Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 77167

Little specific information was 

presented in the petition documenting 

significant declines to the western brook 

and river lamprey. The western brook 

lamprey and river lamprey distribution 

overlaps with the petitioned range of the 

Pacific lamprey. Consequently, these 

two species likely experience some of 

the same threats as documented for 

Pacific lampreys. Like the Pacific 

lamprey, the river lamprey may be 

prone to threats common to the lower 

reaches of large developed rivers. In 

contrast, the non-anadromous western 

brook lamprey is not known to be 

subject to threats associated with ocean 

conditions. Most lamprey abundance 

data is based on counts of ammocoetes 

that have not been identified to species. 

While declines or extirpations in 

specific locations have been 

documented, very little quantitative 

information is available to evaluate 

population trends compared to 

historical conditions. The petitioners 

contend that all of the petitioned 

lamprey species have been subjected to 

habitat losses and population declines 

due to a variety of threats. While we 

have no information to the contrary, the 

petition does not provide the substantial 

scientific or commercial information 

required indicating that listing the 

western brook lamprey or the river 

lamprey may be warranted.

Finding 

The Service has reviewed the petition 

to list the Pacific lamprey, western 

brook lamprey, and river lamprey, the 

literature cited in the petition that was 

available to us, and other available 

scientific literature and information in 

our files. Neither the information 

presented in the petition nor that 

available in Service files presents 

substantial scientific or commercial 

information to demonstrate that the 

Pacific lamprey located in the lower 48 

states is a listable entity. Accordingly, 

we are unable to define a listable entity 

of the Pacific lamprey. Since the 

population of Pacific lamprey cannot be 

defined as a DPS at this time, thus 

ineligible to be considered for listing, 

we did not evaluate its status as 

endangered or threatened on the basis of 

either the Act’s definitions of those 

terms or the factors in section 4(a) of the 

Act. We also find that there is not 

substantial scientific or commercial 

information indicating that listing the 

western brook lamprey or the river 

lamprey in California, Oregon, 

Washington, and Idaho may be 

warranted. 

Even though we did not find that 

substantial scientific or commercial 

information has been presented to 

indicate that the petitioned action may 

be warranted for these three species of 

lamprey, we encourage interested 

parties to continue to gather data that 

will assist with the conservation of the 

species. Although a nonsubstantial 

finding does not initiate a formal status 

review for these species, we encourage 

additional information gathering and 

research to increase our understanding 

of the status of these species on such 

topics as the following: 

(1) The Pacific, river, or western brook 

lamprey biology and ecology, their 

current and historical distribution and 

abundance, and habitat needs during all 

life stages; 

(2) The range, status, and trends of 

these species; 

(3) Specific threats to these species or 

their habitats; 

(4) Techniques for improving 

identification of lamprey ammocoetes to 

species; 

(5) Any other information that would 

aid in determining these species, 

population status, trends, and structure; 

(6) The adequacy of existing 

regulatory mechanisms to protect or 

conserve lampreys and their habitat. 

If you wish to provide information 

regarding any of the three lamprey 

species, you may submit your 

information or materials to the State 

Supervisor, Oregon Fish and Wildlife 

Office (see ADDRESSES section above). 

References Cited 

A complete list of all references cited 

herein is available, upon request, from 

the Oregon Fish and Wildlife Office (see 

ADDRESSES section above). 

Author 

The primary author of this notice is 

the staff of the U.S. Fish and Wildlife 

Service, Oregon Fish and Wildlife Office 

(see ADDRESSES section above), with 

support from staff of Service offices in 

California, Oregon, Washington, and 

Idaho.

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.).

Dated: December 20, 2004. 

Marshall P. Jones, Jr., 

Director, Fish and Wildlife Service.

[FR Doc. 04–28167 Filed 12–23–04; 8:45 am] 

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

Endangered and Threatened Wildlife 

and Plants; 12-Month Findings on 

Resubmitted Petitions To List the 

Southern Idaho Ground Squirrel, Sand 

Dune Lizard, and Tahoe Yellow Cress

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: 12-Month Findings on 

Resubmitted Petitions to List Three 

Species Under the Endangered Species 

Act. 

SUMMARY: We, the Fish and Wildlife 

Service (Service), announce our 12-

month findings on resubmitted petitions 

to list the southern Idaho ground 

squirrel (Spermophilus brunneus 

endemicus), the sand dune lizard 

(Sceloporus arenicolus), and the Tahoe 

yellow cress (Rorippa subumbellata) 

pursuant to the Endangered Species Act 

(Act) of 1973, as amended. We find that 

proposed rules to list these species 

continue to be warranted but precluded 

by other higher priority listing actions. 

We will continue to consider each of 

these species as a candidate for listing. 

We request additional status 

information that may be available for 

any of these three candidate species. 

This information will help us in 

monitoring changes in the status of 

these candidate species and conserving 

them. Also, we will consider this 

information in preparing subsequent 

reviews to determine whether listing 

remains warranted, and in the 

preparation of listing documents in the 

event that a proposal for listing for one 

or more of these species is no longer 

precluded.

DATES: This finding was made on 

December 17, 2004. We will accept 

comments on these three candidate 

species at any time.

ADDRESSES: Submit your comments 

regarding any of the three species to the 

Regional Director of the Region 

identified in SUPPLEMENTARY

INFORMATION as having the lead 

responsibility for that species. Written 

comments and materials received will 

be available for public inspection by 

appointment at the appropriate Regional 

Office listed in SUPPLEMENTARY

INFORMATION.

A species assessment form with 

information and references regarding 

each of these three candidate species’

range, status, habitat needs, and listing 

priority assignment is available for 

review at the appropriate Regional 

77168 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 

Office listed below in SUPPLEMENTARY

INFORMATION or on our Internet Web site, 

which is http://endangered.fws.gov/

candidates/index.html.

FOR FURTHER INFORMATION CONTACT: The 

Endangered Species Coordinator(s) in 

the appropriate Regional Office(s) 

identified in SUPPLEMENTARY

INFORMATION as having the lead 

responsibility for that species.

SUPPLEMENTARY INFORMATION: 

Background 

Petition for a Candidate Species 

Under section 4 of the Act the Service 

may identify and propose species for 

listing based on the factors identified in 

section 4(a)(1). Section 4 also provides 

a mechanism for the public to petition 

us to add a species to the lists of species 

determined to be threatened species or 

endangered species (‘‘Lists’’) pursuant 

to the Act. Under section 4(b)(3)(A) of 

the Act, to the maximum extent 

practicable we must determine within 

90 days of receiving such a petition 

whether it presents substantial 

information that listing may be 

warranted; we refer to this as a ‘‘90-day 

finding.’’ The Act requires that in the 

event of a positive 90-day finding, we 

must promptly commence a status 

review of the species.

Section 4(b)(3)(B) specifies that in the 

event of a positive 90-day finding, we 

shall make and publish in the Federal 

Register one of three possible findings 

within 12 months of the receipt of the 

petition, which we refer to as a ‘‘12-

month finding’: 

1. The petitioned action is not 

warranted; 

2. The petitioned action is warranted 

(in which case we are required to 

promptly publish a proposed regulation 

to implement the petitioned action); or 

3. The petitioned action is warranted 

but that (a) the immediate proposal of a 

regulation and final promulgation of 

regulation implementing the petitioned 

action is precluded by pending 

proposals, and (b) expeditious progress 

is being made to add qualified species 

to the lists of endangered or threatened 

species. (We refer to this as a 

‘‘warranted but precluded’’ finding.) 

Section 4(b)(3)(C) of the Act requires 

that when we make a warranted but 

precluded finding on a petition, we are 

to annually treat such a petition as one 

that is resubmitted on the date of such 

a finding. Thus we are required to 

publish a new finding on these 

‘‘resubmitted’’ petitions on an annual 

basis. 

On June 21, 2004, the United States 

District court for the District of Oregon 

(Center for Biological Diversity v. 

Norton, Civ. No. 03–1111–AA) found 

that our resubmitted petition findings 

for the southern Idaho ground squirrel, 

the sand dune lizard, and the Tahoe 

yellow cress that we published as part 

of the Candidate Notice of Review 

(CNOR) on May 4, 2004 (69 FR 24876) 

were not sufficient. The court indicated 

we did not specify what listing action is 

proposed for the higher priority species 

that precluded publishing a proposed 

rule for these three species, and that we 

did not adequately explain the reasons 

why actions for the identified species 

are deemed higher in priority, or why 

such actions result in the preclusion of 

listing actions for the southern Idaho 

ground squirrel, sand dune lizard, or 

Tahoe yellow cress. The court ordered 

that we publish updated findings for 

these species within 180 days of the 

order. 

We previously received petitions and 

made findings that listing each of these 

species was warranted but precluded; 

the most recent resubmitted petition 

findings for these species were part of 

the CNOR published on May 4, 2004 (69 

FR 24876). We subsequently have 

updated our information and 

incorporated any new information in 

updated assessments of the status of and 

threats to these three species. As a result 

of these updated assessments and after 

taking into consideration available 

funding in relation to pending listing 

actions (described below), we now are 

making continued warranted-butprecluded 12-month findings on the 

petitions for these three species. (In the 

‘‘Summary of Petitioned Candidates,’’

below, we present summaries of why 

these three species continue to warrant 

listing and we specify the listing 

priority number that we have assigned 

to each species.) These findings mean 

that the immediate publication of 

proposed rules to list these species 

remains precluded by our work on 

higher priority listing actions. A 

description and evaluation of the 

reasons and data on which these 

findings are based is provided below, 

including specific reasons why the 

issuance of a proposed listing rule is 

precluded for each of these species, as 

well as a description of expeditious 

progress being made by the Service to 

add qualified species to the Lists. We 

will continue to monitor the status of 

these three species as new information 

becomes available to determine if a 

change in status is warranted, including 

the need to emergency-list any or all of 

the three species under section 4(b)(7) of 

the Act. 

Preclusion and Expeditious Progress 

Preclusion is a function of a species’

listing priority in relation to the 

resources that are available and 

competing demands for those resources. 

(The listing priority of a species is 

represented by the listing priority 

number (LPN) we assign to it in 

accordance with our priority guidance 

as published on September 21, 1983 (48 

FR 43098)). Thus, in any given fiscal 

year (FY), multiple factors dictate 

whether it will be possible to undertake 

work on a proposed listing regulation or 

whether promulgation of such a 

proposal is warranted but precluded by 

higher priority listing actions. 

The resources available for listing 

actions are determined through the 

annual appropriations process and we 

cannot spend more than is appropriated 

for the Listing Program without 

violating the Anti-Deficiency Act. The 

Listing Program includes work related 

to proposed and final listing regulations 

under the Act, critical habitat 

designations, and petitions from the 

public to list species (including work on 

petitions being addressed for the first 

time as well as the annual review to 

make findings on resubmitted petitions 

for ‘‘warranted but precluded’’

candidate species).

The number of listing actions that we 

can undertake in a given year also is 

influenced by the complexity of those 

listing actions, i.e., more complex 

actions generally are more costly and 

this affects the number of listing actions 

that we can work on with a fixed 

amount of funding in a given year. For 

example, for FY 2002 to FY 2004, the 

costs (excluding publication costs) for 

conducting a 12-month finding, without 

a proposed rule, ranged from 

approximately $9,600 for one species 

with a restricted range and involving a 

relatively uncomplicated analysis, to 

$305,000 for another species that was 

wide-ranging and with a complex 

analysis. 

In FY 1998 and for each fiscal year 

since then, Congress placed a statutory 

cap on funds which may be expended 

for listing and critical habitat actions 

(i.e. the Listing Program), equal to the 

amount expressly appropriated for that 

purpose in that fiscal year. This cap was 

designed to prevent funds appropriated 

for other ESA functions, or for other 

Service programs, from being used for 

listing or critical habitat actions (see 

House Report 105–163, 105th Congress, 

1st Session). 

Beginning in FY 2002, Congress also 

put in place the critical habitat 

‘‘subcap,’’ which put an upper limit on 

the Listing Program funds that could be 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 77169

spent on work related to critical habitat 

designations for already listed species. 

Recognizing that designation of critical 

habitat for species already listed would 

consume most of the overall Listing 

Program appropriation, Congress put the 

subcap in place to ensure that some 

funds would be available to make other 

listing determinations: ‘‘The critical 

habitat designation subcap will ensure 

that some funding is available to 

address other listing activities’’ (H.R. 

Rep. No. 103, 107th Cong., 1st Sess. 

2001 at 30, 2001 WL 695998). Because 

the Service has had to use virtually the 

entire critical habitat subcap to address 

court-mandated designations of critical 

habitat, Congress in effect determined, 

through the listing cap and the critical 

habitat subcap, the amount available for 

other listing activities. 

Congress also has recognized that the 

availability of resources was the key 

element in deciding whether there 

would be a listing proposal or a 

‘‘warranted but precluded’’ finding for a 

given species. The Conference Report 

accompanying Pub. L. 97–304, which 

established the current statutory 

deadlines and the ‘‘warranted but 

precluded’’ finding, states (in a 

discussion on 90-day petition findings 

that by its own terms also covers 12-

month findings) that the deadlines were 

‘‘not intended to allow the Secretary to 

delay commencing the rulemaking 

process for any reason other than that 

the existence of pending or imminent 

proposals to list species subject to a 

greater degree of threat would make 

allocation of resources to such a petition 

[i.e. for a lower-ranking species] 

unwise.’’ Therefore, in fiscal year 2004, 

the outer parameter within which 

‘‘expeditious progress’’ must be 

measured is that amount of progress that 

could be achieved by spending $3.38 

million, which was the amount 

available in the Listing Program 

appropriation other than the critical 

habitat subcap (all the critical habitat 

subcap funds were used for designations 

required by court order or courtapproved settlement agreements). 

Our process is to make our 

determinations of preclusion on a 

nationwide basis to ensure that the 

species most in need of listing will be 

addressed first and also because we 

allocate our listing budget on a 

nationwide basis. However, through 

court orders and court-approved 

settlements, federal district courts have 

mandated that FWS must complete 

certain listing activities with respect to 

specified species and established the 

schedules for completing those 

activities. The species involved in these 

court-mandated listing activities are not 

always those that we have identified as 

being most in need of listing. A large 

majority of the appropriation available 

for new listings of species was 

consumed by such court-mandated 

listing activities in FY 2004, and by 

ordering or sanctioning these actions the 

courts essentially determined that these 

were the highest priority actions to be 

undertaken with available funding. 

Accordingly, in FY 2004, FWS had little 

discretion to determine what listing 

activities to undertake and what species 

to address. Copies of all of the court 

orders and settlement agreements 

referred to below are available from the 

Service and are part of the 

administrative record for these 

resubmitted petition findings. 

On November 10, 2003, the President 

signed the 2004 Interior and Related 

Agencies Appropriations Act (Pub. L. 

108–108), which included $3,386,000 

for listing activities not related to 

critical habitat designations for species 

that already are listed. This 

appropriation was fully allocated to 

fund the following categories of actions 

in the Listing Program: Emergency 

listings; essential litigation-related, 

administrative, and program 

management functions; compliance 

with court orders and court-approved 

settlement agreements requiring that 

petition findings or listing 

determinations be completed by a 

specific date; section 4 listing actions 

with absolute statutory deadlines; and 

high-priority listing actions. Based on 

the available funds and their allocation 

for these purposes, no FY 2004 funds 

were available for listing actions for the 

southern Idaho ground squirrel, sand 

dune lizard, or Tahoe yellow cress. 

Specific details regarding the individual 

actions taken using the FY 2004 

funding, which precluded our ability to 

undertake listing proposals for any of 

these three candidate species, are 

provided below. 

We note here that the category of 

‘‘high-priority listing actions’’

mentioned above refers to actions for 

which no timeline has been established 

by a court order or settlement 

agreement, and that also are not subject 

to a statutory deadline. Our ability to 

work on such listing actions is quite 

limited. In recent years, our allocation 

of Listing Program funds has included a 

limited amount of funding ($100,000) to 

each Regional office to ensure that the 

office maintains minimal core capacity 

for listing actions (e.g., tracking the 

status of species to help ensure that an 

emergency listing action can be taken if 

necessary, participating in work to meet 

the statutory requirement to annually 

review and make findings on 

resubmitted petitions). In a Region that 

faces a relatively limited workload in 

the Listing Program with regard to 

deadlines resulting from court orders or 

settlement agreements, and a relatively 

limited workload related to meeting 

statutory deadlines, some of this 

‘‘capability’’ funding may be available to 

address high priority listing actions. 

However, in most Regions, including 

the Regions with responsibility for 

listing actions involving the southern 

Idaho ground squirrel, Tahoe yellow 

cress, and sand dune lizard, the limited 

amount of capability funding to 

Regional offices included in an 

allocation is used for work associated 

with supporting listing actions related 

to court orders or settlement 

agreements, and for meeting statutory 

deadlines (i.e., there are no funds 

available for high priority listing 

actions). 

The overall Listing Program situation 

in FY 2005 is similar to that in FY 2004. 

For FY 2005, Congress recently 

appropriated $4,043,000 for listing 

actions other than critical habitat for 

already listed species (Pub. L. 108–447, 

signed on December 8, 2004). The 

Service is in the process of preparing 

the allocation of this appropriation. We 

anticipate that the $4,043,000 will be 

fully allocated to fund the following 

listing actions: Any emergency listings; 

essential litigation-related, 

administrative, and program 

management functions; compliance 

with court orders or court-approved 

settlement agreements requiring petition 

findings or listing determinations; and 

high-priority listing actions. As was the 

case in FY 2004, during the current 

fiscal year, we will issue proposed 

listing rules for the highest priority 

candidate species only if doing so does 

not jeopardize our ability to comply 

with court orders, court-approved 

settlement agreements, or unqualified 

statutory deadlines. Consequently, at 

this time we do not anticipate that we 

will have any FY 2005 funds available 

to work on proposals to list the southern 

Idaho ground squirrel, sand dune lizard, 

or Tahoe yellow cress, and consequently 

we continue to find that proposals to list 

these species are warranted but 

precluded. We note also that all of the 

actions that demonstrate our 

expeditious progress on listing (see 

below) contribute to the preclusion of 

work on listing proposals for these three 

candidate species.

In addition to being precluded by lack 

of available funds, work on proposed 

rules to list the southern Idaho ground 

squirrel, Tahoe yellow cress, and sand 

dune lizard also is precluded by work 

on candidate species with higher listing 

77170 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 

priorities. For the southern Idaho 

ground squirrel and Tahoe yellow cress, 

which each have an LPN of 6, this 

means that the 210 candidate species 

with a LPN of 1 through 5 are of higher 

priority. The sand dune lizard, with an 

LPN of 2, has a higher priority than the 

southern Idaho ground squirrel and 

Tahoe yellow cress. However, there are 

12 other candidate species with this 

same LPN in the Southwest Desert 

Region, which has the lead for the sand 

dune lizard. Of these 12 species, 8 have 

been candidate species longer than the 

sand dune lizard and, thus, we likely 

would work on proposed listing 

determinations for these species prior to 

working on a proposal for the sand dune 

lizard. Additionally, there are more than 

70 candidate species nationwide that 

have LPNs of 2, and thus have the same 

or higher priority (based on length of 

time on the candidate list) than the sand 

dune lizard. 

As explained above, part of the basis 

for making a warranted-but-precluded 

finding is that expeditious progress is 

being made to add qualified species to 

the Lists. Our progress in FY 2004 

includes work in the following 

categories: (1) Evaluation of the 

potential need for emergency listing of 

1 species; (2) preparation and 

publication of final listing 

determinations involving 10 species; (3) 

preparation and publication of a 

proposed listing action for 1 species; (4) 

preparation of proposed or final listing 

actions (not yet completed so not yet 

published) for 6 species; (5) and work 

on petition findings for 54 species. 

Specific information regarding each of 

these categories for FY 2004 is provided 

below. 

(1) Emergency listings—We are 

currently working on a proposed rule to 

list the Miami blue butterfly. The Miami 

blue butterfly is restricted to one 

isolated population on Bahia Honda Key 

in Florida and is threatened by the 

combined influences of catastrophic 

environmental events, habitat 

destruction or modification, mosquito 

control activities, potential illegal 

collection, potential loss of genetic 

heterogeneity, and potential predation. 

Work on assessing the status of the 

species and preparing a listing rule 

originally was approved for funding and 

was initiated in FY 2004 because at the 

time, the Region considered that it was 

an emergency. When senior officials in 

Washington reviewed the draft 

emergency listing material, they did not 

concur that emergency listing action 

was needed (because of an existing 

captive-bred population). However, 

because a review of the species had 

been conducted and the emergency rule 

already was drafted, and because it is a 

high-priority species (with imminent 

threats of a high magnitude, which is 

the equivalent of a LPN of 3 for this 

subspecies), continuing work on the 

proposed listing rule was approved. At 

that point, the small amount of 

resources required to complete the 

proposed rule would not have made a 

significant contribution to issuing a 

proposed rule to list a species with an 

LPN of 2. Moreover, failure to continue 

work to complete the proposed rule 

would have resulted in a significant 

waste of resources, as the work already 

completed would to some degree go 

stale over time and thus would have to 

be re-done. 

(2) Final listing determinations—We 

prepared and published in the Federal 

Register final listing determinations for 

ten species, all of which involved 

deadlines mandated by court orders or 

court-approved settlement agreements. 

These included final regulations listing 

eight species, which are: Rota bridled 

white-eye (69 FR 3022; January 22, 

2004; LPN = 2), Santa Catalina Island 

fox, Santa Rosa Island fox, San Miguel 

Island fox, and Santa Cruz Island fox (69 

FR 10335 for all four fox subspecies; 

March 5, 2004; LPN = 3); two plant 

species (Nesogenes rotensis and 

Osmoxylon mariannense) from the 

Commonwealth of the Northern Mariana 

Islands (69 FR 18499; April 8, 2004; 

LPN = 1 and 2, respectively); and the 

California tiger salamander (69 FR 

47211; August 4, 2004; LPN = 3). (We 

note here that the work on the 

salamander included funding for the 

designation of critical habitat for the 

central California distinct population 

segment (DPS). The critical habitat 

subcap pertains to critical habitat 

designations for species already listed; 

we may use listing funds for critical 

habitat designation work conducted in 

conjunction with a listing action, as was 

the case with this DPS.) Also included 

in this category of final listing actions is 

the work involved in FY 2004 in 

completing the preparation of, and 

publishing, final listing determinations 

for the slickspot peppergrass (69 FR 

3094; January 22, 2004; it had been an 

LPN = 2), and Tabernaemontana 

rotensis (a plant species with LPN = 2); 

the determination for the latter species 

was included as part of the Federal 

Register publication of the final rules 

listing the two plant species from the 

Commonwealth of the Northern Mariana 

Islands, mentioned above (69 FR 18499). 

(3) We prepared and published a 

proposed regulation to list the 

southwest Alaska distinct population 

segment (DPS) of the northern sea otter, 

which has an LPN = 3 (69 FR 6600; 

February 11, 2004)). This population of 

northern sea otter occurs in nearshore 

locations from Attu Island in the west 

to Kamishak Bay in the east, including 

waters along the Aleutian Islands, the 

Alaska Peninsula, and the Kodiak 

archipelago. Although its range has not 

been curtailed, this population has 

declined by 56–68 percent since the 

mid-1980’s and the decline shows no 

evidence of abating. The cause of the 

decline is not known, but predation by 

killer whales (Orcinus orca) has been 

hypothesized (see proposed rule for 

additional information). This proposal 

was not the result of a deadline 

established by a court order or a courtapproved settlement agreement. Rather, 

this was the highest priority listing 

action for the Alaska Region. (Initially 

we determined that the Aleutian Islands 

DPS of the northern sea otter was a 

candidate with LPN = 3 (66 FR 54807), 

and subsequently determined that the 

DPS encompasses southwest Alaska.) 

The Alaska Region generally has not 

faced the relatively heavy Listing 

Program workload experienced by 

several other Regions, and consequently 

was able to use their limited Regional 

office capability funding in FY 2004 to 

support the completion of this proposed 

listing regulation. We could not have 

utilized this capability funding to 

complete listing actions in other 

Regions without eliminating the ability 

of this Region to monitor the status of 

candidate species and address any 

emergency situations that might arise.

(4) We funded work on proposed or 

final listing actions for 6 species for 

which work was not completed in FY 

2004. This included work on final 

listing actions for the Sacramento 

Mountains checkerspot butterfly, the 

Mariana fruit bat (LPN = 3), and the 

southwest Alaska DPS of the northern 

sea otter (LPN = 3). It also included 

work on proposed listing actions for the 

boreal toad (LPN = 3), Salt Creek tiger 

beetle (LPN = 3), and Miami blue 

butterfly. The work on all these species, 

except on the northern sea otter (see (3) 

above) and Miami blue butterfly (see (1) 

above), was in response to a court order 

or a court-approved settlement 

agreement. 

(5) We funded work on 54 petition 

findings. This involved 90-day findings, 

12-month findings, and findings on 

resubmitted petitions. In some 

instances, the work has been based on 

meeting deadlines established by court 

order or by settlement agreements. In 

other instances, the work has been 

related to meeting statutory deadlines. 

All 12-month findings are subject to an 

unqualified statutory deadline. With 

regard to 90-day findings, we note that 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 77171

the decision in Biodiversity Legal 

Foundation v. Badgley, 309 F. 3d 1166 

(9th Cir. 2002), held that the Act 

requires that 90-day petition findings 

(i.e., the initial finding as to whether a 

petition contains substantial 

information, which the Act directs us to 

make within 90 days of receipt of a 

petition, if practicable) must be made no 

later than 12 months after receipt of the 

petition, regardless of whether it is 

practicable to do so. Thus, all 90-day 

findings are arguably subject to an 

absolute statutory deadline. As a result 

of this ruling, which changed our 

interpretation of section 4(b)(3) of the 

Act, we have been working on 

addressing petition findings on most or 

all of the outstanding petitions for those 

species that we have not previously 

determined to warrant candidate status. 

Some petition findings are 

‘‘complete’’ actions. This includes 12-

month petition findings in which we 

determine that listing was not warranted 

and 90-day petition findings in which 

we determine that the petition did not 

present substantial information. In these 

cases, our listing work is complete. 

In FY 2004, we funded work and 

published 10 petition findings that 

involved the following species: 

wolverine (not-substantial 90-day 

finding) (68 FR 60112; October 21, 

2003); eastern subspecies of the greater 

sage-grouse (not-substantial 90-day 

finding) (69 FR 933; January 7, 2004); 

Midvalley fairy shrimp (not-warranted 

12-month finding) (69 FR 3592; January 

26, 2004); Cymopterus deserticola

(desert cymopterus—substantial 90-day 

finding) (69 FR 6240; February 10, 

2004); fisher (West coast DPS) 

(warranted-but-precluded 12-month 

finding) (69 FR 18769; April 8, 2004); 

Florida black bear (partial remand of 

not-warranted 12-month finding (69 FR 

2100; January 14, 2004); greater sagegrouse (substantial 90-day finding; ) (69 

FR 21484; April 21, 2004); Colorado 

river cutthroat trout (not-substantial 90-

day finding) (69 FR 21151; April 20, 

2004); New England cottontail 

(substantial 90-day finding) (69 FR 

39395; June 30, 2004); and black-tailed 

prairie dog (not-warranted 12-month 

resubmitted petition finding) (69 FR 

51217; August 18, 2004). The work on 

all these species, with the following 

exceptions, was in response to court 

orders or court-approved settlement 

agreements. The New England cottontail 

was the highest priority listing action 

for the Northeast Region. The Northeast 

Region generally has not faced the 

relatively heavy Listing Program 

workload experienced by several other 

Regions, and consequently was able to 

use their limited Regional office 

capability funding in FY 2004 to 

support the completion of this petition 

finding. We could not have utilized this 

capability funding to complete listing 

actions in other Regions without 

eliminating the ability of this Region to 

monitor the status of candidate species 

and address any emergency situations 

that might arise. Work on the greater 

sage-grouse was a high priority action 

since we were already working on sagegrouse issues related to the courtordered petition finding for the eastern 

sage-grouse. Work on the black-tailed 

prairie dog was a high priority listing 

action; we had previously funded much 

of the work on this species in 2000 

when we made the initial 12-month 

warranted-but-precluded petition 

finding and in 2001–2003 when we 

made resubmitted petition findings that 

listing was still warranted but 

precluded. The Mountain-Prairie Region 

was able to use some of their capability 

funds from FY 2004 to make the notwarranted petition finding for the blacktailed prairie dog. 

The allocated funds also supported 

work on petition findings that were not 

completed in FY 2004. These included 

work on findings for the following 4 

species: white-tailed prairie dog (90-day 

finding), greater sage-grouse (12-month 

finding), Bromus arizonicus (Arizona 

brome 90-day finding), and Nasselia 

cernua (nodding needlegrass 90-day 

finding). Work on the white-tailed 

prairie dog was in response to a court 

order, while the work on the sage-grouse 

was a high priority listing action with a 

statutory deadline (see above). Initial 

work on the statutorily-required petition 

findings for Arizona brome and nodding 

needlegrass was started using a small 

amount of capability funds that was left 

at the end of the fiscal year; this was a 

high priority for the Pacific Region. 

In addition, we completed 

resubmitted petition findings required 

by statute for 40 petitioned species that 

are candidates. We published these 

findings on May 4, 2004, as part of the 

2003 Candidate Notice of Review 

(CNOR) (69 FR 24876). Since we had 

identified many of these species as 

candidates prior to receiving a petition 

to list them, we had already assessed 

their status using funds from our 

Candidate Conservation Program (a 

separate budget item within the 

Endangered Species Program). 

Our anticipated progress in FY 2005 

includes work in the following 

categories: (1) Preparation and 

publication of final listing actions for 10 

species; (2) preparation and publication 

of proposed listing actions for 3 species; 

(3) and work on petition findings for 11 

species and resubmitted petition 

findings for 268 candidate species. 

Specific information regarding each of 

these categories for FY 2005 is provided 

below. We note also that Regions will 

continue to monitor the status of 

candidates and prepare emergency 

listing packages as needed. 

(1) We are funding work on the final 

listing determinations for the following 

species: Mariana fruit bat, southwest 

Alaska DPS of the northern sea otter, 

boreal toad, Gila chub, Salt Creek tiger 

beetle, Sacramento Mountains 

checkerspot butterfly, and four 

Southwestern invertebrates (Koster’s 

tryonia snail, Pecos assiminea snail, 

Roswell springsnail, and Noel’s 

amphipod). All of these final listing 

determinations are responding to court 

orders or court-approved settlement 

agreements, with the exception of the 

work on the final listing determination 

for the southwest Alaska DPS of the 

northern sea otter (see above for 

explanation on why this work was 

funded). Now that the sea otter is 

proposed for listing, a final listing 

determination is subject to an absolute 

statutory deadline.

(2) We are funding proposed listing 

determinations for the boreal toad and 

the Salt Creek tiger beetle, pursuant to 

court-approved settlement agreements. 

We also are funding completion of work 

on the proposed listing determination 

for the Miami blue butterfly (see above 

background information regarding work 

in FY 2004). 

(3) We also are funding work on 

petition findings for the following 

species: white-tailed prairie dog (notsubstantial 90-day finding completed 

and published on November 9, 2004 (69 

FR 64889)), Queen Charlotte goshawk 

(remanded not-warranted 12-month 

finding), greater sage-grouse (entire 

range) (12-month finding), Cicurina 

cueva (cave spider—90-day finding), 

four species of Pacific lamprey (90-day 

and 12-month findings), Cymopterus 

deserticola (desert cymopterus—12-

month finding), (12-month finding), 

Dalea tentaculoides (Gentry’s 

indigobush—90-day and 12-month 

findings), Ptilagrostis porteri (porter 

feathergrass—90-day and 12-month 

findings). The work on all of the above 

species is per court orders or courtapproved settlement agreements, except 

for work on the greater sage-grouse 

(which is needed to meet the statutory 

deadline). We are also funding work on 

initial and resubmitted petition findings 

for 268 petitioned candidate species. 

These initial and resubmitted petition 

findings are required by statute and will 

be published as part of the next CNOR, 

which we anticipate completing in early 

2005. Because the majority of these 

77172 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 

species were already candidate species 

prior to our receipt of a petition to list 

them, we had already assessed their 

status using funds from our Candidate 

Conservation Program. We also continue 

to monitor the status of these species 

through our Candidate Conservation 

Program. The cost of updating the 

species assessment forms and 

publishing the joint publication of the 

CNOR and resubmitted petition findings 

is shared between the Listing Program 

and the Candidate Conservation 

Program. 

As with our ‘‘precluded’’ finding, 

‘‘expeditious progress’’ is a function of 

the resources that are available and the 

competing demands for those funds. As 

discussed above, the funds in the 

Listing Program that would be otherwise 

available for adding other qualified 

species to the Lists in FY 2004 and FY 

2005 have been spent or must be spent 

on complying with court orders and 

court-approved settlement agreements 

to designate critical habitat and make 

petition findings, court orders and 

court-approved settlement agreements 

to make final listing determinations for 

other species, a few high-priority 

Service-initiated listing determinations, 

essential litigation support, and 

administrative and management tasks. 

Because virtually all of the money to 

add qualified species to the list is 

consumed in complying with court 

orders or court-approved settlement 

agreements requiring petition findings 

or listing determinations, and essential 

litigation-related, administrative, and 

program management functions related 

to these findings and determinations, 

we have endeavored to make our listing 

actions as efficient and timely as 

possible, given the requirements of the 

relevant law and regulations, and 

constraints relating to workload and 

personnel. We are continually 

considering ways to streamline 

processes or achieve economies of scale, 

such as by batching related actions 

together. Given our limited budget for 

implementing section 4 of the Act, these 

actions collectively constitute 

expeditious progress. 

Summary of Petitioned Candidates 

Here we present summaries of why 

the southern Idaho ground squirrel, 

sand dune lizard, and Tahoe yellow 

cress continue to warrant listing, and we 

specify the listing priority number that 

we have assigned to each species. More 

complete information, including 

references, is available in the species 

assessment form for each species. You 

may obtain a copy of these forms from 

the Regional Office having the lead for 

the species, or from the Fish and 

Wildlife Service’s Internet Web site: 

http://endangered.fws.gov/ candidates/

index.html.

Southern Idaho ground squirrel 

(Spermophilus brunneus endemicus)—

The following summary is based on 

information contained in our files and 

the petition received on January 29, 

2001. During the past 30 years, a 

population decline of the southern 

Idaho ground squirrel has occurred. The 

southern Idaho ground squirrel occupies 

only 44 percent of its historical range 

and within its range, populations have 

declined precipitously. Scientists 

attribute the decline to invasive 

nonnative plants associated with a 

change in the fire frequency and the 

lack of reclamation or restoration of 

habitat by various land management 

agencies and private landowners. 

Even though habitat degradation is 

pervasive in many areas of this species’

range, suitable habitat areas that can 

support southern Idaho ground squirrels 

still persist. Conservation and habitat 

rehabilitation actions have begun in 

some areas, and in 2001 and 2002, over 

100 squirrels were captured from the 

Weiser Golf Course (the largest known 

colony site) and translocated to suitable 

habitat on lands covered by a Candidate 

Conservation Agreement with 

Assurances. Survey results in 2002 and 

2003 found a total of 75 new active 

population sites. 

The magnitude of threats to this 

species has been reduced due to the 

significant conservation efforts that have 

been implemented and are ongoing 

(described in the species assessment 

form) and because additional 

populations have recently been found. 

While there is still concern for genetic 

constriction and isolation due to 

generally low numbers of individuals at 

existing sites, natural dispersal is 

occurring at some sites, and 

translocation efforts are being 

implemented each year. Additionally, to 

reflect that the existing threats meet the 

definition of ‘‘imminent’’ (i.e., they are 

ongoing), we are changing the listing 

priority number from a 6 to a 9.

Sand dune lizard (Sceloporus 

arenicolus)—The following summary is 

based on information in our files and 

the petition received on June 6, 2002. 

The sand dune lizard is endemic to a 

small area in southeastern New Mexico 

(Chaves, Eddy, Lea, and Roosevelt 

Counties) and adjacent west Texas 

(Andrews, Crane, Ward, and Winkler 

Counties). Within this area, the known 

occupied and potentially occupied 

habitat is only 1,697 square kilometers 

(655 square miles) in New Mexico, and 

an unknown amount in west Texas. The 

lizard’s distribution is localized and 

fragmented (i.e., known populations are 

separated by vast areas of unoccupied 

habitat), and the species is restricted to 

sand dune blowouts associated with 

active sand dunes and shinnery oak 

(Quercus harvardii) and scattered 

sandsage (Artemisia filifolia) vegetation. 

Sand dune lizards are not found at sites 

lacking shinnery oak dune habitat. 

Extensive surveys within New 

Mexico, conducted in conjunction with 

a 5-year study, documented sand dune 

lizards at only half of the sites surveyed. 

It is clear that shinnery oak removal 

(e.g., by treating with the herbicide 

Tebuthiuron for livestock range 

improvements) results in dramatic 

reductions and extirpation of sand dune 

lizards. Scientists repeatedly confirmed 

the extirpation of sand dune lizards 

from areas with herbicide treatment to 

remove shinnery oak. In 1999, biologists 

estimated that about 25 percent of the 

total sand dune lizard habitat in New 

Mexico had been eliminated in the 

previous 10 years. The population of 

sand dune lizards has also been affected 

by oil and gas field development. An 

estimated 50 percent decline in sand 

dune lizard populations can be expected 

in areas with approximately 25 to 30 oil 

and/or gas wells per section. The 

distribution of sand dune lizards is 

localized and fragmented, and this 

species is a habitat specialist. Therefore, 

impacts to its habitat will most likely 

greatly decrease populations. If current 

herbicide application continues and oil 

and gas development progresses as 

expected, the magnitude of threat to 

sand dune lizards will increase. 

Continued pressure to develop oil and 

gas resources in areas with sand dune 

lizards poses an imminent threat to the 

species. Therefore, we continue to 

assign this species a listing priority 

number of 2. 

Rorippa subumbellata (Tahoe yellow 

cress)—The following summary is based 

on information in our files and the 

petition received on February 8, 2001. 

Tahoe yellow cress is a small perennial 

herb known only from the shores of 

Lake Tahoe in California and Nevada. 

Data collected over the last 25 years 

suggest a relationship between lake 

level and site occupancy by Tahoe 

yellow cress. The data generally 

indicate that species occurrence 

fluctuates yearly as a function of both 

lake level and the amount of exposed 

habitat. Records kept since 1900 

indicate a preponderance of years with 

high lake levels that would isolate and 

reduce Tahoe yellow cress occurrences 

at higher beach elevations. From the 

standpoint of the species, less favorable 

peak years have occurred almost twice 

as often as more favorable low-level 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Proposed Rules 77173

years. In addition, there has been 

widespread and intensive use of the 

shorezone since European settlement. 

Today, shorezone conditions are 

influenced by heavy recreational use, 

boating, construction of piers and boat 

launches, and dam operations that 

control lake elevation. 

Annual surveys are conducted to 

determine population numbers, site 

occupancy, and general disturbance 

regimes. During the 2003 annual survey 

period, the lake level was approximately 

6,224 ft (1,898 m). This was the third 

consecutive year of low water. The 

survey located Tahoe yellow cress at 45 

of the 72 sites surveyed (65 percent 

occupied), up from 15 sites (19 percent 

occupied) in 2000 when the lake level 

was high at 6,228 ft. Approximately 

25,200 stems were counted or estimated 

in 2003, whereas during the 2000 

annual survey, the estimated number of 

stems was 4,590. Over the past 3 years, 

the survey effort has increased 

considerably, largely due to our 

elevation of this species to candidate 

status. 

Many Tahoe yellow cress sites are 

intensively used for commercial and 

public purposes and are subject to 

various activities such as erosion 

control, marina developments, pier 

construction, and recreation. The U.S. 

Forest Service, California Tahoe 

Conservancy, and California Department 

of Parks and Recreation have 

management programs for Tahoe yellow 

cress that include monitoring, fenced 

enclosures, and transplanting efforts 

when funds and staff are available. 

Public agencies (including the Service), 

private landowners, and environmental 

groups collaborated to develop a 

conservation strategy, coupled with a 

Memorandum of Understanding/

Conservation Agreement. The 

conservation strategy, completed in 

2003, contains goals and objectives for 

recovery and survival and a research 

and monitoring agenda, and will serve 

as the foundation for an adaptive 

management program. 

Because of the continued 

commitments to conservation 

demonstrated by regulatory and land 

management agencies participating in 

the conservation strategy, we have 

determined the threats to Tahoe yellow 

cress from various land uses have been 

reduced from a high magnitude to a 

moderate magnitude. However, since 

these threats are still ongoing, they are 

imminent. Thus, based on the change in 

magnitude of threats, we are changing 

the LPN from a 2 to an 8. 

Request for Information 

We request you submit any further 

information on these three species as 

soon as possible or whenever it becomes 

available. We are particularly interested 

in any information: 

(1) Recommending areas that we 

should designate as critical habitat for a 

species, or indicating that designation of 

critical habitat would not be prudent for 

a species; 

(2) Documenting threats to any of 

these three species; 

(3) Describing the immediacy or 

magnitude of threats facing these 

species; and 

(4) Pointing out taxonomic or 

nomenclature changes for any of the 

species. 

Submit your comments on southern 

Idaho ground squirrel or Rorripa 

subumbellata (Tahoe yellow cress) to 

the Regional Director (TE), U.S. Fish 

and Wildlife Service, Eastside Federal 

Complex, 911 NE. 11th Avenue, 

Portland, Oregon 97232–4181 (503/231–

6158). 

Submit your comments on the sand 

dune lizard to the Regional Director 

(TE), U.S. Fish and Wildlife Service, 500 

Gold Avenue SW., Room 4012, 

Albuquerque, New Mexico 87102 (505/

248–6920). 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public 

inspection. Individual respondents may 

request that we withhold their home 

addresses from the public record, which 

we will honor to the extent allowable by 

law. In some circumstances, we can also 

withhold from the public record a 

respondent’s identity, as allowable by 

law. If you wish for us to withhold your 

name and/or address, you must state 

this request prominently at the 

beginning of your comments. However, 

we will not consider anonymous 

comments. 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. 

Authority 

This notice is published under the 

authority of the Endangered Species Act 

(16 U.S.C. 1531 et seq.).

Dated: December 17, 2004. 

Marshall P. Jones, Jr., 

Acting Director, Fish and Wildlife Service.

[FR Doc. 04–28168 Filed 12–23–04; 8:45 am] 

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Part 648

[I.D. 121504I]

Gulf of Mexico Fishery Management 

Council; Public Hearings

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Notice of public hearing; request 

for comments.

SUMMARY: The Gulf of Mexico Fishery 

Management Council (Council) will 

hold a public hearing to solicit 

comments on ‘‘Draft Amendment 3 for 

Addressing EFH Requirements, Habitat 

Areas of Particular Concern (HAPCs), 

and Adverse Effects of Fishing in the 

Following Fishery Management Plans of 

the Gulf of Mexico: Shrimp, Red Drum, 

Reef Fish, Stone Crab, Coral and Coral 

Reef in the Gulf of Mexico and Spiny 

Lobster and the Coastal Migratory 

Pelagic Resources of the Gulf of Mexico 

and South Atlantic.’’ The Amendment 

contains proposed alternatives to further 

identify essential fish habitat (EFH), 

establish HAPCs, and, to the extent 

practicable, prevent adverse impacts of 

fishing activities on coral in HAPCs.

DATES: The public hearing will be held 

January 4, 2005, beginning at 7 p.m. and 

concluding no later than 10 p.m. Public 

comments received by mail that are 

received in the Council office by 5 p.m., 

January 5, 2005, will be presented to the 

Council.

ADDRESSES: The public hearing will be 

held at the DoubleTree Grand Key 

Resort, 3990 South Roosevelt Boulevard, 

Key West, FL 33040; phone: (888) 310–

1540.

Send written comments to: Gulf of 

Mexico Fishery Management Council, 

3018 U.S. Highway 301, North, Suite 

1000, Tampa, FL 33619.

FOR FURTHER INFORMATION CONTACT: Rick 

Leard, Deputy Executive Director, Gulf 

of Mexico Fishery Management Council; 

phone: (813) 228–2815.

SUPPLEMENTARY INFORMATION: Following 

the judicial decision in American 

Oceans Campaign v. Daley (Civil Action 

No. 99–982), NOAA Fisheries and the 

Council prepared an ‘‘Environmental 

Impact Statement (EIS) for the Generic 

Essential Fish Habitat (EFH) 

Amendment to the Following Fishery 

Management Plans of the Gulf of 

Mexico: Shrimp, Red Drum, Reef Fish, 

Stone Crab, Coral and Coral Reef in the