[Federal Register: June 6, 2002 (Volume 67, Number 109)] [Notices] [Page 39035-39037] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr06jn02-111] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Endangered and Threatened Wildlife and Plants; Annual Notice of Recycled Petition Finding for the Slender Moonwort AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of review. ----------------------------------------------------------------------- SUMMARY: In this notice of review, we announce our recycled petition finding, as required in section 4(b)(3)(C)(i) of the Endangered Species Act of 1973, as amended, for Botrychium lineare (slender moonwort). When, in response to a petition, we complete a 12-month finding that listing a species is warranted but precluded, we must make a new 12- month finding each year until we publish a proposed rule or make a determination that listing is not warranted. These subsequent 12-month findings are referred to as recycled petition findings. Information contained in this notice of review is based on our review of the current status and threats to this species that is the subject of an outstanding warranted but precluded finding. Based on our review, we find that Botrychium lineare continues to warrant listing, but this activity is precluded by listing activities of higher priority. We request additional status information that may be available for this species. We will consider this information in preparing listing documents and future recycled petition findings. This information will help us in monitoring changes in the status of Botrychium lineare and in conserving this species. DATES: We will accept comments on this recycled petition finding at any time. ADDRESSES: Submit your comments to the Supervisor, U.S. Fish and Wildlife Service, Snake River Basin Office, 1387 S. Vinnell Way, Room 368, Boise, Idaho 83709. Written comments and materials received in response to this notice will be available for public inspection, by appointment, during normal business hours at the Snake River Basin Office. FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Supervisor (see ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262). SUPPLEMENTARY INFORMATION: Background The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), provides two mechanisms for considering species for listing. First, the Act places on the Service the duty to identify and propose for listing those species which we find require listing under the standards of section 4(a)(1). We implement this through the candidate assessment program. Candidate species are those taxa for which we have on file sufficient information on biological vulnerability and threats to support proposals to list them as endangered or threatened. Issuance of proposed rules for these species is precluded, at present, by other higher priority listing actions. Second, the Act provides a mechanism for the public to petition us to add a species to the Lists of Threatened and Endangered Wildlife and Plants. Under section 4(b)(3)(A), when we receive such a petition, we must determine within 90 days, to the maximum extent practicable, whether the petition presents substantial information that listing is warranted (a ``90-day finding''). If we make a positive 90-day finding, under section 4(b)(3)(B), we must make one of three possible findings within 12 months of the receipt of the petition (a ``12-month finding''). The first possible 12-month finding is that listing is not warranted, in which case we need take no further action on the petition. Second, we may find that [[Page 39036]] listing is warranted, in which case we must promptly publish a proposed rule to list the species. Once we publish a proposed rule for a species, sections 4(b)(5) and (6) govern further procedures, regardless of whether or not we issued the proposal in response to a petition. Third, we may find that listing is ``warranted but precluded.'' Such a finding means that immediate publication of a proposed rule to list the species is precluded by higher priority listing proposals, and that we are making expeditious progress to add and remove species from the Lists, as appropriate. The standard for making a 12-month warranted but precluded finding on a petition to list a species is identical to our standard for making a species a candidate for listing. Therefore, we add all petitioned species subject to such a finding to the candidate list. Similarly, we can treat all candidates as having been subject to both a positive 90- day finding and a warranted but precluded 12-month finding. Pursuant to section 4(b)(3)(C)(i), when, in response to a petition, we find that listing a species is warranted but precluded, we must make a new 12-month finding each year until we publish a proposed rule to make a determination that listing is not warranted. These subsequent 12-month findings are referred to as recycled petition findings. This notice constitutes publication of our recycled petition finding for Botrychium lineare. Previous Federal Action On July 28, 1999, we received a petition dated July 26, 1999, from the Biodiversity Legal Foundation. The petitioner requested us to list Botrychium lineare as endangered or threatened and to designate critical habitat within a reasonable period of time following the listing. The petitioner submitted biological, distributional, historical, and other information and scientific references in support of the petition. On May 10, 2000 (65 FR 30048), we published a 90-day petition finding concluding that the petition presented substantial information indicating that the requested action may be warranted. Accordingly, we initiated a status review pursuant to section 4(b)(3)(B) on the petitioned action. We reviewed the petition, and published a notice of a 12-month petition finding in the Federal Register on June 6, 2001 (66 FR 30368). Based on the best scientific and commercial information available, we believe that sufficient information is currently available to support a finding that listing Botrychium lineare as threatened is warranted, but that a proposed rule at this time is precluded by work on other higher priority listing actions. Section 4(b) of the Act states that we may make warranted but precluded findings only if we find that: (1) An immediate proposed rule is precluded by other pending actions, and (2) expeditious progress is being made on other listing actions. Due to the large amount of litigation we face, primarily over critical habitat, we are working on numerous listing actions mandated by court orders and settlement agreements. Complying with these orders and settlement agreements will consume nearly all or all of our listing budget for FY 2002. Any funding we may have available for discretionary listing actions will likely be allocated for emergency listings only. However, we can continue to place species on the candidate species list. Finding on the Slender Moonwort Petition Pursuant to section 4(b)(3)(C)(i), when, in response to a petition, we find that listing a species is warranted but precluded, we must make a new 12-month finding each year until we publish a proposed rule or make a determination that listing is not warranted. These subsequent 12-month findings are referred to as recycled petition findings. We reviewed the current status and threats to Botrychium lineare, and we have found the petitioned action to be warranted but precluded for this species. As a result of this review, we continue to make a warranted but precluded finding for Botrychium lineare. As discussed above, this finding means that the immediate publication of proposed rules to list these species was precluded by our work on the following higher priority listing actions during the period from November 1, 2001, through May 30, 2002: Court orders or settlement agreements to propose critical habitat and/or complete critical habitat determinations for 3 southern California plants, Kneeland Prairie pennycress, purple amole, Santa Cruz tarplant, Oahu elepaio, Newcomb's snail, 76 Kauai and Nihau plants (reproposal), 5 California carbonate plants, Blackburn's sphinx moth, 32 Lanai plants (reproposal), 2 Hawaiian invertebrates, 8 northwest Hawaiian Islands plants, 61 Maui and Kahoolawe plants (reproposal), Quino checkerspot butterfly, 46 Molokai plants (reproposal), San Bernardino kangaroo rat, 56 Hawaiian Island plants, 15 vernal pool species (4 fairy shrimp and 11 plants), 103 Oahu plants, Rio Grande silvery minnow, gulf sturgeon; proposed listings for pygmy rabbit, Carson's wandering skipper, Island fox, 4 southwestern invertebrates (proposed listing with critical habitat), and Tumbling Creek cavesnail; final listing determinations for Buena Vista Lake shrew, showy stickseed, scaleshell mussel, Vermilion darter, Mississippi gopher frog, golden sedge, and desert yellowhead; emergency listings for pygmy rabbit, Carson's wandering skipper, and Tumbling Creek cavesnail; 90-day petition finding for Miami blue butterfly; and 12-month petition finding for Big Cypress fox squirrel and Cape Sable seaside sparrow (for critical habitat). We find that the immediate issuance of a proposed rule and timely promulgation of a final rule for this species, for the preceding 7 months has been, and will over the next year, be precluded by higher priority listing actions. During the past 7 months, almost all of our listing budget has been needed to take various listing actions to comply with court orders and court-approved settlement agreements. For a list of the listing actions taken over the 7 months, see the discussion of ``Progress on Revising the Lists,'' below. For the next year, the majority of our remaining listing budget for FY 2002, and our anticipated listing budget for FY 2003 based on the President's requested budget, will be needed to take listing actions to comply with court orders and court-approved settlement agreements. Currently, we will address or complete the following actions: Court ordered or settlement agreements to complete the critical habitat determinations for 57 Hawaii Island plants, Otay tarplant, Oahu elepaio, Blackburn's sphinx moth, Newcomb's snail, 2 Kauai invertebrates, 81 Kauai and Niihau plants, yellow and Baker's larkspurs, 3 Southern California coastal plants, Keck's checkermallow, purple amole, 69 Maui and Kahoolawe plants, Santa Cruz tarplant, 37 Lanai plants, 49 Molokai plants, 6 Northwestern Hawaiian Islands plants, 101 Oahu plants, 15 vernal pool fairy shrimp, Carolina heelsplitter and Appalachian elktoe, Kneeland prairie pennycress, 6 Guam species, bull trout, 5 carbonate plants, Ventura Marsh milkvetch, Cook's lomatium and large-flowered wooly meadowfoam, Rio Grande silvery minnow, 9 Texas invertebrates, Topeka shiner, Prebles' meadow jumping mouse, Great Plains piping plover, and a final determination for the Sacramento splittail. In addition, the following are higher priority statutory deadlines: final listing for Mississippi gopher frog, Chiricahua leopard frog, Gila chub, [[Page 39037]] golden sedge, mountain plover, San Diego ambrosia, southern California mountain yellow-legged frog, coastal cutthroat trout, slickspot peppergrass, and desert yellowhead. Finally, work on a proposed rule for Botrychium lineare, with a listing priority number of 11, is also precluded by the need to issue proposed rules for higher priority species, particularly those facing high-magnitude, imminent threats (i.e., listing priority numbers of 1, 2, or 3). Below, we provide information on the biology, current status, and threats to Botrychium lineare. More complete information, including references, are found in the candidate form. You may obtain a copy of this form from the Regional Director (TE), U.S. Fish and Wildlife Service, Eastside Federal Complex, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (503/231-6158), or from the Service's web site: http://endangered.fws.gov/. You may also direct general comments or questions to this address. We will consider all information provided in response to this notice of review in deciding whether to propose Botrychium lineare for listing and when to undertake necessary listing actions. Comments received will become part of the administrative record for the species. Biological Information Botrychium lineare (slender moonwort) (Ophioglossaceae) is a small perennial fern that is currently known from a total of 9 (possibly 11) populations in Colorado, Oregon, Montana, and Washington. Surveys conducted in 2001 identified two new Botrychium lineare populations in Idaho and Nevada on the basis of their plant morphology, although Farrar (Iowa State University, in litt. 2002) stated that their identity should be verified by enzyme electrophoresis. Historic populations were previously known from Idaho (Boundary County), Montana (Lake County), California (Fresno County), Colorado (Boulder County), and Canada (Quebec and New Brunswick), have not been seen for at least 20 years and may be extirpated (Wagner and Wagner 1994). Known threats to populations of this species include road maintenance, herbicide spraying, trampling by recreational foot or vehicle traffic, timber harvest, trampling and grazing by wildlife and livestock, exotic species, and development. Because we concluded that the overall magnitude of threats to Botrychium lineare throughout its range is moderate, and the overall immediacy of these threats is non-imminent, we assigned this species a listing priority number of 11. We assign this number based on the immediacy and magnitude of threats, as well as on taxonomic status. We published a complete description of our listing priority system in a September 21, 1983, Federal Register notice (48 FR 43098). Progress in Revising the Lists As described in section 4(b)(3)(B)(iii) of the Act, in order for us to make a warranted but precluded finding on a petitioned action, we must be making expeditious progress to add qualified species to the Lists and to remove from the Lists species for which the protections of the Act are no longer necessary. This notice describes our progress in revising the lists with regards to the slender moonwort since our October 30, 2001, publication of the last CNOR. We intend to publish such descriptions annually as part of the Candidate Notice of Review. Our progress in listing and delisting qualified species since October 30, 2001, is represented by the publication in the Federal Register of final listing actions for 6 species, emergency listing actions for 3 species, proposed listing actions for 10 species, and proposed delisting actions for 3 species. In addition, we proposed critical habitat for 184 listed species, reproposed critical habitat for 215 species, and finalized critical habitat for 3 listed species. Given our limited budget for implementing section 4 of the Act, these achievements constitute expeditious progress. Request for Information Although we are not proposing a listing priority change or removal of candidate status at this time, any new information we receive on the distribution of and threat/conservation actions for B. lineare may have a bearing on whether listing under the Act is still warranted. We request you submit any further information on this species as soon as possible or whenever it becomes available. We especially seek information: (1) Indicating that we should remove this species from candidate status; (2) Recommending areas that we should designate as critical habitat for Botrychium lineare, or indicating that designation of critical habitat would not be prudent for the species; (3) Documenting threats to Botrychium lineare; (4) Describing the immediacy or magnitude of threats facing Botrychium lineare; (5) Pointing out taxonomic or nomenclatural changes for Botrychium lineare; or (6) Noting any mistakes, such as errors in the indicated historical range. References Cited Wagner, W.H. and F.S. Wagner. 1994. Another widely disjunct, rare and local North American moonwort (Ophioglossaceae: Botrychium subg. Botrychium). American Fern Journal 84(1):5-10. Authority This notice of review is published under the authority of the Endangered Species Act (16 U.S.C. 1531 et seq.). Dated: May 31, 2002. Marshall P. Jones Jr., Director, U.S. Fish and Wildlife Service. [FR Doc. 02-14155 Filed 6-5-02; 8:45 am] BILLING CODE 4310-55-P