The Federal Housing Finance Agency (FHFA) invites comment on all aspects of the proposed regulation, and will take all relevant comments into consideration before issuing the final regulation.

Copies of all comments will be posted on the FHFA internet Web site athttp://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public on business days between the hours of 10 a.m. and 3 p.m. at the Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. To make an appointment to inspect comments, please call the Office of General Counsel at (202) 414-3751.

The Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654, amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501et seq.) (Safety and Soundness Act), and the Federal Home Loan Bank Act (12 U.S.C. 1421-1449) to establish FHFA as an independent agency of the Federal Government.1 FHFA was established to oversee the prudential operations of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation (collectively, enterprises), and the Federal Home Loan Banks (Banks) (collectively, regulated entities) and to ensure that they operate in a safe and sound manner including being capitalized adequately; foster liquid, efficient, competitive and resilient national housing finance markets; comply with the Safety and Soundness Act and rules, regulations, guidelines and orders issued by the Director of FHFA, and the respective authorizing statutes of the regulated entities; and carry out their missions through activities authorized and consistent with the Safety and Soundness Act and their authorizing statutes; and, that the activities and operations of the regulated entities are consistent with the public interest.

The Office of Federal Housing Enterprise Oversight (OFHEO) and the Federal Housing Finance Board (FHFB) were abolished one year after enactment of the HERA. However, the regulated entities continue to operate under regulations promulgated by OFHEO and FHFB; and such regulations are enforceable by the Director of FHFA until such regulations are modified, terminated, set aside, or superseded by the Director of FHFA.2

Executive Order 12674, as amended by Executive Order 12731, authorized the United States Office of Government Ethics (OGE) to establish a single, comprehensive and clear set of executive-branch standards of conduct. On August 7, 1992, OGE published the Standards of Ethical Conduct for Employees of the Executive Branch (Standards).3 Codified at 5 CFR part 2635, the Standards took effect on February 3, 1993, and established uniform standards of ethical conduct for all executive branch employees.

With the concurrence of OGE, 5 CFR 2635.105 authorizes executive branch agencies to publish agency-specific supplemental regulations necessary to implement their respective ethics programs. The FHFA, with the concurrence of OGE, has determined that the following supplemental rules contained in the proposed regulation, which would add a new 5 CFR chapter LXXX, consisting of part 9001, are necessary to implement successfully the ethics program of FHFA in light of theunique programs and operations of FHFA.

The following is a section by section analysis of the proposed regulation.

Proposed § 9001.101 explains that the proposed regulation would apply to all employees of FHFA and would supplement the Standards found in 5 CFR part 2635. It would also require that employees of FHFA must comply with the Standards, this part, guidance, and procedures established pursuant to this part, and any additional rules of conduct that FHFA is authorized to issue. It also notes that employees should contact the Designated Agency Ethics Official (DAEO) if they have questions about any provision of this regulation or other ethics-related matters.

The proposed section also contains cross-references to other executive branch ethics regulations and a subsequent employment restriction of section 1317D of the Safety and Soundness Act, 12 U.S.C. 4523, applicable to certain highly compensated former FHFA officers and employees, including the FHFA Director, along with an annual employee notification requirement as to that statutory restriction. Section 1317D prohibits such highly compensated former FHFA officers and employees, and the Director, from accepting compensation from an enterprise under section 1317D of the Safety and Soundness Act for two years after leaving FHFA.

Proposed § 9001.102 defines the key terms used in the proposed regulation.

Affiliatewould be defined as any entity that controls, is controlled by, or is under common control with another entity.

Designated Agency Ethics Official,orDAEO,as also used in 5 CFR part 2635, and “alternate DAEO” would be defined as the individuals so designated by the Director, FHFA. The DAEO is responsible for designating agency ethics officials and ethics designees, as such terms are used in 5 CFR part 2635. As proposed, the alternate DAEO would act as the DAEO in the DAEO's absence.

Directorwould be defined as the Director of FHFA or his or her designee.

Employeewould be defined as an officer or employee of FHFA, including a special Government employee. For purposes of this part, it also would be defined as an individual on detail from another agency to FHFA for a period of more than 30 days.

Enterprisewould be defined as the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation.

Federal Home Loan BankorBankwould be defined as a Bank established under the Federal Home Loan Bank Act; the term “Federal Home Loan Banks” means, collectively, all the Federal Home Loan Banks.

Federal Home Loan Bank Systemwould be defined as the Federal Home Loan Banks under the supervision of FHFA.

Regulated entitywould be defined as the Federal National Mortgage Association and any affiliate thereof; the Federal Home Loan Mortgage Corporation and any affiliate thereof; or any Federal Home Loan Bank; the term “regulated entities” means, collectively, the Federal National Mortgage Association and any affiliate thereof; the Federal Home Loan Mortgage Corporation and any affiliate thereof; and the Federal Home Loan Banks.

Safety and Soundness Actwould be defined to mean the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501et seq.), as amended by the Housing and Economic Recovery Act of 2008 (HERA), Public Law 110-289, 122 Stat. 2654 (2008).

Securitywould be defined as all interests in debt or equity instruments. The term includes, without limitation, secured and unsecured bonds, debentures, notes, securitized assets and commercial paper including loans securitized by mortgages or deeds of trust and securities backed by such instruments, as well as all types of preferred and common stock. The term encompasses current and contingent ownership interests including any beneficial or legal interest derived from a trust. Such interest includes any right to acquire or dispose of any long or short position in such securities and also includes, without limit, interests convertible into such securities, as well as options, rights, warrants, puts, calls and straddles with respect thereto. The term shall not, however, be construed to include deposit accounts, such as checking, savings, or money market deposit accounts.

Proposed § 9001.103 would authorize the DAEO to grant employees of FHFA written waivers of any provision of the proposed FHFA regulation based upon a determination that the waiver will not result in conduct inconsistent with 5 CFR part 2635 or otherwise prohibited by law, and that application of the provision would not be necessary to ensure public confidence in the impartiality and objectivity with which the programs of FHFA are administered. In granting a waiver under proposed § 9001.103, the DAEO may require the employee to take further action, including executing a written disqualification statement. This proposed provision is intended, in appropriate cases, to ease the burden that these supplemental regulations as proposed would impose on employees of FHFA while ensuring that employees do not engage in actions or hold financial interests that may interfere with the objective and impartial performance of their official duties.

Proposed § 9001.104(a) would prohibit FHFA employees and the employees' spouse and minor children from owning or controlling certain financial interests that are related to or affected by the operations of FHFA, such as securities owned, issued, guaranteed, securitized, or collateralized by the regulated entities. This prohibition would not apply to special Government employees.4 The prohibition of proposed § 9001.104(a) is based on the view of FHFA that permitting FHFA employees and their spouse and minor children directly or indirectly to own or control securities owned, issued, guaranteed, securitized, or collateralized by the regulated entities would cause a reasonable person to question the impartiality with which FHFA programs are administered. Specifically, FHFA believes that there is a direct and appropriate nexus between the prohibition against owning or controlling such securities as applied both to employees and to the spouses and minor children of employees and the efficiency of the service.

In addition, while Federal conflict of interest statutes and the Standards prohibit an employee of FHFA from participating in matters in which the employee or the employee's spouse or minor children have a conflicting financial interest, FHFA has determined that a broader ban would be more effective in ensuring that no reasonableperson could question the impartiality and objectivity of the agency's actions. The broader ban of § 9001.104(a) establishes a clear prohibition that will be easily understood by observers of FHFA.

Moreover, the proposed prohibition would substantially reduce the burden on the FHFA and FHFA employees to determine the scope of the prohibition for each employee. By promulgating a broad ban that excludes all securities owned, issued, guaranteed, securitized, or collateralized by the regulated entities, proposed § 9001.104(a) would substantially reduce the need for FHFA employees, the DAEO, and other agency ethics officials or counselors to determine the financial interests prohibited by each employee's duties. The proposed rule should be easier for FHFA to implement and for employees to follow.

Proposed § 9001.104(b) also would attribute to an FHFA employee, or to the employee's spouse and minor children, securities he or she would be prohibited from holding directly by § 9001.104(a) that are held by certain described third-party entities.

Proposed § 9001.104(c) would permit an FHFA employee and the employee's spouse and minor children to own interests in publicly-traded or publicly-available diversified mutual or other collective diversified investment funds that contain within their portfolios interests that they would be prohibited from holding by proposed § 9001.104(c). Under this provision, ownership of such investment funds would be permitted as long as the employee or the employee's spouse or minor children do not have the ability to control the fund or its portfolio, and the fund does not have an objective or practice of concentrating its investments in securities of a regulated entity or the regulated entities generally, and less than 25 percent of the total holdings of the fund are comprised of securities owned, issued, guaranteed, securitized, or collateralized by one or more regulated entities.

This exception to proposed § 9001.104(a) reflects the view of FHFA that the prohibition on owning or controlling securities of the regulated entities should not be extended to publicly-traded or publicly-available mutual funds or other collective investment funds that are diversified and over which employees have no control, since it would be unreasonable to require employees to divest themselves of such mutual funds based on investment decisions in which they played no role. FHFA believes that allowing an FHFA employee and the employee's spouse and minor children to own interests in publicly-traded or publicly-available diversified mutual funds and collective investment funds would not endanger the impartiality or objectivity of FHFA, even if these funds held some limited interest in securities owned, issued, securitized, guaranteed, or collateralized by one or more of the regulated entities.

Proposed § 9001.104(d) would require new employees of FHFA, within 30 days of commencing employment, to provide to the DAEO in writing all financial interests acquired prior to the commencement of their employment with FHFA that they are prohibited from holding by § 9001.104(a). Employees would be required to divest such interests, within 90 days of the date reported, unless they receive a written waiver from the DAEO in accordance with § 9001.103. The proposed section would impose a similar reporting and divestiture requirement upon employees who acquire, without specific intent, financial interests prohibited by § 9001.104(a).

The proposed regulation is designed to balance several important ethical principles against an employee's right to engage in outside activities. Paragraph (a) of the proposed section would prohibit an FHFA employee, except for a special Government employee, from engaging in paid or unpaid employment with (1) a person, other than a State or local government, who is a registered lobbyist engaged in lobbying activities concerning the FHFA programs; (2) any regulated entity, or (3) the Office of Finance of the Federal Home Loan Bank System. FHFA is of the view that such a policy against active participation in such businesses is necessary to protect against questions regarding the impartiality and objectivity of employees and the administration of the programs of FHFA. FHFA believes that it would hinder FHFA in meeting its missions if members of the public could question whether employees are using their public positions or connections at FHFA to advance alternate careers.

Furthermore, in accordance with 5 CFR 2635.803, FHFA is of the view that it is necessary or desirable for the purpose of administering its ethics program to require FHFA employees to obtain approval before engaging in outside employment or activities. An approval requirement would help to ensure that potential ethical problems are resolved before employees begin outside employment or activities that could involve a violation of applicable statutes and standards of conduct.

Thus, proposed § 9001.105(b) would provide that an FHFA employee, other than a special Government employee, must obtain advance written approval from the employee's supervisor and the concurrence of the DAEO before engaging in any outside employment. Proposed paragraph (c) to § 9001.105 broadly defines outside employment to cover any form of non-Federal employment or business relationship involving the provision of personal services, whether or not for compensation, other than in the discharge of official duties. It also includes writing when done under an arrangement with another person or entity for production or publication of the written product. It does not, however, include participation in the activities of nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organizations, unless such activities are for compensation other than reimbursement of expenses, the organization's activities are devoted substantially to matters relating to the employee's official duties as defined in 5 CFR 2635.807(a)(2)(i)(B) through (E) and the employee will serve as officer or director of the organization, or the activities will involve the provision of consultative or professional services.Consultative servicesis proposed to mean the provision of personal services by an employee, including the rendering of advice or consultation, which requires advanced knowledge in a field of science or learning customarily acquired by a course of specialized instruction and study in an institution of higher education, hospital, or similar facility.Professional servicesis proposed to mean the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession as defined in 5 CFR 2636.305(b)(1) or involves a fiduciary relationship as defined in 5 CFR 2636.305(b)(2).

A note following proposed paragraph (c) of § 9001.105 pertains to the special approval requirement set out in both 18 U.S.C. 203(d) and 205(e), respectively, for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. The note, as proposed, explains that an employee who wishes to act as agent or attorney for, or otherwise represent his or her parents, spouse, children, or any person for whom, or any estate for which, he or she is serving as guardian, executor,administrator, trustee, or other personal fiduciary in such matters must obtain the approval required by law of the Government official responsible for the employee's appointment in addition to the regulatory approval that would be required in proposed § 9001.105.

As proposed, § 9001.105(d) sets out the procedures for requesting prior approval to engage in outside employment initially, or within seven calendar days of a significant change in the nature or scope of the outside employment or the employee's official position. Proposed paragraph (e) of § 9001.105 would provide that approval would be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation, including 5 CFR part 2635 and this proposed part.

Proposed § 9001.105(f) would provide that the DAEO may issue written instructions governing the submission of requests for approval of outside employment, which may exempt categories of employment from the prior approval requirement based on a determination that employment within those categories would generally be approved and would likely not involve conduct prohibited by Federal law or regulation, including 5 CFR part 2635 and this proposed part.

Proposed § 9001.106 would prohibit an employee of FHFA from participating in any matter in which a regulated entity is a party if the regulated entity employs, as an employee or consultant, his or her spouse, child, parent, or sibling, or member of his or her household unless the DAEO has authorized the employee to participate in the matter using the standard in 5 CFR 2635.502(d). Proposed § 9001.106 would require such an employee to make a written report to the DAEO within 30 days of the employment by a regulated entity of the employee's spouse, child, parent, sibling, or member of his or her household. This requirement is intended to eliminate the potential for any appearance of preferential treatment in those instances where employment of a family member or a member of the employee's household would be likely to raise questions regarding the appropriateness of actions taken by the employee or FHFA.

Proposed § 9001.107(a) would reference the statutory restriction on financial interests applicable to the Director, the Deputy Director of the Division of Enterprise Regulation, the Deputy Director of the Division of Federal Home Loan Bank Regulation, and the Deputy Director for Housing Mission and Goals. These individuals are subject to additional financial interest limitations set forth in section 1312(g) of the Safety and Soundness Act (12 U.S.C. 4512(g)). Section 1312(g) provides that the Director and each Deputy Director may not—

(1) Have any direct or indirect financial interest in any regulated entity or entity-affiliated party;5

(2) Hold any office, position, or employment in any regulated entity or entity-affiliated party; or

(3) Have served as an executive officer or director of any regulated entity or entity-affiliated party at any time during the 3-year period preceding the date of appointment or designation of such individual as Director or Deputy Director, as applicable.

Proposed paragraph (b) of § 9001.107 would provide that if an employee or the spouse or minor children of the employee directly or indirectly owns a financial interest in a member of a Bank or in a financial institution such as a mortgage bank, mortgage broker, bank, thrift, or other financial institution that originates, insures, or services mortgages that are owned, issued, guaranteed, securitized, or collateralized by a regulated entity, the employee is cautioned not to violate the statutory prohibition against financial conflicts of interest set forth in 18 U.S.C. 208. The proposed language would note that the government-widede minimisand other exceptions set forth in 5 CFR 2640.202 are applicable to the ownership or control of interests in such financial institutions. Employees are encouraged to seek a determination from the DAEO as to whether the financial interest in the member of a Bank or in the financial institution creates a financial conflict of interest or an appearance of a conflict of interest and whether the employee should disqualify himself or herself from participating in an official capacity in a particular matter involving the financial institution.

Proposed § 9001.108 would prohibit an employee of FHFA from recommending, suggesting, or giving advice to any person with respect to financial transactions or investment actions involving the acquisition, sale, or divestiture of securities of a regulated entity. The Standards at 5 CFR 2635.703 prohibit an employee from allowing the improper use of nonpublic information to further his or her private interest or that of another, whether through advice or recommendation or by knowing unauthorized disclosure. The proposed section would supplement 5 CFR 2635.703 in that the section expressly would prohibit FHFA employees from using or creating the appearance of using information that is not available to the general public to further a private interest. The proposed prohibition is also intended to eliminate any misunderstanding or harm that could result from such a recommendation. For example, an investor should not be misled into believing, pursuant to the recommendation of an FHFA employee, that the securities of a particular regulated entity regulated by FHFA is a sound buy because the investor believes that the employee may have access to inside information.

Proposed § 9001.109 would prohibit employees, the spouses of employees and the minor children of employees of FHFA from purchasing real or personal property from the regulated entities unless it is sold at public auction or by other means that would ensure that the selling price of the property is the asset's fair market value. It is proposed as a supplement to the general prohibition in 5 CFR 2635.702 against the use of public office for private gain.

The proposed regulation does not contain any information collection requirement that requires the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501et seq.).

The Regulatory Flexibility Act (5 U.S.C. 601et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation does not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the proposed regulation under the RegulatoryFlexibility Act. FHFA certifies that the proposed regulation is not likely to have a significant economic impact on a substantial number of small business entities because the regulation is applicable only to employees of FHFA.

Accordingly, for the reasons stated in the preamble, FHFA, with the concurrence of OGE, is proposing to amend title 5 of the Code of Federal Regulations by adding a new chapter LXXX, consisting of part 9001, to read as follows:

The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation into the United States of specified animals and animal products in order to prevent the introduction of various animal diseases, including rinderpest, foot-and-mouth disease (FMD), African swine fever (ASF), classical swine fever (CSF), and swine vesicular disease (SVD). These are dangerous and destructive communicable diseases of swine and ruminants.

Section 94.1 of the regulations prohibits, with certain exceptions, the importation into the United States of live swine, live ruminants, and products from these species from regions where FMD or rinderpest is known to exist. Rinderpest or FMD exists in all regions of the world except for certain regions that are listed as free of rinderpest or free of both rinderpest and FMD in § 94.1. Section 94.11 of the regulations lists regions of the world that have been determined to be free of rinderpest and FMD, but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest- or FMD-affected regions. Section 94.8 of the regulations restricts the importation into the United States of pork and pork products from regions where ASF is known to or reasonably believed to exist. ASF is known to or reasonably believed to exist in those regions of the world listed in § 94.8. Section 94.9 of the regulations restricts the importation into the United States of pork and pork products from regions where CSF is known to exist, and § 94.10 prohibits, with certain exceptions, the importation of live swine from regions where CSF is known to exist. Sections 94.9 and 94.10 provide that CSF exists in all regions of the world except the regions listed in those sections. Section 94.12 of the regulations restricts the importation into the United States of pork and pork products from regions where SVD is known to exist. SVD exists in all regions of the world except for certain regions that are listed as free of SVD in this section.

The Government of Brazil has requested that the U.S. Department of Agriculture (USDA) consider Santa Catarina to be free of rinderpest, FMD, ASF, CSF, and SVD in order to initiate trade in fresh pork. Declaring Santa Catarina to be free of these diseases would relieve restrictions on the importation of not just fresh pork but also additional commodities that could potentially carry these diseases, such as live swine, swine semen, pork meat, pork products, live ruminants, ruminant semen, ruminant meat, and ruminant products. In response to the Government of Brazil’s request, the USDA’s Animal and Plant Health Inspection Service (APHIS) has conducted an evaluation of the disease status of Santa Catarina with regard to FMD, CSF, SVD, and ASF, which included one site visit to Santa Catarina and three site visits to other Brazilian States. The risk evaluation, “APHIS Evaluation of the Status of the Brazilian State of Santa Catarina Regarding Foot-and-Mouth Disease, Classical Swine Fever, Swine Vesicular Disease, and African Swine Fever,” may be obtained by contacting the person listed underFOR FURTHER INFORMATION CONTACT. The document may also be viewed on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

In the risk evaluation, we concluded that Santa Catarina is free of FMD, ASF, CSF, and SVD and has adequate veterinary infrastructures in place to prevent, control, and manage outbreaks of these diseases if they were to occur. Rinderpest was not considered within the scope of the risk evaluation as it is not endemic to the Americas and has never been established within Brazil. We are therefore proposing to amend the regulations by adding Santa Catarina to the list in § 94.1 of regions that are free of rinderpest and FMD, the list in § 94.11 of regions that are declared to be free of rinderpest and FMD but that are subject to certain restrictions because of their proximity to or trading relationships with rinderpest or FMD-affected regions, the lists in §§ 94.9 and 94.10 of regions that are free of CSF, and the list in § 94.12 of regions that are free of SVD. We are also proposing to exclude Santa Catarina from the list in § 94.8 of regions where ASF is known to or reasonably believed to exist.

Drawing on data submitted by the Government of Brazil and observations from our site visit to the region under consideration, we have evaluated the animal health status of Santa Catarina relative to FMD, ASF, CSF, and SVD. Our evaluation was conducted according to the 11 factors identified in § 92.2, “Application for recognition of the animal health status of a region,” which are used to determine the level of risk associated with importing animals or animal products into the United States from a given region. A summary evaluation of each factor is discussed below.

Federal and State authorities provide the two main structures for Brazil’s veterinary services. Brazil’s Ministry of Agriculture, Livestock, and Food Supply (MAPA), through the Department of Animal Health, has the primary Federal authority governing all animal health programs. MAPA coordinates all aspects of the national animal health system, including developing animal disease control strategies, conducting laboratory diagnosis, and auditing State veterinary services. State personnel are responsible for executing Federal programs, laws, and policies at the State level. The responsibilities of state officials for carrying out Federal programs are outlined in standard operating procedures developed with Federal officials. Additionally, MAPA has a system of official veterinarians and support staff in place for carrying out field programs and for import controls and animal quarantine. The Brazilian State of Santa Catarina’s veterinary services implements Federal animal health programs at the field level in coordination with the Companhia Integrada de Desenvolvimento Agricola de Santa Catarina (CIDASC), an integrated public company. Regional and local officers of the official state veterinary services are part of the CIDASC. The work of CIDASC is subject to inspection and auditing by MAPA. APHIS considers that MAPA and the Brazilian State of Santa Catarina havesufficient legal authority to carry out official disease control, eradication, and quarantine activities.

Review of veterinary infrastructure with MAPA and CIDASC officials demonstrated an infrastructure adequate for carrying out surveillance programs in Santa Catarina and for rapidly detecting FMD, CSF, ASF, and SVD. The technical infrastructure is adequate, and officials use advanced technologies to conduct animal health programs. Santa Catarina’s local veterinary unit offices are adequately staffed, with strong local contacts, coverage, and control mechanisms. Personnel appeared to be adequately trained in identifying the clinical signs of FMD, SVD, ASF, and CSF. Local veterinary units also regularly provide information on disease signs and reporting requirements to producers within their coverage area. The private sector is strongly committed to general animal health activities as well as disease eradication and traceability (identification) systems, and shows its support by substantial financial contributions. With regard to indemnity procedures, we concluded that sufficient funds are available to compensate owners for depopulated, exposed, and affected animals. The Federal authorities provide money for payments from the national treasury, and money also comes from private indemnity funds created and administered by producers.

There is no evidence of any FMD, CSF, SVD, or ASF infections or outbreaks in Santa Catarina. No outbreaks of FMD have occurred in Santa Catarina since 1993, and the World Organization for Animal Health (OIE) recognized Santa Catarina as free of FMD without vaccination in 2007. No outbreaks of ASF have occurred in Santa Catarina since 1981, and no outbreaks of CSF have occurred in Santa Catarina since 1990. SVD has never occurred in Brazil.

Adjacent regions that were considered in our risk analysis were the Brazilian States of Rio Grande Do Sul and Paraná and the neighboring country of Argentina. Santa Catarina is surrounded by the Brazilian States of Rio Grande Do Sul and Paraná, both recognized by the OIE as free of FMD with vaccination. The last FMD outbreak in Rio Grande Do Sul occurred in 2001, and the last FMD outbreak in Paraná occurred in 2005. FMD outbreaks in Rio Grande Do Sul in 2000 and 2001 were linked to outbreaks in Uruguay and Argentina. Argentina borders Santa Catarina, Rio Grande Do Sul, and Paraná. Numerous FMD outbreaks occurred throughout Argentina from July 2000 through December 2000 and March 2001 through January 2002. The most recent FMD outbreak in Argentina was reported in 2006. Brazil appears to have successfully prevented the introduction of FMD from Argentina during some but not all outbreaks in that country.

Santa Catarina is located within a CSF-free zone in southern Brazil, as are both States adjoining Santa Catarina. No cases of CSF have been detected in the CSF-free zone since it was created in 2001. Although CSF has been detected in recent years in the CSF-infected zone in northern Brazil, movement controls in place between the CSF-infected and CSF-free zones have prevented introduction of the disease into the CSF-free area. The last reported case of CSF in Argentina occurred in 1999, and CSF does not appear to be circulating within Argentina at this time; therefore, it is not likely that transmission of disease would occur from this source.

Brazil has had no outbreaks of ASF since 1981 and has been declared officially free of ASF since 1984. ASF has never been reported in Argentina. Therefore, it is highly unlikely that the virus exists in areas neighboring Santa Catarina or that these areas pose a risk for disease transmission. SVD has never been reported anywhere within Brazil or Argentina.

Brazil’s animal health service has a surveillance system that covers the entire country and has activities designed to detect and prevent the introduction of FMD, CSF, ASF, and SVD and quickly eradicate them. APHIS considers that Santa Catarina has a control program and a national plan sufficient to respond quickly to any emergencies related to FMD, CSF, ASF, and SVD. All official service field staff, community participants, and private sector veterinarians are trained and required to look for signs of notifiable diseases, including FMD, CSF, ASF, and SVD. Santa Catarina maintains a surveillance program at the field level on farms, in slaughterhouses, and at animal gathering locations. Local veterinary unit personnel carry out special visits to certain herds that are classified as “risky” by the official service. Animals are individually inspected by personnel from the official service for signs of vesicular disease before slaughtering. Other body parts, including the tongue and feet, are examined during postmortem inspection. All animals coming into fairs, auctions, or exhibitions are clinically inspected by the official veterinarians.

When a notifiable disease is suspected, Santa Catarina has a structured system of notification and official involvement to investigate. Suspected disease outbreaks must be immediately reported to the local unit or to an authority that would notify the local unit. The suspect premises is immediately quarantined, movement of animals is prohibited, and samples are collected and sent to a laboratory to confirm the diagnosis. All actions are carried out as if the herd is infected until proven otherwise.

Santa Catarina does not vaccinate for FMD, CSF, ASF, or SVD. In the absence of vaccination, it is likely that clinical signs resulting from an incursion of disease would be quickly identified. The Brazilian Ministry of Agriculture may approve emergency CSF or FMD vaccinations if necessary as part of outbreak control measures.

A combination of geographical and administrative barriers has prevented the introduction of FMD, CSF, ASF, and SVD into Santa Catarina. The lack of disease history since 2006 for any of the diseases under evaluation in the areas adjacent to Santa Catarina further reduces the likelihood of their introduction.

Geographic barriers limit introduction of diseases into Santa Catarina by impeding the natural and human-mediated movements of animals and animal products. Santa Catarina is bounded on the east by the Atlantic Ocean. The northern border of Santa Catarina, with Paraná, is composed of rivers and the Serra do Mar mountain ridge. The southern border, with Rio Grande do Sul, is defined in large part by rivers. The western border, with the Province of Misiones, Argentina, is defined primarily by a river, the Rio Peperi-Guaçú. In Misiones, the border area is formed mainly by protected natural areas, including the Yaboti Biosphere Reserve.

Administrative barriers provide most of the controls for movements of animals and their products into Santa Catarina. Importation of products is controlled through 67 fixed inspection posts, and movement controls are in place between Santa Catarina and other areas of Brazil to prevent the introduction of FMD and CSF.Movement controls are discussed in greater detail in the next section.

Domestic movement controls within Brazil are stringent. The Brazilian Ministry of Agriculture requires that all cattle owners identify their animals with a unique brand. Sheep and swine are identified by a brand or notch in the ear. A system of permits is used by the official veterinary service to control animal movements. Movement restrictions are in place between Santa Catarina and other areas of Brazil affected with FMD or where FMD vaccination is practiced. All animals at risk for FMD must undergo clinical inspection and quarantine at both their points of origin and their destination. Movement restrictions are also in place between the CSF-free zone in southern Brazil, which encompasses Santa Catarina, and the CSF-infected zone in northern Brazil.

Santa Catarina has adequate controls at ports of entry for legal importation of animals and animal products that could carry FMD, CSF, SVD, or ASF. All animals and products must enter and leave Santa Catarina via one of the 67 fixed inspection stations. All imported animals must be accompanied by a zoosanitary certificate. Dairy and breeding animals require individual identification. Imported animals intended for slaughter must be transported in a sealed vehicle and must go to a federally inspected plant. If an animal arrives at the border with clinical signs of disease, it is sent back to the place of origin; however, animals that show signs of FMD are quarantined and tested. All animal products imported into Brazil must have an import permit, comply with all sanitary health requirements, and originate from an establishment approved to export to Brazil. All imported animal products are inspected and must receive authorization from the official veterinarian at the point of entry to be released into Santa Catarina.

Santa Catarina restricts the importation of animals and products at risk of FMD from countries where FMD has occurred. Swine destined for import must originate from a country or region considered free from ASF, SVD, and CSF. Movement controls and biosecurity measures are in place for imports from higher risk areas for CSF.

Brazilian law prohibits all transport of animal products from anywhere in the world without proper permits, and Santa Catarina has a legal framework and authority to deal with the entry of illegal animals or animal products into the State. Airline passengers and luggage are checked for animal and plant products. Shipments arriving by sea are also checked for animals and animal products, while ship passengers receive random checks for the presence of animals and animal products. All prohibited animals and animal products are confiscated and slaughtered or destroyed.

Santa Catarina is primarily known for its swine production. The domestic livestock population within Santa Catarina consists of 5,250,000 domestic swine, 2,750,000 cattle, 196,000 sheep, 37,000 goats, and 16,000 farmed wild boar. Most of Santa Catarina’s cattle are dairy cattle.

The majority of Santa Catarina’s swine industry consists of a vertically integrated production system that covers all stages of production from breeding stock to processing. The production system is governed by contract requirements that include biosecurity standards, traceability requirements, required reporting of disease or production problems to the company veterinary representative, and periodic training in disease and production measures. Integrated swine farms receive frequent official veterinarian visits. APHIS finds that controls and biosecurity measures at commercial swine farms effectively mitigate introduction and spread of disease.

During the 2008 site visit, APHIS visited several individual facilities operating within an integrated system, including dairy operations. All the farms visited followed required biosecurity measures, with certified breeding farms following more restrictive biosecurity measures. APHIS finds that Santa Catarina has adequate control of inspection activities within integrated production systems.

Santa Catarina’s animal identification system was fully implemented at the end of 2008. The system is comprehensive and allows officials to trace, from birth to death, the movement of cattle and swine within the State.

Santa Catarina has adequate controls and inspection measures at slaughter facilities and animal concentration points. There are 58 slaughterhouses for swine in Santa Catarina, including 18 federally inspected slaughterhouses and 40 State-inspected slaughterhouses. Santa Catarina contains 97 federally inspected and 60 State-inspected dairy facilities. CIDASC inspects fairs, exhibitions, and events where animals are gathered.

Brazil has a two-phase surveillance system that effectively uses active and passive surveillance. Phase I relies on active surveillance and focuses primarily on serological testing to document freedom from disease. Santa Catarina is currently in Phase II. Phase II, which consists of monitoring, begins once freedom from infection has been established. The main goals in this phase are to prevent the reintroduction of the disease, maintain good sanitary conditions, and provide technical grounds to demonstrate the continual absence of disease and viral activity in the zone. Passive surveillance is the primary type employed in Phase II, although active surveillance is also used. Passive surveillance activities include observations made during: (1) Animal movement control activities and trade of animal products, (2) farm inspections, (3) slaughterhouse inspections, and (4) inspections during livestock fairs. Passive surveillance takes advantage of the community structure in Brazil and relies heavily on the participation of the community. Serological testing complements passive surveillance in specific “high-risk” farms and is also conducted whenever there is a suspicion of disease. The surveillance and monitoring follow OIE guidelines, therefore, APHIS concluded that the serologic sampling is valid and the sampling coverage is adequate.

Brazil has three laboratories, supervised by the Brazilian Ministry of Agriculture, for diagnosing FMD. These are located in Recife (Pernambuco State), Para (Belen State), and Pedro Leopoldo (Minas Gerais State). The Pan-American Foot-and-Mouth Disease Center laboratory in Rio de Janeiro is the reference laboratory. The Recife laboratory also performs routine serology for CSF, and for SVD and ASF if necessary.

Based on our site visits, we concluded that Brazil has the diagnostic capability to adequately test samples for the presence of the FMD, CSF, SVD, and ASF viruses. The laboratories in Recife, Para, and Pedro Leopoldo have adequate quality control activities; adequate laboratory equipment, which is routinely monitored and calibrated; sufficient staff; and an effective and efficient recordkeeping system for storage and retrieval of data. The tests used to investigate evidence of viral activity are consistent with OIE guidelines. The staff members at the facilities visited in 2002 and 2008 werewell-trained and motivated. Samples are turned around quickly.

Brazil has effective disease control and response programs for FMD and other notifiable swine and ruminant diseases. FMD, SVD, CSF, and ASF are notifiable diseases. The Brazilian State of Santa Catarina has a specific contingency plan for immediate, effective action in an animal emergency, and each municipality has a local emergency operational plan. Local emergency plans are detailed, and emergency response kits are extremely well-stocked. If a sanitary emergency or documented disease event occurs, the Brazilian State of Santa Catarina has a legal framework to authorize needed actions and handle animal health emergencies. A notification system ensures a timely emergency response. Once notification of an emergency occurs, the State establishes coordinating committees and emergency animal health technical groups, defines strategies and plans of action, and, when necessary, carries out the appropriate control measures within a timeframe compatible with a state of emergency. Quarantine and movement restriction decisions are made by State officials with input from Federal authorities. Based on observations made during the 2008 site visit, APHIS concludes the Brazilian State of Santa Catarina has the capabilities to respond rapidly and effectively to an animal disease outbreak and limit the spread of the disease should an outbreak occur. Therefore, we are proposing to amend §§ 94.1, 94.8, 94.9, 94.10, and 94.12 to declare the Brazilian State of Santa Catarina to be free of FMD, rinderpest, SVD, CSF, and ASF. This action would relieve restrictions on the importation of live swine, live ruminants, and products from these species under certain conditions from Santa Catarina.

However, because the Brazilian State of Santa Catarina has a common land border with Argentina, a region where FMD exists, the importation of meat and other products from ruminants or swine into the United States from Santa Catarina would continue to be subject to certain restrictions. For this reason, we are proposing to add Santa Catarina to the list in § 94.11(a) of regions declared free of rinderpest and FMD but that are subject to special restrictions on the importation of their meat and other animal products into the United States. The regions listed in § 94.11(a) are subject to these special restrictions because they: (1) Supplement their national meat supply by importing fresh (chilled or frozen) meat of ruminants or swine from regions that are designated in § 94.1(a) as regions where rinderpest or FMD exists, (2) have a common land border with regions where rinderpest or FMD exists, or (3) import ruminants or swine from regions where rinderpest or FMD exists under conditions less restrictive than would be acceptable for importation into the United States.

Under § 94.11, meat and other animal products of ruminants and swine, including ship stores, airplane meals, and baggage containing these meat or animal products, may not be imported into the United States except in accordance with § 94.11 and the applicable requirements of the USDA’s Food Safety and Inspection Service at 9 CFR chapter III.

Section 94.11 generally requires that the meat and other animal products of ruminants and swine be: (1) Prepared in an inspected establishment that is eligible to have its products imported into the United States under the Federal Meat Inspection Act; and (2) accompanied by an additional certificate, issued by a full-time salaried veterinary official of the national government of the exporting region, assuring that the meat or other animal products have not been commingled with or exposed to meat or other animal products originating in, imported from, transported through, or that have otherwise been in a region where rinderpest or FMD exists.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this proposed rule. The economic analysis examines the potential economic effects of this action on small entities, as required by the Regulatory Flexibility Act. The proposed action is not expected to result in beef or other ruminant meat exports to the United States of any appreciable quantity and trade effects for pork products are likely to be insignificant. The analysis, however, identifies swine producers and slaughter facilities as the small entities most likely to be affected by this action and considers the effects of increased imports of pork. Based on the information presented in the analysis, we expect that swine producers and slaughter facilities would experience minimal economic effects from the small increase of pork imports (a net increase of less than 3 percent) as a result of this action. Based on the information presented in the analysis, APHIS certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. We invite comment on our economic analysis, which is posted with this proposed rule on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov) and may be obtained from the person listed underFOR FURTHER INFORMATION CONTACT.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

To provide the public with documentation of APHIS’ review and analysis of any potential environmental impacts associated with the proposed rule for updating the disease status of Santa Catarina, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS’ NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the headingADDRESSESat the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed underFOR FURTHER INFORMATION CONTACT.

This proposed rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.).

I. Background

The Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (Pub. L. 110-411, approved October 14, 2008) (NAHASDA Reauthorization) reauthorizes The Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101et seq.) (NAHASDA) through September 30, 2013, and makes a number of amendments to the statutory requirements governing the Indian Housing Block Grant Program (IHBG) and Title VI Loan Guarantee programs. For more information on the IHBG and Title VI of NAHASDA, please see the background section of the Notice of Negotiated Rulemaking Committee Meeting published on February 22, 2010 at (75 FR 7579). The NAHASDA Reauthorization amends section 106 of NAHASDA to provide that HUD shall initiate a negotiated rulemaking in order to implement aspects of the 2008 Reauthorization Act that require rulemaking. On January 5, 2010 (75 FR 423), HUD published aFederal Registernotice announcing the final list of members of the negotiated rulemaking committee (the Native American Housing Assistance & Self-Determination Negotiated Rulemaking Committee).

This document announces the third meeting of the Native American Housing Assistance & Self-Determination Negotiated Rulemaking Committee. The committee meeting will take place as described in theDATESandADDRESSESsections of this document. The meeting will be open to the public without advance registration. Public attendance may be limited to the space available. Members of the public may be allowed to make statements during the meeting, to the extent time permits, and to file written statements with the committee for its consideration. Written statements should be submitted to the address listed in theFOR FURTHER INFORMATION CONTACTsection of this document.

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of thisFederal Register.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the Arizona Department of Environmental Quality (ADEQ).

On March 13, 2009, EPA determined this rule met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

On April 12, 1982, EPA approved a previous version of Rule 300 (Rule 30) into the SIP. Please see 47 FR 15579. The MCAQD adopted revisions to the SIP-approved version on July 13, 1988 and ADEQ submitted them to us on January 4, 1990. However, EPA did not take action on this submittal. MCAQD also revised Rule 300 on August 5, 1994 and February 7, 2001, but did not submit these versions to EPA. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control PM emissions.

MCAQD Rule 300 is designed to limit the emissions of particulate matter or other pollutants such as oxides of nitrogen from a variety of activities and sources using a 20% opacity standard. These sources may include construction sites, unpaved roads, disturbed soil in open areas, and power plants. MCAQD amended Rule 300 to change the opacity limit from 40% to 20% and change the procedure for determining compliance with the 20% opacity limitation from “averaging to aggregating.” The rule was also renumbered from Rule 30 to Rule 300, reformatted, and 4 exceptions were added. EPA's technical support document (TSD) has more information about this submitted rule and its revisions.

Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM), including Reasonably Available Control Technology (RACT), in moderate PM nonattainment areas, and Best Available Control Measures (BACM), including Best Available Control Technology (BACT), in serious PM nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)). The MCAQD regulates a PM nonattainment area classified as serious (see 40 CFR part 81), so Rule 300 must implement RACM and BACM.

Guidance and policy documents that we use to evaluate enforceability and RACM or BACM requirements consistently include the following:

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987Federal RegisterNotice,” (Blue Book), notice of availability published in the May 25, 1988Federal Register.

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

3. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

4. “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994).

5. “PM-10 Guideline Document,” EPA 452/R-93-008, April 1993.

6. “Fugitive Dust Background Document and Technical Information Document for Best Available Control Measures,” EPA 450/2-92-004, September 1992.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACM, BACM, and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes several rule revisions that we recommend for the next time the local agency modifies the rule, but that are not currently the basis for disapproval of the rule.

Because EPA believes the submitted rule fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this into the federally enforceable SIP.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board.

On April 20, 2009, EPA determined that the submittal for YSAQMD Rule 3.21 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of Rule 3.21 in the SIP.

VOCs and NOXhelp produce ground-level ozone and smog, which harm human health and the environment. PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control VOC, NOX, and PM emissions.

Historically, the practice of rice growing included burning the field stubble or straw following harvest to kill weeds and insects and prepare the field for next year's plantings. The purpose of Rule 3.21 is to provide procedures to quantify, certify and issue emission reduction credits (ERCs) that have resulted from the permanent curtailment of rice straw burning in YSAQMD. Approval of Rule 3.21 into the SIP would allow these ERCs to be used as offsets under YSAQMD's New Source Review (NSR) rule. EPA's technical support document (TSD) has more information about this rule.

Generally, SIP rules must be enforceable (seesection 110(a) of the Act), and must not relax existing requirements (seesections 110(l) and 193). In addition, a rule of this type that generates emission reduction credits for use as offsets in the NSR program must meet the NSR requirement for valid offsets (seesection 173(c)) and should meet the criteria set forth in EPA's guidance concerning economic incentive programs.

Guidance and policy documents that we use to evaluate these criteria consistently include the following:

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987Federal RegisterNotice,” (Blue Book), notice of availability published in the May 25, 1988Federal Register.

2. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

3. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NOxSupplement), 57 FR 55620, November 25, 1992.

4. New Source Review—Section 173(c) of the CAA and 40 CFR part 51, appendix S, “Emission Offset Interpretative Ruling” require certain sources to obtain emission reductions to offset increased emissions from new projects.

5. “Improving Air Quality with Economic Incentive Programs,” EPA-452/R-01-001, January 2001.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, SIP relaxations, and economic incentive programs; and ensures that the emission reductions are real, surplus, quantifiable, enforceable, and permanent. This rule includes detailed emissions quantification protocols and enforceable procedures which provide the necessary assurance that the emission reduction credits issued will meet the criteria for valid NSR offsets. The TSD has more information on our evaluation.

Because EPA believes the submitted rule fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

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

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

(b) Genetics and taxonomy;

(c) Historical and current range, including distribution patterns;

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

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

(f) Information on the fisher species rangewide for the purpose of determining if the fisher in its NRM range constitutes a DPS or a significant portion of the range of the species; and

(g) Differences between Canada and the United States in control of exploitation, management, conservation status, or regulatory mechanisms pertaining to the fisher and its habitat that would support the use of the international boundary to delimit a DPS in the NRMs.

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

(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;

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

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

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

Please include sufficient information with your submission (such as full references and page numbers) to allow us to verify any scientific or commercial information you include.

If, after the status review, we determine that listing the fisher in the NRMs as a DPS is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act), in accordance with section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the fisher, we request data and information on:

(1) What may constitute “physical or biological features essential to the conservation of the species”;

(2) Where these features are currently found; and

(3) Whether any of these features may require special management considerations or protection, including managing for the potential effects of climate change.

In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” We also are seeking information documenting the historic range and distribution within that range of the fisher in Montana, Wyoming, Idaho, and other areas adjacent to these States, and the contiguous land areas in Canada including the provinces of British Columbia and Alberta. The Service does not designate critical habitat in areas where a species is not listed; however, identifying the historic distribution of fisher in areas contiguous with the NRMs may inform the extent and type of habitat that may be required for recovery. Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and why such habitat meets the definition of critical habitat in section 3 of the Actand the requirements of section 4 of the Act.

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

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

Information and supporting documentation that we received and used in preparing this finding, will be available for public inspection athttp://www.regulations.gov, or by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Montana Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACT).

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

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

On March 6, 2009, we received a petition dated February 24, 2009, from the Defenders of Wildlife, Center for Biological Diversity, Friends of the Bitterroot, and Friends of the Clearwater (petitioners) requesting that the fisher in the United States NRMs be considered a DPS and listed as endangered or threatened, and critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioners, as required by 50 CFR 424.14(a). In an April 9, 2009, letter to the petitioners, we responded that we had reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that we could not address the petition further at that time because of staff and budget limitations. This finding addresses the petition.

On June 5, 1990, we received a petition dated May 29, 1990, from Mr. Eric Beckwitt, Forest Issues Task Force, Sierra Biodiversity Project, and others requesting that the Pacific fisher (Martes pennanti pacifica) be listed as an endangered species in California, Oregon, and Washington under the Act. On January 11, 1991, we published a 90-day finding (56 FR 1159) indicating that the fisher in the Pacific States is a distinct population that is geographically isolated from populations in the Rocky Mountains and British Columbia and represents a listable entity under the Act. The finding also indicated that the petition had not presented substantial information indicating that a listing may be warranted because of a lack of information on fisher habitat needs, population size and trends, and demographic parameters (56 FR 1159).

On December 29, 1994, we received a petition dated December 22, 1994, from the Biodiversity Legal Foundation requesting that two fisher populations in the western United States, including the States of Washington, Oregon, California, Idaho, Montana, and Wyoming, be listed as threatened under the Act. Based on our review, we found that the petition did not present substantial information indicating that listing the two western United States fisher populations as a DPS was warranted (61 FR 8016, March 1, 1996). The best scientific evidence at that time indicated that the range of the fisher was contiguous across Canada with some areas having abundant populations, and through southward peninsular extensions, was contiguous with the United States Rocky Mountain and Pacific populations (61 FR 8016). No evidence was presented in the petition to support physical, physiological, ecological, or behavioral separations (61 FR 8016).

On December 5, 2000, we received a petition dated November 28, 2000, from 12 organizations, with the lead organizations identified as the Center for Biological Diversity and the Sierra Nevada Forest Protection Campaign, requesting that the West Coast DPS of the fisher, including portions of California, Oregon and Washington, be listed as endangered and critical habitat be designated under the Act. A court order was issued on April 4, 2003, by the U.S. District Court, Northern District of California, that required the Service to submit for publication in theFederal Registera 90-day finding on the 2000 petition (Center for Biological Diversity, et al. v. Norton et al., No. C 01—2950 SC). On July 10, 2003, we published a 90-day petition finding that the petition provided substantial information that listing may be warranted and initiated a 12-month status review (68 FR 41169). On April 8, 2004, we published a warranted 12-month finding for listing of the fisher's West Coast DPS (69 FR 18770). A listing action was precluded by higher priorities and the West Coast DPS was added to our candidate species list.

The West Coast fisher was included in the Service's candidate notices of review in 2005, 2006, 2007, 2008, and 2009 (70 FR 24870, May 11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009).

The fisher, as described by Powell (1981, p. 1), is light brown to dark blackish-brown, with the face, neck, and shoulders sometimes being slightly gray. The chest and underside often have irregular white patches. The fisher has a long body with short legs and a long bushy tail. At 3 to 6 kilograms (kg) (6.6 to 13.2 pounds (lbs)), male fishers weigh about twice as much as females (1.5 to 2.5 kg (3.3 to 5.5 lbs)). Males range in length from 90 to 120 centimeters (cm) (35 to 47 inches (in)), and females range from 75 to 95 cm (29 to 37 in) in length. Fishers may show regional variation in typical body weight. For example,fishers in the Pacific States may weigh less than fishers in the eastern United States (Seglund 1995, p. 21; Dark 1997, p. 61; Aubry and Lewis 2003, p. 87).

We accept the characterization of the fisher as a species,Martes pennanti, based on the review of the systematics of the genusMartesby Anderson (1994, pp. 21-25). The fisher is classified in the order Carnivora, family Mustelidae, a family that also includes weasels, mink, martens, and otters (Anderson 1994, p. 14). It is a member of the genusMartes, subgenusPekania, and occurs only in North America (Anderson 1994, pp. 22-23). Goldman (1935, p. 177) recognized three subspecies of fisher, although he stated they were difficult to distinguish: (1)Martes pennanti pennantiin the east and central regions; (2)M. p. columbianain the central and northwestern regions that include the NRMs; and (3)M. p. pacificain the western region. A subsequent analysis questioned whether there is a sufficient basis to support recognition of different subspecies (Hagmeier 1959, entire). Although subspecies taxonomy as described by Goldman (1935, p. 177) is often used in literature to describe or reference fisher populations in different regions of its range, and recent consideration of genetic variation indicates patterns of population subdivision similar to the earlier described subspecies, it is not clear whether Goldman's designations of subspecies are taxonomically valid (Kyleet al.2001, p. 2345; Drewet al.2003, p. 59). For the purposes of this finding, we are evaluating whether the petition presents substantial information that the fisher in the NRM qualifies as a DPS of the full species (i.e.,M. pennanti), because that is the action requested by the petition.

Fishers are opportunistic predators primarily of snowshoe hares, squirrels, mice, and birds (Powell 1993, p. 18). Carrion and plant material (e.g., berries) also are consumed (Powell 1993, p. 18). The fisher is one of the few predators that kills porcupines, and porcupine remains have been found more often in the gastrointestinal tract and scat of fisher than any other predator (Powell 1993, p. 135). As dietary generalists, fishers tend to forage in areas where prey is both abundant and vulnerable to capture (Powell 1993, p. 100).

Fishers are estimated to live up to 10 years (Arthuret al.1992, p. 404; Powellet al.2003, p. 644). Both sexes reach maturity their first year but may not be effective breeders until 2 years of age (Powellet al. 2003, p. 638). Fishers are solitary except during the breeding season, which is generally from late February to the middle of May (Wright and Coulter 1967, p. 77; Frostet al. 1997, p. 607). Uterine implantation of embryos occurs 10 months after copulation; active gestation is estimated to be between 30 and 60 days; and birth occurs nearly 1 year after copulation (Wright and Coulter 1967, pp. 74, 76; Frostet al. 1997, p. 609; Powellet al. 2003, p. 639). Litter sizes for fishers range from one to six with a mean of two to three kits (Powellet al. 2003, pp. 639-640). Newborn kits are entirely dependent and may nurse for 10 weeks or more after birth (Powell 1993, p. 67). Kits develop their own home ranges by one year of age (Powellet al. 2003, p. 640). Populations of fisher fluctuate in size, and reproductive rates may vary widely from year to year in response to the availability of prey (Powell and Zielinski 1994, p. 43).

Fisher home ranges vary in size across North America from 16 to 122 square kilometers (km2) (4.7 to 36 square miles (mi2)) for males and from 4 to 53 km2(1.2 to 15.5 mi2) for females (Powell and Zielinski 1994, p. 58; Lewis and Stinson 1998, pp. 7-8; Zielinskiet al. 2004, p. 652). In the NRM, home ranges for males range from approximately 30 to 120 km2(8.7 to 35 mi2) during winter and summer (Jones 1991, p. 83). Females range from 6 to 75 km2(1.7 to 22 mi2) during winter, with a reduction in summer from 6 to 60 km2(1.7 to 17.5 mi2) (Jones 1991, p. 83). The abundance of vulnerable prey may play a role in home range selection (Powell and Zielinski 1994, p. 57). Fishers exhibit territoriality with little overlap between members of the same sex; however, overlap between opposite sexes is extensive and possibly related to the density of prey (Powell and Zielinski 1994, p. 59).

Fishers live in coniferous and mixed conifer and hardwood forests and avoid areas with little or no cover (Powell and Zielinski 1994, p. 39). They are found commonly in mature forest cover and prefer late-seral forests over other habitats (Powell and Zielinski 1994, p. 52). Riparian forests and habitat close to open water such as streams are important to fishers in northern California and the Rocky Mountains of Idaho (Buskirk and Powell 1994, p. 285). In Idaho, old-growth forests of grand and subalpine fir are used extensively (Jones 1991, p. 113). The physical structure of the forest and prey associated with forest structures are thought to be the critical features that explain fisher habitat use, rather than specific forest types (Buskirk and Powell 1994, p. 286), and habitat use can vary by season and by activity (Jones 1991, p. 88). In the Rocky Mountains, fishers avoid areas of deep, fluffy snow and select riparian areas with relatively gentle slopes and dense canopy cover that may provide protection from snow during winter (Powell and Zielinski 1994, p. 54). Cavities and branches in trees, snags, stumps, rock piles, and down timber are used as resting sites, and large diameter live or dead trees are selected for natal and maternal dens (Powell and Zielinski 1994, pp. 47, 56). Powell and Zielinski (1994, p. 54) suggest that habitat suitable for resting and denning sites may be more limiting for fishers than foraging habitat.

A more extensive review of fisher biology can be found in the Service's 12-month finding on a petition to list the West Coast DPS of the fisher (69 FR 18770, April 8, 2004).

At the time of European settlement, fishers were found in the forests across North America in Canada from approximately 60° north latitude, extending south into the United States along the Appalachian, Pacific Coast, and NRMs (Gibilisco 1994, p. 60). In the late 1800s and early 1900s, fishers experienced reductions in range, decreases in population numbers, and local extirpations attributed to over-trapping, predator control, and habitat destruction in the United States, and to a lesser extent in Canada (Brander and Books 1973, p. 53; Douglas and Strickland 1987, p. 512; Powell and Zielinski 1994, p. 39). Since the 1950s, fishers have recovered in some of the central (Minnesota, Wisconsin) and eastern (New England) portions of their historic range in the United States as a result of trapping closures, habitat regrowth, and reintroductions (Brander and Books 1973, pp. 53-54; Powell 1993, p. 80; Gibilisco 1994, p. 61; Lewis and Stinson 1998, p. 3; Proulxet al. 2004, pp. 55-57). Fishers have not returned to the areas south of the Great Lakes to Appalachia. In the western range, fisher distribution occurs in a few disjunct and relatively small areas of their former range in Oregon and California, and recently reintroduced individuals represent the species on the Olympic Peninsula of Washington State (Proulxet al. 2004, p. 58; National Park Service 2009).

It was believed that fishers were extirpated from the NRMs of the United States by the 1930s (Powell and Zielinski 1994, p. 41). In five separate reintroduction efforts, fishers were translocated from the Midwest andBritish Columbia to the NRMs between 1959 and 1991 (Vinkeyet al. 2006, p. 268; Jones 1991, p. 1). The recent discovery of a native lineage of fisher coexisting with descendents of translocated individuals indicates that fishers in Idaho and Montana were not extirpated as previously thought (Drewet al. 2003, p. 57; Vinkey 2003, pp. 9, 30; Schwartz 2007, p. 924). Fishers are distributed in northwest and west-central Montana and northern and north-central Idaho with rare detection in southwestern Idaho (Idaho Department of Fish and Game (IDFG) 2006, pp. 7-24; Vinkey 2003, p. 54). Snowtrack surveys have documented fisher in Glacier National Park in the 1980s and the Greater Yellowstone area in the late 1990s, but more verified records are needed to confirm the presence of fisher in these areas (Vinkey 2003, pp. 52, 60).

Accurate information on fisher densities and abundance outside the northeastern United States is limited. Estimates of fisher abundance and vital rates are difficult to obtain and often based on harvest records, trapper questionnaires, and tracking information (Douglas and Strickland 1987, p. 522). Populations may vary widely based on habitat composition and prey availability (York 1996, p. 4). In Maine, the density of female fishers ranged from 0.09 to 0.36 per km2(0.39 mi2) in summer to 0.05 to 0.12 per km2(0.39 mi2) in winter (Arthuret al. 1989, pp. 674, 678). In high-quality habitats in British Columbia, fisher densities were between 0.01 and 0.0154 per km2(0.39 mi2), and the total late-winter population in the province was between 1,113 and 2,759 individuals (Weir 2003, p. iv). The Service's (2008, p. 9) review of population data from California shows recent densities of 0.16 fisher per km2(0.39 mi2) in the 65-km2(25.1 mi2) Hoopa Valley Indian Reservation study site, and between 113 to 147 adult female individuals in the southern Sierra Nevada Mountains. Little is known of the status of fishers in the Rocky Mountains. Vinkey (2003, p. 33) evaluated a translocation effort in the Cabinet Mountains of Montana in the 1990s and concluded that the population is small and limited in distribution, based on a small number of captures or detections coupled with a high proportion of recaptures. Vinkey (2003, p. 61) also reviewed historical records and carnivore research in Montana and concluded that the fisher is one of the lowest-density carnivores in the State. One population estimate for the Clearwater region of northern Idaho is possibly 0.04 fishers per km2(0.39 mi2) in an 80 km by 16 km (50 mi by 10 mi) corridor in the Lochsa study area (Lucas 2006, p. 85).

Under section 3(16) of the Act, we may consider for listing any species, including subspecies, of fish, wildlife, or plants, or any DPS of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Such entities are considered eligible for listing under the Act (and, therefore, are referred to as listable entities) should we determine that they meet the definition of an endangered or threatened species. In this case, the petitioners have requested that the fisher in the United States NRMs be considered a DPS and listed as endangered or threatened under the Act.

The Service and the National Marine Fisheries Service (National Oceanic and Atmospheric Administration—Fisheries) developed a joint policy that addresses the recognition of DPSes of vertebrate species for potential listing actions (61 FR 4722, February 7, 1996). Under the DPS policy, two basic elements are considered in the decision regarding the establishment of a population of a vertebrate species as a possible DPS. We must first determine whether the population qualifies as a DPS; this requires a finding that the population is both: (1) Discrete in relation to the remainder of the species to which it belongs; and (2) biologically and ecologically significant to the species to which it belongs. If the population meets the first two criteria under the DPS policy, we then proceed to the third element in the process, which is to evaluate the population segment's conservation status in relation to the Act's standards for listing as an endangered or threatened species. These three elements are applied similarly for additions to or removals from the Federal Lists of Endangered and Threatened Wildlife and Plants.

Our evaluation of significance is made in light of congressional guidance (see Senate Report 151, 96th Congress, 1st Session) that the authority to list DPSes be used “sparingly” while encouraging the conservation of genetic diversity. If we determine that a population segment meets the discreteness and significance standards, then the level of threat to that population segment is evaluated based on the five listing factors established by the Act to determine whether listing the DPS as either endangered or threatened is warranted.

Under our DPS policy, a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act (61 FR 4722).

Substantial information is presented in the petition and other documents in our files indicating that the fishers in the NRMs may be geographically separate from other fisher populations. The range of the fisher in the West Coast Range of Washington, Oregon, and California is considered separated from the NRMs by natural physical barriers, including the nonforested high desert areas of the Great Basin in Nevada and eastern Oregon and the Okanogan Valley in eastern Washington, major highways, urban and rural open-canopied areas, and agricultural development (69 FR 18770). Historic and recent range maps show no connection in the contiguous United States between occurrences in the NRMs and the fisher populations in the Midwest and Great Lakes area (Hagmeier 1956, p. 151; Douglas and Strickland 1987, p. 313; Gibilisco 1994, p. 64; Proulxet al. 2004, p. 57).

Prior to 2003, fisher range maps depicted the NRM region interconnected with British Columbia (Gibilisco 1994, p. 64; Lewis and Stinson 1998, p. 3). An analysis of fisher habitat suitability and harvest and survey information indicates that the southernmost extension of fishers in British Columbia likely occurs in the central part of the province over 200 km (124 mi) north of the international border, and that fisher populations in Canada are no longer contiguous with fisher populations in the western United States (Weir 2003, pp. 17-19). Although the fisher distribution has been adjusted to reflect the more recent understanding of fisher habitat ecology, highly fragmented and low suitability fisher habitat does exist in the Kootenay region of southeastern British Columbia between the NRMs of the United States and central British Columbia (Weir 2003, p. 18). Fishers were considered rare or extirpated from the Kootenayregion in the mid-1990s, prompting a reintroduction effort to expand the presence of the species in British Columbia and “to connect isolated US populations with healthy and increasing populations in central B.C.” (Fontanaet al. 1999, p. 1). Fishers released in Canada as part of the relocation program were using habitats in Montana (Fontanaet al. 1999, p. 18). Weiret al. (2003, pp. 19-20) considered the possibility, though unlikely, that the Cabinet Mountains in Montana were the source of two fishers detected in the Kootenay area in southeast British Columbia. A reintroduced fisher population was thought to persist in southeast British Columbia, but the observed survival rate of translocated adults and the few cases of confirmed reproduction in the assessment area were not likely sufficient for the population to expand and become self-sustaining (Weiret al. 2003, pp. 24-25).

We have no information indicating that an active connection was established between central British Columbia and the United States as a result of the translocation efforts, or that fishers in the NRMs of Montana and Idaho are functionally connected to larger population areas in Canada. We seek additional information for our status review to clarify the geographic separation of the fisher in the NRMs of the United States from other areas of fisher occupation including Canada, and to clarify a geographical delineation of a NRM DPS.

Substantial information presented in the petition and documents in our files may support discreteness of fishers in the NRMs based on the presence of a unique genetic signature consistent with isolation and a relic native population (Drewet al. 2003, p. 59; Vinkeyet al. 2006, p. 267; Schwartz 2007, p. 924). Descendants of native fisher found in Idaho and west-central Montana have unique haplotypes of the mitochondrial genome that are found nowhere else in fisher populations (Drewet al. 2003, p. 59; Vinkeyet al. 2006, p. 269; Schwartz 2007, p. 922). Populations in the NRMs also demonstrate a genetic legacy consistent with previous translocations from the mid-western United States and British Columbia (Drewet al. 2003, p. 59; Vinkeyet al. 2006, pp. 268-269).

The petition states that the international boundary between the United States and Canada contributes to the discreteness of the NRM fisher population based on significant differences in management of fishers and habitat. However, the petition offers no example of a specific law, regulation, policy, population status, or management prescription that would support the assertion of significant differences. For us to determine that the international boundary serves as a basis for discreteness, we need some evidence that differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist between the two countries that are significant in light of section 4(a)(1)(D) of the Act. The petition did not provide any information that such differences exist.

Information in our files indicates that Canada does not have a national law governing management of national lands like the United States has in the National Forest Management Act (NFMA) of 1976, as amended (16 U.S.C. 1600-1614). A substantial portion of the occupied fisher range in Montana and Idaho is managed under the NFMA. However, we do not have any information indicating that the differences in management between the United States and Canada are significant in light of section 4(a)(1)(D) of the Act. If anything, fishers would have more protection in the United States due to the NFMA. We have no information that fishers are impacted by either the lack of an overarching forest management regulatory mechanism in Canada, or the application of the NFMA in the United States NRMs.

Information in the petition and our files indicates that legal trapping for fishers occurs in both British Columbia and the NRM. In the United States, legal trapping occurs only in Montana; however, we are analyzing the NRMs as a DPS, not as individual States. The petition did not present any information, nor do we have any in our files, that distinguishes differences in trapping regulations or harvest between the United States and Canada, and the application to discreteness. The applicability of the international boundary to the discreteness of a NRM DPS will be investigated further during the species status review.

In summary, the petition and other documents in our files present substantial information indicating that the NRM population of fisher in the United States may meet at least one of the criteria for discreteness under the DPS policy based on marked physical separateness and genetic distinctness.

If a population segment is considered discrete under one or more of the conditions described in the Service's DPS policy, its biological and ecological significance will be considered in light of congressional guidance that the authority to list DPSes be used “sparingly” while encouraging the conservation of genetic diversity (see Senate Report 151, 96th Congress, 1st Session). In making this determination, we consider available scientific evidence of the discrete population segment's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in determining the biological and ecological importance of a discrete population. However, the DPS policy describes four possible classes of information that provide evidence of a discrete population segment's biological and ecological importance to the taxon to which it belongs. As specified in the DPS policy (61 FR 4722), this consideration of the population segment's significance may include, but is not limited to, the following:

(1) Persistence of the discrete population segment in an ecological setting unusual or unique to the taxon;

(2) Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon;

(3) Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; or

(4) Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

A population segment needs to satisfy only one of these conditions to be considered significant. Furthermore, other information may be used as appropriate to provide evidence for significance.

The petition presents three points supporting the significance of a DPS in the NRMs of the United States: (1) The NRM region of the United States is ecologically unique because it is situated in a unique ecoregion as described by Bailey (1996, entire) and exhibits significant ecological differences from the closest fisher habitat in central British Columbia; (2) the NRM region represents a significant part of the range based on representation and geographic size; and (3) the fisher population in north-central Idaho and west-central Montana share a genetic haplotype unique to the taxon.

The petitioners claim that fishers in the NRMs of the United States exist in an unusual or unique ecological setting based on Bailey's (1996, entire) ecoregion delineations and descriptions of fisher study sites in British Columbia and Idaho (Jones 1991, pp. 3-4; Weir 1995, pp. 20-26). Bailey's ecoregionclassification is a descriptive four-level hierarchy differentiating geographic areas based on climate, vegetation (species dominants) or natural land covers, and soils. It is one of several classification systems used in the past and present by government and private land managers to inform management decisions.

While it appears that the known fisher distribution in the NRMs of the United States is in a different ecoregion classification than the closest population concentration in Canada (Bailey 1996, map), the significance of this difference to the taxon is not explained in the petition. Descriptions of fisher habitat in Idaho (Jones 1991, pp. 3-4) and British Columbia (Weir 1995, pp. 20-26) show considerable similarities in vegetation. Differences are seen in precipitation and temperature between the Idaho and British Columbia sites, but climate conditions also vary within the individual study sites (Weir 1995, pp. 20-26). It is not clear if the descriptions of these small geographic areas are representative of the range of fisher in either British Columbia or the NRMs in the United States.

The petitioners express support for uniqueness based on general descriptions of climate and vegetation. Information in the petition and in our files indicates that fishers inhabit various types of late-successional coniferous forests throughout most of their range, and the dominant tree species, which can be influenced by climate and soils, may vary from region to region (Powell and Zielinski 1994, p. 52). Forest structure and prey availability are more important habitat selection criteria for fishers than the type of forest, tree species, or general climate characteristics (Buskirk and Powell 1994, pp. 286, 295; Weir 1995, p. 19). While the NRM ecoregion may be different from other ecoregions, we did not find any evidence in the petition or in our files indicating that the difference in classification is significant to the fisher.

Information in the petition and in our files supports the petitioner's assertion that a loss of the fisher in the NRMs would result in a significant gap in the range of the fisher. The fisher is only found in Canada and the United States. The distribution of fisher in the United States occurred historically in four peninsular extensions from Canada and constituted the southern-most distribution of fisher in North America. The connection with Canada is now lost, or is highly fragmented, in the western United States. Fishers in the NRMs of the western United States are separate from the eastern United States populations by over 1,280 km (800 mi) of nonforested habitat, lands converted for agriculture, and urban development. In the western United States, the fisher's distribution occurs in the forested areas of the NRMs in northern Idaho and western Montana, and a few disjunct and relatively small areas of the species' former West Coast range in Oregon, Washington, and California. The West Coast fishers are considered separated from the NRMs by natural physical barriers as well as other physical impediments such as major highways, urban and rural open-canopied areas, and agricultural development. The extirpation of fishers in the NRMs would be the loss of one of the four existing southern-most extensions of the taxon's range, and would result in a significant gap in the range of the fisher.

The fisher population in the NRMs of the United States exhibits the genetic legacy of translocations from British Columbia and the Midwest as well as a relic native population once thought extirpated. The loss of the fisher in the NRMs could result in the loss of unique haplotypes of the mitochondrial genome associated with the native population described as genetically distinct from fisher in the remainder of North America (Drewet al. 2003, p. 57; Vinkeyet al. 2006, p. 269; Schwartz 2007, p. 924).

In summary, information in the petition and our files may support the significance of a DPS in the NRMs of the United States based on evidence of genetic distinctness and evidence that loss of the DPS may result in a significant gap in the range of the taxon.

On the basis of the preceding discussion, we believe that the petition and other documents present substantial information that the NRM population of the fisher in the United States may be both discrete and significant within the meaning of our DPS policy, and therefore may constitute a DPS. A discussion of the potential DPS's conservation status in relation to the Act's standards for listing as an endangered or threatened species follows.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

In making this 90-day finding, we evaluated whether information regarding threats to the fisher in the NRMs, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

The petitioners state that fishers are threatened by habitat loss and destruction from logging and roads (69 FR 18770; Douglas and Strickland 1987, p. 518; Freel 1991, p. 2; Jones 1991, pp. 116-117; Aubry and Houston 1992, p. 75; Buskirk 1992, p. 318; Bucket al. 1994, p. 375; Powell and Zielinski 1994, p. 64; IDFG 1995, p. 10; Carrollet al. 1999, p. 1357), and habitat loss and destruction is the primary threat to fishers in the NRMs. The petitioners assert that fishers are at risk from naturally occurring and climate change-accelerated fire, insects, and disease outbreaks (Ridler 2008); and they assert, without documentation, that fishers are especially vulnerable to habitat alteration because past logging reduced their range and habitat to a point that any additional loss of habitat from human action threatens the fishers' persistence. The petition states that the majority of fisher habitat in the NRMs is within seven national forests where an average of 8,000 hectares (ha) (20,000 acres (ac)) of forest was logged annually between 2002 and 2006 (U.S. Department of Agriculture (USDA) 2008, entire). An additional average 28,000 ha (70,000 ac) was lost annually to fire, insects, and disease during that period (USDA 2008, entire). Approximately 1.3 million ha (3.2 million ac) of national forest land was logged or experienced fire or disease between 1945 and 2006 (USDA 2008, entire). Other forested lands are managed for timber revenue by private corporations, the States of Montana and Idaho, and Tribal governments; harvest of at least some of these lands isexpected in the future (Idaho Department of Lands 2007, entire; Montana Department of Natural Resources 2008, entire; Plum Creek 2009, entire; Potlatch 2008, entire; Ridler 2008, entire).

The petition lists a wide range of impacts that could deteriorate or cause direct loss of fisher habitats. Silviculture treatments may alter structural and vegetation diversity by a number of mechanisms and reduce cover and den and resting sites (Douglas and Strickland 1987, p. 518; Aubry and Houston 1992, p. 75; Buskirk 1992, p. 318; Bucket al. 1994, p. 375; Carrollet al. 1999, p. 1375). Roads directly remove habitat, cause displacement, inhibit dispersal, and contribute to increased fisher mortality, fragmentation, and isolation (Freel 1991, p. 2; Jones 1991, pp. 116-117; Powell and Zielinski 1994, p. 62; IDFG 1995, p. 10; Ruedigeret al. 1999, pp. 1-2). The petition states that forests across the region have high incidence and intensity of fire, insects, and disease outbreaks due to drought and higher temperatures related to climate change; fisher habitat is further reduced by the removal of timber and wildland-urban interface treatments to reduce fire risk.

Information in the petition and in our files indicates that past habitat loss due to logging, fire, and clearing of land for agriculture and settlement together with trapping contributed to the near extermination of fisher populations over much of their former range in the United States and much of eastern Canada by the early 1900s (Powell and Zielinski 1994, p. 41; Douglas and Strickland 1987, p. 512). There are few reports quantifying habitat loss in specific locations, but in 1984, it was estimated that fishers occupied over 4.3 million km2(1.6 million mi2) in Canada and the United States, reduced from 6.4 million km2(2.5 million mi2) of occupied range before the settlement of North American by Europeans (Douglas and Strickland 1987, p. 513). Land clearing and frequent fires had reduced the forested area in the northeastern United States by nearly 50 percent by the mid-1800s, and rangewide habitat loss increased as human settlement moved west (Powell and Zielinksi 1994, p. 41).

The fisher in the NRMs was considered extirpated by the 1930s (Powell and Zielinski 1994, p. 41). Presently, the fisher representation in Montana and Idaho includes a recently discovered remnant native population and descendants of fishers relocated from the Midwest and British Columbia in the 1960s and 1990s (Drewet al. 2003, p. 57; Vinkey 2003, pp. 9, 30; Schwartz 2007, p. 924). It is not clear from the limited information available to us during this 90-day review what role past land uses played in the near extirpation of the fisher in the NRMs by 1930. We do know that extensive forestry drastically reduced the amount of old-growth or late-successional forests in the NRMs, especially on private lands in the lower-elevation commercial timber zones (Habeck 1988, p. 202). National forest lands that comprise approximately 6 million ha (15 million ac) in the NRMs have retained more area of mature forest than private commercial lands but have experienced close to 1 million ha (2.5 million ac) of silviculture removal—nearly a third by clear-cutting methods—just in the past 65 years (Habeck 1988, p. 202; USDA 2008, entire).

The legacy of timber harvest, combined with continued commercial forestry and other factors, may limit the capacity of the NRM area to support fishers today. Fishers rely on large areas of primarily late-successional coniferous forest with fairly dense canopies and large trees, snags, and down logs for denning and resting; vegetated understory and large woody debris appear important for prey species (Powell and Zielinski 1994, p. 52). These mature forest characteristics may take at least 120 years or more to develop (Greenet al. 1992, p. 6). Fishers evolved in forests where fire and windthrow were common, and small silviculture treatments or harvest may resemble the natural disturbances and the succession that follows (Powell and Zielinski 1994, p. 64). Therefore, the effects of present-day timber harvest and management of forests for harvest on the capacity of the NRMs to support fishers may be influenced by multiple factors, including the location, scale, and juxtaposition of treatments to previous disturbances, and the suitability of the location to provide fisher habitat under natural conditions.

In the NRMs, fishers forage in young to medium-age stands adjacent to larger patches of mature forest (Jones 1991, p. 92). However, large clear-cuts or numerous adjacent smaller cuts, and open areas such as roads, combined with the loss of large patches of late-successional conifer habitat, may alter suitability and fragment habitat and limit fisher population size (Powell and Zielinski 1994, pp. 42, 64). Where the key habitat elements are patchy or limited in distribution, fishers are forced to range over larger areas. Fishers in Montana and Idaho have the largest recorded home ranges of the United States' fishers, possibly influenced by the fragmentation or low quality of forest resources (Powell and Zielinski 1994, pp. 58, 60).

The effects of habitat loss and fragmentation may be emphasized by territorial exclusion between members of the same sex, which increases the space needed to support viable populations (Powell and Zielinski 1994, p. 59). In the NRMs, fishers may be more vulnerable to habitat changes caused by fire, drought, and insect infestation even within historical variability due to diminished mature late-seral forest structures at a landscape level.

The loss of older forest and increased fragmentation from human activities has likely reduced the capacity of the NRMs to support fishers. To our knowledge, there is no comprehensive mapping of fisher habitat for the NRMs. Consequently, it is not clear how current management of public and private forest lands is limiting further loss of habitat suitability on a landscape scale. However, we will seek additional information regarding forest management during the status review process.

From information in the petition and readily available in our files, private or State trust lands in Northern Montana and Idaho are managed for commercial wood production and timber harvest, which may prevent succession to the mature forest stages preferred by fishers (Idaho Department of Lands 2007, p. 22; Montana Department of Natural Resources 2008, entire; Plum Creek 2009, entire; Ridler 2008, entire). Timber harvest is expected to continue on commercial lands; future increases in harvest and reduction of the harvest rotation period are expected on Idaho State trust lands (Ridler 2008, p. 2). We expect timber harvest to continue on Federal lands in the future based on mandates of the Multiple-Use and Sustainable Yield Act (16 U.S.C. 528et seq.) and the NFMA (16 U.S.C. 1600et seq.). The U.S. Forest Service (USFS) has managed for old-growth forest under forest plan direction since the 1990s (Greenet al. 1992, p. 1) and considers the fisher a sensitive status species (Macfarlane 1994, p. 177); however, no information is provided in the petition and we have no information available in our files indicating the effectiveness of this management in protecting or augmenting old-growth forest types for fisher habitat.

The real estate value of commercial timber lands is spurring a transition toresidential and commercial development in areas of western Montana (Stromnes 2002, entire; McQuillan 2007, entire). For example, Plum Creek Timber Company, whose holdings are concentrated in northwest and north-central Montana and coincide with areas of verified fisher distribution (Vinkey 2003, p. 54), expects to develop 8,000 to 16,000 ha (20,000 to 40,000 ac) over the next 10 to 15 years in addition to over 14,000 ha (35,000 ac) already sold (McQuillan 2007, entire). The company's own land development subsidiary describes the development of company lands, once held for timber production, as residential lots ranging in size from 2 to 4 ha (5 to 10 ac) (McQuillan 2007, entire). Development in forested environments may increase roads and remove additional forest vegetation structure or prey habitat in order to maintain defensible space around structures (wildlife-urban interface); however, although foraging and resting habitat may be removed by road construction, fishers do not appear to avoid the road itself (Lewis and Stinson 1998, p. 7; Schwartzet al. 2006, p. 6).

The economic recession starting in late 2008 may have an impact on commercial timber harvest and the conversion of timber lands to residential development; however, no information was included in the petition and we have no information in our files to evaluate the effects of the economic downturn on these activities at this time.

Silviculture timber removals on national forest lands in the NRMs have trended downward over the past decade; however, the forested areas affected by fire have increased to over 85,600 ha (214,000 ac) in the past decade compared to less than 4,000 ha (10,000 ac) affected between 1945 and 1997 (USDA 2008, entire). This increase could reflect an increase in environmental conditions that promote fire, such as drought and disease, or management of fire as a natural force in shaping forest composition and distribution.

The petitioners do not present specific information about how global climate change has affected or is likely to affect the fisher in the NRMs in a way that differs from past climate variability. Warming of the climate globally is considered unequivocal (Intergovernmental Panel on Climate Change 2007, p. 2); however, predicting local climate trends and determining how those trends will affect certain species is uncertain. Furthermore, we do not have information indicating how the fisher might behaviorally respond to any climate changes. Without additional information, the effect of long-term climate change on the fisher is unclear and could result in either a net positive or negative effect on the species. However, we will seek additional information regarding the potential effects of climate change during the status review process.

In summary, based on our evaluation of the information presented in the petition and in our files, we determine that the petition presents substantial information indicating that listing the fisher in the NRMs may be warranted. This is due to the present and potential future modification and destruction of habitat from commercial timber harvest and commercial wood production by methods that may prevent succession to the mature forest stages preferred by fishers. This is also due to the transition of some commercial timber lands to residential and commercial development in areas of western Montana. Based on our evaluation of information in our files and the petition, we determine that the petition does not present substantial information indicating that listing the fisher in the NRMs may be warranted due to climate change. However, we will evaluate the effects of climate change on the fisher when we conduct our status review.

The petitioners cite numerous sources indicating the susceptibility of fisher populations to excessive trapping and implicating trapping as a major factor in historic declines in fisher populations (Powell 1979, p. 153; Douglas and Strickland 1987, p. 524; Powell and Zielinski 1994, pp. 44-45; IDFG 1995, pp. 6, 13; Garant and Crete 1997, p. 363; Powell 1994, p. 101). The petitioners state that trapping is the second greatest threat to fishers in the NRMs. The petitioners indicate that fishers are impacted tremendously by both intentional and incidental trapping (i.e., capture in traps set for other species) (Powell and Zielinski 1994, pp. 44-45; IDFG 1995, p. 12; Lewis and Zielinski 1996, p. 294) in Montana and incidental trapping in other parts of the range. The petitioners state that fisher trapping in Montana is regulated and quotas are set by the State wildlife agency (Montana Department of Fish, Wildlife and Parks 2007, p. 7). The petitioners assert, without documentation, that because of the fisher's low population density, any trapping death is incompatible with their persistence. Trapping for fishers is not legal in the State of Idaho, but incidental capture of fishers does occur in traps set for other legally harvested species (IDFG 2007, p. 19). The petitioners speculate that the unreported incidental take of fishers is high in the NRM range.

The fisher has been trapped for commercial purposes since the early 1800s. Over-trapping has contributed to the reduction in size and extirpation of fisher populations across the species' range (Douglas and Strickland 1987, p. 512). By the mid-1900s, heavy trapping pressure and the use of strychnine as a trapping and general predator control agent, in addition to habitat loss (discussed above under Factor A), eliminated or greatly reduced fisher numbers in low to mid-elevation coniferous forests and areas with year-round accessibility (Douglas and Strickland 1987, p. 512). The number of fishers trapped, an indicator of fisher population size, declined in Canada by 40 percent between 1920 and 1940, and the fisher in the NRMs was considered extirpated by the 1930s (Powell and Zielinski 1994, p. 41). Trapping was discontinued after 1929 in Minnesota because of population declines across the Great Lake States (Berg and Kuehn 1994, p. 262), and trapping was prohibited in Maine between 1937 and 1954 due to a severe constriction of the fisher range in the State (Krohnet al. 1994, p. 137). Over-trapping is implicated in the loss of fisher populations in the Pacific Northwest (Lewis and Zielinski 1996, p. 191; Aubry and Lewis 2003, pp. 81-82).

Prior to the 1920s, there were no regulations applicable to trapping fishers (Powell 1993, p. 77). The closure of trapping seasons in the 1920s and 1930s, reintroductions and augmentations, and land-use changes helped restore the fisher's presence in many parts of its range including the NRMs (Douglas and Strickland 1987, p. 512; Powell 1993, p. 80; Drewet al. 2003, p. 59; Vinkey 2003, p. 61). Trapping seasons were reopened in many northeastern and midwestern States between 1949 and 1985, with accompanying regulations intended to prevent overtrapping and population decline (Powell 1993, p. 80).

Trapping is considered one of the most important factors influencing fisher populations (Powell and Zielinski 1994, p. 44). Fishers are easily trapped (Douglas and Strickland 1987, p. 523),and where trapping occurs, their populations could be negatively affected (Powell and Zielinski 1994, p. 64). Fisher populations are sensitive to the effects of trapping because of a slow reproductive rate and the sensitivity of population numbers to prey fluctuations (Powell and Zielinski 1994, p. 45). Small or isolated populations may be more intensely affected than more robust and widespread populations (Powell and Zielinski 1994, p. 45). Where fishers are scarce, populations may be seriously affected by trapping or incidental trapping for other species including other furbearers (Powell and Zielinski 1994, p. 45).

The abundance and trend of fisher populations in the NRMs are not clear. Although fisher presence has been confirmed in over a dozen areas, the fisher is one of the lowest density carnivores in the NRM region (Vinkey 2003, p. 61; IDFG 2006, entire). Montana is the only State in the NRM region where legal trapping for fishers occurs. Fishers have been trapped successfully every year since the mid-1980s in Montana, indicating that fisher populations in some areas are persisting at some level. Although the fisher is not a targeted species for harvesting in Idaho, 17 fishers were reported to authorities as taken incidentally to trapping of other legally harvested species between 1990 and 2006 (IDFG 2007, p. 19), and Jones (1991, p. 115) indicates that an estimated 163 fishers were trapped inadvertently in Idaho between 1978-1982. We expect that incidental killing of fishers occurs in Montana with similar frequency.

The impact of trapping mortality to fishers in the NRM region is not clear based on the limited information available on population status and trend; however, incidental trapping is difficult to control, and small increases in mortality due to trapping could lead to population instability and extirpation, especially in small or isolated populations (Powell 1979, p. 152; Powell and Zielinski 1994, p. 45). State wildlife agencies set trapping quotas based on some consideration of population status, although we have no information on what criteria are used to determine harvest quotas for fishers or how fishers are protected from incidental capture. We will seek additional information regarding the effects of trapping and incidental mortality of fishers during the status review process.

Based on our evaluation of the information presented in the petition and in our files, we determine that the petition presents substantial information indicating that listing the fisher in the NRMs may be warranted due to overutilization for commercial or recreational purposes, specifically legal furbearer trapping and the loss of fishers in traps set for other species. Incidental trapping is difficult to control and small increases in mortality due to trapping could lead to population instability and extirpation.

The petitioners present general information on possible disease risks to the family Mustelidae (69 FR 18770), but nothing specific to fishers or effects on fishers at a population level. The petitioners state the importance of research to investigate the possible effects of climate change on disease processes. The petitioners note that predation of fishers is reported (Roy 1991, pp. 29, 35) and could be significant in light of the small number and isolation of fisher populations.

Fox, bear, great-horned owls, and bobcat prey on fishers, although there is little evidence to indicate adult fishers have many natural enemies except humans (Douglas and Strickland 1987, p. 516). Predation of translocated fishers in Montana has been reported (Roy 1991, pp. 29, 35), but this was attributed to the relocation techniques used and fitness of the individual animals (Powell and Zielinski 1994, p. 62; Vinkey 2003, p. 34).

Based on our evaluation of the information presented in the petition and in our files, we determine that the petition does not present substantial information indicating that listing the fisher in the NRMs of the United States may be warranted due to disease or predation. No specific information is presented to indicate that disease or predation affects fishers at a population level or that climate change will exacerbate present conditions or create novel disease or predation processes. However, we will evaluate all factors, including threats from disease and predation, when we conduct our status review.

The petitioners state that existing regulatory mechanisms for public land management agencies have been inadequate in addressing the decline of fisher habitats from past and ongoing forest practices, roads and motorized access, and climate change, and addressing the threats to fisher populations from unsustainable legal trapping in Montana and incidental trapping throughout the range. The petition refers in general terms to the inadequacy of regulations relative to Federal, State, Tribal, and private lands in the NRM region and asserts that the lack of coordination across administrative boundaries has contributed to habitat fragmentation and population decline (Rosenberg and Raphael 1986, pp. 263, 267, 271; Freel 1991, p. 2; Heinemeyer 1993, pp. 108-109; Heinemeyer and Jones 1994, p. iv; Powell and Zielinski 1994, pp. 42, 45; IDFG 1995, pp. 8, 9, 12, 17; Carrollet al. 1999, p. 1357; Ruedigeret al. 1999, pp. 5-6).

Specifically, the petition points to three inadequacies in the regulatory process for the management of USFS lands in the region: (1) The standards in national forest plans have not protected old-growth habitat; (2) the classification of fisher as a “sensitive” species has not prevented the decline of fisher habitat to its current extent; and (3) the 2008 modification of the NFMA regulations removed standards to maintain viable populations of native species. The petition asserts that the existing trapping regulations have resulted in the decline of fisher populations to the present low level by not preventing poaching, over-trapping, or incidental trapping.

As stated in the discussion of Factor A, we determine that the petition and information in our files present substantial information that listing may be warranted due to the present and potential future destruction, modification, or curtailment of habitat from commercial timber harvest and commercial wood production that prevents succession to the mature forest stages utilized by fishers, and the transition of some commercial timber lands to residential and commercial development. Past forestry practices combined with continued commercial silviculture may limit the capacity of the NRMs to support fisher and call into question the effectiveness of current regulatory mechanisms to protect fishers on public and private lands. The impacts of roads and motorized access on fishers are not clear. As stated under Factor A, fishers do not appear to avoidroads (Lewis and Stinson 1998, p. 7; Schwartzet al. 2006, p. 6). There is limited information available to us at this 90-day finding stage to make conclusions on the adequacy of specific regulatory mechanisms. We will evaluate the adequacy of existing specific regulatory mechanisms further during the status review.

Presently, the fisher is considered a sensitive species (Forest Service Manual 2670.22) in the USFS Regions 1 and 4, including the States of Wyoming, Idaho, and Montana, and a sensitive species by the Bureau of Land Management (Manual 6840) in Idaho and Montana (University of Wyoming 2003, entire; IDFG 2005, entire; Montana Natural Heritage Program 2009, entire). The USFS' Sensitive Species Policy (USFS Manual (2670.32)) calls upon national forests to assist and coordinate with States and other Federal agencies in conserving species with viability concerns. However, the petition presents no specific information, and we have no information readily available in our files, that would allow for even a cursory analysis of the adequacy of the USFS sensitive species designation in preventing the decline of fisher habitat.

The USFS has managed for old-growth forests under forest plan direction since the 1990s, but the petition presents no specific information, and we have no information available in our files, indicating the effectiveness of this management in protecting or augmenting old-growth forest types for fisher habitat. We have no information readily available in our files and the petitioners present no specific information or references of policy, projects, or activities that have resulted in a decline of fisher populations or habitat or intent to cause such effects based on the 2008 changes to the NFMA regulations (73 FR 21468, April 21, 2008). As the result of a Federal court decision (Citizens for Better Forestry,et al. v. U.S. Department of Agriculture,et al., No. C08—1927 CW), the Forest Service reinstated the NFMA amended planning rule of 2000 and is reevaluating the 2008 amendment (74 FR 67059, December 18, 2009).

The States of Idaho, Montana, and Wyoming classify the fisher as a species of concern, and fisher habitat or viability may be addressed at some level when State programs or activities are reviewed. However, the petition presents no specific information, and we have no information readily available to us, that would allow for even a cursory analysis of the adequacy of the State species designations in preventing the decline of fisher or their habitat.

As stated in the discussion of Factor A, the petitioners do not present specific information about how global climate change has affected or is likely to affect the fisher in the NRMs in a way that differs from past climate variability. The petitioners present no information, nor do we have any information in our files, on the existence of any regulatory mechanism intended to address climate change in order to assess its adequacy.

The petitioners assert that the existing trapping regulations have failed to prevent the decline of fisher populations to their low level today. In the discussion under Factor B, we determine that the petition and information in our files presents substantial information that listing may be warranted due to overutilization for commercial or recreational purposes. Our determination is based upon the potential effects of incidental mortality associated with other legal trapping and the sensitivity of fisher populations to additional mortality. It is not clear whether the existing regulatory mechanisms for trapping fisher or other furbearers have failed to prevent the decline of fisher populations. On the one hand, unregulated over-trapping is implicated in the reduction in size and extirpation of fisher populations across the species' range in the past (Douglas and Strickland 1987, p. 512). However, habitat protection, and reintroductions and population augmentations, together with the establishment of trapping regulations that limit harvest, have helped restore and maintain fisher presence in many parts of the species' range (Douglas and Strickland 1987, p. 512), including the NRMs.

Based on our evaluation of the information presented in the petition and in our files, we determine that the petition does not present substantial information indicating that listing the fisher in the NRMs may be warranted due to the inadequacy of regulations addressing climate change. The level of information that we have at this 90-day finding stage is unclear as to whether the regulatory mechanisms pertaining to forestry practices, roads and forest access, and trapping are inadequate. We will evaluate all factors, including the adequacy of existing regulatory mechanisms, more thoroughly during our status review of the species.

The petitioners state that fishers in the NRMs are vulnerable to random environmental, demographic, and genetic events based on their low reproductive rates; tendency toward isolation; dependence on old-growth forests; and small, isolated populations (69 FR 18770; Jones 1991, p. 88; Roy 1991, pp. 42, 47, 60-61; Powell and Zielinski 1994, pp. 46-48; Weir 2003, p. 25; Wiselyet al. 2004, p. 646). They assert that past and ongoing trapping, forest practices, and road construction (as cited in the discussions of Factors A and B), and the undocumented assertion of human-induced climate change and its resulting outbreaks of fire, insects, and disease, have contributed to the small size and isolation of fisher populations. The petitioners also state that isolation erodes genetic diversity, reduces the ability of populations to respond to changes in the environment, and could lead to a loss of the affected populations (Wiselyet al. 2004, p. 646).

The impacts of forest practices and trapping are discussed under Factors A and B. We determined under Factor A that the petition does not present substantial information, and information in our files is insufficient to indicate that listing the fisher in the NRMs may be warranted due to climate change. Predicting local climate trends and determining how those trends will affect species is uncertain. Without additional information, the effect of long-term climate change on the fisher in the NRMs is unclear, and the effect could be neutral, a net positive, or a net negative.

We find that the effects of small populations are not substantially supported by information in the petition or readily available in our files. We recognize that small populations may be vulnerable to genetic problems, demographic variability, and extreme or catastrophic environmental events. Fishers are considered one of the lowest-density carnivores in at least part of the NRMs (Vinkey 2003, p. 61); however, the petitioners do not present information and no information is available in our files to determine numbers, trends, or demographic characteristics of fisher populations in the NRM area.

Based on our evaluation of the information presented in the petition and in our files, we conclude that the petition does not present substantial information indicating that listing the fisher may be warranted due to other natural or manmade factors. However, we will assess all factors, including this one, more thoroughly during our status review of the species.

On the basis of our determination under section 4(b)(3)(A) of the Act, we have determined that the petition presents substantial scientific or commercial information indicating that listing the fisher population in the NRMs as a DPS may be warranted. This finding is based on substantial information provided by the petitioners and in our files for Factors A and B. The information provided under Factors C, D, and E is not substantial. In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant a threat it is. If the threat is significant, it may drive or contribute to the risk of extinction of the species such that the species may warrant listing as threatened or endangered as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively may not be sufficient to compel a finding that listing may be warranted. The information shall contain evidence sufficient to suggest that these factors may be operative threats that act on the species to the point that the species may meet the definition of threatened or endangered under the Act.

Because we have found that the petition presents substantial information indicating that listing the fisher in the NRMs under the Act may be warranted, we are initiating a status review to determine whether listing under the Act is warranted. As part of our status review we will examine available information on the threats to the species and make a final determination in a 12-month finding on whether the species is warranted for listing as endangered or threatened under the Act. To ensure that the status review is complete, we are requesting scientific and commercial information regarding the fisher in the NRMs (as described above under theInformation Requested section). The petition also asks us to designate critical habitat for this species. If we determine in our 12-month finding that listing the fisher in its NRM range is warranted, we will address the designation of critical habitat in the subsequent proposed listing rule, if we conclude critical habitat is prudent and determinable.

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

A complete list of references cited is available on the Internet athttp://www.regulations.govand upon request from the Montana Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACTsection above).

The primary authors of this document are the staff members of the Montana Ecological Services Field Office (seeFOR FURTHER INFORMATION CONTACTsection above).

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