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###### Department of the Interior

###### Fish and Wildlife Service

          - 50 CFR Part 17
          - RIN 1018-AG13

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Proposed rule; notice of 60-day delay for final determination of critical habitat.

# SUMMARY:

                        We, the U.S. Fish and Wildlife Service, announce a 60-day delay in making our final determination of critical habitat for wintering piping plovers, subject to further court proceedings. This additional time will allow us to complete the analyses required under section 4(b)(2) of the Endangered Species Act of 1973, as amended (Act), for designation of critical habitat. We will publish our final determination in the                         **Federal Register.**

# DATES:

                        We will make our final determination on the designation of                               ( print page 22984)                            critical habitat for wintering piping plovers by June 29, 2001.                    

# ADDRESSES:

Questions about this document should be directed to the Chief, Division of Conservation and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax, Room 420, Arlington, Virginia 22203.

# FOR FURTHER INFORMATION CONTACT:

Chris Nolin at the above address or telephone (703) 358-2171.

# SUPPLEMENTARY INFORMATION:

## Background:

The piping plover (Charadrius melodus) is a small North American shorebird that breeds in the Great Plains, Great Lakes, and upper Atlantic Coast states; its wintering areas include the lower Atlantic and Gulf coasts of the United States. On December 11, 1985, we published a final rule (50 FR 50720), listing the piping plover as endangered in the Great Lakes watershed (Illinois, Indiana, Michigan, northeastern Minnesota, New York, Ohio, Pennsylvania, Wisconsin, and Ontario) and as threatened elsewhere within its range. All piping plovers on migratory routes outside of the Great Lakes watershed or on their wintering grounds are considered threatened. We did not designate critical habitat for the species at that time.

In December 1996, Defenders of Wildlife (Defenders) filed a lawsuit against the Department of the Interior and the Service for failing to designate critical habitat for the Great Lakes population of the piping plover. Defenders filed a second similar lawsuit for the Northern Great Plains piping plover population in 1997. These lawsuits were subsequently combined (Defenders of Wildlife et al. v. Bruce Babbitt et al., Consolidated Cases Civil No. 1:96-CV-02695AER and Civil No. 1:97-CV00777AER). In February 2000, the court issued an order directing us to publish a proposed critical habitat designation for the Great Lakes population of the piping plover by June 30, 2000. Publication of a similar proposal for nesting areas of the Northern Great Plains population of piping plover by May 31, 2001, was also ordered. A subsequent order directs us to finalize the critical habitat designations for the Great Lakes population by April 30, 2001, including its wintering habitat, and for the Northern Great Plains population by March 15, 2002.

Since we cannot distinguish the Great Lakes and Great Plains birds on their wintering grounds, we felt it was appropriate to propose critical habitat for all wintering piping plovers collectively. Further, we determined that the appropriate course of action would be to propose critical habitat for all U.S.-wintering piping plovers on the same schedule required, under court order, for the Great Lakes breeding population. We proposed critical habitat for wintering piping plovers on July 6, 2000 (65 FR 41782), and published extensions of the comment period on August 30, 2000 (65 FR 52691), and October 27, 2000 (65 FR 64414), so that the comment period closed on November 24, 2000. We later reopened the comment period from February 22, 2001, through March 1, 2001 (66 FR 11134), to accept additional information. The proposal includes 146 areas along the coasts of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. This includes approximately 2,691 kilometers (1,672 miles) of shoreline along the Gulf and Atlantic coasts and along margins of interior bays, inlets, and lagoons.

Section 4(b)(2) of the Endangered Species Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. We prepared and made available a draft economic analysis concerning the proposed critical habitat designation (65 FR 52691). We received considerable public comment on our draft analysis of the economic effects of the proposed critical habitat designation; we reopened the comment period the last time (66 FR 11134) primarily to accept additional information into the record on potential economic effects of the designation.

Given the extent and detail of the comments on our draft economic analysis, and especially the significant portion of these comments that arrived after we reopened the comment period in late February, we were only able to develop a draft final economic analysis on April 17, 2001, and a revised draft one week later. We are currently reviewing this revised draft. The final economic analysis is a critically important part of the analysis required under section 4(b)(2) of the Act; without the economic analysis, we are unable to complete an adequate and effective 4(b)(2) analysis.

                    We, therefore, have delayed by 60 days our final decision on critical habitat for wintering piping plovers. Since the current court order requires this decision to have been made by April 30, 2001, we have requested the court to extend the deadline by 60 days, or until June 29, 2001. We will base our final determination on material and information already in the record for this critical habitat determination and will publish our determination in the                     **Federal Register**                    .                

                    Elsewhere in the                     **Federal Register**                     today we are publishing a final rule designating critical habitat in the breeding areas of the endangered Great Lakes population of piping plovers. In addition, by May 30, 2001, we will make a proposed determination of critical habitat for the breeding areas of the threatened population of piping plovers in the northern Great Plains.                

## Author

The primary authors of this document are Wendi Weber and Patrick Leonard, Division of Conservation and Classification, Arlington, Virginia.

## Authority

                    The authority for this action is the Endangered Species Act (16 U.C.S. 1531                     *et seq.*).                

Dated: April 30, 2001.

Marshall P. Jones, Jr.,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 01-11206 Filed 5-2-01; 12:41 pm]

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