[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Proposed Rules]
[Pages 57314-57317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22735]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0095; 92220-1113-0000-C5]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Remove the California, Oregon, and Washington Population 
of the Marbled Murrelet (Brachyramphus marmoratus) From the List of 
Endangered and Threatened Wildlife

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 remove the California, Oregon, and 
Washington population of the marbled murrelet (Brachyramphus 
marmoratus) from the Federal List of Endangered and Threatened Wildlife 
(List) under the Endangered Species Act of 1973, as amended (Act). We 
find that the petition presents substantial information indicating that 
the petitioned action may be warranted. Therefore, with the publication 
of this notice, we are initiating a status review of the marbled 
murrelet, which will also serve as our 5-year status review for the 
species. Concurrent with making our 12-month finding on the petition 
and conducting a 5-year status review, we intend to review the 
rangewide status of the species, and if necessary, the configuration 
and status of any distinct population segments. To ensure a 
comprehensive review, we are soliciting scientific and commercial data 
and other information on the marbled murrelet relevant to its listing 
status under the Act. At the conclusion of our status review, we will 
issue a 12-month finding on the petition.

DATES: We made the finding announced in this document on October 2, 
2008. To allow us adequate time to conduct this review, we request that 
we receive information on or before December 1, 2008.

[[Page 57315]]


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-2008-0095, 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: Ken Berg, Manager, Western Washington 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 510 Desmond 
Drive SE., Suite 102, Lacey, WA 98503; telephone 360-753-6039; 
facsimile at 360-753-9405. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    When we make a finding that a petition presents substantial 
information to indicate that listing, delisting, or reclassifying 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 
marbled murrelet. We request information from the public, other 
concerned governmental agencies, Native American tribes, the scientific 
community, agricultural and forestry groups, conservation groups, 
industry, or any other interested parties concerning the status of the 
marbled murrelet, including but not limited to information on:
    (1) Discreteness and significance of the marbled murrelet in 
California, Oregon, and Washington in light of our distinct population 
segment (DPS) policy (61 FR 4722; February 7, 1996).
    (2) Discreteness, significance, and status of other portions of the 
marbled murrelet's range.
    (3) Differences or similarities in regulatory protection for 
marbled murrelets in the United States and Canada.
    (4) The status, distribution, or population trends of the marbled 
murrelet throughout all or significant portions of its range.
    (5) Ongoing conservation measures for the species and its habitat.
    (6) Threats to the marbled murrelet and its habitat throughout all 
or a significant portion of its range.
    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 a determination 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. We will 
base our 12-month finding on a review of the best scientific and 
commercial data available, including all relevant information received 
in response to this 90-day finding. Concurrent with our 12-month 
finding, we may also propose changes to the status of the marbled 
murrelet rangewide, within DPSs, or within significant portions of its 
range.
    You may submit your information concerning this finding 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 your personal identifying information--
will be posted on the Web site. If your submission is made via hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this 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, 
Western Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    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 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 process for making a 90-day finding under section 4(b)(3)(A) of 
the Act and our regulations in the Code of Federal Regulations (CFR) at 
50 CFR 424.14(b) is limited to a determination of whether the 
information in a petition meets the ``substantial scientific or 
commercial information'' threshold. Our regulations provide a standard 
for determining what constitutes substantial information with regard to 
a 90-day petition finding: ``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)). In making this finding, 
we consider whether the petition: (1) Clearly indicates the 
administrative action recommended; (2) contains a detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species and any threats faced by the species; (3) provides information 
regarding the status of the species over all or a significant portion 
of its range; and (4) is accompanied by appropriate supporting 
documentation in the form of bibliographic references, reprints of 
pertinent publications, copies of reports or letters from authorities, 
and maps (50 CFR 424.14(b)(2)). If we find that the petition presents 
substantial scientific or commercial information, we are required to 
promptly commence a review of the status of the species and publish the 
results of that status review in a 12-month finding.
    The factors for listing, delisting, or reclassifying species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; or (3) a determination that 
the original data used for classification of the species as endangered 
or threatened were in error.

Petition

    On May 28, 2008, we received a petition from the American Forest 
Resource Council; the Carpenters Industrial Council of Douglas County, 
Oregon; and Ron Stuntzner requesting

[[Page 57316]]

that we delist the California/Oregon/Washington distinct population 
segment (DPS) of marbled murrelet (Brachyramphus marmoratus). The 
petition clearly identified itself as a petition and included the 
identification information for the petitioners, as required in 50 CFR 
424.14(a). The petitioners claim that the currently listed entity (the 
marbled murrelet in California, Oregon, and Washington) is not a 
discrete entity based on biological considerations or differences in 
regulatory mechanisms across an international boundary, and therefore 
is not listable as a DPS under the Act. In support of their petition 
they cite the Service's 5-year review of the marbled murrelet (USFWS 
2004; available at: http://www.fws.gov/pacific/ecoservices/endangered/recovery/5yearcomplete.html), which found that the currently listed 
population of the marbled murrelet was not discrete. The petitioners 
also cite information contained in a U.S. Geological Survey (USGS) 
report commissioned by the Service on the status and trends of the 
marbled murrelet in Alaska and British Columbia (Piatt et al. 2007). 
The USGS report also included information on the marbled murrelet in 
California, Oregon, and Washington.
    In response to the May 28, 2008, petition, we sent a letter to the 
petitioners dated June 11, 2008, acknowledging receipt of the petition. 
This notice constitutes our 90-day finding on the May 28, 2008, 
petition to delist the California/Oregon/Washington DPS of the marbled 
murrelet.

Species Information

    The marbled murrelet is a small seabird of the Alcidae family. The 
species' breeding range extends from Bristol Bay, Alaska, south to 
northern Monterey Bay in central California. Birds winter throughout 
the breeding range (McShane et al. 2004, pp. 3-7) and also occur in 
small numbers off the coast of southern California (McShane et al. 
2004, pp. 3-12).
    Marbled murrelets spend most of their lives in the marine 
environment; however, they have been found occasionally on rivers and 
inland lakes (Carter and Sealy 1986, p. 473). In addition to foraging, 
marbled murrelets also aggregate, sleep, preen, and copulate on the 
water.
    Throughout the forested portion of their breeding range, marbled 
murrelet nesting habitat use is positively associated with the presence 
and abundance of mature and old-growth forests, large core areas of 
old-growth, low amounts of edge and fragmentation, proximity to the 
marine environment, and increasing forest age and height (McShane et 
al. 2004, pp. 4-39; Binford et al. 1975, pp. 315-316; Hamer and Nelson 
1995, pp. 72-75; Ralph et al. 1995, p. 4). In the northern portion of 
their breeding range (Alaska, British Columbia, and Washington) some 
marbled murrelets lay their eggs on bare talus slopes or mossy cliff 
edges (Piatt et al. 2007, p. 2; DeGrange 1996, pp. 21-30; Bradley and 
Cooke 2001, p. 53; Bloxton and Raphael 2008, p. 7).
    Additional information on the biology and distribution of the 
marbled murrelet within the continental United States is available in 
the original listing document (57 FR 45328; October 1, 1992) and in our 
5-year status review (USFWS 2004) (both available online at http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=B08C). Information 
commissioned by the Service on the status and trends of the species in 
Alaska and British Columbia (Piatt et al. 2007) is available online 
from the U.S. Geological Survey at http://pubs.usgs.gov/of/2006/1387/pdf/ofr20061387.pdf.

Distinct Population Segment Policy

    Section 3(15) of the Act defines a ``species'' to include ``* * * 
any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' The National Marine Fisheries Service (NMFS) 
and the Service published a joint policy defining the phrase ``distinct 
population segment'' on February 7, 1996 (61 FR 4722) (referred to as 
``DPS policy'' in the remainder of this document). According to the DPS 
policy, two elements must be satisfied in order for a population 
segment to qualify as a DPS: discreteness of the population segment in 
relation to the remainder of the species and significance of the 
population segment to the species. If a population segment qualifies as 
a DPS, the conservation status of that DPS is evaluated to determine 
whether it is threatened or endangered.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) It 
is markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors; or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of section 4(a)(1)(D) of the Act.
    If a population is found to be discrete then it is evaluated for 
significance under the DPS policy on the basis of its importance to the 
taxon to which it belongs. This consideration may include, but is not 
limited to, the following: (1) Persistence of the discrete population 
segment in an ecological setting unusual or unique to the taxon, (2) 
evidence that loss of the discrete population segment would result in a 
significant gap in the range of a taxon, (3) evidence that the 
population represents the only surviving natural occurrence of a taxon 
that may be more abundant elsewhere as an introduced population outside 
of its historical range, or (4) evidence that the population differs 
markedly from other populations of the species in its genetic 
characteristics.
    If a population segment is discrete and significant (i.e., it is a 
DPS) its evaluation for endangered or threatened status is based on the 
Act's definitions of those terms and a review of the factors listed in 
section 4(a) of the Act. According to our DPS policy, it may be 
appropriate to assign different classifications to different DPSs of 
the same vertebrate taxon.

Finding

    We have reviewed the petition and literature cited in the petition, 
and evaluated that information to determine whether the sources cited 
support the claims made in the petition. We also reviewed reliable 
information that was readily available in our files to clarify and 
verify information in the petition. Based on our evaluation of the 
information and the criteria specified in 50 CFR 424.14(b)(2), we find 
the petition presents substantial information indicating that the 
California, Oregon, and Washington population of the marbled murrelet 
may not be discrete, and therefore may not meet the criteria for a DPS. 
As such, we find that the petitioned action may be warranted. The 
petitioners have essentially reiterated the Service's own conclusion 
based on our 5-year review; thus we agree that a status review is 
warranted.
    The Service completed a 5-year review of the marbled murrelet's 
status under the Act on September 1, 2004. That review found that the 
currently listed entity did not satisfy the discreteness prong of the 
DPS policy, and therefore was not a valid DPS. The review based this 
conclusion on data indicating there were no marked physical, 
physiological, ecological, or behavioral differences at the 
international border, and a determination that there were no

[[Page 57317]]

significant differences between the legal protection provided to the 
species under Canada's Species at Risk Act and that provided under the 
Endangered Species Act in the United States.
    The Service now believes that the discreteness analysis in the 5-
year review was flawed, because it compared current levels of legal 
protection across the international border, rather than levels of 
protection that would exist if the marbled murrelet were not listed in 
the United States. The Service believes that the latter approach is 
more rational in the context of a 5-year review, because it analyzes 
discreteness in the same manner as the Service would in an initial 
listing determination. Nonetheless, because the 2004 5-year review did 
conclude that the population was not a valid DPS, and because the 
Service has not formally revisited that conclusion since then, a 
reasonable person could conclude that the petitioned action may be 
warranted.
    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 that finds that a petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted (``substantial 90-day finding''). 
Because the Act's standards for 90-day and 12-month findings are 
different, as described above, a substantial 90-day finding does not 
necessarily mean that the 12-month finding will find that the 
petitioned action is warranted.
    With this substantial 90-day finding we are initiating a rangewide 
status review of the species, and, once it is completed, we will make a 
finding on whether delisting the California, Oregon, and Washington 
population of the marbled murrelet is warranted. Our status review will 
also consider whether alternative DPS configurations are warranted or 
whether any additional changes to the status of the species throughout 
its range or within significant portions of the species' range are 
warranted.
    Because our next 5-year status review will be due around the time 
our 12-month finding is due, and because the 12-month finding and 5-
year status review serve a similar purpose (i.e., to determine the 
appropriate classification of a species under the Act), the results of 
our 12-month finding will be adopted for our 5-year status review.
    This finding fulfills the Service's obligation under 16 U.S.C. 
1533(b)(3)(A) and its implementing regulations at 50 CFR 424.14(b). It 
also fulfills our obligation to publish a notice in the Federal 
Register announcing our active review of the status of the marbled 
murrelet in accordance with 50 CFR 424.21.

References Cited

    A complete list of all references cited is available upon request 
from the Western Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT above).

Author

    The primary authors of this document are staff members of the 
Western Washington Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT above).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 15, 2008.
H. Dale Hall,
Director, Fish and Wildlife Service.
[FR Doc. E8-22735 Filed 10-1-08; 8:45 am]
BILLING CODE 4310-55-P