[Federal Register: March 26, 2010 (Volume 75, Number 58)]
[Rules and Regulations]               
[Page 14496-14498]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2010-0021; 92220-1113-0000; C6]
RIN 1018-AW97

Endangered and Threatened Wildlife and Plants; Reinstatement of 
Protections for the Grizzly Bear in the Greater Yellowstone Ecosystem 
in Compliance With Court Order

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) are issuing 
this final rule to comply with a court order that has the effect of 
reinstating the regulatory protections under the Endangered Species Act 
of 1973 (ESA), as amended, for the grizzly bear (Ursus arctos 
horribilis) in the Greater Yellowstone Area (GYA) and surrounding area. 
This rule corrects the grizzly bear listing to reinstate the listing of 
grizzly bears in the GYA. This final rule also takes administrative 
action to correct two associated special rules.

DATES: This action is effective March 26, 2010. However, the court 
order had legal effect immediately upon being filed on September 21, 

FOR FURTHER INFORMATION CONTACT: Dr. Christopher Servheen, Grizzly Bear 
Recovery Coordinator, U.S. Fish and Wildlife Service, at our Missoula 
office (see ADDRESSES above) or telephone (406) 243-4903. Individuals 
who are hearing-impaired or speech-impaired may call the Federal Relay 
Service at (800) 877-8337 for TTY assistance.



    On March 29, 2007, we announced the establishment of a distinct 
population segment (DPS) of the grizzly bear (Ursus arctos horribilis) 
for the

[[Page 14497]]

GYA and surrounding area and removed this DPS from the List of 
Threatened and Endangered Wildlife (72 FR 14866). In that rule, we 
determined that the Yellowstone grizzly bear population was no longer 
an endangered or threatened population pursuant to the ESA (16 U.S.C. 
1531 et seq.), based on the best scientific and commercial data 
available. Robust population growth, coupled with State and Federal 
cooperation to manage mortality and habitat, widespread public support 
for grizzly bear recovery, and the development of regulatory 
mechanisms, brought the Yellowstone grizzly bear population to the 
point where making a change to its status was appropriate.
    Subsequently, three lawsuits challenging our decision were filed in 
Federal courts in Boise, Idaho, and in Missoula, Montana. Legal 
briefings in these cases were completed in 2008.
    In the Montana case, the plaintiff presented four claims including: 
(1) The regulatory mechanisms to protect the grizzly once it is 
delisted are inadequate; (2) the Service did not adequately consider 
the impacts of global warming and other factors on whitebark pine nuts, 
a grizzly food source; (3) the population is unacceptably small and 
dependent on translocation of outside animals for genetic diversity; 
and (4) the Service did not properly consider whether the grizzlies 
were recovered across a significant portion of their range.
    On September 21, 2009, the Montana District Court issued an order 
in which plaintiffs prevailed on the first and second counts, while the 
United States prevailed on the third and fourth counts. The court's 
order vacated the delisting and remanded it to the Service. Thus, this 
final rule is required to correct the Yellowstone grizzly bear 
population's listing status.
    The United States is considering whether to appeal this decision. 
Regardless, this final rule is necessary because this process, should 
we move forward with an appeal, would likely take several years to 
    The grizzly bear is a member of the brown bear species (U. arctos) 
that occurs in North America, Europe, and Asia; the subspecies U. a. 
horribilis is limited to North America (Rausch 1963, p. 43; Servheen 
1999, pp. 50-53). The original 1975 grizzly bear listing (40 FR 31734-
31736, July 28, 1975) established the listed entity as U. a. 
horribilis. However, the entry for grizzly bear in the List of 
Endangered and Threatened Wildlife at 50 CFR 17.11(h) was later 
modified inadvertently to U. arctos with a historic holarctic range. We 
corrected the listed entity back to its original form in the March 29, 
2007, final rule (72 FR 14866), which again set forth the listed entity 
as U. arctos horribilis with a historic range of North America. With 
this final rule, we make this same correction to the special 
regulations found at 50 CFR 17.40(b) and 17.84(l).

Administrative Procedure

    This rulemaking is necessary to comply with the September 21, 2009, 
court order. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d), that the 
agency has good cause to make this rule effective upon publication.

Effects of the Rule

    As of the filing of the respective court order, any and all grizzly 
bears in the GYA are listed as a threatened species under the ESA. 
Because the Court vacated the entire delisting rule and remanded it to 
the Service, there is no longer a GYA grizzly bear DPS. Thus, all 
grizzly bears in the lower 48 States are again listed as threatened (50 
CFR 17.11(h)). An existing 4(d) rule again applies to this population 
(50 CFR 17.40(b)).
    This rule will not affect the grizzly bear's Appendix II status 
under the Convention on International Trade of Endangered Species of 
Wild Fauna and Flora (CITES).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, in order to comply with the court orders discussed above, 
we amend part 17, subchapter B of chapter I, title 50 of the Code of 
Federal Regulations, as set forth below:


1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec.  17.11 by revising the entry in the table at paragraph 
(h) for ``Bear, grizzly'' as follows:

Sec.  17.11  [Amended]

* * * * *
    (h) * * *

                      Species                                                Vertebrate
----------------------------------------------------                      population where                                        Critical     Special
                                                       Historic range       endangered or       Status         When listed        habitat       rules
          Common name              Scientific name                           threatened

                                                                      * * * * * * *
Bear, grizzly..................  Ursus arctos        North America.....  U.S.A.,             T             1, 2D, 9, 759                 NA     17.40(b)
                                  horribilis.                             conterminous
                                                                          (lower 48)
                                                                          States, except
                                                                          where listed as
                                                                          an experimental
Do.............................  do................  do................  U.S.A. (portions    XN            706                           NA     17.84(l)
                                                                          of ID and MT, see

* * * * *

Sec.  17.40  [Amended]

3. Amend Sec.  17.40 by adding the word ``horribilis'' after the word 
``arctos'' in paragraph (b) heading and in the definition of ``Grizzly 
bear'' in paragraph (b)(2).

[[Page 14498]]

Sec.  17.84  [Amended]

4. Amend Sec.  17.84 by adding the word ``horribilis'' after the word 
``arctos'' in paragraph (l) heading.

    Dated: March 9, 2010.
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-6802 Filed 3-25-10; 8:45 am]