[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]



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 

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.


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.


    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 
    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).


    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 
    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.


    The primary author of this notice is the staff of the Nevada Fish 
and Wildlife Office (see ADDRESSES).


    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]