Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60605

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR § 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting.

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

Part 73 as follows:

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for Part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Indiana, is amended 

by removing Channel 243A at Corydon 

and by adding Lanesville, Channel 

243A.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–22879 Filed 10–8–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 04–3010; MB Docket No. 04–367; RM–

11070] 

Radio Broadcasting Services; Genoa, 

CO; Security, CO

AGENCY: Federal Communications 

Commission.

ACTION: Proposed rule.

SUMMARY: This document requests 

comments on a petition for rulemaking 

filed by Optima Communications, Inc. 

requesting the substitution of Channel 

288C2 for Channel 288C3 at Security, 

Colorado and the modification of 

Station KSKX(FM)’s license 

accordingly. The coordinates for 

Channel 288C2 at Security are 38–37–30 

NL and 104–49–00 WL. There is a site 

restriction 16.12 kilometers (10 miles) 

southwest of the community. To 

accommodate the proposal, petitioner 

requests the substitution of Channel 

291C3 for vacant Channel 288C3 at 

Genoa, Colorado. The coordinates for 

Channel 291C3 at Genoa are 39–15–35 

NL and 103–17–15 WL with a site 

restriction 18.4 kilometers (11.4 miles) 

east of the community.

DATES: Comments must be filed on or 

before November 15, 2004, and reply 

comments on or before November 30, 

2004.

ADDRESSES: Secretary, Federal 

Communications Commission, 445 

Twelfth Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve the petitioner as follows: Optima 

Communications, Inc., c/o Mark N. 

Lipp, Esq., Vinson & Elkins, L.L.P., The 

Willard Office Building, 1455 

Pennsylvania Avenue, NW., 

Washington, DC 20004–1008.

FOR FURTHER INFORMATION CONTACT:

Helen McLean, Media Bureau, (202) 

418–2738.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

367, adopted September 22, 2004, and 

released September 24, 2004. The full 

text of this Commission notice is 

available for inspection and copying 

during normal business hours in the 

FCC’s Reference Information Center at 

Portals II, CY–A257, 445 Twelfth Street, 

SW., Washington, DC. This document 

may also be purchased from the 

Commission’s duplicating contractors, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone

1–800–378–3160 or http://

www.BCPIWEB.com.

Provisions of the Regulatory 

Flexibility Act of l980 do not apply to 

this proceeding. 

Members of the public should note 

that from the time a Notice of Proposed 

Rule Making is issued until the matter 

is no longer subject to Commission 

consideration or court review, all ex 

parte contacts are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1204(b) for rules 

governing permissible ex parte contacts. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting.

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows:

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended] 

2. Section 73.202(b), the Table of FM 

Allotments under Colorado, is amended 

by removing Channel 288C3 and by 

adding Channel 291C3 at Genoa; by 

removing Channel 288C3 and by adding 

Channel 288C2 at Security.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–22880 Filed 10–8–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To Delist the Ute Ladies’-

Tresses Orchid and Initiation of a

5-Year Review

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to remove 

the Ute ladies’-tresses orchid 

(Spiranthes diluvialis) from the Federal 

List of Endangered and Threatened 

Wildlife and Plants pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). We find that the petition 

presents substantial information and are 

initiating a status review to determine if 

delisting this species is warranted. We 

are requesting submission of any new 

information (best scientific and 

commercial data) on the Ute ladies’-

tresses orchid since its original listing as 

a threatened species in 1992. 

Following this status review, we will 

issue a 12-month finding on the petition 

to delist. Because a status review is also 

required for the 5-year review of listed 

species under section 4(c)(2)(A) of the 

Act, we are electing to prepare these 

reviews simultaneously. At the 

conclusion of these simultaneous 

reviews, we will issue the 12-month 

finding on the petition, as provided in 

section 4(b)(3)(B) of the Act, and make 

the requisite finding under section 

4(c)(2)(B) of the Act based on the results 

of the 5-year review.

60606 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

DATES: The 90-day finding announced 

in this document was made on October 

12, 2004. To be considered in the 12-

month finding on this petition or the 5-

year review, comments and information 

should be submitted to us by December 

13, 2004.

ADDRESSES: Comments, material, 

information, or questions concerning 

this petition and finding should be sent 

to the Field Supervisor, U.S. Fish and 

Wildlife Service, Ecological Services, 

2369 West Orton Circle, Suite 50, West 

Valley City, Utah 84119. The separate 

petition finding, supporting data, and 

comments are available for public 

review, by appointment, during normal 

business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. 

Henry Maddux, Field Supervisor, U.S. 

Fish and Wildlife Service, Ecological 

Services, Utah Field Office, at the above 

address or by telephone at 801–975–

3330.

SUPPLEMENTARY INFORMATION: 

Background 

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 to indicate that 

the petitioned action may be warranted. 

We are to base this finding on all 

information available to us at the time 

we make the finding. To the maximum 

extent practicable, we must make this 

finding within 90 days of receiving the 

petition and publish a notice of the 

finding promptly in the Federal 

Register. Our standard for substantial 

information 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)). When 

a substantial finding is made, we are 

required to promptly begin a review of 

the status of the species, if one has not 

already been initiated. 

When considering an action for 

listing, delisting, or reclassifying a 

species, we are required to determine 

whether a species is endangered or 

threatened based on one or more of the 

five listing factors as described at 50 

CFR 424.11. These factors are given as—

(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; and (E) other natural or 

manmade factors affecting the 

continued existence of the species. 

Delisting a species must be supported 

by the best scientific and commercial 

data available and only considered if 

such data substantiates that the species 

is neither endangered nor threatened for 

one or more of the following reasons—

(1) The species is considered extinct; (2) 

the species is considered to be 

recovered; and/or (3) the original data 

available when the species was listed, or 

the interpretation of such data, were in 

error. 

In 1992, we listed Ute ladies’-tresses 

orchid (Spiranthes diluvialis) as 

threatened (57 FR 2053). We made this 

determination based upon the best 

scientific and commercial information 

available at the time. As stated and 

documented in the final listing rule, this 

action was taken, in part, because of 

—(1) The threats of habitat loss and 

modification and (2) the orchid’s small 

population and low reproductive rate 

make it vulnerable to other threats. We 

did not designate critical habitat for Ute 

ladies’-tresses orchid because such 

action was not considered prudent at 

the time. On May 10, 1996, we received 

a petition from the Central Utah Water 

Conservancy District to delist Ute 

ladies’-tresses orchid pursuant to the 

Act. A ‘‘Special Status Species Update’’

for Ute ladies’-tresses orchid, dated 

April 1996, accompanied the petition as 

supporting information.

In response to the petitioner’s request 

to delist Ute ladies’-tresses orchid, we 

sent a letter to the petitioner on June 10, 

1996, explaining our inability to act 

upon the petitions due to the low 

priorities assigned to delisting petitions 

in our 1996 Listing Priority Guidance 

(61 FR 24722, May 16, 1996). Prior to 

1999, the Service listing budget 

(including delistings, reclassifications, 

and designations of critical habitat) was 

underfunded, which meant that lower 

tier priority actions went unaddressed. 

Beginning in 1999, work on delisting 

(including delisting petition findings) 

was included in the line item for the 

recovery program instead of the listing 

program (64 FR 27596, May 20, 1999). 

Since 1999, higher priority work has 

further precluded our ability to act upon 

this petition. 

In making this finding we rely on 

information provided by the petitioners 

and evaluate that information in 

accordance with 50 CFR 424.14(b). The 

contents of this finding summarize that 

information included in the petition and 

which was available to us at the time of 

the petition review. Our review for the 

purposes of a so-called ‘‘90-day’’ finding 

under section 4(b)(3)(A) of the Act and 

§ 424.14(b) of our regulations is limited 

to a determination of whether the 

information in the petition meets the 

‘‘substantial information’’ threshold. We 

do not conduct additional research at 

this point, nor do we subject the 

petition to rigorous critical review. 

Rather, as the Act and regulations 

contemplate, at the 90-day finding, we 

accept the petitioner’s sources and 

characterizations of the information 

unless we have specific information to 

the contrary. Thus, in this finding, we 

express no view as to the ultimate issue 

of whether the species should be 

delisted. We can come to a conclusion 

on that issue only after a more thorough 

review of the species’ status. In that 

review, which will take approximately 9 

more months, we will perform a 

rigorous critical analysis of the best 

available scientific information, not just 

the information in the petition. We will 

ensure that the data used to make our 

determination as to the status of the 

species is consistent with the Act and 

the Information Quality Act (Pub. L. 

106–554). We ask the public to submit 

to us any pertinent information 

concerning the status of or threats to 

this species. 

Discussion 

The petition states that there is 

substantial new information indicating 

that the population size and distribution 

are much larger than known at the time 

of listing; there is more information on 

life history and habitat needs, allowing 

better management; and threats are not 

as great in magnitude or imminence as 

understood at the time of listing. The 

petition was accompanied by a ‘‘Special 

Species Status Update.’’ The Status 

Update compiled, synthesized, and 

described information from Service files 

that had been acquired about Ute 

ladies’-tresses orchid since it was listed. 

Information included taxonomy and 

genetics, reproductive biology and life 

history, pollination, and population size 

and distribution. The five listing factors 

(as defined in section 4(a)(1) of the Act) 

were then addressed using this new 

information. 

Since the date of the petition to delist, 

additional information has been 

acquired and provided to the Service. In 

1995, the total estimated population size 

was 20,500 individuals. With 

discoveries since 1995, population 

estimates have increased. The total 

population size of Ute ladies’-tresses 

orchid is currently estimated to be 

60,000 individuals. 

New occurrences have been 

documented in Nebraska, Wyoming, 

Washington, Idaho, Utah, and Colorado, 

substantially increasing the known 

range and estimated population size. 

Monitoring of species numbers, certain 

demographic parameters, and habitat

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60607

characteristics has improved our 

understanding of population 

fluctuations, habitat preferences, and 

threats to habitat conditions. Research 

has continued on pollination biology, 

genetics, and root-associated fungi. 

Research and monitoring have been 

conducted on the relationship of stream 

flows, ground water levels, and stream 

channel form to surfaces on which the 

orchid occurs. All new information will 

be considered and fully analyzed as part 

of the species status review. 

Finding 

We have reviewed the petition and its 

supporting documentation. We have 

found that the petition presents 

substantial information indicating that 

delisting Ute ladies’-tresses orchid may 

be warranted. As the petition to delist 

asserts, new information acquired since 

the orchid was listed indicates that 

population size is greater than originally 

known. While significant questions 

remain about the actual size of 

populations, requirements for seedling 

establishment and recruitment, and 

severity of impacts due to habitat 

modifications such as water 

development projects, we consider these 

to be issues relevant to the listing 

determination and warranting further 

investigation. Accordingly, we believe it 

is appropriate to consider this 

information and any other new 

information available about this species 

and the threats it may face in a status 

review. A status review is a component 

of both the 12-month finding and the 

five-year review; therefore, we will be 

conducting these reviews 

simultaneously.

Five-Year Review 

Section 4(c)(2)(A) of the Act requires 

that we conduct a review of listed 

species at least once every 5 years. We 

are then, under section 4(c)(2)(B) and 

the provisions of subsection (a) and (b), 

to determine, on the basis of such a 

review, whether or not any species 

should be removed from the List 

(delisted), or reclassified from 

endangered to threatened, or from 

threatened to endangered. Our 

regulations at 50 CFR 424.21 require 

that we publish a notice in the Federal 

Register announcing those species 

currently under active review. This 

notice announces our active review of 

the Ute ladies’-tresses orchid. 

Public Information Solicited 

We are requesting information for 

both the 12-month finding and the 5-

year review, as we are conducting these 

reviews simultaneously. 

When we make a finding that 

substantial information exists to 

indicate that listing or delisting a 

species may be warranted, we are 

required to promptly commence a 

review of the status of the species. To 

ensure that the status review is 

complete and based on the best 

available scientific and commercial 

information, we are soliciting 

information on Ute ladies’-tresses 

orchid. This includes information on 

taxonomy and genetics, reproductive 

biology and life history, pollination, 

population size, distribution, habitat 

management, and the five listing factors 

(including type and imminence of 

threats). We request any additional 

information, comments, and suggestions 

from the public, other concerned 

governmental agencies, Tribes, the 

scientific community, industry or 

environmental entities, or any other 

interested parties concerning the status 

of Ute ladies’-tresses orchid. 

The 5-year review considers all new 

information available at the time of the 

review. This review will consider the 

best scientific and commercial data that 

has become available since the current 

listing determination or most recent 

status review. Categories of requested 

information include (A) species biology, 

including but not limited to population 

trends, distribution, abundance, 

demographics, and genetics; (B) habitat 

conditions, including but not limited to 

amount, distribution, and suitability; (C) 

conservation measures that have been 

implemented that benefit the species; 

(D) threat status and trends; and (E) 

other new information, data, or 

corrections, including but not limited to 

taxonomic or nomenclatural changes, 

identification of erroneous information 

contained in the List, and improved 

analytical methods. 

If you wish to comment for either the 

12-month finding or the 5-year review, 

you may submit your comments and 

materials concerning this finding to the 

Field Supervisor, U.S. Fish and Wildlife 

Service, Utah Field Office (see 

ADDRESSES section). Our practice is to 

make comments, including names and 

home addresses of respondents, 

available for public review during 

regular business hours. Respondents 

may request that we withhold a 

respondent’s identity, as allowable by 

law. If you wish us to withhold your 

name or address, you must state this 

request prominently at the beginning of 

your comment. However, we will not 

consider anonymous comments. To the 

extent consistent with applicable law, 

we will make all submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, available 

for public inspection in their entirety. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

References Cited 

A complete list of all references cited 

in this finding is available, upon 

request, from the U.S. Fish and Wildlife 

Service, Utah Field Office (see 

ADDRESSES section).

Authority: The authority for this action is 

section 4 of the Act (16 U.S.C. 1531 et seq.).

Dated: September 29, 2004. 

Paul Henne, 

Acting Director, Fish and Wildlife Service.

[FR Doc. 04–22735 Filed 10–8–04; 8:45 am] 

BILLING CODE 4310–55–U