[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Proposed Rules]
[Page 23170-23172]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-24]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R1-ES-2008-0050; 1111 FY07 MO-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition to List the Western Sage-Grouse (Centrocercus urophasianus
phaios) as Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the western sage-grouse
(Centrocercus urophasianus phaios) as threatened or endangered under
the Endangered Species Act of 1973, as amended (Act). We find that the
petition presents substantial scientific or commercial information
indicating that listing the western sage-grouse may be warranted.
Therefore, with the publication of this notice, we are initiating a
status review to determine if listing the species is warranted. To
ensure that the status review is comprehensive, we are soliciting
scientific and commercial information regarding this species. We will
initiate a determination on critical habitat for this species if and
when we initiate a listing action.
DATES: To allow us adequate time to conduct this review, we request
that information be submitted on or before June 27, 2008.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R1-ES-2008-0050; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information
received at http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Information
Solicited section below for more details).
FOR FURTHER INFORMATION CONTACT: Project Manager, Oregon Fish and
Wildlife Office, by mail (see ADDRESSES), telephone (503-231-6179), or
facsimile (503-231-6195). Persons who use a telecommunications device
for the deaf (TTD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information indicating that listing 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 the western sage-grouse. We request any additional
information from the public, other concerned governmental agencies,
Native American Tribes, the scientific community, industry, or any
other interested parties on the status of the western sage-grouse,
including:
(1) Information regarding the taxonomic validity of western sage-
grouse as a subspecies of the greater sage-grouse (e.g., based on
morphological, behavioral, geographic, genetic, or other diagnostic
factors), either as petitioned or along another geographic boundary;
(2) Information regarding the significance, if any, of recent
genetic studies on the taxonomic classification of the western sage-
grouse, such as the conclusion of Benedict et al. (2003, p. 309) that
studies of mitochondrial DNA do not support the subspecies delineation,
or the potential significance, if any, of the distribution of the
unique haplotypes or populations clusters identified by Oyler-McCance
et al., 2005;
(3) Information as to the identity and text of the document that
the petitioner references in support of behavioral differences in sage-
grouse and cites on page 7 of the petition as ``US Fish and Wildlife
Service 1998, p. 1 of attachment entitled ``Sage Grouse''--(Candidate
Conservation?).'' We have been unable to determine what document the
petitioner is referring to, and the petitioner has not responded to our
requests to clarify the reference;
(4) Information regarding the historical and current population
status, distribution, and trends of western sage-grouse; its biology
and ecology; and habitat selection;
(5) Information on the effects of potential threat factors relevant
to western sage-grouse that are the basis for a listing determination
under Section 4(a) of the Act, 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; and (e) other natural or manmade
factors affecting its continued existence; and
(6) Information on management programs for the conservation of the
western sage-grouse.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is a threatened or endangered
species shall be made ``solely on the basis of the best scientific and
commercial data available.'' Based on the status review, we will issue
the 12-month finding on the petition, as provided in section 4(b)(3)(B)
of the Act.
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section. We will not
consider submissions sent by e-mail or fax or to an address not 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 your submission is made via 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 materials we receive will be available for public
inspection on http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Oregon
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).
[[Page 23171]]
Background
For more information on the biology, habitat, and range of the
western sage-grouse, please refer to the ``Species Information''
section in our previous 90-day finding published in the Federal
Register on February 7, 2003 (68 FR 6500).
Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as
amended (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.
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
424.14(b)). If we find that substantial information was presented, we
are required to promptly commence a status review of the species.
We received a petition, dated January 24, 2002, from the Institute
for Wildlife Protection, requesting that the western sage-grouse
(Centrocercus urophasianus phaios), occurring from northern California
through Oregon and Washington, as well as any western sage-grouse that
still occur in parts of Idaho, be listed under the Act. The petitioner
excluded the Mono Basin area population in California and northwest
Nevada since they already had petitioned this population as a distinct
population segment (DPS) for emergency listing. The petitioner also
requested that the Service include the Washington DPS in this petition,
even though this DPS was already recognized by the Service as a
candidate for listing under the Act, based on a 12-month petition
finding in which we found that listing the DPS was warranted but
precluded by other higher priority listing actions (66 FR 22984, May 7,
2001).
The January 24, 2002, petition clearly identified itself as such
and included the requisite identification information as required in 50
CFR 424.14(a). Accompanying the petition was information related to the
taxonomy, life history, demographics, movements, habitats, threats, and
the past and present distribution of western sage-grouse.
We began processing the petition October 30, 2002, and our finding
was published on February 7, 2003 (68 FR 6500). We found that the
petition did not present substantial information indicating that the
petitioned action may be warranted, because there was insufficient
evidence that the western sage-grouse is a valid subspecies or DPS, and
therefore does not constitute a listable entity under the Act. On the
same day our finding was published, we received a 60-day Notice of
Intent (NOI) to sue from the petition, alleging that our negative 90-
day finding violated the Act.
The petitioner filed a court complaint on June 6, 2003, challenging
the merits of the 90-day finding. On August 10, 2004, the U.S. District
Court for the Western District of Washington ruled in favor of the
Service (Institute for Wildlife Protection v. Norton, No. C03-1251P),
and the petitioner filed an appeal on November 24, 2004. The United
States Court of Appeals for the Ninth Circuit issued a memorandum
opinion and order on March 3, 2006, remanding the matter for a new 90-
day finding. (Institute for Wildlife Protection v. Norton, 174 Fed.
Appx. 363.) The Court rejected the Service's conclusion that the
petition did not present substantial information indicating that the
western sage-grouse may be a valid subspecies, but upheld the Service's
determination that the petition did not present substantial information
indicating that the population may constitute a DPS.
Finding
In accordance with the remand, we have reconsidered the information
presented in the petition. Our process for making this 90-day finding
under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our
regulations is limited to the determination of whether the information
meets the ``substantial scientific and commercial information''
threshold, which is interpreted in our regulations as ``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).
Information we currently have raises significant questions about
whether the western sage-grouse is a valid subspecies and thus a
listable entity under the Act. Nevertheless, and particularly in light
of some uncertainty regarding the potential significance of most recent
genetic evidence regarding the validity of a western subspecies, we
find that the petition presents substantial scientific or commercial
information, sufficient to meet the minimal ``reasonable person''
standard in our regulations for a 90-day finding as described above,
indicating that listing the western sage-grouse as threatened or
endangered may be warranted. Therefore, we are initiating a status
review of the western sage-grouse to determine if listing it is
warranted. To ensure that the status review is comprehensive, we are
soliciting scientific and commercial information regarding the western
sage-grouse.
It is important to note that the ``substantial information''
standard for a 90-day finding is in contrast to the Act's ``best
scientific and commercial data'' standard that applies to a 12-month
finding as to whether a petitioned action is warranted. A 90-day
finding is not a status assessment of the species and does not
constitute a status review under the Act. Our final determination as to
whether a petitioned action is warranted is not made until we have
completed a thorough status review of the species, which is conducted
following a 90-day finding. Because the Act's standards for 90-day and
12-month findings are different, as described above, a positive 90-day
finding does not mean that the 12-month finding will also be positive.
The Service is already in the process of conducting a status review
of the greater sage-grouse across the entire range of the species (73
FR 10218, February 26, 2008), and elsewhere in today's Federal Register
we are publishing a notice that extends our request for information on
that status review to June 27, 2008. In today's Federal Register we
also are publishing a separate notice of a 90-day finding and
initiation of a status review for the Mono Basin population of the
greater sage-grouse. Consequently, at this time the Service has
formally initiated three status reviews involving the greater sage-
grouse, and the respective notices in today's Federal Register each
request that information be submitted by June 27, 2008, for each status
review. Information submitted for any one of these status reviews that
is relevant to the others need not be submitted more than once. Because
the status review of the greater sage-grouse that we initiated on
February 26, 2008 (73 FR 10218) covers the entire range of the species,
it encompasses the Mono Basin population of the greater sage-grouse and
the western subspecies of the greater sage-grouse. It is our intention
to
[[Page 23172]]
address the taxonomy and status of the western sage-grouse, including
relevant information received in response to this notice, within the
rangewide status review of the greater sage-grouse. Further, because
the three status reviews are somewhat interrelated, we anticipate that
any interrelated aspects will be taken into account in our ultimate
decisions.
If we determine that listing the western sage-grouse is warranted,
we intend to propose critical habitat to the maximum extent prudent and
determinable at the time we prepare a proposed listing rule.
References Cited
A complete list of all references cited herein is available, upon
request from the Oregon Fish and Wildlife Office (see ADDRESSES).
Author
The primary author of this notice is the staff of the U.S. Fish and
Wildlife Service, Oregon Fish and Wildlife Office (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: April 18, 2008.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
[FR Doc. E8-9180 Filed 4-28-08; 8:45 am]
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