[Federal Register Volume 73, Number 5 (Tuesday, January 8, 2008)]
[Proposed Rules]
[Pages 1312-1313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25017]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2007-0022; 1111 FY07 MO; ABC Code: B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the Pygmy Rabbit (Brachylagus idahoensis) as
Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of petition finding and initiation of status review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition To list the pygmy rabbit (Brachylagus
idahoensis) 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 pygmy rabbit 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 data and other information regarding this species. We will
make a determination on critical habitat for this species, which was
also requested in the petition, if and when we initiate a listing
action.
DATES: The finding announced in this document was made on January 8,
2008. To be considered in the 12-month finding for this petition, data,
comments, and information must be submitted to us on or before March
10, 2008.
ADDRESSES: You may submit comments 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-R8-ES-2007-0022; 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 comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor,
Nevada Fish and Wildlife Office by mail (see ADDRESSES), by telephone
(775-861-6300), or by facsimile (775-861-6301). Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Information Solicited
When we make a finding that a petition presents substantial
information to indicate 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 concerning the status of the pygmy rabbit. We request any
additional information, comments, and suggestions from the public,
other concerned governmental agencies, Native American Tribes, the
scientific community, industry, or any other interested parties. We are
opening a 60-day comment period to allow all interested parties an
opportunity to provide information on the status of the pygmy rabbit
throughout its range, including:
(1) Information regarding the species' historical and current
population status, distribution, and trends; its biology and ecology;
and habitat selection;
(2) information on the effects of potential threat factors that are
the basis for a listing determination under section 4 (a) of the Act,
which are:
(a) present or threatened destruction, modification, or curtailment
of the species' habitat or range;
(b) overutilization for commercial, recreational, scientific, or
educational purposes (in relation to the pygmy rabbit, this includes
hunting and research);
(c) disease or predation;
(d) the inadequacy of existing regulatory mechanisms; or
(e) other natural or manmade factors affecting its continued
existence; or
(3) information on management programs for the conservation of the
pygmy rabbit.
Please note that comments merely stating support 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 (16 U.S.C. 1531 et
seq.) directs that determinations as to whether any species is a
threatened or endangered species must be made ``solely on the basis of
the best scientific and commercial data available.'' At the conclusion
of 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 comments and materials concerning this finding
by one of the methods listed in the ADDRESSES section. We will not
accept comments you send by e-mail or fax. Please note that we may not
consider comments we receive after the date specified in the DATES
section in our final determination.
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that we will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this finding, 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's
Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234,
Reno, NV 89502-7147; telephone 775-861-6300.
Background
For more information on the biology, habitat, and range of the
pygmy rabbit, please refer to the ``Species Information'' section in
our previous 90-day finding published in the Federal Register on May
20, 2005 (70 FR 29253).
[[Page 1313]]
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
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 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 commence a status review of the species.
On April 21, 2003, we received a formal petition, dated April 1,
2003, from the Committee for the High Desert, Western Watersheds
Project, American Lands Alliance, Oregon Natural Desert Association,
Biodiversity Conservation Alliance, Center for Native Ecosystems, and
Mr. Craig Criddle, requesting that the pygmy rabbit found in
California, Idaho, Montana, Nevada, Oregon, Utah, and Wyoming be listed
as threatened or endangered in accordance with section 4 of the Act.
The petition also requested that we designate critical habitat
concurrently with listing, if listing occurs. The petition, which was
clearly identified as such, contained information on the natural
history, biology, and distribution of the pygmy rabbit. It also
contained information on what the petitioners reported as potential
threats to the species, including but not limited to, habitat loss due
to agricultural practices, sagebrush conversion, livestock grazing,
fire, mining, energy development, and recreation; hunting; research
practices; disease; predation; intra- and inter-specific competition;
natural stochastic events such as floods and drought; mortality caused
by collisions with off-road vehicles, snowmobiles, and automobiles; and
life history traits. The petition also discussed existing regulatory
mechanisms and their perceived inadequacies.
In response to the petitioner's requests, we sent a letter to the
petitioners dated June 10, 2003, explaining that we would not be able
to address their petition until fiscal year 2004. Action on this
petition was precluded by court orders and settlement agreements for
other listing actions that required nearly all of our listing funds for
fiscal year 2003. On May 3, 2004, we received a 60-day notice of intent
to sue, and on September 1, 2004, we received a complaint regarding our
failure to carry out the 90-day and 12-month findings on the status of
the pygmy rabbit. On March 2, 2005, we reached an agreement with the
plaintiffs to submit to the Federal Register a completed 90-day finding
by May 16, 2005, and to complete, if applicable, a 12-month finding by
February 15, 2006 (Western Watersheds Project et al. v. U.S. Fish and
Wildlife Service (CV-04-0440-N-BLW) (D. Idaho).
On May 20, 2005, we published a 90-day finding in the Federal
Register (70 FR 29253) stating that the petition did not present
substantial information indicating that listing the pygmy rabbit may be
warranted. On March 28, 2006, we received a complaint regarding alleged
violations of the Act and the Administrative Procedure Act with regard
to our May 20, 2005, 90-day finding (Western Watersheds Project et al.
v. Gale Norton and U.S. Fish and Wildlife Service (CV 06-CV-00127-S-
EJL) (D. Idaho)). On September 26, 2007, the court issued a judgment
and memorandum order stating that the Service improperly imposed a
higher standard than required for a 90-day petition finding when we
reviewed the petition, and therefore found the Service's denial of the
petition was contrary to the applicable law. More specifically, the
court found that the Service inappropriately disputed the accuracy and
the reliability of the information offered in the petition as to
habitat and population loss without providing a rationale based on more
accurate evidence of the species' range and reduction of population or
habitat. The ruling states, and the Service agrees, that what is
required at this stage of the listing process is a review of the
petition for a determination of whether or not it presents substantial
information indicating to a reasonable person that the petitioned
action may be warranted. This standard is in contrast to the ``best
scientific and commercial data'' standard applied to actually listing a
species. The court's order remanded our May 20, 2005, 90-day finding
and required the Service to issue a new 90-day finding on or before
December 26, 2007. This notice constitutes our new 90-day finding to
comply with the September 26, 2007, court ruling.
This finding does not address our prior listing of the Columbia
Basin distinct population segment (DPS) of the pygmy rabbit. On
November 30, 2001, we published an emergency listing and concurrent
proposed rule to list this DPS of the pygmy rabbit as endangered (66 FR
59734 and 66 FR 59769, respectively). We listed the Columbia Basin DPS
of the pygmy rabbit as endangered in our final rule dated March 5, 2003
(68 FR 10388).
Finding
Based on our reconsideration of the information provided in the
petition, we find that it presents substantial scientific information
that listing the pygmy rabbit may be warranted. 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 a determination of whether
the information in the petition meets the ``substantial scientific and
commercial information'' threshold (as mentioned above). Therefore, 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.
If we determine that listing the pygmy rabbit is warranted, we
intend to propose critical habitat to the maximum extent prudent and
determinable at the time we propose to list the species.
Author
The primary author of this notice is the staff of the Nevada Fish
and Wildlife Office (see ADDRESSES).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 17, 2007.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E7-25017 Filed 1-7-08; 8:45 am]
BILLING CODE 4310-55-P