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Federal Register/Vol. 74, No. 176/Monday, September 14, 2009/Rules and Regulations 46914 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations * * * * * Endangered and Threatened Wildlife foreign bird species from the 1980 [FR Doc. E9–21827 Filed 9–11–09; 8:45 am] and Plants has presented substantial petition was warranted but precluded. BILLING CODE 6560–50–P information indicating that the We published additional annual notices requested action may be warranted. To on the 58 species included in the 1980 the maximum extent practicable, the petition on January 9, 1986 (51 FR 996), DEPARTMENT OF THE INTERIOR finding must be made within 90 days July 7, 1988 (53 FR 25511), December following receipt of the petition and 29, 1988 (53 FR 52746), April 25, 1990 Fish and Wildlife Service must be published promptly in the (55 FR 17475), November 21, 1991 (56 Federal Register. If we find that the FR 58664), and May 21, 2004 (69 FR 50 CFR Part 17 petition has presented substantial 29354). These notices indicated that the information indicating that the Chatham petrel and the magenta petrel, [FWS–R8–IA–2007–0021; 96100–1671– requested action may be warranted (a along with the remaining species in the 0000–B6] positive finding), section 4(b)(3)(A) of 1980 petition, continued to be RIN 1018–AV21 the Act requires us to commence a warranted but precluded. status review of the species if one has On May 6, 1991, we received a Endangered and Threatened Wildlife not already been initiated under our petition (1991 petition) from ICBP to and Plants; Listing the Chatham Petrel, internal candidate assessment process. add an additional 53 species of foreign Fiji Petrel, and Magenta Petrel as In addition, section 4(b)(3)(B) of the Act birds to the List of Endangered and Endangered Throughout Their Ranges requires us to make a finding within 12 Threatened Wildlife, including the Fiji months following receipt of the petition petrel. In response to the 1991 petition, AGENCY: Fish and Wildlife Service, (‘‘12-month finding’’) on whether the we published a substantial 90-day Interior. requested action is warranted, not finding on December 16, 1991 (56 FR ACTION: Final rule. warranted, or warranted but precluded 65207), for all 53 species, and initiated by higher priority listing. Section a status review. On March 28, 1994 (59 SUMMARY: We, the U.S. Fish and 4(b)(3)(C) of the Act requires that a FR 14496), we published a 12-month Wildlife Service (Service), determine finding of warranted but precluded for finding on the 1991 petition, along with endangered status for three petrel petitioned species should be treated as a proposed rule to list 30 African birds species (order Procellariiformes)— having been resubmitted on the date of under the Act (15 each from the 1980 Chatham petrel (Pterodroma axillaris) the warranted but precluded finding, petition and 1991 petition). In that previously referred to as (Pterodroma and is, therefore, subject to a new document, we announced our finding hypoleuca axillaris); Fiji petrel finding within 1 year and subsequently that listing the remaining 38 species (Pseudobulweria macgillivrayi) thereafter until we publish a proposal to from the 1991 petition, including the previously referred to as (Pterodroma list or a finding that the petitioned Fiji petrel, was warranted but precluded macgillivrayi); and the magenta petrel action is not warranted. The Service by higher priority listing actions. We (Pterodroma magentae)—under the publishes an annual notice of made a subsequent warranted-but- Endangered Species Act of 1973, as resubmitted petition findings (annual precluded finding for all outstanding amended (Act). This rule implements notice) for all foreign species for which foreign species from the 1980 and 1991 the Federal protections provided by the listings were previously found to be petitions, including the three species Act for these three species. warranted but precluded. that are the subject of this final rule, as published in our annual notice of DATES: This rule becomes effective Previous Federal Actions October 14, 2009. review (ANOR) on May 21, 2004 (69 FR On November 28, 1980, we received ADDRESSES: Comments and materials we 29354). a petition (1980 petition) from Dr. Per the Service’s listing priority receive, as well as supporting Warren B. King, Chairman of the guidelines (September 21, 1983; 48 FR information used in the preparation of International Council for Bird 43098), in our April 23, 2007, Annual this rule, are available for public Preservation (ICBP), to add 60 foreign Notice on Resubmitted Petition inspection, by appointment, during bird species to the List of Endangered Findings for Foreign Species (72 FR normal business hours at the U.S. Fish and Threatened Wildlife (50 CFR 20184), we determined that listing six and Wildlife Service, Division of 17.11(h)), including two species (the seabird species of the family Scientific Authority, 4401 N. Fairfax Chatham petrel and magenta petrel) that Procellariidae, including the three Drive, Suite 110, Arlington, VA 22203. are the subject of this final rule. Two of species that are the subject of this final FOR FURTHER INFORMATION CONTACT: the foreign species identified in the rule, was warranted. In selecting these Monica A. Horton, Biologist, Division of petition were already listed under the six species from the list of warranted- Scientific Authority (see ADDRESSES); Act; therefore, in response to the 1980 but-precluded species, we took into telephone 703–358–1708; facsimile petition, we published a substantial 90- consideration the magnitude and 703–358–2276; e-mail day finding on May 12, 1981 (46 FR immediacy of the threats to the species, [email protected]. If you use 26464), for 58 foreign species and consistent with the Service’s listing a telecommunications device for the initiated a status review. On January 20, priority guidelines. deaf (TDD), call the Federal Information 1984 (49 FR 2485), we published a 12- On December 17, 2007 (72 FR 71298), Relay Service (FIRS) at 800–877–8339. month finding within an annual review we published in the Federal Register a SUPPLEMENTARY INFORMATION: on pending petitions and description of proposal to list the Chatham petrel, Fiji progress on all pending petition petrel, and the magenta petrel as Background findings. In that notice, we found that endangered under the Act, and the Section 4(b)(3)(A) of the Act (16 all 58 foreign bird species from the 1980 Cook’s petrel, Galapagos petrel, and the U.S.C. 1531 et seq.) requires us to make petition were warranted but precluded Heinroth’s shearwater as threatened a finding (known as a ‘‘90-day finding’’) by higher priority listing actions. On under the Act. We implemented the on whether a petition to add a species May 10, 1985, we published the first Service’s peer review process and to, remove a species from, or reclassify annual notice (50 FR 19761) in which opened a 60-day comment period to a species on the Federal Lists of we continued to find that listing all 58 solicit scientific and commercial VerDate Nov<24>2008 15:22 Sep 11, 2009 Jkt 217001 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 E:\FR\FM\14SER1.SGM 14SER1 cprice-sewell on DSK2BSOYB1PROD with RULES Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46915 information on the species from all Comments we received regarding the based on single sightings. Until surveys interested parties following publication other three species of seabirds in the are carried out in the catchment area of of the proposed rule. family Procellariidae proposed for the main waterway of Gau Island [the On December 30, 2008, the Service listing (December 17, 2007; 72 FR likely breeding area for this species], the received a 60-day notice of intent to sue 71298) will be addressed in a population size of the Fiji petrel is from the Center for Biological Diversity subsequent Federal Register notice unknown. (CBD) over violations of section 4 of the announcing our final listing Our Response: We agree that surveys Act and the Administrative Procedure determinations for those species. of the purported breeding area will be Act (APA) for the Service’s failure to important in determining an accurate issue a final determination regarding the Peer Review population size for this elusive bird. listing of these six foreign birds. Under In accordance with our policy Although we have acknowledged the a settlement agreement approved by the published on July 1, 1994 (59 FR lack of certainty regarding the current U.S. District Court for the Northern 34270), we solicited expert opinions estimate of the population size of this District of California on June 15, 2009 from 14 knowledgeable individuals with species in this final rule, this estimate (CBD v. Salazar, 09-cv-02578–CRB), the scientific expertise that included represents the best available scientific Service must submit to the Federal familiarity with the species, the data on the population size of the Fiji Register final determinations on the geographic region in which the species petrel. proposed listings of the Chatham petrel, occurs, and conservation biology Comment 4: Two peer reviewers Fiji petrel, and magenta petrel by principles. We received a response from disagreed with the commonly held September 30, 2009, and final six of the peer reviewers from whom we belief that this species nests in ‘‘rocky, determinations on the proposed listings requested comments. The peer mountainous cloud forests’’ on Gau of the Cook’s petrel, Galapagos petrel, reviewers generally agreed that the Island. According to these reviewers, and Heinroth’s shearwater by December description of the biology and habitat aerial photos of interior Gau Island 29, 2009. for each species was accurate and based show no ‘‘rocky’’ terrain, just steep In this final rule, we determine on the best available information.
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