Mountain 
shagreen is restricted to the upper vegetated elevation end of this 
talus range (Caldwell et al. 2009, pp. 4-5).
    The rocky slopes formed by the removal of softer, more easily 
eroded shale on the steep slopes cause the more resistant sandstone 
capping Magazine Mountain to break off and accumulate along the flanks. 
This provides the ideal habitat for Magazine Mountain shagreen (Cohoon 
and Vere 1988 in Caldwell et al. 2009, p. 6). The total amount of 
available habitat for Magazine Mountain shagreen consists of 
approximately 21.6 acres (ac; 8.75 hectares (ha)) at 27 talus habitats 
on Magazine Mountain's west and north slopes (Caldwell et al. 2009, pp. 
4-5).
    The geology and forest community of Magazine Mountain were 
summarized by Caldwell et al. (2009, pp. 4-12). The average annual 
temperature is 5.9 degrees Fahrenheit ([deg]F; 3.3 degrees Celsius 
([deg]C)) cooler on the summit than surrounding areas, and mid-summer 
temperatures are frequently 10 to 25[emsp14][deg]F (5.6 to 13.9 [deg]C) 
cooler. The mean annual precipitation at the summit of Magazine 
Mountain is 55 in. (139.7 centimeters (cm)), approximately 5 in. (12.7 
cm) greater than the lower elevations. The USFS and Arkansas Department 
of Parks and Tourism (ADPT) own all lands on Magazine Mountain (Service 
1994, p. 3).
    Little information is available on land snail associations (e.g., 
presence/absence of other land snails to predict habitat quality or 
occurrence of Magazine Mountain shagreen). Caldwell et al. (2009, pp. 
13-14) determined the relative abundance (number of a particular 
species as a percentage of the total population of a given area) of 
species found with Magazine Mountain shagreen. Land snails such as the 
blade vertigo (Vertigo milium) and pale glyph (Glyphyalinia lewisiana) 
were found only on the south slope talus, while the oakwood liptooth 
(Millerelix

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dorfeuilliana) and immature Succineidae species were found on the north 
slope talus. Thus, presence of oakwood liptooth and immature 
Succineidae in habitats suitable for Magazine Mountain shagreen may 
predict its occurrence despite negative survey results.
    Caldwell et al. (2009, pp. 15-16) presented the only information on 
life history and reproductive biology for Magazine Mountain shagreen 
(see Recovery section below). They also presented the first report on 
food habits for Magazine Mountain shagreen (Caldwell et al. 2009, p. 
16). Magazine Mountain shagreen was found during night feeding on oak 
catkins (flowers), algae-covered rocks, and decaying white oak (Quercus 
alba) leaves. It has generalist feeding habits (able to utilize many 
food sources) similar to other land snails in the taxonomic family 
Polygyridae (Blinn 1963, pp. 501-502; Foster 1936, pp. 26-31; Dourson 
2008, pp. 155-156; Caldwell et al. 2009, p. 16). Thus, food source 
probably is not a limiting factor for Magazine Mountain shagreen 
(Caldwell et al. 2009, p. 16).
    Caldwell et al. (2009, p. 15) found no significant differences for 
ground, atmospheric, and rock crevice maximum temperatures between 
south and north slopes. They did, however, find significant differences 
for minimum temperatures. Ground, atmospheric, and rock crevice minimum 
temperatures were 5.6, 5.2, and 3.6[emsp14][deg]F (3.1, 2.9 and 2.0 
[deg]C) cooler, respectively, on the north slopes than on the south 
slopes. Prolonged drought or concomitant warming of temperatures could 
adversely affect this species by compromising nesting sites, egg 
masses, and surface feeding (Caldwell et al. 2009, p. 15). However, 
there is no data to establish that such effects are reasonably certain 
to occur.

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species.
    Recovery plans are not regulatory documents and are instead 
intended to establish goals for long-term conservation of listed 
species, define criteria that are designed to indicate when the threats 
facing a species have been removed or reduced to such an extent that 
the species may no longer need the protections of the Act, and provide 
guidance to our Federal, State, other governmental and non-governmental 
partners on methods to minimize threats to listed species. There are 
many paths to accomplishing recovery of a species, and recovery may be 
achieved without all criteria being fully met. For example, one or more 
criteria may be exceeded while other criteria may not yet be 
accomplished. In that instance, we may determine that the threats are 
minimized sufficiently and the species is robust enough to delist. In 
other cases, recovery opportunities may be discovered that were not 
known when the recovery plan was finalized. These opportunities may be 
used instead of methods identified in the recovery plan. Likewise, 
information on the species may be learned that was not known at the 
time the recovery plan was finalized. The new information may change 
the extent that criteria need to be met for recognizing recovery of the 
species. Recovery of a species is a dynamic process requiring adaptive 
management that may, or may not, fully follow the guidance provided in 
a recovery plan.
    The Magazine Mountain Shagreen Recovery Plan was approved by the 
Service on February 1, 1994 (Service 1994, 12 pp.). The recovery plan 
includes the following delisting criteria:
     Magazine Mountain shagreen will be considered recovered 
when long-term protection of its habitat is achieved; and
     It is determined from 10 years of data that the snail 
population is stable or increasing.
    Long-term protection of habitat will be achieved when a memorandum 
of understanding (MOU) between the USFS and the Service is developed 
and implemented. The MOU must delineate measures protecting the species 
and its habitat, must be continuous in effect, and must require a 
minimum 2-year written notification prior to cancellation by either 
party. Criteria for determining what constitutes a stable population 
were to be determined through implementation of recovery actions 
(Service 1994, p. 6). Through implementation of these actions, the 
criteria chosen as the most appropriate for determining a stable 
population were persistence over time (shown by the number of Magazine 
Mountain shagreen individuals collected annually), annual catch per 
unit effort, and size, quality, and stability of habitat.
    The recovery plan outlines six primary recovery actions to meet the 
recovery criteria described above and therefore address threats to the 
species. The six recovery actions for delisting Magazine Mountain 
shagreen have been met, as described below. Additionally, the level of 
protection currently afforded to the species and its habitat and the 
current status of threats are outlined in the Summary of Factors 
Affecting the Species section below.

Recovery Action 1: Provide Long-Term Protection for Magazine Mountain 
Shagreen Through a Memorandum of Understanding (MOU) Between the USFS 
and the Service To Protect Habitat

    To meet the recovery criterion to provide long-term habitat 
protection for Magazine Mountain shagreen, in 2005, the Service, USFS 
Ozark-St. Francis National Forest, and ADPT entered into a MOU that 
provides for long-term cooperation in the management and protection of 
the species and its habitat on Magazine Mountain. The MOU is a 
continuing agreement without a designated termination date. 
Additionally, the USFS designated Magazine Mountain as a Special 
Interest Area in the 2005 Revised Land Resource Management Plan (USFS 
2005, p. 2-43). The Special Interest Area designation prohibits timber 
harvest, prescribed burning from leaf fall until the end of Magazine 
Mountain shagreen's reproductive period, application of aerial fire 
retardant, road construction, and recreational development on talus 
slopes. Therefore, through development and implementation of the MOU 
and Special Interest Area, we consider this action complete.

Recovery Action 2: Determine and Monitor Population Parameters, 
Including Mapping and Monitoring the Distribution of Magazine Mountain 
Shagreen and Its Habitat and Designing and Implementing a Standard 
Survey Procedure

    Surveys: In developing the monitor strategy for Magazine Mountain 
shagreen, 10 specific sampling stations were established in 1996; these 
sampling stations later served as the long-term monitoring locations 
for the USFS. Each station was marked with permanent markers so that 
later annual monitoring effort could be repeated at the exact location 
(Robison 1996, p. 6). The survey protocol uses visual encounter 
searches (VES) to determine, map, and monitor Magazine Mountain 
shagreen population parameters and habitat (Robison 1996, pp. 7-24). 
VES involves field personnel walking through an area or habitat for a 
prescribed time period systematically searching for animals and has 
been used effectively with amphibians in habitats that are widely 
spaced, such as the talus slopes that Magazine Mountain shagreen 
inhabits (Crump and Scott 1994 in Robison 1996, pp. 8-9). The 
assumption of VES is that the shorter

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duration in time to encounter an animal, the more common and abundant 
the animal is at any particular site (Robison 1997, p. 7).
    Historic surveys for Magazine Mountain shagreen prior to 
development of the 1994 Recovery Plan were limited to two surveys: (1) 
A 1903 collection of 114 live specimens and one dead specimen from the 
north and south slopes of Magazine Mountain (Pilsbry and Ferriss 1906, 
p. 545), and (2) a comprehensive status review by Caldwell (1986). The 
specimen collected in 1903 on the south slope has never been verified 
as Magazine Mountain shagreen by other researchers (Robison 1996, p. 
3). Neither survey reported population estimates nor catch per unit 
effort. Therefore, it is not possible to make a comparative analysis of 
these collections to subsequent collections that reported number of 
live and dead snails per search time (see discussion below).
    In 1996, two surveys were conducted for Magazine Mountain shagreen 
at each of the 10 sampling stations (Table 1; Robison 1996, pp. 17-20). 
Using VES, live Magazine Mountain shagreen were found at four sampling 
stations on May 24-27, 1996, and four stations on June 6-8, 1996 (Table 
1; Robison 1996, p. 19). At all sites, dead Magazine Mountain shagreen 
shells were encountered before live individuals were discovered (Table 
1). Magazine Mountain shagreen shell size was comparable between 1986 
and 1996: Mean height/width ratio was 0.55 (range 0.52-0.59, N = 18; 
Caldwell 1986) and 0.56 (range 0.50-0.61, N = 25; Robison 1996, p. 38), 
respectively.
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    A third survey was conducted by Robison in May 1997 (Table 1; 
Robison 1997, pp. 16-17). Live individuals and dead shells were found 
at four and five sampling stations, respectively (Table 1). Magazine 
Mountain shagreen shell size (height/width ratio) in 1997 was within 
the range of shell size measurements collected during the 1986 
(Caldwell 1986) and 1996 (Robison 1996, p. 38) surveys.
    The USFS conducted Magazine Mountain shagreen population monitoring 
from 1998 through 2011 using the same sampling protocols and 10 
stations established by Robison (1996). Station 10 was dropped from 
surveys in 2002, with Service approval, as no live or dead Magazine 
Mountain shagreen had been collected at this station during any 
previous surveys. One person hour (60 minutes) per station was spent 
searching for Magazine Mountain shagreen for all survey years (1998-
2011, except during 2000, when no surveys were conducted, and during 
2007, when three stations were not sampled). The number of live and 
dead Magazine Mountain shagreen collected at each station from 1998-
2011 are shown in Table 2. The amount of time (minutes) that elapsed 
until the first encounter of live and dead Magazine Mountain shagreen 
at each station from 1998-2011 are shown in Table 3.

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    Overall, the number of live Magazine Mountain shagreens collected 
annually from 1996-2011 indicates the species is persisting over time. 
Annual fluctuation in numbers of live Magazine Mountain shagreens 
collected is likely attributable to climatic or temporal conditions or 
both (Tables 1, 2, and 3). For example, monitoring conducted in mid-
June 2009 yielded zero live Magazine Mountain shagreen. However, June 
2009 was considerably drier than May 2009 (95 mm versus 301 mm monthly 
rainfall, respectively; 5 versus 13 days with rainfall, respectively) 
and likely explains the lack of live specimens observed during the 
survey, because the snails are more active during times of high 
humidity and cooler temperatures (USFS 2009, pp. 1, 4-5).
    The number of dead Magazine Mountain shagreens collected annually 
from 1996-2011 has shown greater annual fluctuation than the number of 
live individuals (Tables 1, 2, and 3). A closely related species, 
shagreen (Inflectarius inflectus), is slightly smaller than Magazine 
Mountain shagreen with a ``greater diameter'' ranging from 0.37 (9.5 
mm) to 0.44 in. (11.3 mm) (mean = 0.43 in. (10.9 mm)) compared to 0.50 
(12.7 mm) to 0.55 in. (14.0 mm) (mean = 0.52 in. (13.3 mm)) for 
Magazine Mountain shagreen (Caldwell et al. 2009, p. 2). However, 
individuals of shagreen (Inflectarius inflectus), on which aperture 
(the main opening of the snail's shell) teeth are reduced, look very 
similar to Magazine Mountain shagreen. Therefore, accurate 
identification of dead Magazine Mountain shagreen, and to a much lesser 
extent live individuals, may be easily confused with the more common 
and abundant shagreen depending on surveyor experience, which has been 
variable during the 16-year monitoring period.
    There are numerous problems with sampling populations of 
terrestrial snails, including their rupicolous nature (living or 
growing on or among rocks), which makes it difficult to locate 
individuals during surveys; effects of climate variables (e.g., 
temperature and humidity) on snail activity; and practicality of 
surveys for nocturnal species such as Magazine Mountain shagreen 
(Newell 1971 and Bishop 1977 in Robison 1996, p. 7). Surveys are 
optimally conducted at night in late April to early May, dependent upon 
the onset of spring (moister conditions at the surface, emergence of 
oak catkins, temperature) (Caldwell et al. 2009, p. 17). A rise in 
relative humidity and drop in temperature usually causes land snails to 
become more active (Burch and Pearce 1990 in Robinson 1996, p. 7). 
Therefore, climatic and temporal variation may explain variation in 
number of live specimens collected from one survey to the next.
    Population size, density, and age structure cannot be reliably 
estimated for a rupicolous species that spends most of the year deep 
within the talus slopes of Magazine Mountain (Caldwell et al. 2009, p. 
4). Therefore, these population parameters were not estimated.
    Habitat mapping: All talus habitats inhabited by Magazine Mountain 
shagreen were assessed and spatially mapped in 2007-2008 (see Species 
Information; Caldwell et al. 2009, pp. 23-31). According to that 
assessment, the total amount of available habitat for Magazine Mountain 
shagreen consists of approximately 21.6 ac (8.75 ha) at 27 talus 
habitats on Magazine Mountain's west and north slopes (Caldwell et al. 
2009, pp. 4-5). The only other habitat assessment for Magazine Mountain 
shagreen was conducted in 1986, during a comprehensive status review 
(Caldwell 1986). In 1986, total habitat available to the species was 
estimated at 540 ac (218.5 ha). No habitat loss has occurred since 
1986, but rather more advanced technology using global positioning 
satellite mapping of talus habitat and detailed analysis of vegetative 
communities and climatic variables provided a more accurate assessment 
of the species' habitat.
    Summary of Recovery Action 2: As specified in the recovery plan and 
discussed above, Robison (1996) developed a standardized monitoring 
strategy for the USFS, and using that strategy, Magazine Mountain 
shagreen populations have been monitored annually since 1996. Despite 
variable climatic and temporal conditions preceding annual population 
monitoring, 16 years of monitoring data appear to indicate a stable 
Magazine Mountain shagreen population (Tables 1, 2, and 3), as shown by 
the species' persistence over time and stability of habitat. Surveys 
conducted by Caldwell et al. (2009) from 2007-2008 reaffirmed USFS 
monitoring results. In addition, as discussed above, all talus habitats 
inhabited by Magazine Mountain shagreen were mapped. Therefore, we 
consider this recovery action complete.

Recovery Action 3: Develop Life-History and Habitat Parameters

    The first life-history and ecology information for Magazine 
Mountain shagreen, including information on habitat (geology and forest 
community), associations with other land snails, food habits, activity 
periods, breeding, egg deposition and hatching times, growth rates, and 
limiting factors, was provided in 2009 as a result of surveys conducted 
by Caldwell et al. (2009).
    Magazine Mountain shagreen prefers moist woods with some noteworthy 
differences in the tree and shrub communities present on the north and 
south slopes of Magazine Mountain (Caldwell et al. 2009). Trees such as 
American linden (Tilia americana), sugar maple (Acer sacccharum), white 
ash (Fraxinus americana), and prickly gooseberry (Ribes cynosbati) were 
found only on the north slopes of Magazine Mountain (Caldwell et al. 
2009, pp. 6-11). Similar associations with land snails are discussed in 
the Species Information section.
    In 1986, Caldwell (1986) failed to find Magazine Mountain shagreen 
egg masses, but he suspected that eggs were laid deep within the talus 
(Service 1994, p. 3). Caldwell et al. (2009, p. 15-16) located Magazine 
Mountain shagreen egg masses the second week of May 2007 concurrent 
with spring rain. The egg masses were not laid deep within the talus as 
previously hypothesized but were found in the leaf litter covering the 
talus. Temperatures of the substrate and rock were 63.7 and 64.2 [deg]F 
(17.6 and 17.9 [deg]C), respectively.
    Caldwell et al. (2009, p. 15) collected one egg mass containing 13 
eggs (diameter 0.1 in. or 2.7 mm) and successfully hatched and reared 
Magazine Mountain shagreen juveniles in a terrarium at room temperature 
(73 [deg]F or 23 [deg]C). Ten of 13 eggs hatched after a 5-week 
incubation period. Magazine Mountain shagreen young hatched at a size 
of 0.1 in. (3.5 mm).
    No live Magazine Mountain shagreen individuals or egg masses were 
located from June through March during the 2-year survey. Therefore, 
Caldwell et al. (2009, p. 16) suspected that Magazine Mountain shagreen 
lay eggs only during early spring (late April to early May) and that 
egg-laying is triggered by spring rains. They noted that the first 
onset of oak catkins (flowers) concurrent with rain events serves as a 
visual cue to locate live individuals and egg masses.
    As discussed above, Caldwell et al. (2009) provide the first life-
history and ecology information for Magazine Mountain shagreen. 
Therefore, we consider this action complete.

Recovery Action 4: Determine the Parameters of a Stable Population

    Due to the rupicolous nature (living or growing on or among rocks) 
of Magazine Mountain shagreen, it is not possible to estimate 
population size or age structure. The size and quality of habitat 
available to Magazine Mountain shagreen was defined by Caldwell et al.

[[Page 36471]]

(2009, p. 4) (see Species Information). While this estimate is 
substantially less than that estimated by Caldwell (1986; see Species 
Information), it represents a much more rigorous analysis of available 
habitat using geospatial mapping software to map habitat based on 
geology, forest community, and species survey data. It is our opinion 
based on the Caldwell et al. (2009) data and protections afforded 
Magazine Mountain from the USFS and ADPT that habitat quantity and 
quality have remained stable since listing in 1989, and threats to 
habitat identified at listing (see Previous Federal Actions) are no 
longer threats. In addition, monitoring data collected since 1996 by 
Robison (1996, 1997), USFS (1998-2011), and Caldwell et al. (2009) show 
that the species is persisting over time despite low numbers of live/
dead Magazine Mountain shagreen observed annually (see Tables 1, 2, and 
3). Finally, permanent protection and management of habitat supporting 
Magazine Mountain shagreen on Magazine Mountain indicate that 
populations are secure and should remain self-sustaining for the 
foreseeable future. Therefore, we consider this action complete.

Recovery Action 5: Conduct Surveys of Potential Habitat in the Vicinity 
of Magazine Mountain

    Magazine Mountain shagreen surveys have been conducted in similar 
talus habitats near Magazine Mountain (Caldwell et al. 2009, pp. 2-6). 
These surveys were conducted in the Arkansas River Valley and areas 
north of the Arkansas River. Mount Nebo and Petit Jean Mountain were 
chosen for more intensive surveys in 2007 and 2008. Maximum elevation 
of Petit Jean Mountain (1,180 ft or 359.7 m) and Mount Nebo (1,755 ft 
or 534.9 m) is less than the minimum elevation (2,200 ft or 670.6 m) of 
talus habitat occupied by Magazine Mountain shagreen at Magazine 
Mountain. Mean average rainfall at the summit of Magazine Mountain is 
55 in. (139.7 cm), approximately 5 in. (12.7 cm) greater than lower 
elevations (Service 1994, p. 3). Forest communities of Mount Nebo more 
closely resemble the south slope of Magazine Mountain, which is not 
inhabited by Magazine Mountain shagreen. Therefore, the unique 
combination of biotic and abiotic differences between Magazine 
Mountain's north and west slopes and other mountains in the Arkansas 
River Valley (Mount Nebo and Petit Jean Mountain) provide a unique 
habitat for the endemic Magazine Mountain shagreen (Caldwell et al. 
2009, pp. 4-6).
    Because surveys of potential habitat near Magazine Mountain have 
been conducted, we consider this action complete.

Recovery Action 6: Develop a Monitoring Plan to Ensure Recovery Has 
Been Achieved

    In conjunction with this proposed rule, we have developed a draft 
post-delisting monitoring plan (see Post-Delisting Monitoring section 
below) that includes information on distribution, habitat requirements, 
and life history of Magazine Mountain shagreen and a monitoring 
protocol provided by Caldwell et al. (2009, pp. 17-18). Therefore, we 
consider this action complete.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing 
species from the Federal Lists of Endangered and Threatened Wildlife 
and Plants. ``Species'' is defined by the Act as including any species 
or subspecies of fish or wildlife or plants, and any distinct 
vertebrate population segment of fish or wildlife that interbreeds when 
mature (16 U.S.C. 1532(16)). Once the ``species'' is determined, we 
then evaluate whether that species may be endangered or threatened 
because of one or more of the five factors described in section 4(a)(1) 
of the Act. We must consider these same five factors in reclassifying 
or delisting a species. We may delist a species according to 50 CFR 
424.11(d) if the best available scientific and commercial information 
indicates that the species is neither endangered nor threatened for the 
following reasons: (1) The species is extinct; (2) the species has 
recovered and is no longer endangered or threatened; and/or (3) the 
original scientific data used at the time the species was classified 
were in error.
    Under section 3 of the Act, a species is ``endangered'' if it is in 
danger of extinction throughout all or a ``significant portion of its 
range'' and is ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a ``significant portion 
of its range.'' The word ``range'' refers to the range in which the 
species currently exists, and the word ``significant'' refers to the 
value of that portion of the range being considered to the conservation 
of the species. The ``foreseeable future'' is the period of time over 
which events or effects reasonably can or should be anticipated, or 
trends extrapolated. A recovered species is one that no longer meets 
the Act's definition of endangered or threatened. Determining whether 
or not a species is recovered requires consideration of the same five 
categories of threats specified in section 4(a)(1) of the Act. For 
species that are already listed as endangered or threatened, the 
analysis for a delisting due to recovery must include an evaluation of 
the threats that existed at the time of listing, the threats currently 
facing the species, and the threats that are reasonably likely to 
affect the species in the foreseeable future following the downlisting 
or delisting and the removal of the Act's protections.
    The following analysis examines all five factors currently 
affecting or that are likely to affect Magazine Mountain shagreen 
within the foreseeable future. In making this final determination, we 
have considered all scientific and commercial information available, 
which includes monitoring data collected from 1996 to 2011 (Robison 
1996, USFS 2009) and life-history and habitat information (Caldwell et 
al. 2009).

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    The 1989 final rule to list Magazine Mountain shagreen as 
threatened (54 FR 15206) identified the following habitat threats: 
Possible negative effects from USFS use of the land, a military 
proposal that would bring troop training exercises and heavy equipment 
into the species' habitat, and the development of a new State park and 
lodge on Magazine Mountain.
    The 1989 final listing rule cited the species' restricted range as 
its greatest vulnerability to land use change or activity that would 
modify the talus slopes inhabited by the species. A request from the 
ADPT for a special use permit from the USFS to develop a State park and 
the associated construction of buildings, roads, trails, pipelines, and 
recreational activities had the potential to adversely affect Magazine 
Mountain shagreen and its habitat if talus slopes were disturbed. In 
1993, several agencies, including the Service, contributed to an 
environmental impact statement (EIS) for the development and 
construction of a State park on the summit of Magazine Mountain 
(Service 1994, p. 5). Of the five assessed alternatives, the selected 
alternative included construction of facilities on the south slopes, 
improvement of existing camping and picnic facilities on the north 
slopes, additional hiking trails, and a reconstructed homestead. 
However, it was determined that, with

[[Page 36472]]

appropriate management, the selected alternative would not adversely 
affect Magazine Mountain shagreen. Furthermore, mitigation measures 
completed as part of the park development and maintenance that helped 
minimize potential adverse effects to Magazine Mountain shagreen and 
its habitat included development of a revegetation/erosion/sediment 
control plan, monitoring of sensitive species habitats, and reduction 
of foot traffic along bluff lines and rock outcrops. Therefore, 
development of the State park and its associated recreational and 
maintenance activities no longer poses a threat to the survival of 
Magazine Mountain shagreen.
    Since the final listing rule was published, the USFS Ozark-St. 
Francis National Forests have designated the north and west slopes of 
Magazine Mountain above the 1,600 ft (487.7 m) contour interval as a 
Special Interest Area. This designation encompasses all of the known 
range of Magazine Mountain shagreen plus a 600-ft (182.9-m) contour 
interval buffer. The Special Interest Area designation also protects 
the area from land management practices that might be detrimental to 
Magazine Mountain shagreen and its habitat. We expect that the 
delisting of Magazine Mountain shagreen would not weaken USFS's 
commitment to the conservation of the Special Interest Area. In 2005, 
the Service, USFS Ozark-St. Francis National Forests, and ADPT entered 
into a MOU that provides for long-term cooperation in the management 
and protection of Magazine Mountain shagreen and its habitat on 
Magazine Mountain. The MOU is a continuing agreement without a 
designated termination date. Therefore, USFS land use activities no 
longer pose a threat to the survival of Magazine Mountain shagreen.
    Wildfires have been cited as the single greatest threat to Magazine 
Mountain shagreen (Caldwell et al. 2009, p. 18). The USFS's prescribed 
fire program and its associated timing and frequency will reduce the 
likelihood of catastrophic wild fires. The prescribed fire program also 
provides a buffer around Magazine Mountain shagreen habitat. The ADPT 
restricts campfires and open flame cooking to designated areas to 
minimize the potential for wild fires that may potentially threaten 
Magazine Mountain shagreen and its habitat, as well as State park 
buildings and structures.
    The U.S. Army is no longer considering the use of Magazine Mountain 
for military training exercises, an activity that was considered an 
imminent threat to Magazine Mountain shagreen when it was listed. The 
U.S. Army has no plans to conduct military training exercises on 
Magazine Mountain in the foreseeable future and withdrew its previous 
consideration after Magazine Mountain shagreen was listed as threatened 
in 1989 (Service 1994, p. 5). Therefore, potential U.S. Army military 
training operations no longer pose a threat to the survival of Magazine 
Mountain shagreen.
    Summary of Factor A: Through management agreements and special 
designations, habitat supporting Magazine Mountain shagreen on Magazine 
Mountain is secure, and self-sustaining populations will remain 
permanently protected and managed to maintain talus habitat. Therefore, 
we find that the present or threatened destruction, modification, or 
curtailment of its habitat or range is no longer a threat to Magazine 
Mountain shagreen.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The final rule to list Magazine Mountain shagreen identified 
overutilization as a potential threat. A knowledgeable collector could 
adversely affect the population by removing large numbers of 
individuals. However, to the Service's knowledge, no Magazine Mountain 
shagreen individuals have been removed from the population for 
commercial, recreational, scientific, or educational purposes since the 
species was listed in 1989, except by Caldwell et al. (2009), who were 
permitted through a section 10(a)(1)(A) research permit to remove an 
egg mass from the wild to learn more about the life history of Magazine 
Mountain shagreen. The Arkansas Game and Fish Commission (AGFC) 
requires a permit for collection of individuals for scientific and 
educational purposes. Recreational collection is not permitted. 
Likewise, ADPT requires a permit for collection of plants and animals 
within State park boundaries. The boundary of Magazine Mountain State 
Park encompasses the top of Magazine Mountain and includes a small 
portion of the upper talus inhabited by Magazine Mountain shagreen. The 
State park is managed by ADPT under a special use agreement from, and 
in concert with, the USFS Ozark National Forest, and the park conserves 
2,234 ac (904 ha) of Magazine Mountain's oak-hickory and pine-covered, 
plateau-like summit. There is no commercial market for Magazine 
Mountain shagreen, nor is there likely to be a commercial market in the 
foreseeable future. It is the Service's opinion that, due to the 
species' restricted range, the AGFC's and ADPT's permitting 
requirements and restrictions will provide sufficient protection to 
Magazine Mountain shagreen following delisting. Therefore, 
overutilization for commercial, recreational, scientific, and 
educational purposes no longer poses a threat to Magazine Mountain 
shagreen.
    Summary of Factor B: Magazine Mountain shagreen is not sought after 
for commercial purposes, and recreational collection of animals and 
plants within Magazine Mountain State Park is prohibited. The AGFC 
requires a scientific collection permit for scientific, recreational, 
and educational purposes, and it is the Service's opinion that it is 
very unlikely that AGFC would permit any activity that would result in 
overutilization of Magazine Mountain shagreen. Therefore, we find that 
overutilization for commercial, recreational, scientific, or 
educational purposes is no longer a threat to Magazine Mountain 
shagreen and will not become a threat in the foreseeable future.

Factor C. Disease or Predation

    The 1989 listing rule for Magazine Mountain shagreen (54 FR 15206) 
did not list any threats to the species from disease or predation. The 
best available science does not provide any evidence that either of 
these factors has become a threat to this species since it was listed 
in 1989, nor will either become a threat in the foreseeable future. 
Therefore, we find that disease and predation are not threats to 
Magazine Mountain shagreen.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The 1989 final rule to list Magazine Mountain shagreen (54 FR 
15206) indicated that no protections other than the USFS Special 
Interest Area existed to protect Magazine Mountain shagreen and its 
habitat. The entire range of Magazine Mountain shagreen is now on USFS 
or ADPT property. Collection of animals is prohibited in the State 
park, and there is no indication that this prohibition is not effective 
in preventing collection of this species. In 2005, the Service, USFS 
Ozark-St. Francis National Forest, and ADPT entered into a MOU that 
provides for long-term cooperation in the management and protection of 
Magazine Mountain shagreen and its habitat on Magazine Mountain. The 
MOU is a continuing agreement without a designated termination date.
    Summary of Factor D: We believe that the protected status of the 
lands where Magazine Mountain shagreen currently exists will continue 
to provide adequate

[[Page 36473]]

regulatory protection for this species. Therefore, we find that lack of 
regulatory protection is no longer a threat to Magazine Mountain 
shagreen.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The 1989 final listing rule for Magazine Mountain shagreen (54 FR 
15206) identified the restricted range (Magazine Mountain), 
temperature, and moisture as potential stressors to Magazine Mountain 
shagreen. Magazine Mountain shagreen inhabits 27 talus habitats on the 
north and west slopes of Magazine Mountain, Logan County, Arkansas. 
Populations occur in the vegetated and leaf litter covered portion of 
talus rock between 2,200 ft (670.6 m) and 2,600 ft (792.5 m). However, 
as a result of habitat protection provided by the USFS and ADPT (see 
analysis under Factors A and D above), vulnerability associated with 
restricted range is no longer a threat.
    The Intergovernmental Panel on Climate Change (IPCC) concluded that 
evidence of warming of the climate system is unequivocal (IPCC 2007a, 
p. 30). Numerous long-term climate changes have been observed, 
including changes in arctic temperatures and ice, widespread changes in 
precipitation amounts, ocean salinity, wind patterns and aspects of 
extreme weather including droughts, heavy precipitation, heat waves, 
and the intensity of tropical cyclones (IPCC 2007b, p. 7). While 
continued change is certain, the magnitude and rate of change is 
unknown in many cases. Species that are dependent on specialized 
habitat types, limited in distribution, or that have become restricted 
to the extreme periphery of their range will be most susceptible to the 
effects of climate change.
    Estimates of the effects of climate change using available climate 
models lack the geographic precision needed to predict the magnitude of 
effects at a scale small enough to discretely apply to the range of 
Magazine Mountain shagreen. However, data on recent trends and 
predicted changes for the Southeast United States (Karl et al. 2009, 
pp. 111-116) provide some insight for evaluating the potential threat 
of climate change to Magazine Mountain shagreen. Since 1970, the 
average annual temperature of the region has increased by about 2 
[deg]F (1.1 [deg]C), with the greatest increases occurring during 
winter months. The geographic extent of areas in the Southeast region 
affected by moderate to severe spring and summer drought has increased 
over the past three decades by 12 and 14 percent, respectively (Karl et 
al. 2009, p. 111). These trends are expected to increase.
    Rates of warming are predicted to more than double in comparison to 
what the Southeast has experienced since 1975, with the greatest 
increases projected for summer months. Depending on the emissions 
scenario used for modeling change, average temperatures are expected to 
increase by 4.5 [deg]F to 9 [deg]F (2.5 [deg]C to 5 [deg]C) by the 
2080s (Karl et al. 2009, pp. 111). While there is considerable 
variability in rainfall predictions throughout the region, increases in 
evaporation of moisture from soils and loss of water by plants in 
response to warmer temperatures are expected to contribute to the 
effect of these droughts (Karl et al. 2009, pp. 112).
    Since Magazine Mountain shagreen prefers cool, moist microhabitats, 
prolonged drought and concomitant warming of temperatures could 
adversely affect the species. In particular, nesting sites and egg 
masses may be affected (Caldwell et al. 2009, p. 15). However, there 
are no data to establish that such effects are reasonably certain to 
occur. In addition, the species possesses biological traits that may 
provide resilience to this potential threat. For example, Magazine 
Mountain shagreen tends to retreat into the talus slopes during dry 
periods. Egg masses were discovered in 2007 in the leaf litter covering 
the talus (Caldwell et al. 2009, p. 15-16); this tendency for Magazine 
Mountain shagreen to lay eggs in the leaf litter likely helps protect 
egg masses from desiccation.
    We are not aware of any climate change information specific to the 
habits or habitat (i.e., talus slopes) of the Magazine Mountain 
shagreen that would indicate what potential effects climate change and 
increasing temperatures may have on this species. Therefore, based on 
the best available information, we do not have any evidence to 
determine or conclude that climate change is a threat to Magazine 
Mountain shagreen now or within the foreseeable future.
    Summary of Factor E: At this time, we do not have sufficient 
information to document that climate changes observed to date have had 
or will have any adverse effect on Magazine Mountain shagreen or its 
habitat. Vulnerability associated with restricted range is no longer a 
threat because the entirety of the species' habitat is protected by the 
USFS and ADPT. Therefore, we find that the other natural or manmade 
factors considered here do not pose a threat to Magazine Mountain 
shagreen, nor are they likely to be threats in the foreseeable future. 
Post delisting monitoring will also afford an opportunity to monitor 
the status of the species and the impacts of any natural events that 
may occur for five years.

Conclusion of the 5-Factor Analysis

    Under section 3 of the Act, a species is endangered if it is ``in 
danger of extinction in a significant portion of its range'' and 
threatened if it is ``likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range.'' We have 
carefully assessed the best scientific and commercial information 
available regarding the threats faced by Magazine Mountain shagreen in 
developing this proposed rule. Based on the analysis above and given 
the reduction in threats, Magazine Mountain shagreen does not currently 
meet the Act's definition of endangered in that it is not in danger of 
extinction throughout all of its range, or the definition of threatened 
in that it is not likely to become endangered in the foreseeable future 
throughout all of its range.

Significant Portion of the Range Analysis

    Having determined that Magazine Mountain shagreen no longer meets 
the definition of endangered or threatened throughout its range, we 
must next consider whether there are any significant portions of its 
range that remain in danger of extinction or likely to become 
endangered. 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 definition 
of ``species'' is also relevant to this discussion. The Act defines the 
term ``species'' as follows: ``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.'' The phrase ``significant portion of its 
range'' (SPR) is not defined by the statute, and we have never 
addressed in our regulations: (1) The consequences of a determination 
that a species is either endangered or likely to become so throughout a 
significant portion of its range, but not throughout all of its range; 
or (2) what qualifies a portion of a range as ``significant.''
    Two recent district court decisions have addressed whether the SPR 
language allows the Service to list or protect less than all members of 
a

[[Page 36474]]

defined ``species'': Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 
1207 (D. Mont. 2010), concerning the Service's delisting of the 
Northern Rocky Mountain gray wolf (74 FR 15123, April 2, 2009); and 
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. 
Sept. 30, 2010), concerning the Service's 2008 finding on a petition to 
list the Gunnison's prairie dog (73 FR 6660, February 5, 2008). The 
Service had asserted in both of these determinations that it had 
authority, in effect, to protect only some members of a ``species,'' as 
defined by the Act (i.e., species, subspecies, or DPS), under the Act. 
Both courts ruled that the determinations were arbitrary and capricious 
on the grounds that this approach violated the plain and unambiguous 
language of the Act. The courts concluded that reading the SPR language 
to allow protecting only a portion of a species' range is inconsistent 
with the Act's definition of ``species.'' The courts concluded that 
once a determination is made that a species (i.e., species, subspecies, 
or DPS) meets the definition of ``endangered species'' or ``threatened 
species,'' it must be placed on the list in its entirety and the Act's 
protections applied consistently to all members of that species 
(subject to modification of protections through special rules under 
sections 4(d) and 10(j) of the Act).
    Consistent with that interpretation, and for the purposes of this 
rule, we interpret the phrase ``significant portion of its range'' in 
the Act's definitions of ``endangered species'' and ``threatened 
species'' to provide an independent basis for listing; thus there are 
two situations (or factual bases) under which a species would qualify 
for listing a species in its entirety: A species may be endangered or 
threatened throughout all of its range; or a species may be endangered 
or threatened in only a significant portion of its range. If a species 
is in danger of extinction throughout an SPR, it, the species, is an 
``endangered species.'' The same analysis applies to ``threatened 
species.'' Therefore, the consequence of finding that a species is 
endangered or threatened in only a significant portion of its range is 
that the entire species will be listed as endangered or threatened, 
respectively, and the Act's protections will be applied across the 
species' entire range.
    We conclude, for the purposes of this rule, that interpreting the 
SPR phrase as providing an independent basis for listing or for changes 
in listing status is the best interpretation of the Act because it is 
consistent with the purposes and the plain meaning of the key 
definitions of the Act; it does not conflict with established past 
agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no 
consistent, long-term agency practice has been established; and it is 
consistent with the judicial opinions that have most closely examined 
this issue. Having concluded that the phrase ``significant portion of 
its range'' provides an independent basis for listing and protecting 
the entire species, we next turn to the meaning of ``significant'' to 
determine the threshold for when such an independent basis for listing 
exists.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, for the 
purposes of this rule, that the significance of the portion of the 
range should be determined based on its biological contribution to the 
conservation of the species. For this reason, we describe the threshold 
for ``significant'' in terms of an increase in the risk of extinction 
for the species. We conclude that a biologically based definition of 
``significant'' best conforms to the purposes of the Act, is consistent 
with judicial interpretations, and best ensures species' conservation. 
Thus, for the purposes of this proposed rule and finding, a portion of 
the range of a species is ``significant'' if its contribution to the 
viability of the species is so important that, without that portion, 
the species would be in danger of extinction.
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation. Resiliency describes the characteristics of a species 
that allow it to recover from periodic disturbance. Redundancy (having 
multiple populations distributed across the landscape) may be needed to 
provide a margin of safety for the species to withstand catastrophic 
events. Representation (the range of variation found in a species) 
ensures that the species' adaptive capabilities are conserved. 
Redundancy, resiliency, and representation are not independent of each 
other, and some characteristic of a species or area may contribute to 
all three. For example, distribution across a wide variety of habitats 
is an indicator of representation, but it may also indicate a broad 
geographic distribution contributing to redundancy (decreasing the 
chance that any one event affects the entire species), and the 
likelihood that some habitat types are less susceptible to certain 
threats, contributing to resiliency (the ability of the species to 
recover from disturbance). None of these concepts is intended to be 
mutually exclusive, and a portion of a species' range may be determined 
to be ``significant'' due to its contributions under any one of these 
concepts.
    For the purposes of this rule, we determine if a portion's 
biological contribution is so important that the portion qualifies as 
``significant'' by asking whether, without that portion, the 
representation, redundancy, or resiliency of the species would be so 
impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction (i.e., would be ``endangered''). Conversely, we would not 
consider the portion of the range at issue to be ``significant'' if 
there is sufficient resiliency, redundancy, and representation 
elsewhere in the species' range that the species would not be in danger 
of extinction throughout its range if the population in that portion of 
the range in question became extirpated (extinct locally).
    We recognize that this definition of ``significant'' establishes a 
threshold that is relatively high. On the one hand, given that the 
consequences of finding a species to be endangered or threatened in an 
SPR would be listing the species throughout its entire range, it is 
important to use a threshold for ``significant'' that is robust. It 
would not be meaningful or appropriate to establish a very low 
threshold whereby a portion of the range can be considered 
``significant'' even if only a negligible increase in extinction risk 
would result from its loss. Because nearly any portion of a species' 
range can be said to contribute some increment to a species' viability, 
use of such a low threshold would require us to impose restrictions and 
expend conservation resources disproportionately to conservation 
benefit: Listing would be rangewide, even if only a portion of the 
range of minor conservation importance to the species is imperiled. On 
the other hand, it would be inappropriate to establish a threshold for 
``significant'' that is too high. This would be the case if the 
standard were, for example, that a portion of the range can be 
considered ``significant'' only if threats in that portion result in 
the entire species' being currently endangered or threatened. Such a 
high bar would not give the SPR phrase independent meaning, as the 
Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 
(9th Cir. 2001).
    The definition of ``significant'' used in this rule carefully 
balances these concerns. By setting a relatively high threshold, we 
minimize the degree to which restrictions will be imposed or resources 
expended that do not

[[Page 36475]]

contribute substantially to species conservation. But we have not set 
the threshold so high that the phrase ``in a significant portion of its 
range'' loses independent meaning. Specifically, we have not set the 
threshold as high as it was under the interpretation presented by the 
Service in the Defenders litigation. Under that interpretation, the 
portion of the range would have to be so important that current 
imperilment there would mean that the species would be currently 
imperiled everywhere. Under the definition of ``significant'' used in 
this finding, the portion of the range need not rise to such an 
exceptionally high level of biological significance. (We recognize that 
if the species is imperiled in a portion that rises to that level of 
biological significance, then we should conclude that the species is in 
fact imperiled throughout all of its range, and that we would not need 
to rely on the SPR language for such a rule making.) Rather, under this 
interpretation we ask whether the species would be endangered 
everywhere without that portion, i.e., if that portion were completely 
extirpated. In other words, the portion of the range need not be so 
important that even being in danger of extinction in that portion would 
be sufficient to cause the remainder of the range to be endangered; 
rather, the complete extirpation (in a hypothetical future) of the 
species in that portion would be required to cause the remainder of the 
range to be endangered.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that have no reasonable potential to be 
significant and threatened or endangered. To identify only those 
portions that warrant further consideration, we determine whether there 
is substantial information indicating that: (1) The portions may be 
``significant,'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address the significance question 
first or the status question first. Thus, if we determine that a 
portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the portion status analysis 
is whether the threats are geographically concentrated in some way. If 
the threats to the species are essentially uniform throughout its 
range, no portion is likely to warrant further consideration. Moreover, 
if any concentration of threats applies only to portions of the 
species' range that clearly would not meet the biologically based 
definition of ``significant'', such portions will not warrant further 
consideration.
    Applying the process described above in considering delisting this 
snail, we evaluated the range of Magazine Mountain shagreen to 
determine if any areas could be considered a significant portion of its 
range. As discussed above, a portion of a species' range is significant 
if it is part of the current range of the species and is important to 
the conservation of the species because it contributes meaningfully to 
the representation, resiliency, or redundancy of the species. The 
contribution must be at a level such that its loss would result in a 
decrease in the ability to conserve the species. There is no 
significant variability in the habitats across the range occupied by 
Magazine Mountain shagreen, which encompasses approximately 8.75 ha 
(21.6 ac) at 27 talus habitats on Magazine Mountain's west and north 
slopes in Logan County, Arkansas. The basic ecological components 
required for the species to complete its life cycle are present 
throughout the habitats occupied by Magazine Mountain shagreen. No 
specific location within the current range of the species provides a 
unique or biologically significant function that is not found in other 
portions of the range. Furthermore, the threats discussed during the 
five-factor analysis above are uniform throughout the range of the 
species.
    In conclusion we have determined that none of the existing or 
potential threats, either alone or in combination with others, are 
likely to cause Magazine Mountain shagreen to become endangered or 
threatened now or within the foreseeable future throughout a 
significant portion of its range.
    On the basis of this evaluation, we believe Magazine Mountain 
shagreen no longer requires the protection of the Act, and we propose 
to remove Magazine Mountain shagreen from the Federal List of 
Endangered and Threatened Wildlife (50 CFR 17.11(h)).

Effects of This Proposed Rule

    This rule, if finalized, would revise 50 CFR 17.11(h) to remove 
Magazine Mountain shagreen from the List of Endangered and Threatened 
Wildlife. Because no critical habitat was ever designated for this 
species, this rule would not affect 50 CFR 17.95.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. The prohibitions under section 9(a)(1) of the Act make it 
illegal for any person subject to the jurisdiction of the United States 
to import or export; transport in interstate or foreign commerce in the 
course of a commercial activity; sell or offer for sale in interstate 
or foreign commerce; or take, possess, sell, deliver, carry, transport, 
or ship Magazine Mountain shagreen. Section 7 of the Act requires that 
Federal agencies consult with us to ensure that any action authorized, 
funded, or carried out by them is not likely to jeopardize the species' 
continued existence. If this proposed rule is finalized, it would 
revise 50 CFR 17.11(h) to remove (delist) Magazine Mountain shagreen 
from the Federal List of Endangered and Threatened Wildlife, and these 
prohibitions would no longer apply.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us to monitor for at least 5 
years species that are delisted due to recovery. Post-delisting 
monitoring refers to activities undertaken to verify that a species 
delisted due to recovery remains secure from the risk of extinction 
after the protections of the Act no longer apply. The primary goal of 
post-delisting monitoring is to monitor the species so that its status 
does not deteriorate, and if a decline is detected, to take measures to 
halt the decline so that proposing it as endangered or threatened is 
not again needed. If, at any time during the monitoring period, data 
indicate that protective status under the Act should be reinstated, we 
may initiate listing procedures, including, if appropriate, emergency 
listing.
    Section 4(g) of the Act explicitly requires cooperation with the 
States in development and implementation of post-delisting monitoring 
programs, but we remain responsible for compliance with section 4(g) of 
the Act and, therefore, must remain actively engaged in all phases of 
post-delisting monitoring. We also seek active participation of other 
entities that are expected to assume responsibilities for the species' 
conservation after delisting. In June 2010, USFS, AGFC, and ADPT agreed 
to be cooperators in the post-delisting monitoring of Magazine Mountain 
shagreen.
    We have prepared a draft Post-Delisting Monitoring Plan for 
Magazine Mountain Shagreen (Inflectarius

[[Page 36476]]

magazinensis) (Plan) (Service 2011). The draft plan:
    (1) Summarizes the species' status at the time of delisting;
    (2) Defines thresholds or triggers for potential monitoring 
outcomes and conclusions;
    (3) Lays out frequency and duration of monitoring;
    (4) Articulates monitoring methods, including sampling 
considerations;
    (5) Outlines data compilation and reporting procedures and 
responsibilities;
    (6) Indicates localities selected for post-delisting monitoring; 
and
    (7) Proposes a post-delisting monitoring implementation schedule, 
including timing and responsible parties.
    Concurrent with this proposed delisting rule, we announce the draft 
plan's availability for public review. The draft plan can be viewed in 
its entirety at: https://www.fws.gov/arkansas-es or on the Federal 
eRulemaking Portal at https://www.regulations.gov. Copies also can be 
obtained from the U.S. Fish and Wildlife Service, Arkansas Ecological 
Services Field Office, Conway, Arkansas (see FOR FURTHER INFORMATION 
CONTACT section). We seek information, data, and comments from the 
public regarding Magazine Mountain shagreen and the post-delisting 
monitoring strategy. We are also seeking peer review of this draft plan 
concurrently with the proposed rule's comment period. We anticipate 
finalizing this plan, considering all public and peer review comments, 
prior to making a final determination on the proposed delisting rule.

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), and the OMB's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we will solicit the 
expert opinions of at least three appropriate and independent 
specialists regarding the science in this proposed rule and the draft 
post-delisting monitoring plan. The purpose of such review is to ensure 
that we base our decisions on scientifically sound data, assumptions, 
and analyses. We will send peer reviewers copies of this proposed rule 
and the draft post-delisting monitoring plan immediately following 
publication in the Federal Register. We will invite peer reviewers to 
comment, during the public comment period, on the specific assumptions 
and conclusions regarding the proposed delisting and draft post-
delisting monitoring plan. We will summarize the opinions of these 
reviewers in the final decision documents, and we will consider their 
input and any additional information we receive as part of our process 
of making a final decision on the proposal and the draft post-delisting 
monitoring plan. Such communication may lead to a final decision that 
differs from this proposal.

Required Determinations

Paperwork Reduction Act of 1995

    OMB regulations at 5 CFR 1320, which implement provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal 
agencies obtain approval from OMB before collecting information from 
the public. The OMB regulations at 5 CFR 1320.3(c) define a collection 
of information as the obtaining of information by or for an agency by 
means of identical questions posed to, or identical reporting, 
recordkeeping, or disclosure requirements imposed on, 10 or more 
persons. Furthermore, 5 CFR 1320.3(c)(4) specifies that ``ten or more 
persons'' refers to the persons to whom a collection of information is 
addressed by the agency within any 12-month period. For purposes of 
this definition, employees of the Federal government are not included. 
This proposed rule and draft post-delisting monitoring plan do not 
contain any new collections of information that require approval by OMB 
under the Paperwork Reduction Act. This proposed rule will not impose 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a current valid OMB control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an environmental 
assessment or environmental impact statement, as defined in the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), in 
connection with regulations adopted pursuant to section 4(a) of the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands affected by this proposed rule.

References Cited

    A complete list of references cited is available on https://www.regulations.gov under Docket Number FWS-R4-ES-2012-0002.

Author

    The primary author of this document is Chris Davidson, Arkansas 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


Sec.  17.11  [Amended]

    2. Amend Sec.  17.11(h) by removing the entry for ``Shagreen, 
Magazine Mountain'' under ``SNAILS'' from the List of Endangered and 
Threatened Wildlife.

    Dated: May 30, 2012.
Daniel M. Ashe,
Director, Fish and Wildlife Service.
[FR Doc. 2012-14502 Filed 6-18-12; 8:45 am]
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