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DEPARTMENT of the INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No

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DEPARTMENT of the INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No <PRORULE> DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R6-ES-2009-0065] [MO 92210-0-0008-B2] Endangered and Threatened Wildlife and Plants; Revised 12-Month Finding to List the Upper Missouri River Distinct Population Segment of Arctic Grayling as Endangered or Threatened AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of revised 12month finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service/USFWS), announce a revised 12month finding on a petition to list the upper Missouri River Distinct Population Segment (Missouri River DPS) of Arctic grayling (Thymallus arcticus) as endangered or threatened under the Endangered Species Act of 1973, as amended. After review of all available scientific and commercial information, we find that listing the upper Missouri River DPS of Arctic grayling as endangered or threatened is warranted. However, listing the upper Missouri River DPS of Arctic grayling is currently precluded by higher priority actions to amend the Lists of Endangered and Threatened Wildlife and Plants. Upon publication of this 12month finding, we will add the upper Missouri River DPS of Arctic grayling to our candidate species list. We will develop a proposed rule to list this DPS as our priorities allow. We will make any determination on critical habitat during development of the proposed listing rule. In the interim, we will address the status of this DPS through our annual Candidate Notice of Review (CNOR). DATES: The finding announced in this document was made on [insert date of Federal Register publication]. ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R6-ES-2009-0065. Supporting documentation 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, Montana Field Office, 585 Shepard Way, Helena, MT 59601. Please submit any new information, materials, comments, or questions concerning this finding to the above street address (Attention: Arctic grayling). FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana Field Office (see ADDRESSES); by telephone at 406-449-5225; or by facsimile at 406- 449-5339. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(B) of the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.), requires that, for any petition containing substantial scientific or commercial information indicating that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition. In this finding, we determine that the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the ESA 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, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12month findings in the Federal Register. Previous Federal Actions We have published a number of documents on Arctic grayling and have been involved in litigation over previous findings. We describe our actions relevant to this notice below. We initiated a status review for the Montana Arctic grayling (Thymallus arcticus montanus) in a Federal Register notice on December 30, 1982 (47 FR 58454). In that notice, we designated the purported subspecies, Montana Arctic grayling, as a Category 2 species. At that time, we designated a species as Category 2 if a listing as endangered or threatened was possibly appropriate, but we did not have sufficient data to support a proposed rule to list the species. On October 9, 1991, the Biodiversity Legal Foundation and George Wuerthner petitioned us to list the fluvial (riverine populations) of Arctic grayling in the upper Missouri River basin as an endangered species throughout its historical range in the coterminous United States. We published a notice of a 90day finding in the January 19, 1993, Federal Register (58 FR 4975), concluding the petitioners presented substantial information indicating that listing the fluvial Arctic grayling of the upper Missouri River in Montana and northwestern Wyoming may be warranted. This finding noted that taxonomic recognition of the Montana Arctic grayling (Thymallus arcticus montanus) as a subspecies (previously designated as a category 2 species) was not widely accepted, and that the scientific community generally considered this population a geographically isolated member of the wider species (T. arcticus). On July 25, 1994, we published a notice of a 12month finding in the Federal Register (59 FR 37738), concluding that listing the DPS of fluvial Arctic grayling in the upper Missouri River was warranted but precluded by other higher priority listing actions. This DPS determination predated our DPS policy (61 FR 4722, February 7, 1996), so the entity did not undergo a DPS analysis as described in the policy. The 1994 finding placed fluvial Arctic grayling of the upper Missouri River on the candidate list and assigned it a listing priority of 9. On May 4, 2004, we elevated the listing priority number of the fluvial Arctic grayling to 3 (69 FR 24881). On May 31, 2003, the Center for Biological Diversity and Western Watersheds Project (Plaintiffs) filed a complaint in U.S. District Court in Washington, D.C., challenging our warranted but precluded determination for Montana fluvial Arctic grayling. On July 22, 2004, the Plaintiffs amended their complaint to challenge our failure to emergency list this population. We settled with the Plaintiffs in August 2005, and we agreed to submit a final determination on whether this population warranted listing as endangered or threatened to the Federal Register on or before April 16, 2007. On April 24, 2007, we published a revised 12month finding on the petition to list the upper Missouri River DPS of fluvial Arctic grayling (72 FR 20305) (2007 finding). In this finding, we determined that fluvial Arctic grayling of the upper Missouri River did not constitute a species, subspecies, or DPS under the ESA. Therefore, we found that the upper Missouri River population of fluvial Arctic grayling was not a listable entity under the ESA, and as a result, listing was not warranted. With that notice, we withdrew the fluvial Arctic grayling from the candidate list. On November 15, 2007, the Center for Biological Diversity, Federation of Fly Fishers, Western Watersheds Project, George Wuerthner, and Pat Munday filed a complaint (CV-07-152, in the District Court of Montana) to challenge our 2007 finding. We settled this litigation on October 5, 2009. In the stipulated settlement, we agreed to: (a) Publish, on or before December 31, 2009, a notice in the Federal Register soliciting information on the status of the upper Missouri River Arctic grayling; and (b) submit, on or before August 30, 2010, a new 12month finding for the upper Missouri River Arctic grayling to the Federal Register. On October 28, 2009, we published a notice of intent to conduct a status review of Arctic grayling (Thymallus arcticus) in the upper Missouri River system (74 FR 55524). To ensure the status review was based on the best available scientific and commercial data, we requested information on the taxonomy, biology, ecology, genetics, and population status of the Arctic grayling of the upper Missouri River system; information relevant to consideration of the potential DPS status of Arctic grayling of the upper Missouri River system; threats to the species; and conservation actions being implemented to reduce those threats in the upper Missouri River system. The notice further specified that the status review may consider various DPS designations that include different life histories of Arctic grayling in the upper Missouri River system. Specifically, we may consider DPS configurations that include: Fluvial, adfluvial (lake populations), or all life histories of Arctic grayling in the upper Missouri River system. This notice constitutes the revised 12month finding (2010 finding) on whether to list the upper Missouri River DPS of Arctic grayling (Thymallus arcticus) as endangered or threatened. Taxonomy and Species Description The Arctic grayling (Thymallus arcticus) belongs to the family Salmonidae (salmon, trout, charr, whitefishes), subfamily Thymallinae (graylings), and it is represented by a single genus, Thymallus. Scott and Crossman (1998, p. 301) recognize four species within the genus: T. articus (Arctic grayling), T. thymallus (European grayling), T. brevirostris (Mongolian grayling), and T. nigrescens (Lake Kosgol, Mongolia). Recent research focusing on Eurasian Thymallus (Koskinen et al. 2002, entire; Froufe et al. 2003, entire; Froufe et al. 2005, entire; Weiss et al. 2006, entire) indicates that the systematic diversity of the genus is greater than previously thought, or at least needs better description (Knizhin et al. 2008, pp. 725726, 729; Knizhin and Weiss 2009, pp. 1, 78; Weiss et al. 2007, p. 384). Arctic grayling
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