77700 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

TABLE 1.—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued

Facility Address Waste Description 

(A) If, anytime after disposal of the delisted waste, Shell Oil Company possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or 

groundwater monitoring data) or any other data relevant to the delisted waste indicating that 

any constituent identified for the delisting verification testing is at level higher than the 

delisting level allowed by the Division Director in granting the petition, then the facility must 

report the data, in writing, to the Division Director within 10 days of first possessing or being 

made aware of that data. 

(B) If the annual testing of the waste does not meet the delisting requirements in Paragraph 1, 

Shell Oil Company must report the data, in writing, to the Division Director within 10 days of 

first possessing or being made aware of that data. 

(C) If Shell Oil Company fails to submit the information described in Paragraphs (5),(6)(A) or 

(6)(B) or if any other information is received from any source, the Division Director will make 

a preliminary determination as to whether the reported information requires EPA action to 

protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and 

the environment. 

(D) If the Division Director determines that the reported information does require action, EPA’s 

Division Director will notify the facility in writing of the actions the Division Director believes 

are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to 

present information as to why the proposed action by EPA is not necessary. The facility shall 

have 10 days from the date of the Division Director’s notice to present such information. 

(E) Following the receipt of information from the facility described in Paragraph (6)(D) or (if no 

information is presented under Paragraph (6)(D)) the initial receipt of information described in 

Paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination 

describing EPA’s actions that are necessary to protect human health and/or the environment. 

Any required action described in the Division Director’s determination shall become effective 

immediately, unless the Division Director provides otherwise. 

(7) Notification Requirements: Shell Oil Company must do the following before transporting the 

delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision. 

(A) Provide a one-time written notification to any state Regulatory Agency to which or through 

which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. 

(B) Update the one-time written notification if it ships the delisted waste into a different disposal 

facility. 

(C) Failure to provide this notification will result in a violation of the delisting variance and a 

possible revocation of the decision. 

* * * * * * * 

[FR Doc. 04–28199 Filed 12–27–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU06 

Endangered and Threatened Wildlife 

and Plants; Proposed Critical Habitat 

Designation for Four Vernal Pool 

Crustaceans and Eleven Vernal Pool 

Plants in California and Southern 

Oregon

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule, reopening of 

public comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce 

that we are soliciting additional 

comments on certain areas included in 

our September 24, 2002, proposed rule 

(hereinafter referred to as the September 

2002 proposal) to designate critical 

habitat for 4 vernal pool crustaceans and 

11 vernal pool plants in California and 

southern Oregon (67 FR 59884). We 

issued a final rule based on the 

September 2002 proposal on August 6, 

2003 (68 FR 46684). In the final rule we 

excluded certain specific lands that had 

been included in the September 2002 

proposal. We excluded these lands 

pursuant to section 4(b)(2) of the Act 

based on either policy or economic 

reasons. On October 28, 2004, a court 

remanded the final designation to the 

Service in part, ordering the Service to 

make a new determination as to whether 

to designate the excluded areas (Butte 

Environmental Council v. Norton, NO. 

CIV. S–04–0096 (E.D. Cal. Oct. 28, 

2004). The August 6, 2003, final rule is 

still in effect while we reconsider the 

exclusions from the proposed rule and 

make a new final determination. 

Pursuant to the court order, we will 

evaluate the exclusions made to our 

proposal in two separate actions: (1) A 

re-evaluation of exclusions based on 

policy or non-economic reasons 

addressed herein; and (2) a reevaluation of exclusions based on 

economic concerns in a subsequent 

Federal Register notice. Comments 

previously submitted on the September 

2002 proposal need not be resubmitted 

because we will incorporate them into 

the public record as part of this 

reopening of the comment period and 

will fully consider them in development 

of a new final rule.

DATES: We will accept public comments 

on the policy (non-economic) 

exclusions to our September 2002 

proposal and any new information 

concerning the 15 vernal pool species 

addressed in this critical habitat 

designation until January 27, 2005.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials by any one of several methods: 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77701

1. You may submit written comments 

and information to the Field Supervisor, 

Sacramento Fish and Wildlife Office, 

U.S. Fish and Wildlife Service, 2800 

Cottage Way, Suite W–2605, 

Sacramento, California 95825. 

2. You may hand-deliver written 

comments and information to our 

Sacramento Fish and Wildlife Office, at 

the above address, or fax your 

comments to 916/414–6710. 

3. You may send your comments by 

electronic mail (e-mail) to 

fw1_vernalpool@fws.gov. For directions 

on how to submit electronic filing of 

comments, see the ‘‘Public Comments 

Solicited’’ section below. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the previous 

designation of critical habitat and 

economic analysis will be available for 

inspection, by appointment, during 

normal business hours at our office 

listed in the ADDRESSES section. Copies 

of the proposed and final designation of 

critical habitat for these 15 species as 

well as our economic analysis are also 

available on the Internet at http://

sacramento.fws.gov/ or by writing or 

calling Arnold Roessler, at the address 

or telephone number listed above.

FOR FURTHER INFORMATION CONTACT:

Arnold Roessler, at the address above 

(telephone 916/414–6600; facsimile 

916/414–6710).

SUPPLEMENTARY INFORMATION: 

Background

On September 24, 2002, we published 

a proposed rule to designate critical 

habitat, pursuant to the Endangered 

Species Act of 1973, as amended (Act) 

for 4 vernal pool crustaceans and 11 

vernal pool plants (67 FR 59884). The 

four vernal pool crustaceans involved in 

this critical habitat designation are the 

Conservancy fairy shrimp (Branchinecta 

conservatio), longhorn fairy shrimp 

(Branchinecta longiantenna), vernal 

pool fairy shrimp (Branchinecta lynchi), 

and vernal pool tadpole shrimp 

(Lepidurus packardi). The 11 vernal 

pool plant species are Butte County 

meadowfoam (Limnanthes floccosa ssp. 

californica), Contra Costa goldfields 

(Lasthenia conjugens), Hoover’s spurge 

(Chamaesyce hooveri), fleshy (or 

succulent) owl’s-clover (Castilleja 

campestris ssp. succulenta), Colusa 

grass (Neostapfia colusana), Greene’s 

tuctoria (Tuctoria greenei), hairy Orcutt 

grass (Orcuttia pilosa), Sacramento 

Orcutt grass (Orcuttia viscida), San 

Joaquin Valley Orcutt grass (Orcuttia 

inaequalis), slender Orcutt grass 

(Orcuttia tenuis), and Solano grass 

(Tuctoria mucronata). We proposed a 

total of 128 units of critical habitat for 

these 15 vernal pool species, totaling 

approximately 672,920 hectares (ha) 

(1,662,762 acres (ac)) in 36 counties in 

California and one county in Oregon. In 

accordance with our regulations at 50 

CFR 424.16(c)(2), we opened a 60-day 

comment period on this proposal, 

which closed on November 25, 2002. 

All the species listed above live in 

vernal pools (shallow depressions that 

hold water seasonally), swales (shallow 

drainages that carry water seasonally), 

and ephemeral freshwater habitats. 

None are known to occur in riverine 

waters, marine waters, or other 

permanent bodies of water. The vernal 

pool habitats of these species have a 

discontinuous distribution west of the 

Sierra Nevada that extends from 

southern Oregon through California into 

northern Baja California, Mexico. The 

species have all adapted to the generally 

mild climate and seasonal periods of 

inundation and drying that help make 

the vernal pool ecosystems of California 

and southern Oregon unique. 

Section 4(b)(2) of the Act requires that 

the Secretary of the Interior shall 

designate or revise critical habitat based 

upon the best scientific and commercial 

data available, after taking into 

consideration the economic impact, 

impact to national security, and any 

other relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude any area from 

critical habitat if she determines that the 

benefit of such exclusion outweighs the 

benefits of specifying such area as part 

of the critical habitat, unless the failure 

to designate such area as critical habitat 

will result in the extinction of the 

species concerned. Thus, to fulfill our 

requirement to consider the potential 

economic impacts of the proposed 

designation of critical habitat for the 15 

vernal pool species, we conducted an 

analysis of the potential economic 

impacts on the proposed designation 

and published a notice on November 21, 

2002 (67 FR 70201), announcing the 

availability of our draft economic 

analysis. The notice opened a 30-day 

public comment period on the draft 

economic analysis, and extended the 

comment period on the proposed 

critical habitat designation. 

During the development of the final 

designation, we reviewed the lands 

proposed as critical habitat based on 

public comments and any new 

information that may have become 

available and refined the boundaries of 

the proposal to remove lands 

determined not to be essential to the 

conservation of the 15 vernal pool 

species. We then took into consideration 

the potential economic impacts of the 

designation, impacts on national 

security, and other relevant factors such 

as partnerships and on-going 

management actions benefiting the 

species covered by the designation. 

Next, we determined that the benefits of 

excluding certain lands from the final 

designation of critical habitat for the 15 

vernal pool species outweighed the 

benefit of including them in the 

designation, and the specific exclusions 

would not result in the extinction of any 

of the species involved. Lands excluded 

from the final designation based on 

policy and management plans or 

programs that provide a benefit to the 

species included: lands within specific 

National Wildlife Refuges and Fish 

Hatcheries; Department of Defense 

lands; Tribal lands; State Wildlife Areas 

and Ecological Reserves; and lands 

covered by habitat conservation plans or 

other management plans that provide a 

benefit for the species. We also 

excluded lands proposed as critical 

habitat in Butte, Madera, Merced, 

Sacramento, and Solano counties based 

on potential economic impacts. Thus, 

on July 15, 2003, we made a final 

determination of critical habitat for the 

15 vernal pool species; the final rule 

was published in the Federal Register

on August 6, 2003 (68 FR 46684). A total 

of approximately 1,184,513 ac (417,989 

ha) of land falls within the boundaries 

of designated critical habitat (the area 

estimate does not reflect the exclusion 

of lands based on potential economic 

impacts from the five California 

counties).

In January 2004, Butte Environmental 

Council, and several other 

organizations, filed a complaint alleging 

that we: (1) Violated the Act, and the 

Administrative Procedure Act (APA), by 

excluding over 1 million acres from the 

final designation of critical habitat for 

the 15 vernal pool species; (2) violated 

mandatory notice-and-comment 

requirements under the Act and APA; 

and (3) have engaged in an unlawful 

pattern, practice, and policy by failing 

to properly consider the economic 

impacts of designating critical habitat. 

On October 28, 2004, the court signed 

a Memorandum and Order in that case. 

The Memorandum and Order remanded 

the final designation to the Service in 

part. In particular, the court ordered us 

to: (1) Reconsider the exclusions from 

the final designation of critical habitat 

for the 15 vernal pool species, with the 

exception of those lands within the 5 

California counties that were excluded 

based on potential economic impacts, 

and publish a new final determination 

as to those lands within 120 days; and 

(2) reconsider the exclusion of the five 

77702 Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 

California counties based on potential 

economic impacts and publish a new 

final determination no later than July 

31, 2005. The court also made it clear 

that the partial remand would not affect 

the areas included in the August 6, 

2003, final designation. This notice 

addresses the first requirement of the 

remand—the reconsideration of the 

exclusions from the final designation of 

critical habitat for the 15 vernal pool 

species, with the exception of those 

lands within the 5 California counties 

that were excluded based on potential 

economic impacts, and reopens the 

public comment period. The second 

requirement of the order, concerning the 

economic exclusions, will be addressed 

through a future Federal Register

notice. 

We are hereby reopening the public 

comment period on our September 2002 

proposal for 30 days to solicit comments 

and any new information concerning 

the non-economic exclusions that were 

made during the development of the 

final designation of critical habitat for 

the 15 vernal pool species. To facilitate 

this process, Table 1 lists each specific 

area that was excluded from the 

proposed designation of critical habitat 

for the 15 vernal pool species based on 

policy by category and size.

TABLE 1.—APPROXIMATE AREAS OF CRITICAL HABITAT EXCLUSIONS FOR THE VERNAL POOL CRUSTACEANS AND PLANTS

IN CALIFORNIA AND OREGON

Exclusion Area Acres Hectares 

National Wildlife Refuges (NWR) and Fish Hatchery Exclusions

Sacramento NWR Complex ............................................................................................................................................ 19,363 7,836 

San Francisco Bay NWR ................................................................................................................................................. 617 250 

San Luis NWR Complex .................................................................................................................................................. 18,014 7,290 

Kern NWR Complex ........................................................................................................................................................ 4,894 1,980 

Coleman Nat. Fish Hatchery ........................................................................................................................................... 13 5 

Total .......................................................................................................................................................................... 42,914 17,367 

Department of Defense Exclusions

Beale Air Force Base ...................................................................................................................................................... 10,033 4,060 

Travis Air Force Base ...................................................................................................................................................... 9,651 3,906 

Fort Hunter Liggett ........................................................................................................................................................... 16,583 6,711 

Camp Roberts .................................................................................................................................................................. 33,937 13,734 

Total .......................................................................................................................................................................... 70,204 28,410 

Tribal Land Exclusions

Mechoopda Tribe ............................................................................................................................................................. 644 261 

Total .......................................................................................................................................................................... 644 261 

State Wildlife Areas (WA) and Ecological Reserve (ER) Exclusions

Allensworth ER ................................................................................................................................................................ 1,141 462 

Battle Creek WA .............................................................................................................................................................. 637 258 

Big Sandy WA ................................................................................................................................................................. 478 194 

Boggs Lake ER ................................................................................................................................................................ 50 20 

Butte Creek Canyon ER .................................................................................................................................................. 0.4 0.16 

Calhoun Cut ER ............................................................................................................................................................... 3,021 1,223 

Carrizo Plains ER ............................................................................................................................................................ 455 184 

Dales Lake ER ................................................................................................................................................................. 754 305 

Fagen Marsh ER ............................................................................................................................................................. 420 170 

Grizzly Island WA ............................................................................................................................................................ 10 4 

Hill Slough WA ................................................................................................................................................................. 1,559 631 

North Grasslands WA ...................................................................................................................................................... 5 2 

Oroville WA ...................................................................................................................................................................... 39 16 

Phoenix Field ER ............................................................................................................................................................. 7 3 

San Joaquin River ER ..................................................................................................................................................... 278 113 

Stone Corral ER .............................................................................................................................................................. 3,074 1,244 

Thomes Creek ER ........................................................................................................................................................... 447 181 

Total .......................................................................................................................................................................... 12,373 5,007 

Habitat Conservation Plans (HCP) and Cooperatively Managed Land Exclusions

Skunk Hollow HCP .......................................................................................................................................................... 239 97 

Western Riverside Multiple Species HCP ....................................................................................................................... 5,730 2,319 

Santa Rosa Plateau Ecological Reserve ........................................................................................................................ 4,246 1,718 

San Joaquin County Multiple Species HCP .................................................................................................................... 10 4 

Total .......................................................................................................................................................................... 10,224 4,138 

Grand Total ............................................................................................................................................................... 136,358 55,182 

Federal Register / Vol. 69, No. 248 / Tuesday, December 28, 2004 / Proposed Rules 77703

Public Comment Solicited 

We intend that any final action 

resulting from our September 2002 

proposal will be as accurate and as 

effective as possible. Therefore, we 

solicit comments or suggestions from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning the portion 

of the proposed rule subject to the 

court’s remand order. On the basis of 

public comment, during the 

development of our new, partial final 

determination we may find that areas 

proposed are not essential, are 

appropriate for exclusion under section 

4(b)(2), or not appropriate for exclusion; 

in all of these cases, this information 

would be incorporated into our new 

final determination with respect to 

those areas. We particularly seek 

comments concerning: 

(1) Specific information on the 

amount and distribution of habitat for 

the 15 vernal pool species, and what 

habitat is essential to the conservation 

of the species and why; 

(2) The reasons why any areas should 

or should not be determined to be 

critical habitat as provided by section 4 

of the Act; 

(3) Information related to the benefits 

of designating any of these areas as 

critical habitat for the 15 vernal pool 

species; 

(4) Information related to the benefits 

of excluding any of these areas as 

critical habitat for the 15 vernal pool 

species; 

(5) Land use designations and current 

or planned activities in or adjacent to 

the areas proposed, and their possible 

impacts on proposed critical habitat; 

(6) Land use designations and current 

or planned activities in or adjacent to 

the areas proposed, and the possible 

impacts on those uses and activities 

from a critical habitat designation; 

(7) Any foreseeable economic or other 

potential impacts resulting from the 

proposed designation, including any 

impacts on small entities; and 

(8) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit electronic 

comments in ASCII file format and 

avoid the use of special characters or 

any form of encryption. Please also 

include ‘‘Attn: RIN 1018–AUO6’’ in 

your e-mail subject header and your 

name and return address in the body of 

your message. If you do not receive a 

confirmation from the system that we 

have received your Internet message, 

contact us directly by calling our 

Sacramento Fish and Wildlife Office at 

telephone number 916/414–6600, 

during normal business hours. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. 

Individual respondents may request that 

we withhold their home addresses from 

the rulemaking record, which we will 

honor to the extent allowable by law. 

There also may be circumstances in 

which we would withhold from the 

rulemaking record a respondent’s 

identity, as allowable by law. If you 

wish us to withhold your name and/or 

address, you must state this 

prominently at the beginning of your 

comment. 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. 

Comments and materials received will 

be available for public inspection, by 

appointment, during normal business 

hours at the above address. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

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

Dated: December 17, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–28164 Filed 12–27–04; 8:45 am] 

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17

RIN 1018–AJ09

Endangered and Threatened Wildlife 

and Plants; Notice of Availability of 

Draft Economic Analysis and 

Reopening of the Public Comment 

Period for the Proposed Designation of 

Critical Habitat for Astragalus 

lentiginosus var. piscinensis (Fish 

Slough Milk-vetch)

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; notice of 

availability of draft economic analysis 

and reopening of public comment 

period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

availability of a draft economic analysis 

for the proposed designation of critical 

habitat for the federally threatened 

Astragalus lentiginosus var. piscinensis

(Fish Slough milk-vetch), and the 

reopening of the public comment period 

on the proposed rule to designate 

critical habitat for this taxon. The 

comment period will provide the 

public, Federal, State, and local 

agencies, and Tribes with an 

opportunity to submit written 

comments on this proposal and its 

respective draft economic analysis. 

Comments previously submitted on the 

proposed rule need not be resubmitted 

as they have been incorporated into the 

public record as a part of this reopening 

of the comment period, and will be fully 

considered in preparation of the final 

rule.

DATES: We will accept all comments and 

information until 5 p.m. on or before 

January 27, 2005. Any comments that 

we receive after the closing date may 

not be considered in the final decision 

on this proposal.

ADDRESSES: Written comments and 

materials may be submitted to us by one 

of the following methods: 

(1) You may submit written comments 

and information to the Field Supervisor, 

U.S. Fish and Wildlife Service, Ventura 

Fish and Wildlife Office, 2493 Portola 

Road, Suite B, Ventura, CA 93003. 

(2) You may hand-deliver written 

comments and information to our 

Ventura Fish and Wildlife Office, at the 

above address, or fax your comments to 

805/644–3958. 

(3) You may send comments by 

electronic mail (e-mail) to: 

fw1fsmv_pch@r1.fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

Comments and materials received, as 

well as supporting documentation used 

in preparation of the proposed critical 

habitat rule for Astragalus lentiginosus

var. piscinensis (69 FR 31552), will be 

available for public inspection, by 

appointment, during normal business 

hours at the above address. You may 

obtain copies of the draft economic 

analysis for this taxon by contacting the 

Ventura Fish and Wildlife Office at the 

above address. The draft economic 

analysis and the proposed rule for 

critical habitat designation also are 

available on the Internet at http://