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Federal Register/Vol. 65, No. 67/Thursday, April 6, 2000 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 20<MAR>2000 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
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