[Federal Register Volume 75, Number 158 (Tuesday, August 17, 2010)]
[Proposed Rules]
[Pages 50739-50742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20099]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2010-0058]
[MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List Brian Head Mountainsnail as Endangered or Threatened 
with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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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 Brian Head mountainsnail 
(Oreohelix parawanensis) as endangered or threatened under the 
Endangered Species Act of 1973 (Act), as amended. Based on our review, 
we find that the petition does not present substantial information 
indicating that listing the species may be warranted. However, we ask 
the public to submit to us any new information that becomes available 
concerning the status of, or threats to, the mountainsnail or its 
habitat at any time. This information will help us monitor and 
encourage the conservation of this species.

DATES: The finding announced in this document was made on August 17, 
2010. You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2010-0058. Supporting 
information we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Mountain-Prairie Regional Ecological 
Services Office, P.O. Box 25486, Denver Federal Center, Denver, CO 
80255. Please submit any new information, materials, comments, or 
questions concerning this species or this finding to the above postal 
address.

FOR FURTHER INFORMATION CONTACT: Ann Carlson, Mountain-Prairie Regional 
Ecological Services Office (see ADDRESSES); telephone 303-236-4264. If 
you use a telecommunications device for the deaf (TDD), please call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the 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 a petitioned action may be warranted. We 
are to base this finding on information provided in the petition and 
any information we may have in our files. To the maximum extent 
practicable, we are to make the finding within 90 days of our receipt 
of the petition, and publish our notice of this finding promptly in the 
Federal Register.
    Our standard for ``substantial information,'' as defined in the 
Code of Federal Regulations at 50 CFR 424.14(b), 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.'' If we find that substantial information was 
presented, we are required to promptly commence a status review of the 
species, which we subsequently summarize in our 12-month finding.
    In considering what factors might constitute threats to a species, 
we must look beyond the exposure of the species to a factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the species. If there is exposure to a factor and the 
species responds negatively, the factor may be a threat and, during the 
subsequent status review, we attempt to determine how significant a 
threat it is. The threat is significant if it drives, or contributes 
to, the risk of extinction of the species such that the species may 
warrant listing as endangered or threatened as those terms are defined 
in the Act. However, the identification of factors that could impact a 
species negatively may not be sufficient to compel a finding that the 
information in the petition and our files is substantial. The 
information must include evidence sufficient to suggest that these 
factors may be operative threats that act on the species to the point 
that the species may meet the definition of endangered or threatened 
under the Act.

Petition History

    On July 30, 2007, we received a petition dated July 24, 2007, from 
Forest Guardians (now WildEarth Guardians) requesting that the Service: 
(1) Consider for listing all full species in our Mountain Prairie 
Region ranked as G1 or G1G2 by the organization NatureServe, except 
those that are currently listed, proposed for listing, or candidates 
for listing (a total of 206 species); and (2) list each species we 
considered as either endangered or threatened. The petition 
incorporated all analysis, references, and documentation provided by 
NatureServe in its online database at http://www.natureserve.org/ into 
the petition. However, it should be noted that no other documentation 
on species was provided in the petition, and the information on most 
species in the NatureServe database is not extensive, because the focus 
is on rare species. Subsequent to the petition, NatureServe included a 
disclaimer on its database indicating that: ``The purpose of the 
conservation status ranks developed by NatureServe is to assess the 
relative risk facing a species and does not imply that any specific 
action or legal status is needed to assure its survival...Assessment by 
NatureServe of any species...does not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act...''.
    The petition clearly identified itself as a petition and included 
the identification information required at 50 CFR 424.14(a). We sent a 
letter to the petitioners dated August 24, 2007, acknowledging receipt 
of the petition and stating that, based on preliminary review, we found 
no compelling evidence to support an emergency listing for any of the 
species covered by the petition.
    On June 18, 2008, we received a petition from WildEarth Guardians 
dated June 12, 2008, to emergency list 32 species including the Brian 
Head mountainsnail under the Administrative Procedure Act (APA) (5 
U.S.C. Subchapter II) and the Act. However, emergency listing a species 
is not a petitionable action under the APA or the Act, and is treated 
solely as a petition to list a species under the Act. Of those 32 
species, 11 had been included in the July 24, 2007, petition for 
listing on a non-emergency basis. In a letter dated July 25, 2008, we 
stated that the information provided in both the 2007 and 2008 
petitions and in our files did not indicate that any of the 11 species 
were at significant risk of well-being, and in need of temporary 
protections under section 4(b)(7) of the Act (i.e. emergency listing).
    We subsequently published an initial 90-day finding for 165 of the 
206 petitioned species on February 5, 2009,

[[Page 50740]]

concluding that the petition did not present substantial information 
indicating that listing of those species may be warranted (74 FR 6122). 
That finding included the Brian Head mountainsnail in a table of 
species by category, and mistakenly cited it as fitting into ``Category 
A,'' meaning that no information was provided. The Brian Head 
mountainsnail should have been in ``Category C,'' meaning that some 
information on the species was provided, but that information was not 
substantial.
    In response to a January 7, 2010, complaint from WildEarth 
Guardians, we agreed, under a June 28, 2010, stipulated settlement 
agreement, to reassess the petition with respect to the Brian Head 
mountainsnail, to specifically explain a review of any literature 
readily available from NatureServe and in our files at the time the 
petition was submitted, and to issue a new 90-day finding. This finding 
meets the terms included in the settlement agreement and addresses the 
petition.

Species Information

    The Brian Head mountainsnail is reported from Iron County, Utah. 
The species exists as a localized population at a rock slide on the 
southwest slope of Brian Head Peak, above timberline at approximately 
3,350 meters (11,000 feet) (Oliver and Bosworth 2002, p. 451). The rock 
slide is located within a mountain shrub habitat type that is the focus 
of conservation by the State of Utah (Gorrell et al. 2005, p. K-11).
    Prior to 2002, one empty shell had been found by Clarke (1993). In 
2002, the first living examples (18 individuals) of the species were 
documented at 4 of 14 small survey stations within an area of about 11 
hectares (27 acres), and the species was noted as the most common 
gastropod at the stations where it was detected (Oliver and Bosworth 
2002, p. 452). The researchers also collected 49 empty shells and 5 
embryos at 7 of the 14 survey sites (Oliver and Bosworth 2002, p. 452). 
This data appears to represent the best and only information on Brian 
Head mountainsnail abundance. Based on the information presented above, 
it appears that the information presented in NatureServe concerning 
occurrence records may be erroneous in stating that the first live 
specimens were found in 1998, and that Oliver and Bosworth (2002) found 
37 specimens.
    Brian Head mountainsnail population trends are unknown. Information 
in NatureServe indicated that the species is stable in the short term, 
that few immediate threats exist, and that the long-term trend may be 
stable. The high-elevation (at or above timberline) and barren nature 
(rock slides) of the species' habitat tend to provide it with 
relatively good protection from potential threats such as timber 
harvest, development, and other anthropogenic activities (Oliver and 
Bosworth 2002, p. 453).

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act:
    (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; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making this 90-day finding, we evaluated whether information 
regarding the factors affecting the Brian Head mountainsnail, as 
presented in the petition, may reasonably constitute threats that may 
be negatively impacting the species, thereby indicating that the 
petitioned action may be warranted. We had no information in our files 
on the species. Our evaluation of the information from the petition is 
presented below.
    The petitioners presented two tables that collectively presented 
206 species for consideration for listing under the Act, including the 
Brian Head mountainsnail, and requested that the Service incorporate 
analyses, references, and documentation provided by NatureServe in its 
online database (http://www.natureserve.org/) into the petition. We 
accessed the NatureServe database on August 10, 2007, saved a hardcopy 
of the Brian Head mountainsnail file, and fully evaluated this 
information, including references cited, during our review.
    For the Brian Head mountainsnail, the NatureServe database had a 
``Local Programs'' link to the website of the Utah Department of 
Natural Resources (UDNR), Division of Wildlife Resources. We reviewed 
the information, assertions, and opinions of the State program provided 
on that site because that program has primary management responsibility 
for non-federally listed species.
    We followed regulations at 50 CFR 424.14(b) in evaluating the 
information presented in the petition. Paragraph (b)(1) of that section 
provides that the Service must consider whether the petition has 
presented substantial information indicating to a reasonable person 
that the petitioned action may be warranted. Paragraph (b)(2) requires 
us to consider whether the petition provides a detailed narrative 
justification describing past and present numbers and distribution of 
the species, and any threats faced by the species. We must also 
consider whether the petition provides appropriate supporting 
documentation--references, publications, reports, or letters from 
authorities, and maps.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range.

    Ski resort operations exist to the west and northwest of Brian Head 
mountainsnail habitat. However, according to Oliver and Bosworth (2002, 
p. 453), the operation of the ski resort does not appear to provide a 
threat to the species or its habitat. No information was presented in 
the petition to indicate that expansions of the ski resort are planned.
    An unpaved road exists on the south side of Brian Head Peak that 
extends to the summit (Oliver and Bosworth 2002, p. 453), but no 
information was presented in the petition to indicate that this road 
affects the Brian Head mountainsnail or its habitat. NatureServe states 
that hikers and mountain bikers utilize the area and, therefore, are a 
potential threat, but NatureServe provides no indication of whether 
Brian Head mountainsnail sites are being impacted; it is unlikely that 
these activities are occurring on rock slides, which constitute habitat 
for the snail.
    Grazing is listed as a general threat to mountain shrub habitat by 
the State of Utah (Gorrell et al. 2005, pp. 6-67 and K-11), and 
domestic sheep have been noted 10 kilometers (6 miles) away (Oliver and 
Bosworth 2002, p. 453). No information was presented in the petition 
indicating that grazing may be negatively affecting the rock habitat 
inhabited by the Brian Head mountainsnail.
    On the basis of a review of the information referenced by the 
petition related to the specific potential threats it identifies, we 
find that there is not substantial information to reasonably suggest 
that these factors may be threats

[[Page 50741]]

to the species such that listing may be warranted. Consequently, we 
have determined that the petition, including references cited in 
NatureServe that were readily available, does not contain substantial 
information to indicate that the present or threatened destruction, 
modification, or curtailment of the species' habitat or range is a 
threat to the Brian Head mountainsnail.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes.

    Rock collectors, who gain access via the unpaved road on the south 
side of Brian Head Peak, have been encountered near Brian Head 
mountainsnail habitat (Oliver and Bosworth 2002, p. 453); however, no 
information was presented in the petition indicating that this activity 
may be affecting the species or its habitat.
    On a basis of a review of the information referenced by the 
petition related to the specific potential threats identified in the 
petition, we find that there is not substantial information to 
reasonably suggest that these factors may be threats to the species 
such that listing may be warranted. Consequently, we have determined 
that the petition, including references cited in NatureServe that were 
readily available, does not contain substantial information to indicate 
that overutilization for commercial, recreational, scientific, or 
educational purposes is a threat to the Brian Head mountainsnail.

C. Disease or Predation.

    We have determined that the petition, including references cited in 
NatureServe that were readily available, does not contain any 
information concerning threats to the Brian Head mountainsnail from 
disease or predation. Therefore, we find that the petition does not 
present substantial information that either disease or predation is a 
threat to the species.

D. Inadequacy of Existing Regulatory Mechanisms.

    The petition discusses the lack of protection under the Act for the 
species, stating that unless a species is listed as endangered or 
threatened under the Act, it receives no protections from the statute. 
The petition provides no information addressing any other State or 
Federal regulations, and no information about the inadequacy of 
existing regulatory mechanisms.
    The petitioner's claim that we could afford more protection to the 
species if it was listed under the Act does not provide substantial 
information that the existing regulatory mechanisms are inadequate. As 
the petitioner acknowledges, under 16 U.S.C. 1533(b)(1)(A), we must 
reach our determination solely on the basis of the best scientific and 
commercial data available. The petition presents no specific 
information related to other Federal, State, or local government 
regulatory mechanisms that may exist to provide regulatory protections 
for the species or its habitat, other than the State of Utah 
Comprehensive Wildlife Conservation Strategy. Further, the petition 
provides no information to suggest that regulatory mechanisms may be 
inadequate.
    Brian Head mountainsnail habitat is within the Dixie National 
Forest, and, therefore, is afforded Federal environmental and 
conservation considerations required by the National Forest Management 
Act (16 U.S.C. 1600 et seq.) and the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.). The State of Utah lists it as a Species of 
Concern (Utah Department of Natural Resources (UDNR) 2007, p. 7), and 
follows its Comprehensive Wildlife Conservation Strategy (Gorrell et 
al. 2005, pp. 6-67, K-11) in implementing management and conservation 
actions specifically for the Brian Head mountainsnail. Further, the 
high-elevation and barren nature of the species' habitat tends to 
provide it with relatively good protection from otherwise potential 
threats such as timber harvest, development, and other anthropogenic 
activities (Oliver and Bosworth 2002, p. 453).
    We have determined that the petition, including references cited in 
NatureServe that were readily available, does not contain substantial 
information to indicate that the inadequacy of existing regulatory 
mechanisms is a threat to the Brian Head mountainsnail.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence.

    The UDNR website page for the Brian Head mountainsnail indicated 
that because the species occurs as a single, localized population, it 
is susceptible to catastrophic events (UDNR website, p. 1). However, in 
order to determine that substantial information exists to indicate that 
a species may be endangered or threatened, we must determine that the 
species may be subject to threats (such as drought, flood, habitat 
destruction, pollution, or exotic species). Threats may be based on 
environmental, biological, or anthropogenic factors. The petition does 
not present any substantial information on threats to the Brian Head 
mountainsnail.
    When determining whether a species may warrant listing under the 
Act, it is important to distinguish between the presence of threats, 
either now or in the foreseeable future, and the susceptibility of a 
species to those threats, in order to determine whether those threats 
may likely impact the species and potentially cause it to be in danger 
of extinction now or in the foreseeable future. The Brian Head 
mountainsnail may be a naturally rare species. Although rare species 
may be vulnerable to single event occurrences, it is important to have 
information on how likely the occurrence of such an event may be, 
whether the specific event might impact the species, what form that 
impact would take and by what mechanism (i.e., what specific life-
history function, habitat requirement, or other need of the species 
might be impacted and how), and whether the possible impact would 
likely result in a significant threat to the species (i.e., to what 
extent might the event have a negative impact). Available information 
should be specific to the species and should reasonably suggest that 
operative threats will act on the species to the point that the species 
may warrant protection under the Act. Statements about a generalized 
threat (especially within a general area and not within the species' 
habitat) do not constitute substantial information that listing may be 
warranted. General stochastic events such as natural catastrophes do 
not necessarily threaten a species simply because that species is rare.
    Information on a species' rarity is relevant to the conservation 
status of a species. Generally, a species that has a geographically 
restricted range is likely to be more susceptible to environmental 
threats (e.g., fire, flood, drought, human land use), if they occur, 
than a species that is more widespread. A single event could affect a 
larger total percentage of the range of a rare species than of a 
widespread species. However, for the Brian Head mountainsnail, we do 
not have substantial information regarding whether any environmental or 
anthropogenic threats are negatively affecting the species or are 
likely to do so in the foreseeable future. Stochastic events (e.g., 
catastrophic fire and flood) are unpredictable by nature, but can be 
indicated by historic records or climate predictions. The fact that a 
rare species is potentially vulnerable to stochastic processes does not 
necessarily mean that it is reasonably likely to experience, or have 
its status affected by, a given event within the timescales that are 
meaningful under the Act.
    The petition provides no information to indicate that the range or 
abundance

[[Page 50742]]

of the Brian Head mountainsnail has been significantly curtailed. 
Therefore, we do not know if the species has always been rare, or if it 
was once more widespread. Many features of a species' biology, ecology, 
and habitat, such as its life history, population structure, geographic 
location, or characteristics of its local landscape, will modify its 
vulnerability to any potential threat. Whether a rare species is 
affected by environmental or biological factors, and the magnitude of 
the effect of these factors on the species' ability to persist into the 
foreseeable future, is species- and context-specific. The petition does 
not contain information about the biology and ecology of the species 
that would indicate that there may be any substantial genetic or 
demographic impacts to the Brian Head mountainsnail based on other 
natural or manmade factors affecting the species' continued existence.
    We recognize that many of the species contained within the 
NatureServe database have limited distribution or small population 
size, but these two factors alone (i.e., rarity), without additional 
information regarding threats, do not meet the substantial information 
threshold indicating that the species may warrant listing. In the 
absence of information identifying threats to the species, and linking 
those threats to the rarity of the species, we do not consider rarity 
to be a threat.
    We have determined that the petition, including references cited in 
NatureServe that were readily available, does not present substantial 
information that rarity, or any other natural or manmade factors are a 
threat to the Brian Head mountainsnail.

Finding

    We reviewed and evaluated information cited in the petition that 
was readily available. We had no information available in our files on 
the species. On the basis of our review under section 4(b)(3)(A) of the 
Act, we have determined that the petition does not present substantial 
scientific or commercial information indicating that listing may be 
warranted for the Brian Head mountainsnail.
    Although we will not commence a status review in response to the 
petition, we will continue to accept information and materials 
regarding the Brian Head mountainsnail at our Mountain-Prairie Region 
Ecological Services Office (see ADDRESSES).

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Mountain-Prairie 
Region Ecological Services Office (see ADDRESSES).

Authors

    The primary authors of this document are the staff members of the 
Mountain-Prairie Region Ecological Services 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: August 4, 2010.
Wendi Weber,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2010-20099 Filed 8-16-10; 8:45 am]
BILLING CODE 4310-55-S