30996 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules 

12Steffey et al., p. 34. 

13Steffey et al., p. 38. 

The value of R represents the relative 

odds of daytime target crashes 

involvements between DRL-equipped 

vehicles and non-DRL vehicles. The 

agency believes the ratio of odds ratio is 

the optimal method because it has a 

strong confounding-factor-control 

ability. With regard to the previous 

example, the ratio of odds ratios would 

factor in a higher expected crash rate for 

the vehicle driven 25 miles per day than 

the vehicle driven five. 

The ratio of odds ratios avoids using 

crash rates because the true exposure 

data generally do not exist. In GM’s 

case, with regard to the portion of the 

study that utilized the ratio of crash 

rates method, vehicle registrations were 

used as the exposure data. However, 

registration data do not differentiate 

driving between DRL and non-DRL 

vehicles. They do not separate daytime 

and nighttime driving. Consequently, 

vehicle registrations are not considered 

to be an appropriate exposure measure 

for a DRL study. The contradicting 

results from the GM study demonstrate 

this. In contrast, the ratio of odds ratios 

method compares the ratio of target 

crashes (DRL-relevant) to control 

crashes (non DRL-relevant) in the 

daytime. 

The Steffey et al. study incorporated 

both of the methodologies in arriving at 

its conclusions. Using the ratio of crash 

rates method, the study found an overall 

decrease in crash rates of 4.61 percent, 

which was noted as statistically 

significant.12 However, using the ratio of 

odds ratios method, the same report 

found a non-significant decrease in the 

crash rates of 1.36 percent.13 Given the 

significant divergence in results from 

the different methodologies, we feel that 

the results from the ratio of crash rates 

methodology should be assigned less 

weight in NHTSA’s analysis of the 

safety effect of DRLs. 

V. Conclusion 

The agency’s 2008 DRL study is a 

more robust study than previous 

attempts by the agency to quantify the 

effectiveness of DRLs. This newest 

study was unable to find solid evidence 

of overall safety benefits associated with 

DRLs installed on passenger vehicles 

using the ratio of odds ratio statistical 

technique. While DRLs may be 

beneficial for certain scenarios, the 

agency has been unable to document 

overall safety benefits due to DRL 

installation which could serve as a basis 

for mandating them. NHTSA is therefore 

denying this petition from GM. 

However, the agency is willing to reexamine the DRL issue if additional data 

is presented demonstrating overall 

safety benefits. Any such study should 

consider using the ratio of odds ratios 

technique as used in the latest NHTSA 

study, or provide compelling evidence 

that an alternative technique is superior 

at predicting the effectiveness of DRLs. 

In the meantime, the agency remains 

neutral with respect to a policy 

regarding the inclusion of DRLs in 

vehicles. Although we do not find data 

that provides a definitive safety benefit 

that justifies Federal regulation, we are 

not making recommendations that 

vehicle manufacturers should change 

their policies regarding DRLs. 

Manufacturers should continue to make 

individual decisions regarding DRLs in 

their vehicles. 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117 and 30166; delegation of authority at 

49 CFR 1.50. 

Issued: June 23, 2009. 

Nathaniel Beuse, 

Director, Office of Crash Avoidance 

Standards. 

[FR Doc. E9–15314 Filed 6–26–09; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R8–ES–2009–0040; 92220–1113– 

0000–C5] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To Delist the Lost River 

Sucker (Deltistes luxatus) and the 

Shortnose Sucker (Chasmistes 

brevirostris) 

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 remove 

the Lost River sucker (Deltistes luxatus) 

and the shortnose sucker (Chasmistes 

brevirostris) from the Federal List of 

Threatened and Endangered Wildlife 

(List) 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 removing the Lost River 

sucker or shortnose sucker from the List 

may be warranted. Therefore, we will 

not initiate a status review for either 

species in response to this petition. We 

ask the public to submit to us any new 

information that becomes available 

concerning the status of, or threats to, 

the Lost River and shortnose suckers or 

their habitat at any time. 

DATES: The finding announced in this 

document was made on June 29, 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 and http:// 

www.fws.gov/klamathfallsfwo. 

Supporting documentation we used in 

preparing this finding is available for 

public inspection, by appointment, 

during normal business hours at the 

Klamath Falls Fish and Wildlife Office, 

U.S. Fish and Wildlife Service, 1936 

California Avenue, Klamath Falls, OR 

97601; telephone (541) 885–8481; 

facsimile (541) 885–7837. Please send 

any new information, materials, 

comments, or questions concerning this 

finding to the above street address. 

FOR FURTHER INFORMATION CONTACT: 

Laurie Sada, Field Supervisor, U.S. Fish 

and Wildlife Service, Klamath Falls Fish 

and Wildlife Office (see ADDRESSES). 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at (800) 877–8339, 24 hours a 

day, 7 days a week. 

SUPPLEMENTARY INFORMATION: 

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 indicating 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 the finding promptly in the 

Federal Register. 

This finding is based on the 

information included in and with the 

petition and information available in 

our files 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 is limited to a 

determination of whether the 

information in the petition meets the 

‘‘substantial scientific or commercial 

information’’ threshold. Our standard 

for substantial information with regard 

to a 90-day petition finding is ‘‘that 


cprice-sewell on PRODPC61 with PROPOSALS
Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules 30997 

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)). In 

making this finding, we consider 

whether the petition: (1) Clearly 

indicates the administrative action 

recommended; (2) contains a detailed 

narrative justification for the 

recommended measure, describing, 

based on available information, past and 

present numbers and distribution of the 

species and any threats faced by the 

species; (3) provides information 

regarding the status of the species over 

all or a significant portion of its range; 

and (4) is accompanied by appropriate 

supporting documentation in the form 

of bibliographic references, reprints of 

pertinent publications, copies of reports 

or letters from authorities, and maps (50 

CFR 424.14(b)(2)). If we find that 

substantial information was presented, 

we are required to promptly commence 

a review of the status of the species and 

publish the results of that status review 

in a 12-month finding. 

The factors for listing, delisting, or 

reclassifying species are provided at 50 

CFR 424.11. We may delist a species 

only if the best scientific and 

commercial data available substantiate 

that it is neither endangered nor 

threatened. Delisting may be warranted 

as a result of: (1) Extinction; (2) 

recovery; or (3) a determination that that 

the original data used for classification 

of the species as endangered or 

threatened were in error. 

We received a petition dated January 

13, 2009, from Mr. James L. Buchal 

requesting that the Lost River sucker 

and the shortnose sucker be removed 

from the List. The submission clearly 

identified itself as a petition and 

included the requisite identification 

information of the petitioner, as 

required in 50 CFR 424.14(a). This 

notice constitutes our 90-day finding on 

the petition. 

Previous Federal Action 

On July 18, 1988, we listed the Lost 

River sucker and shortnose sucker as 

endangered under the Act (53 FR 

27130). On December 1, 1994, we 

proposed critical habitat for Lost River 

sucker and shortnose sucker (59 FR 

61744); that proposal was never 

finalized. 

A previous petition to delist the Lost 

River sucker and the shortnose sucker, 

dated September 12, 2001, was 

submitted by Mr. Richard A. Gierak, 

representing Interactive Citizens United. 

Three other similar petitions were 

treated as comments on Mr. Gierak’s 

petition because they were considered 

equivalent to Mr. Gierak’s petition. 

These three petitions were from Mr. Leo 

Bergeron, Mr. James L. Buchal, and Ms. 

Naomi Fletcher. On May 14, 2002, the 

Service published a 90-day finding 

stating that the petitions to delist the 

Lost River and shortnose suckers did 

not present substantial scientific or 

commercial information indicating that 

delisting the suckers may be warranted 

(67 FR 34422). On June 12, 2002, Walt 

Moden, Merle Carpenter, Charles 

Whitlatch, John Blair, Tiffany Bladock, 

and Dale Cross filed a complaint in 

Federal District Court alleging that our 

initial finding on the petition to delist 

the Lost River and shortnose suckers 

was arbitrary and capricious and 

violated the Act (Moden v. U.S. Fish 

and Wildlife Service, 281 F. Supp 2d 

1193 (D. Or 2003)). On September 3, 

2003, the court ruled that our finding 

was arbitrary and capricious because it 

reached unexplained conclusions not 

supported by the administrative record. 

The court remanded the 90-day finding 

and ordered us to either reissue the 

finding with further explanation or 

proceed to a status review. Consistent 

with the court’s order, the Service made 

a new finding, clarifying our analysis as 

well as addressing additional comments 

made by the court and the petitioners. 

The new 90-day finding was published 

on July 21, 2004, stating again that we 

found that the petition did not present 

substantial information that delisting 

the Lost River and shortnose suckers 

may be warranted (69 FR 43554). That 

Federal Register notice also initiated 5- 

year status reviews of the Lost River and 

shortnose suckers under section 

4(c)(2)(A) of the Act to consider any 

new information that had become 

available. The 5-year reviews for the two 

suckers were completed and signed on 

July 19, 2007. The review for the Lost 

River sucker recommended downlisting 

the species from endangered to 

threatened, and the review for the 

shortnose sucker recommended that the 

species remain classified as endangered. 

Shortly before the 5-year reviews for 

the two suckers were published in July, 

2007, Walt Moden, Merle Carpenter, 

Charles Whitlatch, and John Blair filed 

suit in Federal District Court seeking to 

have the reviews completed ‘‘by a date 

certain’’ (Moden et al. v. U.S. Fish and 

Wildlife Service, Case No. 07–799, D. 

Or.). The court dismissed that case after 

publication of the reviews. In a lawsuit 

filed on February 21, 2008, the same 

plaintiffs challenged the adequacy of the 

two sucker reviews (Moden et al. v. U.S. 

Fish and Wildlife Service, Case No. 08– 

214, D. Or.), and sought to have them set 

aside. The Service moved to dismiss the 

complaint. On October 27, 2008, the 

court dismissed the plaintiffs’ 

complaint, holding that 5-year reviews 

do not constitute final agency action 

subject to judicial review. 

Species Information 

General Biology 

Lost River sucker. Lost River suckers 

are large fish (up to 1 meter (m) long 

and 4.5 kilograms (kg) in weight) that 

are distinguished by their elongate body 

and sub-terminal mouth with a deeply 

notched lower lip. They have dark 

brown to black backs and brassy sides 

that fade to yellow or white on the belly. 

They are native to the Lost River and 

upper Klamath River systems in Oregon 

and California where they have adapted 

to lake living (Moyle 2002, p. 199). 

Adult and juvenile Lost River suckers 

live in lakes where they feed on benthic 

organisms and material. While the fish 

can be found throughout the reservoirs 

they inhabit, they appear to prefer 

shorelines with emergent vegetation that 

can provide cover from predators and 

invertebrate food (Moyle 2002, pp. 199– 

200). 

Lost River suckers grow rapidly in 

their first 5 to 6 years, reaching sexual 

maturity sometime between 5 and 14 

years of age, with most maturing at 9 

years (Buettner and Scoppettone 1990, 

p. 35). The majority of Lost River sucker 

spawning occurs from late February to 

early May in the larger tributaries of 

inhabited lakes. River spawning habitat 

is riffles or runs with gravel or cobble 

substrate, moderate flows, and depths of 

21–128 centimeters (cm). Some Lost 

River suckers have been noted to spawn 

in lakes, particularly at springs 

occurring along the shorelines. Females 

are highly fecund (102,000–235,000 eggs 

each) and spawn with numerous males. 

A Lost River sucker can spawn multiple 

times during its life. It is unknown 

whether an individual fish will spawn 

multiple times in a single year or an 

individual will spawn every year (NRC 

2004, p. 196). 

Shortnose sucker. Shortnose suckers 

are distinguished by their large heads 

with oblique, terminal mouths with thin 

but fleshy lips. The lower lips are 

deeply notched. They are dark on their 

back and sides and silvery or white on 

the belly. They can grow to about 50 cm, 

but growth is variable among 

individuals. Shortnose suckers have 

been recorded to live as long as 33 years 

(Moyle 2002, p. 203). 

Adult and juvenile shortnose suckers 

prefer shallow, turbid, and highly 

productive lakes that are cool, but not 

cold, in summer (generally 15 to 25 °C), 

have adequate dissolved oxygen (DO) 

(above 4 milligrams per liter (mg/l)), and 


cprice-sewell on PRODPC61 with PROPOSALS
30998 Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules 

are moderately alkaline (Moyle 2002, p. 

203). 

Shortnose suckers grow rapidly in 

their first 5 years, reaching sexual 

maturity sometime between years 4 and 

6. The majority of shortnose sucker 

spawning occurs from early April to 

early May in the larger tributaries of 

inhabited lakes. River spawning habitat 

is riffles or runs with gravel or cobble 

substrate, moderate flows, and depths of 

11 to 130 cm. Historically, shortnose 

suckers have been noted to spawn in 

lakes, particularly at springs occurring 

along the shorelines (Moyle 2002, p. 

204), although currently few shortnose 

suckers spawn along shorelines (NRC 

2004, p. 194). A shortnose sucker can 

spawn multiple times during its life. It 

is unknown whether an individual fish 

will spawn multiple times in a single 

year or an individual will spawn every 

year (NRC 2004, p. 196). 

Distribution 

At the time of listing, the Lost River 

sucker and the shortnose sucker were 

reported from Upper Klamath Lake and 

its tributaries (Klamath County, 

Oregon); from the Lost River (Klamath 

County, Oregon, and Modoc and 

Siskiyou Counties, California) and Clear 

Lake (Modoc County, California); from 

the Klamath River above Keno (Klamath 

County, Oregon); and in one or more of 

the Klamath River reservoirs below 

Keno (Klamath County, Oregon, and 

Siskiyou County, California) (53 FR 

27130). The known geographic range of 

these suckers has not substantially 

changed since listing. 

Only one previously unreported Lost 

River sucker population has been found 

since listing. This population of a few 

hundred adults occurs in the Tule Lake 

sumps at the terminus of the Lost River 

(Siskiyou County, California) 

(Scoppettone et al. 1995, p. 37). Two 

previously unreported shortnose sucker 

populations have been found since 

listing. First, a population of a few 

hundred adults occurs in the Tule Lake 

sumps at the terminus of the Lost River 

(Siskiyou County, California) 

(Scoppettone et al. 1995, p. 37). Second, 

shortnose suckers are now known to 

occur in Gerber Reservoir (Klamath 

County Oregon), an area which was 

proposed as critical habitat in 1994 (59 

FR 61744). New genetics information 

casts some doubt on whether these fish 

in Gerber Reservoir and Clear Lake are 

actually shortnose suckers (ISRP in litt. 

2005, pp. 19–21; Tranah and May 2006, 

p. 312). Until that information can be 

further evaluated, we continue to 

assume that these fish are shortnose 

suckers. 

Evaluation of the Petition 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for adding 

species to or removing species from 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) Present 

or threatened destruction, modification, 

or curtailment of habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

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

inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. In making this finding, we 

evaluated information presented in the 

petition, its supporting information, and 

other information available in our files 

in the context of the five factors listed 

above to determine whether the petition 

presented substantial information 

indicating that delisting the species 

under the Act may be warranted. 

The petitioner requests that we 

remove the Lost River and shortnose 

suckers from the List. The information 

the petitioner cites to support his claim 

included: (1) The completed 5-year 

reviews (incorporated by reference); (2) 

comments of Dave Vogel, Natural 

Resource Scientists, Inc., for the 5-Year 

Status Review on the Endangered Lost 

River and Shortnose Suckers 

Independent Scientific Review Panel 

(incorporated by reference and included 

with the petition); (3) the administrative 

records for the status reviews 

(incorporated by reference); (4) the 

biological opinions on the Klamath 

Project operations (incorporated by 

reference); and (5) 2003 court 

proceedings and administrative records 

(incorporated by reference). Documents 

included in items 2–5 listed above were 

available in Service files at the time we 

conducted the 5-year reviews. 

The petition relies on Mr. Vogel’s 

document and other information 

available in Service files at the time we 

conducted the 5-year reviews. We 

considered this information in the 

course of the 5-year review analysis. 

The petition also relies on the 5-year 

reviews themselves, which recommend 

that neither the Lost River nor the 

shortnose sucker be delisted at this 

time. The 5-year review did recommend 

that the Lost River sucker be downlisted 

from endangered to threatened. 

However, the petition at issue here 

sought only complete delisting. It did 

not request downlisting, therefore the 

petitioned action for the purposes of 

section 4(b)(3)(A) of the Act is limited 

to the delisting of the two species. The 

recommendations contained in the 5- 

year reviews are based on an analysis of 

the five factors described in section 

4(a)(1) of the Act. The petition does not 

include any discussion of how the 5- 

year reviews may be in error, nor does 

the petition provide any new 

information regarding the status of 

either species over all or a significant 

portion of their respective ranges. 

The 2008 biological opinion for the 

effects of the Klamath Project on Lost 

River and shortnose suckers 

incorporated some new information 

regarding water quality and habitat 

conditions in Upper Klamath Lake that 

has become available since the 5-year 

reviews were completed in 2007. In that 

biological opinion, the Service 

concluded that lake levels in Upper 

Klamath Lake, as affected by Klamath 

Project operations, did not have a 

measurable effect on water quality. The 

Service found that the habitat 

conditions in Upper Klamath Lake had 

improved as a result of restoration 

efforts in the Upper Klamath Lake 

watershed, especially at the mouth of 

the Williamson River. However, the 

Service’s analysis concluded that the 

Lost River and shortnose suckers in 

Upper Klamath Lake were still 

experiencing limited recruitment and 

adult survival rates. Therefore, the new 

information incorporated in the 2008 

biological opinion does not present 

substantial information or analyses that 

are contrary to the conclusions reached 

in the 5-year reviews for each species 

(e.g., a recommendation to downlist to 

threatened the Lost River sucker and no 

status change for the shortnose sucker). 

Therefore, we find the petition and 

information readily available in our files 

does not present substantial information 

indicating that delisting the Lost River 

sucker or shortnose sucker across all or 

a significant portion of their ranges may 

be warranted at this time due to one or 

more of the five factors described in 

section 4(a)(1) of the Act. 

Finding 

We have reviewed the petition and 

supporting information provided with 

the petition under 50 CFR 424.14(b)(2) 

and the Act. Our review indicates that 

the fundamental argument for delisting 

presented in the petition is based on: (1) 

The completed 5-year reviews 

(incorporated by -–Year Status Review 

on the Endangered Lost River and 

Shortnose Suckers Independent 

Scientific Review Panel (incorporated 

by reference and included with the 

petition); (3) the administrative records 

for the status reviews (incorporated by 


cprice-sewell on PRODPC61 with PROPOSALS
Federal Register / Vol. 74, No. 123 / Monday, June 29, 2009 / Proposed Rules 30999 

reference); (4) the biological opinions on 

the Klamath Project operations 

(incorporated by reference); and (5) 

2003 court proceedings and 

administrative records (incorporated by 

reference). 

The 5-year review for each species 

analyzed all scientific and commercial 

information available at the time, 

including the documents listed in items 

2–5 above. The recommendations of the 

Service based on these analyses was that 

the Lost River sucker be downlisted 

from endangered to threatened and that 

the shortnose sucker remain listed as 

endangered. The petitioner claims that 

‘‘the original listing was a mistake, and 

these fish are not experiencing any risk 

of extinction sufficient to invoke the 

Endangered Species Act’’ (Buchal 2009, 

p. 2). However, the petitioner does not 

provide any additional substantive 

discussion, data, citation, or other 

information or rationale to explain how 

the documents provided and 

incorporated by reference suggest that 

the listing was in error or that the Lost 

River sucker or shortnose sucker no 

longer meets the definition of 

endangered or the definition of 

threatened and therefore, should be 

removed from the List. The 2008 

biological opinion on the Klamath 

Project operations incorporated new 

information regarding improved habitat 

conditions in Upper Klamath Lake. 

However, the biological opinion 

concluded that the Lost River and 

shortnose suckers were still 

experiencing limited recruitment and 

adult survival rates. This new 

information does not present substantial 

information or analyses that are contrary 

to the conclusions reached in the 5-year 

review for each species (e.g., 

recommending downlisting to 

threatened for the Lost River sucker and 

no status change for the shortnose 

sucker). 

Therefore, we find that the petition 

and available information readily 

available in our files do not present 

substantial information indicating that 

delisting the Lost River sucker or the 

shortnose sucker across all or a 

significant portion of their ranges may 

be warranted at this time. We do, 

however, intend to develop a proposed 

rule to downlist the Lost River sucker to 

threatened, pursuant to the 

recommendation in the 5-year review, 

once our limited resources and 

competing priorities allow. We 

encourage interested parties to continue 

to gather and provide data that will 

assist with the conservation of the Lost 

River sucker and shortnose sucker. 

References Cited 

A complete list of all references cited 

in this document is available, upon 

request, from the Klamath Falls Fish 

and Wildlife Office (see ADDRESSES). 

Author 

The primary authors of this notice are 

staff members of Klamath Falls Fish and 

Wildlife Office (see ADDRESSES). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

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

Dated: June 18, 2009. 

Marvin E. Moriarty, 

Acting Director, Fish and Wildlife Service. 

[FR Doc. E9–15364 Filed 6–26–09; 8:45 am] 

BILLING CODE 4310–55–P 


cprice-sewell on PRODPC61 with PROPOSALS