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###### Department of the Interior

###### Fish and Wildlife Service

          - 50 CFR Part 17
          - [Docket No. FWS-R1-ES-2009-0043]     [ MO 9221050083]

# AGENCY: 

Fish and Wildlife Service, Interior.

# ACTION: 

Notice; initiation of status review and solicitation of new information.

# SUMMARY: 

                        We, the U.S. Fish and Wildlife Service (Service), announce the initiation of a status review for mountain whitefish (                        *Prosopium williamsoni*) in the Big Lost River, Idaho. The status review will help us determine whether this population warrants listing as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). At the conclusion of the review, we will issue a 12-month finding on our determination as to whether listing is warranted. If listing is warranted, we will also determine whether or not to propose critical habitat for mountain whitefish in the Big Lost River.                    

# DATES: 

To allow us adequate time to conduct this review, we request that you send us information on or before September 8, 2009.

# ADDRESSES: 

You may submit comments by one of the following methods:
      - Federal eRulemaking Portal: http://www.regulations.gov . Search for Docket FWS-R1-ES-2009-0043 and then follow the instructions for submitting comments.                    
      - U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket FWS-R1-ES-2009-0043; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

                        We will post all comments on                         *http://www.regulations.gov*. This generally means that we will post any personal information you provide us (see the                         **Information Solicited**                         section below for more information).                    

# FOR FURTHER INFORMATION CONTACT: 

Jeffery L. Foss, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709; 208-378-5243; facsimile at 208-378-5262. 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

                    On June 15, 2006, we received a petition from the Western Watersheds Project requesting we list the population of mountain whitefish in the Big Lost River, Idaho, as a species, subspecies, or distinct population segment (DPS). The petitioner also requested that we designate critical habitat. On October 23, 2007, we published our 90-day finding (72 FR 59983), which found the petition failed to provide substantial information indicating that listing mountain whitefish in the Big Lost River may be warranted. This finding was based on a lack of information demonstrating the Big Lost River mountain whitefish may be a listable entity under the Act. For more information on the biology, habitat, and range of the mountain whitefish in the Big Lost River, please refer to our 90-day finding (72 FR 59983) published in the                     **Federal Register**                     on October 23, 2007.                

                    On January 25, 2008, the Western Watersheds Project filed a complaint challenging our negative 90-day finding. On March 31, 2009, United States District Court (                    *Western Watershed Project*                     vs.                     *Dirk Kempthorne, et al*., (Case No. CV07-409-S-EJL)) found the Service had considered information beyond the material in the petition such that the Service had effectively begun to conduct a status review. The Court directed the Service to proceed directly to a status review of the species and issue a 12-month finding by March 31, 2010.                

                    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531*et seq.*), requires a 12-month finding to announce whether the petitioned actions 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 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, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the                     **Federal Register**                    .                

To help inform our status review, we are soliciting new information on the status of, and potential threats to, mountain whitefish, in particular the population in the Big Lost River. We will base our determination as to whether listing is warranted on a review of the best scientific and commercial data available, including all such information received as a result of this notice.

## Information Solicited

To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the mountain whitefish. We will use the information gained during this process to evaluate, as appropriate, whether:
    - The population of mountain whitefish in the Big Lost River is a species, subspecies, or a DPS (as described in our Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the Endangered Species Act (DPS Policy; 61 FR 4722 ; February 7, 1996)), and
    - Listing of that entity as threatened or endangered is warranted under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531  et seq. ).                

We request information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties on the status of mountain whitefish throughout its range. We are seeking information regarding:

(1) The historical and current status and distribution of the mountain whitefish, its population trend, taxonomy, genetics, biology, ecology, and habitat selection.

                    (2) Ongoing conservation measures for the species and its habitat.                          ( print page 39269)    

(3) Whether the population of mountain whitefish in the Big Lost River is a separate species or subspecies.

(4) Whether the population of mountain whitefish in the Big Lost River is discrete, as defined in the DPS policy, including, but not limited to, information indicating that the mountain whitefish population in the Big Lost River is markedly separated from other populations of mountain whitefish due to physical, physiological, ecological, or behavioral factors.

(5) Whether the population of mountain whitefish in the Big Lost River is significant to the remainder of the taxon to which it belongs (i.e., to the remainder of the species of mountain whitefish throughout its range), as defined in the DPS Policy, including, but not limited to:

(a) Information indicating the ecological setting, including such factors as temperature, moisture, weather patterns, etc., in which the Big Lost River population of mountain whitefish persists, is unusual or unique for the taxon;

(b) Information indicating that the loss of the population of mountain whitefish in the Big Lost River would or would not result in a significant gap in the range of the taxon; or

(c) Information indicating that the Big Lost River population of mountain whitefish differs markedly in its genetic characteristics from other populations of mountain whitefish in the United States.

(6) If the population of mountain whitefish in the Big Lost River is not a species or subspecies, whether that population constitutes a significant portion of the range of the species or subspecies to which it belongs.

(7) The effects of potential threat factors that are the basis for making a listing determination under section 4(a) of the Act, which are:

(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.

If we determine that listing the population of mountain whitefish in the Big Lost River is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, with regard to areas within the geographical range currently occupied by the species, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, and whether any of these features may require special management considerations or protection. In addition, we request data and information regarding whether there are areas outside the geographical area occupied by the species that are essential to the conservation of the species. Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if mountain whitefish in the Big Lost River are proposed for listing, and why such habitat meets the requirements of the Act.

Please note that submissions merely stating support or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will determine whether listing is warranted, not warranted, or warranted but precluded by other pending proposals.

                    You may submit your information by one of the methods listed in the                     **ADDRESSES**                     section. If you submit information via                     *http://www.regulations.gov*, your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee we will be able to do so. We will post all hardcopy submissions on                     *http://www.regulations.gov*. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.                

                    Information and materials we receive, as well as supporting documentation used, will be available for public inspection on                     *http://www.regulations.gov*, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see                     **FOR FURTHER INFORMATION CONTACT**                    ).                

## Authors

The primary authors of this notice are the staff members of the Idaho Fish and Wildlife Office.

##  Authority

                    The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531*et seq.*).                

Dated: July 24, 2009

James J. Slack,

Acting Deputy Director, Fish and Wildlife Service.

[FR Doc. E9-18802 Filed 8-5-09; 8:45 am]

BILLING CODE 4310-55-S