[Fws-R7-Es-2009-0024] [Mo9221050083-B2]

DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R7-ES-2009-0024] [MO9221050083-B2] Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to List the Yellow-Billed Loon as Threatened or Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 12-month petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list the yellow-billed loon (Gavia adamsii) as threatened or endangered, with critical habitat, under the Endangered Species Act of 1973, as amended 1 (Act). The petitioners provided two listing options for consideration by the Service: (1) listing the yellow-billed loon throughout its range, or (2) listing the United States population of the yellow-billed loon as a Distinct Population Segment (DPS). After a review of the best available scientific and commercial information, we have determined that listing the yellow-billed loon rangewide under the Act is warranted but precluded by other higher priority listing actions. DATES: This finding was made on [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Data, information, comments, or questions regarding this notice should be submitted to the Field Supervisor, Endangered Species Branch, Fairbanks Fish and Wildlife Field Office, U.S. Fish and Wildlife Service, 101-12th Ave., Room 110, Fairbanks, AK 99701. The complete administrative file for this finding is available for public inspection, by appointment, during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Mr. Ted Swem, Fairbanks Fish and Wildlife Field Office (see ADDRESSES) (telephone 907-456-0441; facsimile 907-456- 0208). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: 2 Background Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires that, for any petition presenting substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of receipt of the petition on whether the petitioned action is: (a) not warranted, (b) warranted, or (c) warranted, but that immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, and is, therefore, subject to a new finding to be made within 12 months and subsequently thereafter until we take action on a proposal to list or withdraw our original finding. We must publish these 12- month findings in the Federal Register. Previous Federal Actions On April 5, 2004, we received a petition from the Center for Biological Diversity (CBD) (Sitka, AK), Natural Resources Defense Council (Washington, DC), Pacific Environment (San Francisco, CA), Trustees for Alaska (Anchorage, AK), Kaira Club (Chukotka, Anadyr, Russia), Kronotsky Nature Preserve (Kamchatka Region, Russia), 3 Taiga Rangers (Khabarovsk Region, Russia), Yuzhno-Sakhalinsk Local Public Fund (Sakhalin Region, Russia), Interregional Public Charitable Organization of Far Eastern Resource Centers (Vladivostok, Russia), Kamchatka Branch of Pacific Institute of Geography (Petropavlovsk-Kamchatsky, Russia), and Kamchatka League of Independent Experts (Petropavlovsk-Kamchatsky, Russia) to list the yellow-billed loon as endangered or threatened throughout its range, or as a Distinct Population Segment in the United States, and to designate critical habitat once listed. The petition summarizes threats to the species based on CBD’s review of Fair’s (2002) report, prepared for the Natural Resources Defense Council and Trustees for Alaska, on the status and significance of the species in Alaska, as well as CBD’s review of the scientific literature. In September 2006, the Service completed a “Conservation Agreement for the Yellow-billed Loon (Gavia adamsii)” with Federal, State, and local partners. In response to the petition, we published a 90-day finding on the yellow-billed loon in the Federal Register on June 6, 2007 (72 FR 31256). In the 90-day finding we determined that the petition presented substantial scientific or commercial information to indicate that a listing may be warranted and announced that a status review would be promptly commenced. In that notice we announced the opening of a 60-day information collection period and invited the public to submit to us any pertinent information concerning the status of or threats to this species. Approximately 28,000 comments were received during the information collection period. We also consulted with recognized yellow-billed loon experts and other Federal and State agencies. We sent letters to national wildlife or natural resource agencies in Canada, China, Japan, North Korea, Norway, Republic of Korea (South Korea), and the Russian Federation, asking for information about ongoing management 4 measures and any conservation and management strategies being developed to protect the species. We received a formal response from the government of Canada, and an informal response from a government biologist in the Russian Federation. On June 11, 2007, we received a 60-day notice of intent to sue from the Center for Biological Diversity alleging a violation of section 4 of the ESA for failure to complete a 12-month finding on the petition. We informed the plaintiffs by letter dated July 9, 2007, that further action on the petition was precluded by higher priority listing actions but that, pending the fiscal year 2008 allocation of funds, we hoped to complete the 12-month finding within that fiscal year. On December 19, 2007, the Center for Biological Diversity (CBD) filed a complaint alleging that the Service had failed to make a timely 12-month finding on the petition, as required under section 4 of the ESA. Consistent with a settlement agreement reached between the Service and CBD, the Court ordered the Service to submit this 12-month finding for publication to the Federal Register by February 15, 2009. Because the Service later received substantial new information to be evaluated and considered in the 12-month finding, we subsequently sought and were granted a one month extension with a new deadline of March 16, 2009. This notice constitutes a 12-month finding for the petition to list the yellow-billed loon as threatened or endangered. The petitioners provided two listing options for consideration by the Service: (1) listing the yellow-billed loon throughout its range, or 5 (2) listing the United States population of the yellow-billed loon as a Distinct Population Segment (DPS). Because we find that listing the yellow-billed loon rangewide is warranted at this time, there is no need to conduct further analysis of whether listing the United States population of the yellow-billed loon as a DPS, which is a smaller geographic entity than the entire range, is warranted, as this consideration is subsumed by the rangewide warranted but precluded finding. Outline of this Notice In this notice, we first provide background information on the biology of the yellow-billed loon. Next, we address each of the categories of factors listed in section 4(a)(1) of the Act. For each factor, we first determine whether any stressors, or risk factors, appear to be negatively affecting yellow-billed loons anywhere within the species’ range. If we determine they are, then we evaluate whether each of these risk factors is resulting in population-level effects that are significant to the determination of the conservation status of the species. If so, we describe it as a “threat.” The fact that we find a stressor to be a threat to the species does not necessarily mean that the species meets the definition of threatened or endangered. Rather, in the subsequent finding section, we then consider each of the stressors and identified threats, individually and cumulatively, and make a determination with respect to whether the species is endangered or threatened according to the statutory standard. 6 The term “threatened species” means any species (or subspecies or, for vertebrates, distinct population segments) that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” However, in a January 16, 2009, memorandum addressed to the Acting Director of the U.S. Fish and Wildlife Service, the Office of the Solicitor, Department of the Interior, concluded, “. as used in the ESA, Congress intended the term ‘foreseeable future’ to describe the extent to which the Secretary can reasonably rely on predictions about the future in making determinations about the future conservation status of the species.” In a footnote, the memorandum states, “In this memorandum, references to ‘reliable predictions’ are not meant to refer to reliability in a statistical sense. Rather, I use the words “rely” and “reliable” according to their common, non-technical meanings in ordinary usage. Thus, for the purposes of this memorandum, a prediction is reliable if it is reasonable to depend upon it in making decisions” (M-37021, January 16, 2009). Species Biology The yellow-billed loon is a migratory bird. Solitary pairs breed on lakes in the arctic tundra of the United States, Russia, and Canada from June to September. During the remainder of the year the species winters in more southern coastal waters of the Pacific Ocean and the Norway and North Seas. Non-breeding birds remain in marine waters throughout the year, either in wintering areas or offshore from breeding grounds.

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