Tuesday, November 25, 2008 Part III Department of the Interior Fish and Wildlife Service 50 CFR 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Northern Mexican Gartersnake (Thamnophis eques megalops) as Threatened or Endangered With Critical Habitat; Proposed Rule VerDate Aug<31>2005 18:04 Nov 24, 2008 Jkt 217001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\25NOP2.SGM 25NOP2 rwilkins on PROD1PC63 with PROPOSALS2 71788 Federal Register / Vol. 73, No. 228 / Tuesday, November 25, 2008 / Proposed Rules DEPARTMENT OF THE INTERIOR FWS–R2–ES–2008–0065. Supporting March 1, 2004. In that letter, we also documentation we used in preparing advised the petitioners that, due to Fish and Wildlife Service this finding is available for public funding constraints in fiscal year (FY) inspection, by appointment, during 2004, we would not be able to begin 50 CFR Part 17 normal business hours at the U.S. Fish processing the petition at that time. [FWS–R2–ES–2008–0065; MO 9221050083– and Wildlife Service, Arizona Ecological Previous Federal Actions B2] Services Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021– The Mexican gartersnake Endangered and Threatened Wildlife 4951. Please submit any new (Thamnophis eques) (which included and Plants; 12-Month Finding on a information, materials, comments, or the subspecies megalops) was placed on Petition To List the Northern Mexican questions concerning this finding to the the list of candidate species as a Gartersnake (Thamnophis eques above address. Category 2 species in 1985 (50 FR 37958). Category 2 species were those megalops) as Threatened or FOR FURTHER INFORMATION CONTACT: for which existing information indicated Endangered with Critical Habitat Steve Spangle, Field Supervisor, that listing was possibly appropriate, Arizona Ecological Services Office (see AGENCY: Fish and Wildlife Service, but for which substantial supporting ADDRESSES), telephone 602–242–0210. If Interior. biological data to prepare a proposed you use a telecommunications device rule were lacking. In the 1996 Candidate ACTION: Notice of 12-month petition for the deaf (TDD), please call the Notice of Review (February 28, 1996; 61 finding. Federal Information Relay Service FR 7596), the use of Category 2 (FIRS) at 800–877–8339. SUMMARY: We, the U.S. Fish and candidates was discontinued, and the Wildlife Service (Service), announce a SUPPLEMENTARY INFORMATION: northern Mexican gartersnake was no 12-month finding on a petition to list Background longer recognized as a candidate. the northern Mexican gartersnake On May 17, 2005, the petitioners filed (Thamnophis eques megalops) as Section 4(b)(3)(B) of the Act (16 a complaint for declaratory and threatened or endangered with critical U.S.C. 1531 et seq.), requires that, for injunctive relief, challenging our failure habitat under the Endangered Species any petition containing substantial to issue a 90-day finding in response to Act of 1973, as amended (Act). The scientific and commercial information the petition as required by 16 U.S.C. petitioners provided three listing indicating that listing may be warranted, 1533(b)(3)(A) and (B). In a stipulated options for consideration by the Service: we make a finding within 12 months of settlement agreement, we agreed to (1) Listing the U.S. population as a the date of receipt of the petition on submit a 90-day finding to the Federal Distinct Population Segment (DPS); (2) whether the petitioned action is: (a) Not Register by December 16, 2005, and if listing Thamnophis eques megalops warranted, (b) warranted, or (c) substantial, submit a 12-month finding throughout its range in the United States warranted, but immediate proposal of a to the Federal Register by September and Mexico based on its rangewide regulation implementing the petitioned 15, 2006 (Center for Biological Diversity status; or (3) listing Thamnophis eques action is precluded by other pending v. Norton, CV–05–341–TUC–CKJ megalops throughout its range in the proposals to determine whether species (D. Az)). The settlement agreement was United States and Mexico based on its are threatened or endangered, and signed and adopted by the District Court status in the United States. On the basis expeditious progress is being made to of Arizona on August 2, 2005. of the best scientific and commercial add or remove qualified species from On December 13, 2005, we made our information available, we find that the Lists of Endangered and Threatened 90-day finding that the petition listing the northern Mexican gartersnake Wildlife and Plants. Section 4(b)(3)(C) of presented substantial scientific as threatened or endangered throughout the Act requires that we treat a petition information indicating that listing the its range in the United States and for which the requested action is found northern Mexican gartersnake Mexico, based on its rangewide status, to be warranted but precluded as though (Thamnophis eques megalops) may be is warranted under the Act, due to the resubmitted on the date of such finding; warranted, but we did not discuss the present or threatened destruction, that is, requiring a subsequent finding to applicability of any of the three listing modification or curtailment of its be made within 12 months. We must scenarios that were provided in the habitat; predation; and the inadequacy publish these 12-month findings in the petition. The finding and our initiation of existing regulatory mechanisms. Federal Register. of a status review was published in the Currently, listing is precluded by higher On December 19, 2003, we received a Federal Register on January 4, 2006 (71 priority actions to amend the Lists of petition dated December 15, 2003, FR 315). Endangered and Threatened Wildlife requesting that we list the northern On September 26, 2006, we published and Plants. Upon publication of this 12- Mexican gartersnake as threatened or a 12-month finding that listing of the month petition finding, the northern endangered, and that we designate northern Mexican gartersnake was not Mexican gartersnake will be added to critical habitat concurrently with the warranted because we determined that our candidate species list. We will listing. The petition, submitted by the not enough information on the develop a proposed rule to list the Center for Biological Diversity, was subspecies’ status and threats in Mexico northern Mexican gartersnake as our clearly identified as a petition for a was known at that time (71 FR 56227). priorities allow. Any determination on listing rule and contained the names, On November 17, 2007, the petitioners critical habitat will be made during signatures, and addresses of the filed a complaint for declaratory and development of the proposed rule. requesting parties. Included in the injunctive relief pursuant to section 11 petition was supporting information of the Act (16 U.S.C. 1540), seeking to DATES: The finding announced in this regarding the species’ taxonomy and set aside the 12-month finding. document was made on November 25, ecology, historical and current Additionally, a formal opinion was 2008. distribution, present status, and actual issued by the Solicitor of the ADDRESSES: This finding is available on and potential causes of decline. We Department of the Interior, ‘‘The the Internet at http:// acknowledged the receipt of the petition Meaning of In Danger of Extinction www.regulations.gov at Docket Number in a letter to Mr. Noah Greenwald, dated Throughout All or a Significant Portion VerDate Aug<31>2005 18:04 Nov 24, 2008 Jkt 217001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\25NOP2.SGM 25NOP2 rwilkins on PROD1PC63 with PROPOSALS2 Federal Register / Vol. 73, No. 228 / Tuesday, November 25, 2008 / Proposed Rules 71789 of Its Range’’ (U.S. DOI 2007), which detailed species description can be name changes, including many species provides further guidance on how to found in our 2006 12-month finding for under the genus Rana to Lithobates, and conduct a detailed analysis of whether this species (71 FR 56227), or by many species under the genus Bufo to a species is in danger of extinction reviewing Rosen and Schwalbe (1988, Anaxyrus. Crother (2008, pp. 2–12), throughout a significant portion of its p.4), Rossman et al. (1996, pp. 171–172), Committee Chair for the Standard range. In December 2007, the Service or Manjarrez and Garcia (1993, pp. 1–5). English and Scientific Names withdrew the September 26, 2006, Taxonomy. The northern Mexican Committee, adopted these scientific 12-month finding to consider the new gartersnake is a member of the family name changes. However, these ‘‘Significant Portion of the Range’’ Colubridae and subfamily Natricinae taxonomic revisions have not escaped policy. In a stipulated settlement (harmless live-bearing snakes) (Lawson significant scrutiny in the scientific agreement with the petitioners, we et al. 2005, p. 596). The taxonomy of the literature. Weins (2007, pp. 55–56) agreed to submit a new 12-month genus Thamnophis has a complex criticized the methodologies and finding to the Federal Register by history, partly because many of the analysis of Frost et al. (2006, pp. 9–11). November 17, 2008 (Center for species are similar in appearance and Subsequently, Frost et al. (2008, pp. Biological Diversity v. Kempthorne, scutelation (arrangement of scales), but 385–395) rebutted these criticisms. CV–07–596–TUC–RCCJ (D. Az)). The also because many of the early museum Throughout this finding, we continue to settlement agreement was signed and specimens were in such poor and faded use the genera Rana and Bufo to adopted by the District Court of Arizona condition that it was difficult to study maintain taxonomic familiarity among on June 18, 2008. them (Conant 2003, p. 6). the interested parties, retain consistency This notice constitutes a new 12- In recent history and prior to 2003, in the Federal Register with respect to month finding for the petition to list the Thamnophis eques was considered to notices regarding the northern Mexican northern Mexican gartersnake as have three subspecies, T.