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), 30996-30999 [E9-15364]
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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 re12 Steffey
13 Steffey
et al., p. 34.
et al., p. 38.
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examine 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
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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
https://www.regulations.gov and https://
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
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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.
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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 5year 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
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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
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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).
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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.
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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
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section 4(b)(3)(A) of the Act is limited
to the delisting of the two species. The
recommendations contained in the 5year 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 5year 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
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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
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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
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30999
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
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]]>Agencies
[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Proposed Rules]
[Pages 30996-30999]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15364]
=======================================================================
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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 https://www.regulations.gov and https://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
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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 [deg]C), have adequate dissolved oxygen (DO) (above
4 milligrams per liter (mg/l)), and
[[Page 30998]]
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
[[Page 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
