[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Proposed Rules]
[Pages 23170-23172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9180]


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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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