27266 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 

SUPPLEMENTARY INFORMATION: 

Public Hearing 

The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning the proposed rules. The EPA 

may ask clarifying questions during the 

oral presentations, but will not respond 

formally to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at the public hearings. 

Written comments must be postmarked 

by the last day of the comment period, 

September 4, 2009. 

The public hearings will be held at 

the following times and locations: 

Los Angeles, CA—June 16, 2009, 

Wilshire Grand Hotel, 930 Wilshire 

Blvd, Los Angeles, CA 90017, W: 

http://www.wilshiregrand.com/ 

index.aspx. 

Dallas, TX—June 17, 2009, Grand Hyatt 

DFW, 2337 South International 

Parkway, PO Box 619045, DFW 

Airport, TX 75261.9045, W: http:// 

www.grandhyattdfw.com. This hotel 

is located near Terminal B at the 

Dallas-Fort Worth Airport. 

Washington, DC—June 18, 2009, 

Potomac Yard Conference Center, 

Environmental Protection Agency, 

Conference Center—4th floor, Rooms 

4370 & 4380, One Potomac Yard 

(South Building), 2777 S. Crystal 

Drive, Arlington, VA 22202. Entrance 

to this facility requires a photo ID. 

The public hearings will begin at 10 

a.m. and continue into the evening until 

8 p.m. (local time) or later, if necessary, 

depending on the number of speakers 

wishing to participate. EPA is 

scheduling lunch breaks from 12:30 

p.m. until 2 p.m. and dinner breaks 

from 5 p.m. to 6:30 p.m. 

If you would like to present oral 

testimony at the hearings, please notify 

Ms. Pamela Garrett, EPA, Office of Air 

Quality Planning and Standards, Sector 

Policy and Programs Division, Energy 

Strategies Group (D243–01), Research 

Triangle Park, NC 27711, telephone 

number 919–541–7966, e-mail address: 

garrett.pamela@epa.gov (preferred 

method for registering). If using e-mail, 

please provide the following 

information: Time you wish to speak 

(morning, afternoon, evening), name, 

affiliation, address, e-mail address, 

telephone and fax numbers, if you need 

any audiovisual equipment and what 

kind (i.e., overhead or LCD projector). 

EPA will make every effort to follow 

the schedule as closely as possible on 

the day of the hearings; however, please 

plan for the hearing to run either ahead 

of schedule or behind schedule. As 

noted above, registration closes at 5 p.m. 

EDT two business days prior to each 

public hearing. 

Oral testimony will be limited to 5 

minutes for each commenter to address 

the proposal. We will not be providing 

equipment for commenters to show 

overhead slides or make computerized 

slide presentations unless we receive 

special requests in advance. 

Commenters should notify Ms. Garrett if 

they will need specific audiovisual 

equipment. EPA encourages 

commenters to provide two copies of 

their oral testimony either electronically 

on computer disk, CD–ROM, or paper 

copy. The hearing schedule, including a 

list of speakers, will be posted on EPA’s 

Web site for the proposal at http:// 

www.epa.gov/ttn/atw/pcem/ 

pcempg.html prior to the hearing. 

Verbatim transcripts of the hearings and 

written statements will be included in 

the rulemaking docket. 

Comment Period 

Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as any oral 

comments and supporting information 

presented at the public hearing. For the 

reasons noted above, the public 

comment period will now end on 

September 4, 2009. This extension of 

the public comment period will also 

allow for adequate time for public 

comment after the public hearings. 

How Can I Get Copies of the Proposed 

Rule and Other Related Information? 

The proposed rule for the National 

Emission Standards for Hazardous Air 

Pollutants from the Portland Cement 

Manufacturing Industry was published 

May 6, 2009 (74 FR 21136). EPA has 

established the public docket for the 

proposed rulemaking under docket ID 

No. EPA–HQ–OAR–2002–0051, and a 

copy of the proposed rule is available in 

the docket. We note that, since the 

proposed rule was published, additional 

materials have been added to the 

docket. Information on how to access 

the docket is presented above in the 

ADDRESSES section. 

Dated: June 3, 2009. 

Elizabeth Craig, 

Acting Assistant Administrator. 

[FR Doc. E9–13438 Filed 6–8–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R6–ES–2009–0015; MO 922105 0083– 

B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List Oenothera acutissima 

(Narrowleaf Evening-primrose) as 

Threatened or Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90-day petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90-day finding on a petition to list 

Oenothera acutissima (narrowleaf 

evening-primrose) as threatened or 

endangered under the Endangered 

Species Act of 1973, as amended (Act). 

We find that the petition does not 

present substantial scientific or 

commercial information indicating that 

listing O. acutissima may be warranted. 

Therefore, we will not initiate a further 

status review in response to this 

petition. We ask the public to submit to 

us any new information that becomes 

available concerning the status of O. 

acutissima or threats to its habitat at any 

time. This information will help us 

monitor and encourage the conservation 

of the species. 

DATES: The finding announced in this 

document was made on June 9, 2009. 

You may submit new information 

concerning this species for our 

consideration at any time. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov. Supporting 

documentation we used in preparing 

this finding is available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Western Colorado 

Field Office, 764 Horizon Drive, 

Building B, Grand Junction, CO 81506. 

Please submit any new information, 

materials, comments, or questions 

concerning this finding to the above 

address. 

FOR FURTHER INFORMATION CONTACT: 

Allan R. Pfister, Field Supervisor, 

Western Colorado Field Office (see 

ADDRESSES section) (telephone 970– 

243–2778, extension 29). If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 27267 

Background 

Section 4(b)(3)(A) of the Act (16 

U.S.C. 1531 et seq.) 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 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files at the time we 

make the determination. To the 

maximum extent practicable, we are to 

make this finding within 90 days of our 

receipt of the petition and publish our 

notice of this finding promptly in the 

Federal Register. 

Our standard for substantial 

information within the Code of Federal 

Regulations (CFR) 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)). If we 

find that substantial information was 

presented, we are required to promptly 

commence a review of the status of the 

species. 

We base this finding on information 

provided by the petitioners that we 

determined to be reliable after reviewing 

sources referenced in the petition and 

information available in our files at the 

time of the petition review. This finding 

summarizes the information included in 

the petition and information available to 

us at the time of the petition review. 

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

our regulations at 50 CFR 424.14(b), our 

review of a 90-day finding is limited to 

a determination of whether the 

information in the petition meets the 

‘‘substantial [scientific or commercial] 

information’’ threshold. 

We received a petition, dated April 

12, 2006, from the Center for Native 

Ecosystems and the Colorado Native 

Plant Society requesting that we list 

Oenothera acutissima as threatened or 

endangered under the Act. Additionally, 

the petitioners requested that we 

designate critical habitat concurrently 

with listing. The petition identified 

itself as such and included the requisite 

identification information for the 

petitioners, as required by 50 CFR 

424.14(a). We acknowledged receipt of 

the petition in a letter dated June 15, 

2006. In that letter, we advised the 

petitioners that due to prior listing 

allocations in Fiscal Year 2006, we 

would not be able to begin processing 

the petition, and that following a review 

of available information, we determined 

that emergency listing of O. acutissima 

was not warranted. Delays in 

responding to the petition continued 

due to the high priority of responding to 

court orders and settlement agreements. 

Previous Federal Actions 

Oenothera acutissima (known only as 

Oenothera sp. until Wagner provided its 

full name in 1981) was listed as a 

Category 2 (C2) candidate for listing on 

December 15, 1980 (45 FR 82480). 

Category 2 status included taxa for 

which information in the Service’s 

possession indicated that a proposed 

listing rule was possibly appropriate, 

but for which sufficient data on 

biological vulnerability and threats were 

not available to support a proposed rule. 

In the Candidate Notice of Review 

(CNOR) published on February 28, 

1996, we announced a revised list of 

plant and animal taxa that were 

regarded as candidates for possible 

addition to the Lists of Threatened and 

Endangered Wildlife and Plants (61 FR 

7595). The revised candidate list 

included only former Category 1 (C1) 

species. All former Category 2 species 

were dropped from the list in order to 

reduce confusion about the conservation 

status of these species, and to clarify 

that the Service no longer regarded 

these species as candidates for listing. 

Because the species did not meet the 

threshold of the definition of a C1 

species, O. acutissima was removed 

from the candidate list at that time. 

This notice constitutes our 90-day 

finding on the April 12, 2006, petition 

to list Oenothera acutissima. 

Species Information and Listable Entity 

Evaluation 

Oenothera acutissima is a member of 

the Onagraceae (evening-primrose) 

family. Plants are low-growing, 

herbaceous, perennial rosettes with a 

long, branching taproot that can 

produce new shoots. Leaves are bright 

green, stiff, 7–14 centimeters (cm) (2.7– 

5.5 inches (in)) long, and 5–10 

millimeters (mm) (0.2–0.4 in) wide with 

short pointed teeth along each edge. 

Flowers are bright yellow fading to deep 

reddish orange, 2.8–5 cm (1–2 in) long, 

2.5–4.3 cm (1–1.7 in) wide (Wagner 

1981, p. 155). Blooming season is in 

June, and flowers open in late afternoon 

and close at mid-morning. 

Oenothera acutissima was first 

recognized by William H. Klein, who 

collected it with H. D. Harrington in 

1966 in Moffat County, Colorado. The 

species was described in 1981 by Dr. 

Warren L. Wagner, Curator of Pacific 

Botany, United States National 

Herbarium at the Smithsonian (Wagner 

1981, p. 153). Dr. Stanley Welsh of 

Brigham Young University published 

this species as Oenothera flava var. 

acutissima (Welsh et al. 1987, p. 505). 

However, Wagner asserts that 

experiments show the two species to be 

genetically incompatible, and therefore 

they are two distinct species (Wagner 

2006, p. 1). Wagner’s treatment is 

accepted by PLANTS Database (USDA, 

NRCS 2007), NatureServe (2007), the 

Integrated Taxonomic Information 

System online database (2007), the Utah 

Rare Plant Guide (UNPS 2006), the 

Colorado Rare Plant Field Guide 

(Spackman et al. 1997, pp. 1–2), and 

Weber and Wittmann (2001, p. 232). 

Distribution 

Oenothera acutissima plants grow on 

sandy and gravelly soils derived from 

red quartzite of the Uinta Mountain 

Group. Occurrences are found in 

seasonally moist areas in open 

meadows, depressions, arroyos, and 

rock crevices of conifer forests at 2,600 

meters (m) (8,530 feet (ft)) elevation 

down to sagebrush scrub communities 

at 1,190 m (3,904 ft) elevation (Wagner 

1981, p. 157). O. acutissima is similar to 

many other evening-primrose species in 

its ability to thrive on open, bare soil 

and disturbed ground. 

The species is known from 12 

occurrences in northeast Utah in 

Daggett, Duchesne, and Uintah 

Counties, and 15 occurrences in 

Colorado in Moffat County, for a total of 

27 occurrences. The number of plants 

estimated by the Utah Natural Heritage 

Program in Utah is 184,950 (UCDC 

2006, 12 records), and estimated by the 

Colorado Natural Heritage Program 

(CNHP) in Colorado is 3,410 plants 

(CNHP 2007, 15 records). Over the total 

range of 145 by 48 kilometers (km) (90 

by 30 miles (mi)), an estimated total of 

188,360 plants exist. Land ownership 

recorded by the Heritage Programs 

includes 13 occurrences on Federal U.S. 

Forest Service, Bureau of Land 

Management (BLM), and National Park 

Service lands; 3 occurrences are entirely 

on private land; and 11 occurrences on 

a combination of Federal and adjacent 

private lands (UCDC 2006 and CNHP 

2007, all records). 

Threats Analysis 

Section 4 of the Act and its 

implementing regulations (50 CFR 424) 

set forth the procedures for adding 

species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. A species may be 

determined to be an endangered or 

threatened species due to one or more 

of the five factors described in section 

4(a)(1) of the Act: (A) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

27268 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. Listing actions may be 

warranted based on any of the above 

threat factors, singly or in combination. 

Under the Act, a threatened species is 

defined as a species that is likely to 

become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. An 

endangered species is defined as a 

species that is in danger of extinction 

throughout all or a significant portion of 

its range. We evaluated each of the five 

listing factors to determine whether the 

level of threat identified by information 

in the petition or in our files was 

substantial and indicated that listing 

Oenothera acutissima as threatened or 

endangered may be warranted. Our 

evaluation is presented below. 

A. Present or Threatened Destruction, 

Modification, or Curtailment of Its 

Habitat or Range 

The petitioners state that substantial 

threats to the species’ habitat include: 

(1) Livestock trampling; (2) dirt bikes 

and other off-road vehicles; (3) noxious 

weeds and seeding; and (4) roads. Each 

of these topics is discussed below. 

Livestock Trampling 

The petitioners state that livestock 

trampling is the most significant 

potential threat to the species, and 

follow this assertion with several 

statements: 

• Grazing occurs on all lands within 

Ashley National Forest and BLM 

jurisdiction that support occurrences of 

the plant, and on most private lands that 

support occurrences. Most sites have 

been impacted by livestock and several 

have suffered heavy impacts; 

• Several occurrences are 

immediately adjacent to stock ponds 

and other cattle congregation areas; 

• Trampling alters the species’ 

microhabitat through the effects of soils 

compaction and changes to water 

drainage pattern; and 

• Actual evidence of impacts from 

heavy grazing or unsustainable 

concentrations of livestock has been 

noted at 4 of the 27 occurrences. 

The petitioners characterize the 

species as one that appears to tolerate 

moderate levels of habitat disturbance, 

but may not be able to tolerate it in any 

long-term sense. The petitioners cite 

Goodrich (2001a, p. 1) as indicating that 

ephemeral surface water and a high 

percentage of bare ground and rock are 

important elements for the species in its 

habitat, and that ‘‘soil compaction is 

also a common feature to the habitat 

occupied by the plant at this site [a 

population on the Ashley National 

Forest].’’ Goodrich (2001a, p. 1) 

predicted that as drainage bottoms 

become more stable and achieve a 

higher percentage of ground cover, 

Oenothera acutissima could be 

displaced by grasses. The petitioners 

conclude that the sandy or gravelly 

microhabitat essential for the species 

may not continue to be available over 

the life of a given meadow or drainage 

bottom. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

Documentation by Goodrich (2001a, 

p. 1; 2001b), which is cited in the 

petition, is inconsistent with the 

petitioners’ assumptions about the 

impacts of cattle on Oenothera 

acutissima. In addition to the statement 

cited above regarding soil compaction, 

Goodrich (2001a, p. 1) indicates that 

‘‘ungulate grazing is indicated to be 

compatible with this plant, and at some 

levels can be expected to increase 

populations of this plant.’’ In 1988, 

1997, 2001, 2004, 2005, and 2006, 

Goodrich (2006a) revisited several O. 

acutissima occurrences. In 1988, he 

photographed unusually large plants 

growing in a highly disturbed drainage 

within a private pasture that had been 

grazed since the late 1800s. He again 

found numerous plants at the same site 

in 2006 (2006a, file # 339–1). Goodrich 

(2006b, p. 1) concluded from these 

examples that livestock grazing is 

actually compatible with these plants. 

Wagner (1981, p. 157) described a site 

that was heavily grazed in 1966, where 

Oenothera acutissima was found 

growing in rock crevices and Oenothera 

flava was growing 15 m (49 ft) away in 

clayey soil along the shore of a 

reservoir. Wagner found no plants in the 

drainage below this heavily grazed site 

from 1973 to 1978, but in 2000, 100 

plants were found (CNHP 2007, EO ID 

3602). This observation supports the 

conclusion that cattle trampling is not a 

substantial threat to the species, and 

illustrates the resilience of the species 

in grazed areas. Additionally, in 

Colorado, Culver surveyed seven 

occurrences where plants were present 

in 2006. She reported some trampling of 

plants at only one occurrence, where 

she found 500–1,000 plants (CNHP 

2007, EO ID 4727). 

The petitioners’ assumptions that 

Oenothera acutissima, an opportunistic 

species, will not persist long term in 

conditions of continued grazing and 

trampling, and that stabilization of 

eroded ground will result in too much 

competition from other plants, are not 

supported by the literature. Goodrich’s 

(2001a, p. 1; 2006b, p. 1) field work 

documented that trampling may help 

maintain habitat for the species. He 

concludes that persistence of abundant 

plant populations in areas with a long 

history of grazing indicates 

compatibility with grazing. 

The petition relies on general 

assumptions about the effects of 

livestock grazing, but does not provide 

data relevant to this species. The 

petition does not consider the results of 

field research documenting the 100-year 

co-occurrence of the species with 

livestock grazing, or that trampling by 

cattle may play a beneficial role in 

maintaining the unique habitat for this 

particular species, which thrives in 

open areas of bare ground (Goodrich 

2001a, p. 1; 2001b; 2006b, p. 1). 

Based on our evaluation of the 

information provided in the petition 

and information available to us at the 

time of petition review, we have 

determined that the petition does not 

present substantial information to 

indicate that listing of Oenothera 

acutissima may be warranted due to the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range due to livestock 

trampling. 

Dirt Bikes and Other Off-Road Vehicles 

The petition states that off-road 

vehicles (ORVs) damage and destroy 

Oenothera acutissima plants, change 

runoff patterns causing eroded soils and 

changed community composition of 

mesic habitats, and cause dust to cover 

plants. The petitioners indicate that 

several O. acutissima occurrences have 

been impacted by damage, and that one 

area of habitat supporting plants has 

been observed with ORV tire tracks 

running through it. They indicate that 

off-road and cross-country travel is 

allowed in almost all occurrences of O. 

acutissima, and that ORV use is 

increasing dramatically on public lands 

of the West. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

The petitioners cite one observation of 

ORV tracks in plant habitat; no 

information is given to indicate direct 

impact on plants, nor is there any 

documentation of direct or indirect ORV 

impacts to Oenothera acutissima plants 

in our files. The petition includes 

generally accepted descriptions of 

potential threats to plants and habitats 

from ORV use, but does not show that 

these potential threats may result in 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 27269 

impacts to more than one occurrence of 

O. acutissima. Again, the petitioners 

have provided general information on a 

potential threat, but not provided any 

evidence on actual impacts from ORV 

use. 

On the basis of a review of the 

information provided by the petitioners 

and that readily available in our files, 

we have determined that the petition 

does not provide substantial 

information, nor does the Service have 

information, to indicate that listing 

Oenothera acutissima may be warranted 

due to the present or threatened 

destruction, modification, or 

curtailment of its habitat or range due to 

the use of dirt bikes and other ORVs. 

Noxious Weeds and Seeding 

The petitioners state that noxious 

weeds and seeding may constitute a 

threat to Oenothera acutissima because 

they could eliminate or alter the bare 

ground microhabitat of the species by 

changing flow patterns of water in 

ephemeral stream channels or by 

anchoring more soil within stream 

channels. The petitioners indicate that 

weed species have been seen occupying 

many of the O. acutissima occurrences, 

and therefore noxious weeds are known 

to be a problem. They indicate that at 

least 3 of the 27 O. acutissima 

occurrences have been invaded by 

noxious weeds. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

The petition provides no information 

to substantiate that noxious weeds and 

seeding are impacting, or are likely to 

impact, Oenothera acutissima 

occurrences. CNHP records describe 

weeds growing in and around springs at 

two of the three occurrences cited in the 

petition (CNHP 2007, EO IDs 4727, 502). 

No impacts to the plants are noted in 

CNHP data, and noxious weed species 

are not mentioned or identified. 

Occurrence records often mention 

varieties of grasses and forbs growing 

with O. acutissima, but cheatgrass 

(Bromus tectorum) is the only weed 

species mentioned (CNHP 2007, all 

records). 

On the basis of a review of the 

information provided by the petitioners 

and that readily available in our files, 

we have determined that the petition 

does not present substantial information 

to indicate that listing Oenothera 

acutissima may be warranted due to the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range by noxious weeds and 

seeding. 

Roads 

The petitioners state that most 

Oenothera acutissima occurrences are 

near roads, and that many occurrences 

are bisected by roads. They indicate that 

at least seven O. acutissima sites are 

immediately adjacent to roads or trails 

that provide recreationists with either 

restricted access across O. acutissima 

habitat or unrestricted open access into 

the habitat. The petitioners indicate that 

habitat could be impacted by soil 

compaction, fine particle deposition on 

the plants, alterations in hydrologic 

flow above the plants, spread of 

invasive plants, increased ORV access 

and use, and destabilization of the 

drainages where the plants are found. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

Roads near or through Oenothera 

acutissima habitat exist, but no 

available information indicates that 

roads result in negative effects to O. 

acutissima or its habitat. Available 

information indicates that this species 

actually takes advantage of ground 

disturbance associated with roads. 

Goodrich (2006a, files 3–14A2, 3–14RS) 

compared photographs taken in 1997 

and 2006 of a roadside occurrence of O. 

acutissima on open range. Plants were 

monitored and appeared to be 

increasing along a roadside transect 

between the hardened surface of the 

road and the adjacent sagebrush 

community. Another pair of 

photographs (Goodrich 2006a, file 339– 

1) showed unusually large O. acutissima 

plants in the highly disturbed downdrainage side of a road culvert in 1988, 

and numerous plants could still be seen 

in the 2006 photograph of the same 

drainage. 

On the basis of a review of the 

information provided by the petitioners 

and that readily available in our files, 

we have determined that the petition 

does not present substantial information 

to indicate that listing Oenothera 

acutissima may be warranted due to the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range by roads and associated 

access. 

Other Threats 

The petitioners also state that some 

occurrences are threatened by other 

activities, including water diversions 

and meadow channeling; recreational 

activities including camping, firewood 

gathering, and hunting; logging; dense 

housing and infrastructure 

development; changes in habitat due to 

ecological succession; and flooding. The 

petitioners describe four sites where 

some of these other potential threats are 

present, and these are the same sites 

that support the highest number of 

plants. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

The petitioners provided no specific 

information, nor do we have any 

information in our files, to substantiate 

the extent of these activities and their 

potential impacts on Oenothera 

acutissima. Once again, the question of 

speculative, generic potential threats 

has been raised, but no evidence on 

actual impacts from these potential 

threats has been documented. 

On the basis of a review of the 

information provided by the petitioners 

and readily available in our files, we 

determined that the petition does not 

present substantial information to 

indicate that listing Oenothera 

acutissima may be warranted due to the 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range by other threats, 

including water diversions and 

flooding, recreational activities, logging, 

housing and infrastructure 

development, or ecological succession. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The petitioners provide no 

information, nor do we have any 

information in our files, pertaining to 

Factor B. Therefore, we have 

determined that the petition does not 

present substantial information to 

indicate that listing Oenothera 

acutissima may be warranted due to 

overutilization for commercial, 

recreational, scientific, or educational 

purposes. 

C. Disease or Predation 

The petitioners cite a conversation 

with Goodrich indicating that herbivory 

is not a serious threat to Oenothera 

acutissima, because no species seems to 

seek it out for foraging. They note one 

occurrence record of heavily grazed 

plants. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

One observation of herbivory by cattle 

and horses is noted in occurrence 

records, where the tips of the plants 

were grazed along with comingled 

grasses and forbs (CNHP 2007, EO ID 

4727). However, one observation at one 

plant occurrence (out of 27) does not 

present substantial information to 

27270 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 

indicate that herbivory is a threat to the 

species. Therefore, we have determined 

that the petition does not provide 

substantial information to indicate that 

listing Oenothera acutissima may be 

warranted due to herbivory or other 

forms of predation. 

D. Inadequacy of Existing Regulatory 

Mechanisms 

The petitioners allege that no Federal, 

State, or other regulatory mechanisms 

adequately protect Oenothera 

acutissima, and that BLM fails to 

manage with sensitive species in mind. 

The petitioners could find no record of 

O. acutissima being considered in 

management decisions that would affect 

its habitat or occurrences. The 

petitioners assert that few restrictions 

regarding ORV use exist within the 

range of O. acutissima. They indicate 

that BLM has failed to designate six 

Areas of Critical Environmental Concern 

proposed in a working draft of a revised 

Resource Management Plan (RMP), and 

that BLM is highly unlikely to designate 

these areas given the typical patterns of 

RMP adoption. The petitioners state that 

the current condition of the plant’s 

habitat is evidence that regulatory 

mechanisms at every level are 

inadequate. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

Oenothera acutissima is, in fact, 

managed as a Sensitive Species by BLM 

in Colorado, as designated by the BLM 

State Director, with special management 

consideration. The BLM Manual 6840 

provides policy direction that BLM 

sensitive plant species are to be 

managed as if they were candidate 

species for Federal listing, in order to 

preclude listing, while also fulfilling 

other Federal law mandates. BLM 

manages about 30 percent of the O. 

acutissima occurrences (UCDC 2006 and 

CNHP 2007, all records). 

About 24 percent of the species’ 

occurrences are located within Ashley 

National Forest in Utah, managed by the 

U.S. Forest Service (UCDC 2006, all 

records). The USFS decided in 1996 that 

O. acutissima did not meet its criteria 

for sensitive status due to: (1) A number 

of surveys that resulted in discovery of 

several populations and several 

hundreds of individuals, and (2) lack of 

threats, specifically little if any negative 

impacts due to cattle grazing (Goodrich 

2006b, p. 1). The USFS continues to 

monitor the status of the species within 

its grazing allotments (Goodrich 2001a, 

2001b, and 2006a, all pages). 

Colorado and Utah do not have State 

regulatory mechanisms for protecting 

rare plant species; however, the 

information in the petition and 

currently available in our files does not 

indicate that the species requires 

additional regulatory mechanisms to 

sustain it or that it is threatened by the 

lack of regulatory mechanisms 

necessary to address threats. All but 3 

of the 27 Oenothera acutissima 

occurrences are completely or partially 

on Federal land, and are therefore 

protected from some forms of 

permanent habitat loss, such as 

residential development. 

Further, as indicated in other portions 

of this finding, the petition has failed to 

present substantial information 

indicating that grazing and ORV use are 

a threat to Oenothera acutissima 

throughout the species’ range. We find 

that the petitioners’ claim that there are 

few restrictions regarding ORV use 

within the range of O. acutissima does 

not constitute an argument for 

inadequacy of existing regulations, 

because we do not find substantial 

evidence that ORV use is a threat. 

Based on our evaluation of the 

information presented in the petition 

and readily available in our files, we 

have determined that the petition does 

not present substantial information to 

indicate that listing Oenothera 

acutissima may be warranted due to the 

inadequacy of existing regulatory 

mechanisms. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence 

The petitioners indicate that its 

extremely narrow range and limited 

habitat type, small number of plants, 

and small number of populations make 

Oenothera acutissima vulnerable to 

anthropogenic impacts, environmental 

and genetic stochasticity, and climate 

change. They state that climate change 

is likely to affect the species because a 

warmer and drier trend has been 

recorded in the region. 

Evaluation of Information in the Petition 

and Information Available to Us at the 

Time of Petition Review 

No specific information was provided 

nor is available in our files to indicate 

that population size, range, and number 

of populations are so limited that other 

natural or manmade factors would 

substantially impact Oenothera 

acutissima. The petitioners’ claims are 

not supported by data or by references 

that apply to the species or its habitat. 

The total number of plants estimated in 

Colorado (CNHP 2007, all records) and 

Utah (UCDC 2006, all records) is 

188,360 plants scattered over a range of 

145 by 48 km (90 by 30 mi). No recounts 

are available to precisely compare 

population sizes and determine whether 

there has been a downward trend in the 

number of plants. Additionally, no data 

are available to show that a warmer and 

drier weather trend has negatively 

affected the water supply, habitat, or 

population sizes of O. acutissima. 

In the absence of any data or other 

information, the petitioners’ generalized 

statements regarding other factors that 

potentially threaten Oenothera 

acutissima are unsubstantiated. Based 

on our evaluation of the information 

presented in the petition and readily 

available in our files, we have 

determined that the petition does not 

present substantial information to 

indicate that listing O. acutissima may 

be warranted due to other natural or 

manmade factors affecting the species’ 

continued existence. 

Finding 

We have reviewed the petition, 

literature cited in the petition, and 

information available in our files. After 

careful evaluation, we find that neither 

the petition nor information in our files 

presents substantial scientific or 

commercial information to indicate that 

listing Oenothera acutissima 

(narrowleaf evening-primrose) as 

endangered or threatened under the Act 

may be warranted. 

The petitioners state that nearly all 

Oenothera acutissima occurrences are 

on active grazing allotments, open to 

ORVs, and near roads, and cite 

generalized information about potential 

impacts that can occur due to these 

situations. However, few negative 

impacts to the plants have resulted or 

been documented from the potential 

threats cited in the petition. Little 

information is presented in the petition 

regarding the magnitude of potential 

impacts, or whether they may have 

population-level effects. The petitioners 

state that, when little information is 

available about population trends and 

impacts of threats to specific 

occurrences, the presence of alleged 

threats such as grazing, combined with 

scientific information available about 

the typical effects of grazing on such 

habitat, lead to the conclusion that plant 

occurrences are likely to be negatively 

affected. However, we find that 

speculation about potential threats and 

hypothetical impacts, without data 

supporting these claims, does not meet 

the criteria described in the Act on 

making a finding as to whether a 

petition presents substantial scientific 

or commercial information indicating 

that a petitioned action may be 

warranted. 

Our regulations define ‘‘endangered 

species’’ as ‘‘a species that is in danger 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 27271 

of extinction throughout all or a 

significant portion of its range’’ (50 CFR 

424.02(e)). Similarly, our regulations 

define a ‘‘threatened species’’ as ‘‘any 

species that is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range (50 CFR 

424.02(m)). Our review of the available 

information indicates that the species 

appears to be maintaining its presence 

in known locations throughout its range 

from 1966 to the present. Despite 

several potential threat factors, the 

petition and the information in our files 

do not present substantial information 

indicating that any factor, or 

combination of factors, suggests that the 

petitioned action, listing as threatened 

or endangered with critical habitat, may 

be warranted for Oenothera acutissima. 

Although we will not commence a 

status review in response to this 

petition, we will continue to monitor 

Oenothera acutissima’s population 

status and trends, potential threats, and 

ongoing management actions that might 

be important with regard to the 

conservation of the species across its 

range. We encourage interested parties 

to continue to gather data that will assist 

with the conservation of the species. If 

you wish to provide information 

regarding O. acutissima, you may 

submit your information or materials to 

the Field Supervisor, Western Colorado 

Field Office, U.S. Fish and Wildlife 

Service (see ADDRESSES section). 

References Cited 

A complete list of all references cited 

in this document is available upon 

request from the Western Colorado Field 

Office (see ADDRESSES section). 

Author 

The primary authors of this document 

are the staff members of the U.S. Fish 

and Wildlife Service, Western Colorado 

Field Office (see ADDRESSES section). 

Authority 

The authority for this action is section 

4 of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: May 29, 2009. 

Stephen Guertin, 

Acting Deputy Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–13313 Filed 6–8–09; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R7–ES–2008–0105; 92210–1117– 

0000–B4] 

RIN 1018–AV92 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Southwest Alaska 

Distinct Population Segment of the 

Northern Sea Otter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; extension of 

comment period, notice of availability 

of draft economic analysis, and 

amended required determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce the 

extension of the public comment period 

on the proposed designation of critical 

habitat for the southwest Alaska Distinct 

Population Segment (DPS) of the 

northern sea otter (Enhydra lutris 

kenyoni) under the Endangered Species 

Act of 1973, as amended. We also 

announce the availability of a draft 

economic analysis (DEA) and an 

amended required determinations 

section of the proposal. We are 

extending the comment period for an 

additional 30 days from the date of this 

notice to allow all interested parties an 

opportunity to comment simultaneously 

on the revised proposed rule, the 

associated DEA, and the amended 

required determinations section. If you 

submitted comments previously, you do 

not need to resubmit them because we 

have already incorporated them into the 

public record and will fully consider 

them in preparation of the final rule. 

DATES: We will consider comments 

received on or before July 9, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R7– 

ES–2008–0105; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

• Public Hearing: We will hold one 

public hearing on June 18, 2009, at the 

Z.J. Loussac Library in Anchorage, 

Alaska. In addition to having the 

opportunity to provide oral comments 

in person, telephone access will be 

provided for this hearing. Contact the 

Marine Mammals Management Office 

(see FOR FURTHER INFORMATION CONTACT) 

for more information about this public 

hearing. 

• Public Comment Hotline: We will 

also establish a toll-free public comment 

hotline at 877–577–6930. Callers will 

have an opportunity to record their 

comments at any time during the public 

comment period. 

We will post all comments on 

http://www.regulations.gov (see the 

‘‘Public Comments’’ section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Douglas M. Burn, Wildlife Biologist, 

U.S. Fish and Wildlife Service, Marine 

Mammals Management Office, 1011 East 

Tudor Road, Anchorage, Alaska 99503, 

by telephone (907–786–3807), or by 

facsimile (907–786–3816). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written and oral 

comments and information during this 

extended comment period on the 

proposed rule to designate critical 

habitat for the southwest Alaska DPS of 

the northern sea otter (Enhydra lutris 

kenyoni) that was published in the 

Federal Register on December 16, 2008 

(73 FR 76454), the draft economic 

analysis of the proposed designation, 

and the amended required 

determinations provided in this 

document. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as critical 

habitat under section 4 of the 

Endangered Species Act of 1973, as 

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

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether the benefit of designation 

would outweigh any threats to the 

species due to designation, such that the 

designation of critical habitat is 

prudent. 

(2) Specific information on: 

• The distribution of the northern sea 

otter in southwest Alaska; 

• The amount and distribution of 

habitat of the Southwest Alaska DPS of 

the northern sea otter; and 

• What areas occupied at the time of 

listing that contain features essential for 

the conservation of the species we 

should include in the designation and 

why, and