[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Proposed Rules]
[Pages 3069-3074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1050]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0005; 92220-1113-0000-C5]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist or Reclassify From Endangered to Threatened Six 
California Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition findings and initiation of status 
reviews.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to delist Oenothera californica (avita) 
subsp. eurekensis (Eureka Valley evening-primrose) and Swallenia 
alexandrae (Eureka Valley dunegrass), and reclassify the tidewater goby 
(Eucyclogobius newberryi), Acmispon dendroideus (Lotus scoparius 
subsp.) var. traskiae (San Clemente Island broom), Malacothamnus 
clementinus (San Clemente Island bush-mallow), and Castilleja grisea 
(San Clemente Island Indian paintbrush) from endangered to threatened 
under the Endangered Species Act of 1973, as amended (Act). Based on 
our review, we find that the petition presents substantial scientific 
or commercial information indicating that the petitioned actions may be 
warranted. Therefore, with the publication of this notice, we are 
initiating status reviews of these taxa to determine if the respective 
actions of delisting and reclassifying are warranted. Section 
4(c)(2)(A) of the Act also requires a status review of listed species 
at least once every 5 years. We are therefore electing to conduct these 
reviews simultaneously. To ensure that these status reviews are 
comprehensive, we are requesting scientific and commercial data and 
other information regarding these species and subspecies. Based on 
these status reviews, we will issue 12-month findings on the petition, 
which will address whether the petitioned actions are warranted under 
section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before March 21, 2011. Please note 
that if you are using the Federal eRulemaking Portal (see ADDRESSES 
section, below), the deadline for submitting an electronic comment is 
Eastern Standard Time on this date.

ADDRESSES: You may submit information by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. In the box 
that reads ``Enter Keyword or ID,'' enter the Docket number for this 
finding, which is [insert docket number]. Check the box that reads 
``Open for Comment/Submission,'' and then click the Search button. You 
should then see an icon that reads ``Submit a Comment.'' Please ensure 
that you have found the correct rulemaking before submitting your 
comment.
    U.S. mail or hand-delivery: Public Comments Processing, Attn: [FWS-
insert docket number]; Division of Policy and Directives Management; 
U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; 
Arlington, VA 22203.
    We will post all information we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Request for Information 
section below for more details).
    After March 21, 2011, you must submit information directly to the 
Field Office (see FOR FURTHER INFORMATION CONTACT). Please note that we 
might not be able to address or incorporate information that we receive 
after the above requested date.

FOR FURTHER INFORMATION CONTACT: For information regarding Acmispon 
dendroideus (Lotus scoparius subsp.) var. traskiae, Malacothamnus 
clementinus and Castilleja grisea, contact Jim Bartel, Field 
Supervisor, by mail at U.S. Fish and Wildlife Service, Carlsbad Fish 
and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92009; by 
telephone at (760-431-9440); or by facsimile at (760-431-9624).
    For information regarding Oenothera californica (avita) subsp. 
eurekensis, Swallenia alexandrae, and the tidewater goby, contact Diane 
Noda, by mail at Ventura Fish and Wildlife Office, 2493 Portola Road, 
Suite B, Ventura, CA 93003; by telephone (805-644-1766); or by 
facsimile (805-644-3958). If you use

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a telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that delisting or reclassifying a species may be 
warranted, we are required to promptly review the status of the species 
(status review). For the status reviews to be complete and based on the 
best available scientific and commercial information, we request 
information on Oenothera californica (avita) subsp. eurekensis, 
Swallenia alexandrae, the tidewater goby, Acmispon dendroideus (Lotus 
scoparius subsp.) var. traskiae, Malacothamnus clementinus, and 
Castilleja grisea from governmental agencies, Native American Tribes, 
the scientific community, industry, and any other interested parties. 
We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing/delisting/
downlisting determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), which are:
    (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; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    Please include sufficient information with your submission (such as 
references to scientific journal articles or other publications) to 
allow us to verify any scientific or commercial information you 
include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, cannot be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning these status reviews by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding is available for you to review at http://www.regulations.gov, or you may make an appointment during normal 
business hours at the U.S. Fish and Wildlife Service, Carlsbad or 
Ventura Fish and Wildlife Offices (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) 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. 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.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly conduct a species status review, which we subsequently 
summarize in our 12-month finding.
    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), 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 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. We published a notice May 21, 2010 (75 FR 28636), announcing 
the review of Acmispon dendroideus (Lotus scoparius subsp.) var. 
traskiae, Malacothamnus clementinus, and Castilleja grisea. This notice 
announces our active review of the Oenothera californica (avita) subsp. 
eurekensis, Swallenia alexandrae, and the tidewater goby.

Petition History

    On May 18, 2010, we received a petition dated May 13, 2010, from 
The Pacific Legal Foundation, requesting the Service to delist 
Oenothera californica (avita) subsp. eurekensis and Swallenia 
alexandrae, and to reclassify the tidewater goby, Acmispon dendroideus 
(Lotus scoparius subsp.) var. traskiae, Malacothamnus clementinus, and 
Castilleja grisea based on the analysis and recommendations contained 
in the most recent 5-year reviews for these taxa. The petition clearly 
identified itself as such and included the requisite identification 
information for the petitioner, as required by 50 CFR 424.14(a). The 
petition contained minor nomenclatural discrepancies for some taxa. 
However, we have used the currently accepted names of these taxa in 
this finding, and the finding addresses all of the petitioned taxa.

Previous Federal Actions

    Under the Act, we maintain a List of Endangered and Threatened 
Wildlife and Plants at 50 CFR 17.11 (for animals) and 17.12 (for 
plants) (List). We amend the List by publishing final rules in the 
Federal Register. Section 4(c)(2)(A) of the Act requires that we 
conduct a review of listed species at least once every 5 years. Section 
4(c)(2)(B) requires that we determine: (1) Whether a species no longer 
meets the definition of threatened or endangered and should be removed 
from the List (delisted); (2) whether a species listed as endangered 
more properly meets the definition of threatened and should be 
reclassified to threatened (downlisted); or (3) whether a species 
listed as threatened more properly meets the definition of endangered 
and should be reclassified to endangered (uplisted). Using the best 
scientific and commercial data available, we will consider a species 
for delisting if the data substantiate that the

[[Page 3071]]

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; or (3) the original data 
available when the species was listed, or the interpretation of such 
data, were in error.
    The two Eureka Valley plants were listed as endangered in 1978 
(Table 1). A recovery plan was published for both in 1982. Critical 
habitat has not been designated for either plant. A notice of review 
initiation was published for the two Eureka Valley plants in 1983 (48 
FR 55100; December 8, 1983), 1991 (56 FR 56882; November 6, 1991), and 
2005 (70 FR 39327; July 7, 2005). For the review conducted in 1983, the 
Service concluded in a notice of 5-year review completion that there 
were no substantial data to suggest a change in status for either of 
these two plants (50 FR 29900; July 22, 1985). A status review for the 
two Eureka Valley plants was next completed in 1994 (Noell 1994). Based 
on this 1994 status review, the Service recommended downlisting each of 
these two plants. The 5-year review conducted in 2007 for each of these 
two plants notes that the Service did not publish a proposed rule to 
downlist either of these species following the 1994 status review, 
because, under the 1994 Desert Protection Act, the lands where these 
plants occurred were passed from Bureau of Land Management (BLM) to 
National Park Service (NPS), and at the time, the Service was uncertain 
about how the NPS would manage the threats to the species (Service 
2007a, p. 4; Service 2007b, p. 2). In the 2007 5-year review, the 
Service recommended delisting Oenothera californica (avita) subsp. 
eurekensis (Service 2007a, p. 14) and Swallenia alexandrae (Service 
2007b, p. 11).
    The tidewater goby was listed as endangered in 1994 (Table 1). In 
1999, the Service proposed to delist populations of tidewater goby in 
areas north of Orange and San Diego Counties and retain populations in 
Orange and San Diego Counties as an endangered distinct population 
segment (64 FR 33816; June 24, 1999). Critical habitat in Orange and 
San Diego Counties was designated in 2000 (65 FR 69693 November 20, 
2000). The proposed rule to delist northern populations was withdrawn 
in 2002 (67 FR 67803; November 7, 2002). In 2003, the U.S. District 
Court for the Southern District of California ordered the Service to 
promulgate a revised critical habitat rule that considered the entire 
geographic range of the tidewater goby, and the Service published a new 
critical habitat rule in 2008 (73 FR 5920; January 31, 2008). A 
recovery plan for the tidewater goby was published in 2005. A notice of 
review initiation was published in 2006 (71 FR 14538; March 22, 2006), 
and the review was completed in 2007 (73 FR 11945; March 5, 2008). The 
Service recommended downlisting the tidewater goby (Service 2007c, p. 
36); however, the Service recommended that the proposed downlisting 
action be deferred until taxonomic research referred to in the Genetics 
section of the 2007 5-year review was published, because there was a 
high likelihood that taxonomic changes to the tidewater goby were 
imminent (Service 2007c, p. 35). Part of this research was recently 
published (Earl et al. 2010) and will be considered in the 12-month 
status review.
    The three San Clemente plants were listed as endangered in 1977 
(Table 1). A recovery plan was published for each in 1984. Critical 
habitat has not been designated for any of these three plants. Notice 
of review initiations were published in 1982 (47 FR 42387; September 
27, 1982), 1987 (52 FR 25523; July 7, 1987), 1991 (56 FR 56882; 
November 6, 1991), 2005 (70 FR 39327; July 7, 2005), and 2010 (75 FR 
28636; May 21, 2010). A 5-year status review was completed for each of 
these three plants in 2007 (73 FR 11945; March 5, 2008). In the 5-year 
status reviews, the Service recommended downlisting Acmispon 
dendroideus (Lotus scoparius subsp.) var. traskiae (Service 2007d, p. 
22), Malacothamnus clementinus (Service 2007e, p. 28), and Castilleja 
grisea (Service 2007f, p. 19).

              Table 1--Previous Federal Actions for the Six Taxa Addressed in This Petition Finding
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                                                   Critical                                  Most recent 5-year
        Species name          Date listed and      habitat       Recovery plan  published        review and
                                   status         designated                                   recommendation
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Oenothera californica         May 27, 1978     NA.............  December 13, 1982.........  September 24, 2007
 (avita) subsp. eurekensis     (43 FR 17910)                                                 Delist.
 (Eureka Valley evening-       Endangered.
 primrose).
Swallenia alexandrae (Eureka  May 27, 1978     NA.............  December 13, 1982.........  September 24, 2007
 Valley dunegrass).            (43 FR 17910).                                                Delist.
                              Endangered.....
Tidewater goby                February 4,      January 31,      December 7, 2005..........  September 28, 2007
 (Eucyclogobius newberryi).    1994 (59 FR      2008 (73 FR                                  Downlist.
                               5494)            5920).
                               Endangered.
Acmispon dendroideus (Lotus   August 11, 1977  NA.............  January 26, 1984..........  September 24, 2007
 scoparius subsp.) var.        (42 FR 40682)                                                 Downlist.
 traskiae (San Clemente        Endangered.
 Island broom).
Malacothamnus clementinus     August 11, 1977  NA.............  January 26, 1984..........  September 28, 2007
 (San Clemente Island bush-    (42 FR 40682)                                                 Downlist.
 mallow).                      Endangered.
Castilleja grisea (San        August 11, 1977  NA.............  January 26, 1984..........  September 24, 2007
 Clemente Island Indian        (42 FR 40682)                                                 Downlist.
 paintbrush).                  Endangered.
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Species Information

    Oenothera californica (avita) subsp. eurekensis (Eureka Valley 
evening-primrose) is a short-lived herbaceous perennial in the 
Onagraceae (evening-primrose) family that forms small basal rosettes of 
leaves. During years with sufficient rainfall, plants undergo rapid 
stem elongation in April and May and bloom between April and July. In 
general, O. c. subsp. eurekensis occupies the stabilized, gentle dune 
slopes, extending out onto the shallower sand fields bordering the dune 
systems of Eureka Valley, Inyo County, California (Bagley 1986). These 
occupied dune systems include the Eureka Dunes, Saline Spur Dunes, and 
Marble Canyon Dunes, all of which are public lands managed by Death 
Valley National Park. For more information on

[[Page 3072]]

the life history, biology, and distribution of O. c. subsp. eurekensis, 
see the 2007 5-year review of the species on http://www.regulations.gov 
or http://www.fws.gov/endangered/.
    Swallenia alexandrae (Eureka Valley dunegrass) is a perennial, 
hummock-forming (traps and accumulates wind-blown soil and sand at the 
base of plants) grass. Swallenia is a monotypic genus of Poaceae (grass 
family). Plants are dormant during the winter, but begin to produce new 
shoot growth around February. While growth accelerates in May, plants 
produce loose, multi-branched clusters of flowers between April and 
June and disperse seeds between May and July (Service 1982). In 
general, S. alexandrae occupies relatively steep slopes of three dune 
area systems in the southern portion of Eureka Valley (Bagley 1986): 
Eureka Dunes, Saline Spur Dunes, and Marble Canyon Dunes. These dunes 
are all within 9.3 mi (15 km) of each other. All populations are on 
public lands managed by Death Valley National Park. For more 
information on the life history, biology, and distribution of S. 
alexandrae, see the 2007 5-year review of the species on http://www.regulations.gov or http://www.fws.gov/endangered/.
    The tidewater goby (Eucyclogobius newberryi) is a small fish that 
inhabits discrete locations of brackish water along the California 
coast. The species is found from Tillas Slough (mouth of the Smith 
River, Del Norte County) near the Oregon border south to Cockleburr 
Canyon (northern San Diego County). The tidewater goby is known to have 
formerly inhabited at least 135 localities within this range (Service 
2005). The northern limit of the species' range has not changed; 
however, the southern limit is now 9.2 mi (14.8 km) farther north from 
its historically known southernmost location, Agua Hedionda Lagoon (San 
Diego County) (Swift et al. 1989). Tidewater gobies appear to be 
naturally absent (now and historically) from three large (50 to 135 mi 
(80 to 217 km)) stretches of coastline where lagoons or estuaries are 
absent and steep topography or swift currents may prevent tidewater 
gobies from dispersing between adjacent localities (Swift et al. 1989). 
For more information on the life history, biology, and distribution of 
the tidewater goby, see the 2007 5-year review of the species on http://www.regulations.gov or http://www.fws.gov/endangered/.
    Acmispon dendroideus (Lotus scoparius subsp.) var. traskiae (San 
Clemente Island broom) is a semi-woody, short-lived (less than 5 
years), subshrub in the Fabaceae (pea family). The subspecies is 
endemic to San Clemente Island (Isely 1993) and is one of five 
representatives of the genus Acmispon found on the island (U. S. 
Department of the Navy, Southwest Division 2002). Acmispon dendroideus 
var. traskiae is typically less than 4 feet (1.2 meters) in height, 
with slender, erect green branches (Munz 1974). Since the 1970s, the 
distribution of A. d. var. traskiae has been documented, and its range 
includes north-facing slopes over most of the eastern and western sides 
of the island (Service 1984; U. S. Department of the Navy, Southwest 
Division 2002; Junak and Wilken 1998; Junak 2006). Occurrence data for 
this species also span the entire length of the island, with several 
occurrences documented in Wilson Cove, and one occurrence documented at 
the southern tip of the island east of Pyramid Cove; a distance of 
approximately 19 mi (31 km) (Junak and Wilken 1998; Junak 2006). The 
majority of the remaining occurrences tend to be clustered on north-
facing slopes on the eastern side of the island. For more information 
on the life history, biology, and distribution of A. d. var. traskiae, 
see the 2007 5-year review of the species as Lotus dendroideus var. 
traskiae on http://www.regulations.gov or http://www.fws.gov/endangered/.
    Malacothamnus clementinus (San Clemente Island bush-mallow) is a 
rounded subshrub (plants with stems woody at the base only) in the 
Malvaceae (mallow) family. It grows up to 6.6 feet (2 meters) tall, 
with numerous branched stems arising from its base (Munz and Johnston 
1924; Munz and Keck 1959; Bates 1993; S. Junak pers. comm. 2006). The 
species' leaves are angularly 3-5 lobed or nearly circular or ovate, 
less than 2 inches (5 centimeters) in length and conspicuously 
bicolored, with green, sparsely pubescent (covered with short, fine 
hairs) upper surfaces and veiny, white, and hairy under surfaces that 
are densely matted with branching hairs (Munz and Johnston 1924). 
Plants bloom between March and August (California Native Plant Society 
2001). Malacothamnus clementinus is the only species in its genus that 
occurs on San Clemente Island (Tierra Data Inc. 2005). Malacothamnus 
clementinus is restricted to San Clemente Island, where it occurs in a 
range of conditions, including rock crevices along canyon walls, at the 
base of rocky walls, at the base of escarpments between coastal 
terraces, along canyon rims and ridgelines, and in vegetated flats (S. 
Junak pers. comm. 2006; Junak and Wilken 1998; U. S. Department of the 
Navy, Southwest Division 2001). The plant is often associated with 
maritime cactus scrub on coastal flats at the southwestern end of the 
island (Junak and Wilken 1998). The collection of moisture in rock 
crevices and at the base of canyon walls and escarpments may provide 
favorable conditions for this species (S. Junak pers. comm. 2006). For 
more information on the life history, biology, and distribution of M. 
clementinus, see the 2007 5-year review of the species on http://www.regulations.gov or http://www.fws.gov/endangered/.
    Castilleja grisea (San Clemente Island Indian paintbrush) is a 
highly branched perennial subshrub in the Orobanchaceae (broom-rape) 
family. The species is endemic to San Clemente Island (Chuang and 
Heckard 1993) and is the only representative of the genus Castilleja 
found on the island (Helenurm et al. 2005). Castilleja grisea is 
typically 11.5 to 31.5 inches (3 to 8 decimeters) in height and covered 
with a dense white-wooly felt. The flowers of C. grisea are yellow. The 
original range and distribution of C. grisea on San Clemente Island is 
speculative, because its decline began before thorough botanical 
studies were completed. However, since initial surveys were conducted 
in 1996 and 1997, C. grisea has expanded its distribution to include 
steep canyon walls on the western side of the island (Junak and Wilken 
1998). Occurrence data (as defined by the reporters, not equivalent to 
CNDDB occurrences) for this species span the southern two-thirds of the 
island, a distance of approximately 17.5 mi (28 km). For more 
information on the life history, biology, and distribution of C. 
grisea, see the 2007 5-year review of the species on http://www.regulations.gov or http://www.fws.gov/endangered/.

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR part 424 set forth the procedures for adding a 
species to, or removing a 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) 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; or

[[Page 3073]]

    (E) Other natural or manmade factors affecting its continued 
existence.
    We must consider these same five factors in delisting a species. We 
may delist a species according to 50 CFR 424.11(d) if the best 
available scientific and commercial data indicate that the species is 
neither endangered nor threatened for the following reasons:
    (1) The species is extinct;
    (2) The species has recovered and is no longer endangered or 
threatened; or
    (3) The original scientific data used at the time the species was 
classified were in error.
    In making this 90-day finding, we evaluated whether information 
regarding threats to Oenothera californica (avita) subsp. eurekensis, 
Swallenia alexandrae, the tidewater goby, Acmispon dendroideus (Lotus 
scoparius subsp.) var. traskiae, Malacothamnus clementinus and 
Castilleja grisea, as presented in the petition and other information 
available in our files, is substantial, thereby indicating that the 
petitioned actions may be warranted. Our evaluation of this information 
is presented below.

Information Provided in the Petition

    The petitioner requested the Service to delist Oenothera 
californica (avita) subsp. eurekensis and Swallenia alexandrae, and 
reclassify the tidewater goby, Acmispon dendroideus (Lotus scoparius 
subsp.) var. traskiae, Malacothamnus clementinus, and Castilleja 
grisea, based on the analysis and recommendations contained in the most 
recent 5-year reviews of these taxa. The petitioner cited the 5-year 
reviews for each of these respective species as supporting information 
for the petition.

Evaluation of Information Provided in the Petition and Available in 
Service Files

    On March 5, 2008 (73 FR 11945), we published a notice of completion 
of 58 5-year reviews, including the recommendation of status changes 
for the six petitioned species. Status change recommendations for these 
species are shown in Table 1. Each 5-year review contains general 
background and life history information, overview of recovery criteria, 
an analysis of threats specific to each taxon based on the five listing 
factors in section 4 the Act, and recommendation of status change, if 
appropriate. The petitioner cited the 5-year reviews for each of these 
respective species as supporting information for the petition, but 
provides no other information. In each 5-year review conducted for the 
six petitioned species, we analyzed the threats specific to each taxon 
based on the five listing factors in section 4 of the Act; we hereby 
cite and incorporate the data and recommendations in the 5-year reviews 
for each of these respective species. Accordingly, we have already 
previously evaluated information regarding threats as presented in the 
petition (see the 2007 5-year reviews of the species on http://www.regulations.gov or http://www.fws.gov/endangered/.) Based on the 
analyses and recommendations contained in the 5-year reviews for each 
of the six petitioned taxa, we conclude the petition and information in 
our files represent substantial information indicating the petitioned 
actions may be warranted.
    The primary rationale for the recommendations in the 2007, 5-year 
reviews to delist Oenothera californica (avita) subsp. eurekensis and 
Swallenia alexandrae was that the primary threat to the two plant taxa 
at the time of listing--unrestricted off-highway vehicle (OHV) use--has 
been eliminated (Service 2007a, p. 13; Service 2007b, p. 11). At the 
time of listing, the Eureka Dunes was managed by the Bureau of Land 
Management and open to unrestricted OHV use. Following publication of 
the proposed rule to list the two Eureka Valley plants, the Bureau 
closed the Eureka Dunes and some of the surrounding area to OHVs in 
1976 and designated campsites, closed undesignated routes, installed 
vehicle barriers, increased ranger patrols to enforce vehicle closures, 
conducted monitoring, and instituted an educational outreach program 
(Service 2007a, p. 8; Service 2007b, p. 6). The 1994 Desert Protection 
Act passed management of the Eureka Valley from the Bureau to Death 
Valley National Park (Park). The Park designated all of the dune 
systems within Eureka Valley as wilderness areas, and illegal OHV use 
within these areas has occurred only on a sporadic basis. Other 
potential threats have been identified such as horseback riding and 
sandboarding and competition from Russian thistle, but we were unable 
to find evidence that these threats were having an adverse effect on 
the status of Oenothera californica (avita) subsp. eurekensis or 
Swallenia alexandrae (Service 2007a, p. 13; Service 2007b, p. 11).
    The primary rationale for the recommendation in the 2007, 5-year 
review to downlist tidewater goby was that the number of known occupied 
localities had more than doubled since the time it was listed from 48 
localities to 106, indicating that the species was more resilient to 
perturbations and climatic factors such as drought than previously 
believed (Service 2007c, p. 35). In addition, threats identified at the 
time of listing had been reduced or were not as serious as thought. One 
of the main threats identified at the time of listing was habitat 
destruction and alteration. Current laws and regulations have largely 
eliminated the major destruction of habitat that occurred in the past 
along the coast of California (Service 2007c, p. 35).
    The primary reasons for the recommendations in the 2007, 5-year 
review to downlist Acmispon dendroideus (Lotus scoparius subsp.) var. 
traskiae, Malacothamnus clementinus, and Castilleja grisea were removal 
of feral pigs and goats from San Clemente Island by 1992 and subsequent 
increases in the distribution and abundance of each of these three 
plants (Service 2007d, p. 17; Service 2007e, pp. 21-22; Service 2007f, 
p. 14). In addition, in 2002 the Department of the Navy adopted the San 
Clemente Island Integrated Natural Resources Management Plan which 
helps promote the conservation of these three plants by identifying a 
number of goals and objectives designed to protect and restore habitat 
(Service 2007d, p. 17; Service 2007e, pp. 21-22; Service 2007f, p. 14).
    Since completion of the 5-year reviews for the six petitioned 
species, additional information has become available and will be 
considered in our status reviews. Specifically, we have received 
additional monitoring data for the two Eureka Valley plants, and, as 
noted above, additional genetic and taxonomic information for the 
tidewater goby has been published. The recently published genetic 
information indicates that there is a divergent southern clade of 
tidewater gobies in northern San Diego County that may warrant 
classification as a separate species (Earl et al. 2010, p. 103). This 
and any additional information we receive in response to this finding 
will be incorporated into our status reviews.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we have determined that the petition presents substantial 
scientific or commercial information indicating that delisting 
Oenothera californica (avita) subsp. eurekensis and Swallenia 
alexandrae and reclassifying the tidewater goby, Acmispon dendroideus 
(Lotus scoparius subsp.) var. traskiae, Malacothamnus clementinus, and 
Castilleja grisea may be warranted. This finding is based on 
information provided in our analysis of the threats to each taxon 
contained in the most

[[Page 3074]]

recent 5-year reviews for each of these taxa.
    Because we have found that the petition presents substantial 
information indicating that delisting Oenothera californica (avita) 
subsp. eurekensis and Swallenia alexandrae, and reclassifying the 
tidewater goby, Acmispon dendroideus (Lotus scoparius subsp.) var. 
traskiae, Malacothamnus clementinus, and Castilleja grisea, may be 
warranted, we are initiating status reviews for each taxon to determine 
whether the petitioned actions of delisting or reclassifying are 
warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. We will complete a thorough status review of the 
species following a substantial 90-day finding. In the resulting 12-
month finding, we will determine whether a petitioned action is 
warranted. Because the Act's standards for 90-day and 12-month findings 
are different, as described above, a substantial 90-day finding does 
not mean that the 12-month finding will result in a warranted finding.

5-Year Reviews

    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), 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 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 Oenothera 
californica (avita) subsp. eurekensis, Swallenia alexandrae, and 
tidewater goby. Active reviews for Acmispon dendroideus (Lotus 
scoparius subsp.) var. traskiae, Malacothamnus clementinus, and 
Castilleja grisea were announced on May 21, 2010 (75 FR 28636).

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Carlsbad or 
Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
Carlsbad and Ventura Fish and Wildlife Offices (see FOR FURTHER 
INFORMATION CONTACT).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 3, 2011.
Gregory E. Siekaniac,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-1050 Filed 1-18-11; 8:45 am]
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