[Federal Register Volume 73, Number 83 (Tuesday, April 29, 2008)]
[Proposed Rules]
[Pages 23173-23175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9185]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0043; 1111 FY07 MO-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
Petitions To List the Mono Basin Area Population of the Greater Sage-
Grouse (Centrocercus urophasianus) as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 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 two petitions to list the Mono Basin area population 
of the greater sage-grouse (Centrocercus urophasianus) in the Bi-State 
area of California and Nevada as threatened or endangered under the 
Endangered Species Act of 1973, as amended (Act). We find that the 
petitions present substantial scientific or commercial information 
indicating that listing this population may be warranted. Therefore, 
with the publication of this notice, we are initiating a status review 
to determine if listing the Mono Basin area population of greater sage-
grouse is warranted. To ensure that the status review is comprehensive, 
we are soliciting scientific and commercial data and other information 
regarding this population of the 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-R8-ES-2008-0043; 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 on 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: 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: 

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 concerning the status of the Mono Basin area population of 
the greater sage-grouse. We request 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 Mono Basin area population of the greater sage-grouse, including:
    (1) Information for the Mono Basin area population of greater sage-
grouse regarding historical and current population status, 
distribution, and trends; 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) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) overutilization for commercial, recreational, scientific, or 
educational purposes;
    (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 
Mono Basin area population of greater 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 (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

[[Page 23174]]

and commercial data available.'' Based on the status review, we will 
issue a 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, 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, 
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 Mono 
Basin area population of greater sage-grouse, please refer to the 
``Species Information'' section in our previous 90-day finding 
published in the Federal Register on December 19, 2006 (71 FR 76058).
    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (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 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 January 2, 2002, we received a petition dated December 28, 2001, 
from the Institute for Wildlife Protection requesting that the sage-
grouse population occurring in the Mono Basin area of Mono County, 
California, and Lyon County, Nevada, be listed as an endangered 
distinct population segment (DPS) under the Act. The petitioner 
referred to the sage-grouse population in the Mono Basin area as being 
part of the subspecies C. u. phaios, which also is known as the western 
sage-grouse. In other 90-day findings, we have concluded that the 
subspecies designations for greater sage-grouse are inappropriate given 
current taxonomic standards (68 FR 6500, February 7, 2003; 69 FR 933, 
January 7, 2004). However, in response to judicial direction on one of 
those 90-day findings, the Service is in the process of reconsidering 
the taxonomic validity of C. u. phaios to determine whether it is a 
listable entity under the Act. We have not included subspecies 
designations any further in this finding.
    The 2001 petition clearly identified itself as such and included 
the requisite identification information for the petitioners, as 
required in 50 CFR 424.14(a). In a March 20, 2002, letter to the 
petitioners, we responded that we had reviewed the petition and 
determined that an emergency listing was not necessary. On December 26, 
2002, we published a 90-day finding in which we determined that the 
petition did not present substantial scientific or commercial 
information indicating that the petitioned action may be warranted (67 
FR 78811). Our 2002 finding was based on the lack of substantial 
information in the petition indicating that the Mono Basin area 
population of greater sage-grouse is a DPS under our DPS policy (61 FR 
4722; February 7, 1996), and thus we concluded it was not a listable 
entity (67 FR 78811). Our 2002 finding also included a determination 
that the petition did not present substantial information that the Mono 
Basin area population of greater sage-grouse was threatened with 
extinction (67 FR 78811).
    On November 15, 2005, we received a formal petition dated November 
10, 2005, submitted by the Stanford Law School Environmental Law Clinic 
on behalf of the Sagebrush Sea Campaign, Western Watersheds Project, 
Center for Biological Diversity, and Christians Caring for Creation, to 
list the Mono Basin area population as a threatened or endangered DPS 
of the greater sage-grouse under the Act. The petition clearly 
identified itself as a petition and included the requisite 
identification information for the petitioners, as required in 50 CFR 
424.14(a). In a March 28, 2006, letter to the petitioners, we responded 
that we reviewed the petition and determined that emergency listing was 
not warranted. We also stated that due to court orders and settlement 
agreements for other listing and critical habitat actions that required 
nearly all of our listing and critical habitat funding for fiscal year 
2006, we would not be able to further address the petition at that 
time. On April 17, 2006, we received a 60-day notice of intent letter 
from the Stanford Law School Environmental Law Clinic, dated April 14, 
2006, notifying us that the petitioners intended to sue the Service for 
violating the Act's requirement to make a petition finding within 12 
months after receiving a petition.
    On November 18, 2005, the Institute for Wildlife Protection and Dr. 
Steven G. Herman filed a Complaint for Declaratory and Injunctive 
Relief in United States District Court for the Western District of 
Washington (Institute for Wildlife Protection v. Norton, No. C05-1939 
RSM) challenging the Service's 2002 finding that their petition did not 
present substantial information indicating that the petitioned action 
may be warranted. On April 11, 2006, we reached a stipulated settlement 
agreement with the plaintiffs under which we agreed to both evaluate 
the November 2005 petition and to reconsider the December 2001 
petition. The settlement agreement required the Service to submit to 
the Federal Register a 90-day finding by December 8, 2006, and if 
substantial, to complete the 12-month finding by December 10, 2007. On 
December 19, 2006, we published a 90-day finding that these petitions 
did not present substantial scientific or commercial information 
indicating that the petitioned actions may be warranted (71 FR 76058). 
In completing the 2006 finding, we also reviewed the December 2001 
petition in the context of whether it provided additional information 
not discussed in the November 2005 petition.
    On June 4, 2007, we received a 60-day notice of intent letter from 
the Stanford Law School Environmental Law Clinic dated June 1, 2007, 
notifying us that the petitioners identified in the November 2005 
petition intended to sue the Service in connection with the Service's 
2006 not-substantial 90-day finding

[[Page 23175]]

(2006 finding) to list the Mono Basin area population of greater sage-
grouse as a DPS under the Act. On August 23, 2007, the November 2005 
petitioners filed a Complaint challenging the Service's 2006 finding. 
Upon review of the Complaint, the Service determined that it would 
revisit its 2006 finding. The Service entered into a settlement 
agreement with the petitioners on February 25, 2008. Under the terms of 
the settlement agreement, the Service agreed to undertake a voluntary 
remand of the 2006 petition finding, and to submit for publication in 
the Federal Register a new 90-day finding by April 25, 2008. The 
agreement further stipulates that if the new 90-day finding is 
positive, the Service will undertake a status review of the Mono Basin 
population of the greater sage-grouse and submit for publication in the 
Federal Register a 12-month finding by April 24, 2009. This notice 
constitutes our new 90-day finding.

Finding

    Based on our reconsideration of the information provided in the 
petitions, and in accordance with recent applicable court decisions 
pertaining to 90-day findings, we find that they present substantial 
scientific information indicating that listing the Mono Basin area 
population of greater sage-grouse may be warranted. Our process for 
making this 90-day finding under section 4(b)(3)(A) of the Act is 
limited to a determination of whether the information in the petition 
presents ``substantial scientific and commercial information,'' 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(b)). Therefore, we are 
initiating a status review to determine if listing the population is 
warranted. To ensure that the status review is comprehensive, we are 
soliciting scientific and commercial information regarding the Mono 
Basin area population of greater 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 positive 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 also 
will 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 
(February 26, 2008; 73 FR 10218), 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 are also publishing a separate notice of a 90-day finding 
and initiation of a status review for the western sage-grouse (C. u. 
phaios). 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 and the western subspecies of 
the greater sage-grouse. It is our intention to address the taxonomy 
and status of the Mono Basin area population, including 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 Mono Basin area population of 
greater 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.

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: April 18, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-9185 Filed 4-28-08; 8:45 am]
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