18026 Federal Register / Vol. 65, No. 67 / Thursday, April 6, 2000 / Proposed Rules

By the Board, Chairman Morgan, Vice list, delist, or reclassify a species to evaluate the best scientific and Chairman Burkes, and Commissioner presents substantial information commercial information available as of Clyburn. indicating that the petitioned action that date. The data and information Vernon A. Williams, may be warranted. To the maximum evaluated were to include relevant Secretary. extent practicable, this finding is to be geographic information on the location [FR Doc. 00–8374 Filed 4–5–00; 8:45 am] made within 90 days of the receipt of of vernal pools and fairy shrimp, BILLING CODE 4915±00±P the petition, and the finding is to be including information generated in published promptly in the Federal section 7 consultations since February Register. If the finding is that 29, 1996. DEPARTMENT OF THE INTERIOR substantial information was presented, On September 19, 1994, we published we will commence a status review of the the final rule to list the vernal pool fairy Fish and Wildlife Service involved species. shrimp and vernal pool tadpole shrimp On February 29, 1996, we received a as threatened and endangered, 50 CFR Part 17 petition, dated the same day, to delist respectively, in the Federal Register (59 the vernal pool fairy shrimp FR 48136). The vernal pool fairy shrimp Endangered and Threatened Wildlife (Branchinecta lynchi) and the vernal and vernal pool tadpole shrimp are and Plants; 90-Day Finding on a pool tadpole shrimp (Lepidurus crustacean species endemic to vernal Petition To Delist the Vernal Pool Fairy packardi). The petition was submitted pool habitats in California and Shrimp and Vernal Pool Tadpole by the Fairy Shrimp Study Group southwestern Oregon. Both of these Shrimp (petitioner), consisting of the California fresh-water crustaceans are about the Chamber of Commerce, Granite size of a dime and live brief lives within AGENCY: Fish and Wildlife Service, Construction, Teichert Aggregates, vernal pools, seasonal wetlands that fill Interior. Sares-Regis Group, the California with water during fall and winter rains. ACTION: Notice of 90-day petition Cattlemen’s Association, the Western These species were listed as a result of finding. Growers Association, and the California significant threats to their vernal pool Farm Bureau Federation. habitats by a variety of human-caused SUMMARY: We, the U.S. Fish and In a letter dated March 8, 1996, we activities, primarily urban development Wildlife Service (Service), announce a notified the petitioner that a response and conversion of land to agricultural 90-day finding on a petition to remove would be delayed due to lack of funds use. the vernal pool fairy shrimp and continuing resolutions in effect The factors for listing, delisting, or (Branchinecta lynchi) and the vernal from November 14, 1995, to January 26, reclassifying species are described at 50 pool tadpole shrimp (Lepidurus 1996, resulting in suspension of the CFR 424.11. We may delist a species packardi) from the Federal list of listing program and reassignment of only if the best scientific and threatened and endangered species listing personnel to other activities. A commercial data available substantiate pursuant to the Endangered Species Act moratorium on listing activities, and the that it is neither endangered nor (Act) of 1973, as amended. We find that consequent backlog at the time the threatened. Delisting may be warranted the petition, other information the moratorium was lifted, further delayed as a result of: (1) Extinction; (2) petitioner specifically requested we us from responding to the delisting recovery; or (3) a determination that the evaluate, and additional information petition. original data used for classification of available in our files did not present On October 22, 1997, the petitioner the species as endangered or threatened substantial scientific or commercial filed a case in Federal court (Court) were in error. information indicating that delisting of challenging our failure to address the The petition asserts that delisting of the vernal pool fairy shrimp and vernal delisting petition (Fairy Shrimp Study the vernal pool fairy shrimp and vernal pool tadpole shrimp may be warranted. Group v. Babbitt, case number pool tadpole shrimp is warranted DATES: The finding announced in this 1:97CV02481). Most of the issues because the original data used for document was made on March 30, 2000. discussed by the petitioner were classification of the vernal pool ADDRESSES: Submit any data, included in a lawsuit filed by the crustaceans as threatened and information, comments, or questions Building Industry Association endangered were in error. The petition concerning this petition to the Field challenging the listing of the vernal pool contends the listing was erroneous for Supervisor; Sacramento Fish and crustaceans (Building Industry four general reasons: (1) The original Wildlife Office; 2800 Cottage Way, Association v. Babbitt, 979 F Supp. 893 data and studies supporting the listing, Room W–2605; Sacramento, California (1997)), and were addressed by the including the original petitions to list 95825. The petition finding and Court in that case. The Court found that the species, had fatal problems; (2) supporting data are available for public we had correctly determined the status original information relied upon was inspection, by appointment, during of the vernal pool crustaceans as not subjected to independent peer normal business hours at the above endangered and threatened and stated review; (3) new studies indicate that address. that (1) decisions to review petitions are California has widespread vernal pool not subject to judicial review; (2) we habitat that it is under little or no threat; FOR FURTHER INFORMATION CONTACT: Kyle had used the best available information and (4) the original listing information Merriam or Karen Miller at the in our decision to list the vernal pool did not correctly establish the threats to Sacramento Fish and Wildlife Office crustaceans; (3) the plaintiffs had been the species and their vernal pool (see ADDRESSES section above), or at provided adequate notice of the concept habitat. 916/414–6600. of vernal pool complexes and vernal We do not agree with the petitioner’s SUPPLEMENTARY INFORMATION: pool populations; and (4) we had not assertion that the original data and violated our Interagency Cooperative studies supporting the listing, including Background Policy for Peer Review in Endangered the original petitions to list the species, Section 4(b)(3)(A) of the Act (16 Species Activities (59 FR 34270). had fatal problems. The petitions and U.S.C. 1531 et seq.) requires that we In a settlement with the petitioner information accompanying or cited in make a finding on whether a petition to reached on October 26, 1999, we agreed them fulfilled the requirements as set

VerDate 202000 09:44 Apr 05, 2000 Jkt 190000 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\06APP1.SGM pfrm08 PsN: 06APP1 Federal Register / Vol. 65, No. 67 / Thursday, April 6, 2000 / Proposed Rules 18027 forth in the Act and our regulations (50 (1988) was incorrect. The petitioner obtain and review a copy of the first CFR 424.14(b)). The Act requires us to does not provide any alternative source (Jones and Stokes 1994); we were base listing decisions on the best information about rates of habitat loss, unable to obtain copies of the latter two scientific and commercial data or demonstrate this estimate was in sources and relied on the petitioner’s available. We diligently solicited all error. presentation of the information. Jones available information on the species The petitioner argues that the and Stokes (1994) supports our findings through public notice, public comment proposed and/or final rules did not that vernal pool habitats are threatened. periods, and public hearings to assure include random studies that could be Sugnet and Associates (1995) and the this standard was met. The petitioner extrapolated to unsampled areas or information attributed to Smith do not did not identify any information information about the locations of present new information about the available at the time of the listing that vernal pool crustacean populations, and current distribution of vernal pool was not considered by us in the listing questions the use of vernal pool habitats. The amount of remaining decision. complexes to evaluate vernal pool vernal pool habitats given by the Despite the petition’s focus on our crustacean populations. However, the petitioner supports rather than assessment of historic vernal pool final rule does include a random study challenges the information presented in habitat, remaining vernal pool habitat, (Simovich et al. 1993) and describes the the final rule. The comments attributed and habitat loss, these issues were number and location of the known to Wheeler do not provide any irrelevant to the decision to list the populations of the vernal pool information about vernal pools or vernal vernal pool crustaceans, since the listing crustaceans in adequate detail to convey pool crustaceans. None of these sources decision was not made as the result of relevant information about their range supports the petitioner’s claim that historic habitat loss. As stated in the and distribution. The concepts of vernal pool habitat is widespread and final rule, ‘‘The purpose of addressing populations and vernal pool complexes not threatened. historic vernal pool losses in the were addressed throughout the listing The petitioner states that existing proposed rule was to provide a process. The petitioner does not provide regulatory mechanisms made listing the historical context to the Central Valley any evidence to support its claim that vernal pool crustaceans unnecessary. ecosystem inhabited by the four the methodology of Simovich et al. However, the final rule exhaustively crustacean species. In a legal context, (1993) was flawed or that the results describes how existing regulatory the extent of historic habitat loss is of were not valid, and the petitioner does mechanisms were not sufficient to academic interest only, since the five not propose a more effective method of protect vernal pool crustacean habitats factors at 50 CFR 424.11(c) under which evaluating vernal pool crustacean based on information in the species may qualify for listing look populations in its petition. We do not administrative record. The petitioner prospectively to the future rather than agree with the petitioner’s assertion that notes that minimization measures taken retrospectively on the past. The relevant vernal pool crustaceans are present in for 22 projects mentioned in the final issues are whether the current extent of non-vernal pool habitats. We responded rule resulted in a net gain of vernal fairy and tadpole shrimp habitat is to this comment in the final rule and pools. However, many of these depleted and/or fragmented enough to concluded that most of these areas minimization measures were developed render the species vulnerable to represented historic vernal pool and implemented after the publication extinction, or whether foreseeable complexes that had been degraded by of the final rule listing the vernal pool threats similarly threaten the species’’ human activities (59 FR 48145). The crustaceans as threatened and (59 FR 48136). Section 4 of the Act, and petitioner presented no additional endangered. Without the protection of regulations promulgated to implement information to counter our finding. the Act, many of these measures would the listing provisions of the Act (50 CFR We disagree with the petitioner’s not have been implemented. part 424), set forth procedures for statement that the final rule did not As discussed in the final rule, we adding species to the Federal Lists. A receive peer review. We conducted concluded that the vernal pool fairy species may be determined to be extensive peer review on the listing of shrimp and vernal pool tadpole shrimp endangered or threatened due to one or the vernal pool crustaceans. The were threatened and endangered as the more of the five factors described in petitioner did not, and has not, result of urban development, conversion section 4(a)(1) of the Act: (1) The provided the names of individuals they of native habitat to agriculture, and present or threatened destruction, believe should have reviewed the extinction by naturally occurring modification, or curtailment of its information contained in the rule, and random events by virtue of the small, habitat or range; (2) overutilization for has not provided any evidence that our isolated nature of many of the remaining commercial, recreational, scientific, or method of peer review was not effective. populations. The petitioner contends educational purposes; (3) disease or The petition refers to four pieces of threats to vernal pool crustaceans predation; (4) inadequacy of existing information: Jones and Stokes (1994), discussed in the final rule were regulatory mechanisms; and (5) other Sugnet and Associates (1995), a study unverified. However, the threats natural or manmade factors affecting its presented by Dave Smith of the Natural described in the final rule were well continued existence. Resource Conservation Service at the supported, both with cited literature The petitioner suggested that 1994 Annual Conference of the and other information available in the estimates of habitat loss, historic vernal California Association of Resource administrative record. The petitioner pool habitat, and remaining vernal pool Conservation Districts, and comments does not provide any data, arguments, habitat cited in the final rule were made in 1996 by then-State Resources or evidence to contradict our findings. incorrect. We reviewed the information Secretary Douglas Wheeler ‘‘at a Since the petition to delist the vernal cited, and find that it represented the meeting of a governor’s task force.’’ The pool fairy shrimp and the vernal pool best scientific and commercial petitioner cites these sources to provide tadpole shrimp was submitted on information available on the vernal pool additional information on the vernal February 29, 1996, we added new crustaceans and their habitats. We can pool crustaceans and their remaining information to our files on the status of find no evidence to support the vernal pool habitats. The petitioner these species. We reviewed that petitioner’s arguments that the method provided a copy of Sugnet and information as requested by the of determining habitat loss in Holland Associates (1995), and we were able to petitioners, including relevant

VerDate 202000 09:44 Apr 05, 2000 Jkt 190000 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\06APP1.SGM pfrm08 PsN: 06APP1 18028 Federal Register / Vol. 65, No. 67 / Thursday, April 6, 2000 / Proposed Rules geographic information on the location References Cited proposed Amendment 13 to the Fishery of vernal pools and fairy shrimp, and Management Plan for Bering Sea and information generated in section 7 Holland, R.F. 1988. What about this vernal Aleutian Islands King and Tanner Crab, consultations and section 10 habitat pool business? Pages 351–355 in J.A. and proposed Amendment 8 to the conservation plans. Except for the Kusler, S. Daly, and G. Brooks, editors. Fishery Management Plan for the Urban wetlands, proceedings of the discovery of a new population of vernal National Wetland Symposium. Oakland, Scallop Fishery off Alaska (FMPs). pool fairy shrimp in Jackson County, California These fishery management plan (FMP) Oregon (Brent Helm, May Consulting Jones and Stokes Associates. 1994. Wetland amendments would incorporate the Services, in litt. 1998), the current range resource planning recommendations for provisions of the American Fisheries and distribution of these species is as Chico, Clovis, Fresno, and surrounding Act (AFA) into the FMPs and their described in the final rule. Current areas of Butte and Fresno Counties. implementing regulations. The scope of information on the status of the vernal Sacramento, California. iv + 73 pp. + maps the analysis will include all proposed pool crustaceans indicates these species + appendices regulations and activities that would be Simovich, M., R. Brusca, and J. King. 1993. are not yet recovered. Significant threats Invertebrate survey 1991–1993, PGT–PGE/ implemented under the proposed FMP still exist throughout their ranges, Bechtel pipeline expansion project. amendments. primarily urban development and Unpublished report to Bechtel Corporation, DATES: Written comments will be conversion of land to intensive San Francisco, California. accepted through May 8, 2000. agricultural use. Habitat loss occurs Sugnet and Associates. 1995. Habitat from direct destruction and conservation planning for California’s ADDRESSES: Written comments and modification of vernal pools due to Central Valley grassland prairie/vernal requests to be included on a mailing list these and other activities, as well as pool landscapes. National Association of of persons interested in the EIS should Environmental Professionals Conference, be sent to Lori Gravel, NMFS, Alaska modification of surrounding uplands Washington, D.C. 4 pp. that can alter vernal pool habitats Region, P.O. Box 21668, Juneau, AK 99802, or delivered to the Federal Office indirectly. Population growth Author projections for California indicate the Building, Room 457–1, 709 West 9th The primary author of this document current trends of agricultural conversion Street, Juneau, AK, and marked Attn: is Kyle E. Merriam, Sacramento Fish and urbanization will continue to Lori Gravel. and Wildlife Office (see ADDRESSES threaten the vernal pool crustacean section above). FOR FURTHER INFORMATION CONTACT: Kent species, particularly because areas Lind, NMFS, (907) 586–7228 or containing vernal pools are primarily Authority [email protected]. privately owned. The existing network The authority for this action is the SUPPLEMENTARY INFORMATION: NMFS of protected areas is not yet adequate to Endangered Species Act of 1973, as manages the U.S. groundfish fisheries in permanently protect these species from amended (16 U.S.C. 1531 et seq). extinction. Continued implementation the exclusive economic zone of the of the Act is necessary to achieve a Dated: March 30, 2000. Bering Sea and Aleutian Islands conservation strategy that includes large Jamie Rappaport Clark, Management Area (BSAI) and Gulf of areas of permanently protected vernal Director, U.S. Fish and Wildlife Service. Alaska (GOA) under the FMPs for pool crustacean habitats that are not [FR Doc. 00–8420 Filed 4–4–00; 8:45am] groundfish in the respective areas. With subject to the threats of urbanization BILLING CODE 4310±55±P Federal oversight, the State of Alaska and agricultural conversion. (State) manages the commercial king Listing the fairy shrimp and the crab and Tanner crab fisheries in the vernal pool tadpole shrimp as DEPARTMENT OF COMMERCE BSAI and the commercial scallop threatened and endangered provides for fishery off Alaska under the FMPs for the development of a recovery plan, National Oceanic and Atmospheric those fisheries. The North Pacific which is being developed. The recovery Administration Fishery Management Council (Council) plan will describe site-specific actions prepared, and NMFS approved, the necessary to achieve conservation and 50 CFR Part 679 FMPs under the authority of the survival of the fairy shrimp and the [I.D. 032800B] Magnuson-Stevens Fishery vernal pool tadpole shrimp, and will Conservation and Management Act, 16 establish a framework for agencies to Fisheries of the Exclusive Economic U.S.C. 1801 et seq. Regulations coordinate activities and cooperate with Zone Off Alaska; Amendments 61/61/ implementing the FMPs appear at 50 each other in conservation efforts. The 13/8 to Implement Major Provisions of CFR part 679. General regulations plan will also set recovery goals and the American Fisheries Act governing U.S. fisheries also appear at 50 CFR part 600. priorities. After the plan is completed AGENCY: National Marine Fisheries and implemented, we will continue to Service (NMFS), National Oceanic and EISs were prepared and filed when evaluate information on the status of Atmospheric Administration (NOAA), the FMPs for the groundfish fisheries of and threats to these species, and Commerce. the BSAI and GOA were prepared and approved by NMFS in 1978 and 1981, undertake delisting actions as ACTION: Notice of intent; scoping period; appropriate. request for comments. respectively. On October 1, 1999, NMFS Thus, based on our review of announced its intent to prepare a information on the vernal pool SUMMARY: NMFS announces its intent to programmatic supplemental crustaceans added to our files since the prepare an environmental impact environmental impact statement that time of listing and the information that statement (EIS) on proposed defined the Federal action under review the petitioner asked us to review, we Amendment 61 to the Fishery as, among other things, all activities determine there is not substantial Management Plan for the Groundfish authorized and managed under the information to indicate that delisting of Fishery of the Bering Sea and Aleutian FMPs and all amendments thereto, and the vernal pool tadpole shrimp and Islands Area, proposed Amendment 61 that addresses the conduct of the BSAI vernal pool fairy shrimp may be to the Fishery Management Plan for and GOA groundfish fisheries as a warranted. Groundfish of the Gulf of Alaska, whole. Work on this programmatic SEIS

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