[Federal Register: August 10, 2005 (Volume 70, Number 153)]
[Proposed Rules]               
[Page 46467-46470]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist Pedicularis furbishiae (Furbish lousewort) and 
Initiation of a 5-Year Status Review

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of a 5-year 
status review.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding for a petition to remove Pedicularis furbishiae, 
commonly referred to as Furbish lousewort, from the Federal List of 
Endangered and Threatened Plants, pursuant to the Endangered Species 
Act of 1973, as amended (ESA). We reviewed the petition and supporting 
documentation and find that there is not substantial information 
indicating that delisting of P. furbishiae may be warranted. Therefore, 
we will not be initiating a further 12-month status review in response 
to this petition.
    However, we are initiating a 5-year review of this species under 
section 4(c)(2)(A) of the ESA that will consider new information that 
has become available since the listing of the species and that will 
offer the State, Tribes, agencies, university researchers, and the 
public an opportunity to provide information on the status of the 
species. We are requesting any new information on P. furbishiae since 
the original listing as an endangered species in 1978.

DATES: The finding announced in this document was made on August 10, 
2005. To be considered in the 5-year review, comments and information 
should be submitted to us by October 11, 2005.

ADDRESSES: Data, information, comments, or questions concerning this 
finding and 5-year review should be submitted to the U. S. Fish and 
Wildlife Service, Maine Field Office, 1168 Main St., Old Town, ME 
04468, or by facsimile 207/827-6099. The complete file for this finding 
is available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mark McCollough, Ph.D., Endangered 
Species Specialist, (see ADDRESSES) (telephone 207/827-5938 ext. 12; 
facsimile 207/827-6099).


[[Page 46468]]


    Section 4(b)(3)(A) of the ESA (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. 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 
    Petitioners need not prove that the petitioned action is warranted 
to support a ``substantial'' finding; instead, the key consideration in 
evaluating a petition for substantiality involves demonstration of the 
reliability of the information supporting the action advocated by the 
    We do not conduct additional research at this point, nor do we 
subject the petition to rigorous critical review. Rather, at the 90-day 
finding stage, we accept the petitioner's sources and characterizations 
of the information, to the extent that they appear to be based on 
accepted scientific principles (such as citing published and peer 
reviewed articles, or studies done in accordance with valid 
methodologies), unless we have specific information to the contrary.
    The factors for listing, delisting, or reclassifying species are 
described 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 
the original data used for classification of the species as endangered 
or threatened were in error.

Review of the Petition

    The petition to delist P. furbishiae, dated February 3, 1997, was 
submitted by the National Wilderness Institute. The petition requested 
we remove P. furbishiae from the List of Endangered and Threatened 
Plants based on data error.
    In response to the petitioner's request to delist P. furbishiae, we 
sent a letter to the petitioner on June 29, 1998, explaining our 
inability to act upon the petition due to low priorities assigned to 
delisting petitions in accordance with our Listing Priority Guidance 
for Fiscal Year 1997, which was published in the Federal Register on 
December 5, 1996 (61 FR 64475). That guidance identified delisting 
activities as the lowest priority (Tier 4). Due to the large number of 
higher priority listing actions and a limited listing budget, we did 
not conduct any delisting activities during the Fiscal Year 1997. On 
May 8, 1998, we published the Listing Priority Guidance for Fiscal 
Years 1998-1999 in the Federal Register (63 FR 25502) and, again, we 
placed delisting activities at the bottom of our priority list. 
Subsequent to 1998, the delisting funding source was moved from the 
listing program to the recovery program, and delisting petitions no 
longer had to compete with other section 4 actions for funding. 
However, due to higher priority recovery workload, it has not been 
practicable to process this petition until recently.
    The petition cited our 1993 Fiscal Year Budget Justification as its 
supporting information that the species should be removed from the List 
of Endangered and Threatened Plants based on data error. The 1993 
Fiscal Year Budget Justification states that we would evaluate those 
species identified as approaching the majority of their recovery 
objectives. Our December 1990 Report to Congress, Endangered and 
Threatened Species Recovery Program, identified 33 species, including 
P. furbishiae, that were approaching their recovery objectives. The 
1993 Fiscal Year Budget Justification identified the need to evaluate 
those species and determine the appropriateness of delisting them based 
on status surveys.
    We listed Pedicularis furbishiae as endangered on April 26, 1978 
(43 FR 17910). At the time of listing P. furbishiae, 880 individuals 
were known in 21 colonies from the St. John River Valley in Maine and 
New Brunswick, Canada. Critical habitat was not designated.

Summary of Factors Affecting the Species as Presented in the Petition

    Under section 4(a) of the ESA, we may list, reclassify, or delist a 
species on the basis of any of the five factors, as follows: Factor 
(A), the present or threatened destruction, modification, or 
curtailment of its habitat or range; Factor (B), overutilization for 
commercial, recreational, scientific, or educational purposes; Factor 
(C), disease or predation; Factor (D), the inadequacy of existing 
regulatory mechanisms; and Factor (E), other natural or manmade factors 
affecting its continued existence. A brief discussion of how each of 
the listing factors applies to the petition and the information in our 
files follows.

Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    The final rule adding Pedicularis furbishiae to the List of 
Endangered and Threatened Plants, listed the following as threats to 
the species: dumping, natural landslides, and construction and 
lumbering near the banks of the St. John River Valley in Maine and New 
Brunswick, Canada. In addition, the final rule stated that the proposed 
Dickey-Lincoln School Lakes hydropower project threatened 13 colonies 
of P. furbishiae. If the project was completed as planned, 40 percent 
of the known individuals would be extirpated (43 FR 17910).
    The petition did not provide any information pertaining to Factor 
    The 1991 Furbish Lousewort Recovery Plan, First Revision, (Plan) 
states that unnatural alteration to the St. John River ecosystem within 
the range of the species constitutes a direct threat to the continued 
existence of the species. According to the Plan, one of the possible 
sources of adverse effects is the change in land use within and along 
the banks above lousewort habitat. In addition, the Plan also states 
that the proposed Dickey-Lincoln School hydropower project named as a 
threat in the final listing rule was deauthorized by Congress on 
November 17, 1986 (Service 1991).
    The Plan (Service 1991) states that until further data on the long-
term population dynamics of Pedicularis furbishiae are available, a 
delisting objective is pending. According to the Plan, P. furbishiae 
could be reclassified from endangered to threatened when a reproducing 
population and its habitat are protected and maintained along the St. 
John River.
    The Plan contains two reclassification objectives. The first 
objective is further discussed under Factor E below. The second 
reclassification objective, permanent protection of 50 percent of the 
species' essential habitat, has not been met. The recovery plan defines 
essential habitat as current and potential habitat used by the plant. 
The Plan recommends that habitat protection be distributed among the 
four major river segments (segment 1: 3 to 5 miles (4.8 to 8.0 
kilometers (km)); segment 2 :2 to 4 miles (3.2 to 6.4 km); segment 3: 
at least 2 miles (3.2 km); and segment 4: an unknown, but small 
amount). Currently, approximately 4.8 miles (7.7

[[Page 46469]]

km) (25 percent) of 18.85 miles (29.8 km) of current and potential 
habitat is protected. Habitat protection has occurred only in river 
segment 1. Thus the amount and distribution of the protected habitat 
falls short of the recovery objective.

Factor B: Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition did not provide any information pertaining to Factor 
B. The original listing rule cited this factor as not applicable. The 
Recovery Plan (Service 1991) said that ``In lieu of legal protection of 
the plants, botanical collecting and/or vandalism could constitute 
threats to the species.'' However, there is no new information in our 
files that indicates collection or vandalism has become a problem.

Factor C: Disease or Predation

    The petition did not provide any information pertaining to Factor 
C. The original listing rule cited this factor as not applicable. No 
new information in our files suggests a change to this determination.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The petition did not provide any information pertaining to Factor 
D. The original listing rule cited this factor as not applicable. The 
Recovery Plan (Service 1991) discusses that the State of Maine does not 
have any laws protecting endangered plant species. However, there is no 
new information in our files that indicates that this lack of State law 
have been a problem for P. furbishiae.

Factor E: Other Natural or Manmade Factors Affecting Its Continued 

    The petition did not provide any information pertaining to Factor 
    According to the Plan, another possible source of adverse effects 
to the range of the P. furbishiae, besides the change in land use 
within and along the banks above lousewort habitat mentioned under 
Factor A above, is a change in hydrology of the St. John River.
    The Plan states that the species will be considered for 
reclassification, in part, when a geometric mean of at least 7,000 
flowering stems is maintained for a 6-year period, and 50 percent of 
the species' essential habitat is permanently protected. For the 
purposes of recovery planning, the St. John River was divided into 4 
major river sections, each containing 10 to 16 river segments. In 
addition to meeting the total population objective of 7,000 flowering 
stems, the Plan recommends that the population be distributed among the 
four major river segments (Segments 1, 2, and 3, each to contain 2,100 
flowering stems; Segment 4, to contain 700 flowering stems).
    The downlisting criteria were based on the 1989 survey of flowering 
stems, and that number, 6,889 flowering stems, was reflected in the 
1990 Recovery Report to Congress. In 1991, one of the most formidable 
ice events in decades reshaped large portions of the river bank 
communities, and the P. furbishiae population was reduced by more than 
50 percent to 3,065 flowering stems. Since the 1991 event, populations 
have increased to 5,647 flowering stems in 2002-2003, but still have 
not returned to the 1989 levels. Therefore, the population objective 
for reclassification has not been met.
    The petitioner also stated that ``other new scientific information 
gathered since the time of listing which is in the possession of the 
Service,'' supports delisting because of data error. However, the 
petition did not identify this new information. In addition, the 
petitioner did not include any detailed narrative justification for the 
delisting or provide information regarding the status of the species. 
While we have documented an increasing population trend, and habitat 
has been protected, the Plan criteria for downlisting have not been 
met. We have found no evidence or data in our files or in the petition 
that indicates a data error was committed in listing Pedicularis 
furbishiae or that otherwise indicates the petitioned action may be 


    We have reviewed the petition and its supporting documentation, 
information in our files, and other available information. We find that 
the petition does not present substantial information indicating that 
delisting of Pedicularis furbishiae may be warranted.

Five-Year Review

    Under the ESA, the Service maintains a List of Endangered and 
Threatened Wildlife and Plants at 50 CFR 17.11 (for wildlife) and 17.12 
(for plants). Section 4(c)(2)(A) of the ESA requires that we conduct a 
review of listed species at least once every five years. Then, on the 
basis of such reviews under section 4(c)(2)(B), we determine whether or 
not any species should be removed from the List (delisted), or 
reclassified from endangered to threatened or from threatened to 
endangered. Delisting a species must be supported by the best 
scientific and commercial data available and only considered if such 
data substantiates that the species is neither endangered nor 
threatened for one or more of the following reasons: (1) The species is 
considered extinct; (2) the species is considered to be recovered; and/
or (3) the original data available when the species was listed, or the 
interpretation of such data, were in error. Any change in Federal 
classification would require a separate rulemaking process. The 
regulations in 50 CFR 424.21 require that we publish a notice in the 
Federal Register announcing those species currently under active 
review. This notice announces our active review of Pedicularis 
furbishiae, currently listed as endangered.

Public Information Solicited

    To ensure that the 5-year review is complete and based on the best 
available scientific and commercial information, we are soliciting any 
additional information, comments, or suggestions on Pedicularis 
furbishiae from the public, other concerned governmental agencies, 
Tribes, the scientific community, industry, environmental entities, or 
any other interested parties. Information sought includes any data 
regarding historical and current distribution, biology and ecology, 
ongoing conservation measures for the species, and threats to the 
species. We also request information regarding the adequacy of existing 
regulatory mechanisms.
    The 5-year review considers all new information available at the 
time of the review. This review will consider the best scientific and 
commercial data that has become available since the current listing 
determination or most recent status review, such as:
    A. Species biology including, but not limited to, population 
trends, distribution, abundance, demographics, and genetics;
    B. Habitat conditions including, but not limited to, amount, 
distribution, and suitability;
    C. Conservation measures that have been implemented that benefit 
the species;
    D. Threat status and trends; and
    E. Other new information, data, or corrections including, but not 
limited to, taxonomic or nomenclatural changes, identification of 
erroneous information contained in the List, and improved analytical 
    If you wish to provide information for the status review, you may 
submit your comments and materials to the Supervisor, Maine Field 
Office (see ADDRESSES). Our practice is to make comments, including 
names and home addresses of respondents, available for

[[Page 46470]]

public review during regular business hours. Respondents may request 
that we withhold a respondent's identity, to the extent allowable by 
law. If you wish us to withhold your name or address, you must state 
this request prominently at the beginning of your comment. However, we 
will not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the Maine Field Office (see ADDRESSES).

References Cited

    U.S. Fish and Wildlife Service (Service). 1991. Furbish Lousewort 
Recovery Plan, First Revision. U.S. Fish and Wildlife Service, Newton 
Corner, Massachusetts. 46pp.


    The primary author of this document is Mark McCollough, Ph.D., 
Endangered Species Specialist, Maine Field Office (see ADDRESSES).

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

    Dated: July 19, 2005.
Marshall Jones,
Acting Director, Fish and Wildlife Service.
[FR Doc. 05-15570 Filed 8-9-05; 8:45 am]