[Federal Register: October 12, 2004 (Volume 69, Number 196)]
[Proposed Rules]               
[Page 60605-60607]
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 the Ute Ladies'-Tresses Orchid and Initiation of a 
5-Year Review

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the Ute ladies'-tresses orchid 
(Spiranthes diluvialis) from the Federal List of Endangered and 
Threatened Wildlife and Plants pursuant to the Endangered Species Act 
of 1973, as amended (Act). We find that the petition presents 
substantial information and are initiating a status review to determine 
if delisting this species is warranted. We are requesting submission of 
any new information (best scientific and commercial data) on the Ute 
ladies'-tresses orchid since its original listing as a threatened 
species in 1992.
    Following this status review, we will issue a 12-month finding on 
the petition to delist. Because a status review is also required for 
the 5-year review of listed species under section 4(c)(2)(A) of the 
Act, we are electing to prepare these reviews simultaneously. At the 
conclusion of these simultaneous reviews, we will issue the 12-month 
finding on the petition, as provided in section 4(b)(3)(B) of the Act, 
and make the requisite finding under section 4(c)(2)(B) of the Act 
based on the results of the 5-year review.

[[Page 60606]]

DATES: The 90-day finding announced in this document was made on 
October 12, 2004. To be considered in the 12-month finding on this 
petition or the 5-year review, comments and information should be 
submitted to us by December 13, 2004.

ADDRESSES: Comments, material, information, or questions concerning 
this petition and finding should be sent to the Field Supervisor, U.S. 
Fish and Wildlife Service, Ecological Services, 2369 West Orton Circle, 
Suite 50, West Valley City, Utah 84119. The separate petition finding, 
supporting data, and comments are available for public review, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Henry Maddux, Field Supervisor, 
U.S. Fish and Wildlife Service, Ecological Services, Utah Field Office, 
at the above address or by telephone at 801-975-3330.



    Section 4(b)(3)(A) of the Act 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 all 
information available to us at the time we make the finding. To the 
maximum extent practicable, we must make this finding within 90 days of 
receiving the petition and publish a notice of the finding promptly in 
the Federal Register. Our standard for substantial information with 
regard to a 90-day petition finding is ``that amount of information 
that would lead a reasonable person to believe that the measure 
proposed in the petition may be warranted'' (50 CFR 424.14(b)). When a 
substantial finding is made, we are required to promptly begin a review 
of the status of the species, if one has not already been initiated.
    When considering an action for listing, delisting, or reclassifying 
a species, we are required to determine whether a species is endangered 
or threatened based on one or more of the five listing factors as 
described at 50 CFR 424.11. These factors are given as--(A) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (B) overutilization for commercial, recreational, scientific, 
or educational purposes; (C) disease or predation; (D) the inadequacy 
of existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting the continued existence of the species. 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.
    In 1992, we listed Ute ladies'-tresses orchid (Spiranthes 
diluvialis) as threatened (57 FR 2053). We made this determination 
based upon the best scientific and commercial information available at 
the time. As stated and documented in the final listing rule, this 
action was taken, in part, because of --(1) The threats of habitat loss 
and modification and (2) the orchid's small population and low 
reproductive rate make it vulnerable to other threats. We did not 
designate critical habitat for Ute ladies'-tresses orchid because such 
action was not considered prudent at the time. On May 10, 1996, we 
received a petition from the Central Utah Water Conservancy District to 
delist Ute ladies'-tresses orchid pursuant to the Act. A ``Special 
Status Species Update'' for Ute ladies'-tresses orchid, dated April 
1996, accompanied the petition as supporting information.
    In response to the petitioner's request to delist Ute ladies'-
tresses orchid, we sent a letter to the petitioner on June 10, 1996, 
explaining our inability to act upon the petitions due to the low 
priorities assigned to delisting petitions in our 1996 Listing Priority 
Guidance (61 FR 24722, May 16, 1996). Prior to 1999, the Service 
listing budget (including delistings, reclassifications, and 
designations of critical habitat) was underfunded, which meant that 
lower tier priority actions went unaddressed. Beginning in 1999, work 
on delisting (including delisting petition findings) was included in 
the line item for the recovery program instead of the listing program 
(64 FR 27596, May 20, 1999). Since 1999, higher priority work has 
further precluded our ability to act upon this petition.
    In making this finding we rely on information provided by the 
petitioners and evaluate that information in accordance with 50 CFR 
424.14(b). The contents of this finding summarize that information 
included in the petition and which was available to us at the time of 
the petition review. Our review for the purposes of a so-called ``90-
day'' finding under section 4(b)(3)(A) of the Act and Sec.  424.14(b) 
of our regulations is limited to a determination of whether the 
information in the petition meets the ``substantial information'' 
threshold. We do not conduct additional research at this point, nor do 
we subject the petition to rigorous critical review. Rather, as the Act 
and regulations contemplate, at the 90-day finding, we accept the 
petitioner's sources and characterizations of the information unless we 
have specific information to the contrary. Thus, in this finding, we 
express no view as to the ultimate issue of whether the species should 
be delisted. We can come to a conclusion on that issue only after a 
more thorough review of the species' status. In that review, which will 
take approximately 9 more months, we will perform a rigorous critical 
analysis of the best available scientific information, not just the 
information in the petition. We will ensure that the data used to make 
our determination as to the status of the species is consistent with 
the Act and the Information Quality Act (Pub. L. 106-554). We ask the 
public to submit to us any pertinent information concerning the status 
of or threats to this species.


    The petition states that there is substantial new information 
indicating that the population size and distribution are much larger 
than known at the time of listing; there is more information on life 
history and habitat needs, allowing better management; and threats are 
not as great in magnitude or imminence as understood at the time of 
listing. The petition was accompanied by a ``Special Species Status 
Update.'' The Status Update compiled, synthesized, and described 
information from Service files that had been acquired about Ute 
ladies'-tresses orchid since it was listed. Information included 
taxonomy and genetics, reproductive biology and life history, 
pollination, and population size and distribution. The five listing 
factors (as defined in section 4(a)(1) of the Act) were then addressed 
using this new information.
    Since the date of the petition to delist, additional information 
has been acquired and provided to the Service. In 1995, the total 
estimated population size was 20,500 individuals. With discoveries 
since 1995, population estimates have increased. The total population 
size of Ute ladies'-tresses orchid is currently estimated to be 60,000 
    New occurrences have been documented in Nebraska, Wyoming, 
Washington, Idaho, Utah, and Colorado, substantially increasing the 
known range and estimated population size. Monitoring of species 
numbers, certain demographic parameters, and habitat

[[Page 60607]]

characteristics has improved our understanding of population 
fluctuations, habitat preferences, and threats to habitat conditions. 
Research has continued on pollination biology, genetics, and root-
associated fungi. Research and monitoring have been conducted on the 
relationship of stream flows, ground water levels, and stream channel 
form to surfaces on which the orchid occurs. All new information will 
be considered and fully analyzed as part of the species status review.


    We have reviewed the petition and its supporting documentation. We 
have found that the petition presents substantial information 
indicating that delisting Ute ladies'-tresses orchid may be warranted. 
As the petition to delist asserts, new information acquired since the 
orchid was listed indicates that population size is greater than 
originally known. While significant questions remain about the actual 
size of populations, requirements for seedling establishment and 
recruitment, and severity of impacts due to habitat modifications such 
as water development projects, we consider these to be issues relevant 
to the listing determination and warranting further investigation. 
Accordingly, we believe it is appropriate to consider this information 
and any other new information available about this species and the 
threats it may face in a status review. A status review is a component 
of both the 12-month finding and the five-year review; therefore, we 
will be conducting these reviews simultaneously.

Five-Year Review

    Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every 5 years. We are then, under section 
4(c)(2)(B) and the provisions of subsection (a) and (b), to determine, 
on the basis of such a review, whether or not any species should be 
removed from the List (delisted), or reclassified from endangered to 
threatened, or from threatened to endangered. Our regulations at 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 the Ute ladies'-tresses orchid.

Public Information Solicited

    We are requesting information for both the 12-month finding and the 
5-year review, as we are conducting these reviews simultaneously.
    When we make a finding that substantial information exists to 
indicate that listing or delisting a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information on Ute ladies'-tresses orchid. This includes information on 
taxonomy and genetics, reproductive biology and life history, 
pollination, population size, distribution, habitat management, and the 
five listing factors (including type and imminence of threats). We 
request any additional information, comments, and suggestions from the 
public, other concerned governmental agencies, Tribes, the scientific 
community, industry or environmental entities, or any other interested 
parties concerning the status of Ute ladies'-tresses orchid.
    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. Categories of requested 
information include (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 comment for either the 12-month finding or the 5-
year review, you may submit your comments and materials concerning this 
finding to the Field Supervisor, U.S. Fish and Wildlife Service, Utah 
Field Office (see ADDRESSES section). Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours. Respondents may request that we 
withhold a respondent's identity, as 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 
above address.

References Cited

    A complete list of all references cited in this finding is 
available, upon request, from the U.S. Fish and Wildlife Service, Utah 
Field Office (see ADDRESSES section).

    Authority: The authority for this action is section 4 of the Act 
(16 U.S.C. 1531 et seq.).

    Dated: September 29, 2004.
Paul Henne,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-22735 Filed 10-8-04; 8:45 am]