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###### Department of the Interior

###### Fish and Wildlife Service 

          - 50 CFR Part 17 
          - [FWS-R6-ES-2008-0023; 1111 FY07 MO-B2] 

# 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 opening of a public comment period regarding the status of the Bonneville cutthroat trout (                        *Oncorhynchus clarki utah*) throughout its range in the United States. The 12-month finding for this subspecies, published in the                         **Federal Register**                         on October 9, 2001, has been withdrawn by the Service (Stansell Memorandum, August 24, 2007) due to the subsequent development of a formal opinion (Department of the Interior, March 16, 2007) regarding the legal interpretation of the term “significant portion of the range” of a species. The status review will include analysis of whether any significant portion of the range of the Bonneville cutthroat trout warrants listing as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). Through this action, we encourage all interested parties to provide us information regarding the status of, and any potential threats to, the Bonneville cutthroat trout throughout its range, or any significant portion of its range.                     

# DATES:

To be fully considered for the 12-month finding, comments must be submitted on or before April 7, 2008. 

# ADDRESSES:

You may submit comments by one of the following methods: 
      -  Federal eRulemaking Portal: http://www.regulations.gov.                          Follow the instructions for submitting comments.                     
      -  U.S. mail or hand-delivery:                          Public Comments Processing, Attn: FWS-R6-ES-2008-0023; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.                     

                        We will not accept e-mail or faxes. 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 Public Comments section below for more information).                     

# FOR FURTHER INFORMATION CONTACT:

                        Larry Crist, Field Supervisor, Utah Field Office, U.S. Fish and Wildlife Service, at the above address, or phone (801) 975-3330, ext. 126. Additional information is available at                         *http://www.fws.gov/​mountain-prairie/​species/​fish/​bct/​.*

# SUPPLEMENTARY INFORMATION:

## Public Comments 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 Bonneville cutthroat trout. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties. We are opening a 60-day comment period to allow all interested parties an opportunity to provide information on the status of the Bonneville cutthroat trout throughout its range, including: 

(1) Information regarding the species' historical and current population status, distribution, and trends; its biology and ecology; and habitat selection; 

                    (2) Information on the effects of potential threat factors that are the basis                           ( print page 7237)                        for a species' listing determination under section 4(a) of the Act (16 U.S.C. 1531*et seq.*), which are:                 

(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range; 

(b) Overutilization for commercial, recreational, scientific, or educational purposes; 

(c) Disease or predation; 

(d) Inadequacy of existing regulatory mechanisms; and 

(e) Other natural or manmade factors affecting its continued existence. 

(3) Information on management programs for the conservation of the Bonneville cutthroat trout. 

Please note that comments merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, because 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 issue a new 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. 

                    You may submit your comments and materials concerning this finding by one of the methods listed in the                     **ADDRESSES**                     section. We will not accept comments you send by e-mail or fax.                 

                    Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that we will post your entire comment—including your personal identifying information-on                     *http://www.regulations.gov.*                     While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.                 

                    Comments and materials we receive, as well as supporting documentation we used in preparing this finding, 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's Utah Field Office, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119, telephone (801) 975-3330.                 

## Background 

                    Section 1533(b)(3)(A) and (B) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531*et seq.*), requires that, for any petition to revise the Lists of Threatened and Endangered Wildlife and Plants, to the maximum extent practicable, within 90 days after receiving the petition, the Secretary shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. In addition, that within 12 months after receiving a petition that is found to present substantial information indicting that the petitioned action may be warranted, the Secretary shall make a finding on whether the petitioned action is: (a) not warranted, (b) warranted, or (c) warranted but precluded by other pending proposals. Such 12-month findings are to be published promptly in the                     **Federal Register**                    . This notice is to initiate a 12-month finding.                 

On October 9, 2001, we announced our 12-month finding (66 FR 51362) in which we found that, after reviewing the best available scientific and commercial information, listing the Bonneville cutthroat trout was not warranted. We were sued by the Center for Biological Diversity on February 17, 2005 on the merits of the 12-month finding. On March 7, 2007, the District Court of Colorado dismissed the lawsuit after determining that Plaintiffs failed to demonstrate the not warranted finding was arbitrary, capricious, or contrary to law. Plaintiffs appealed to the 10th Circuit Court of Appeals. However, due to subsequent development of a formal opinion (Department of the Interior, March 16, 2007) regarding the legal interpretation of the term “significant portion of the range” of a species, we withdrew our finding (Stansell Memorandum, August 24, 2007). The lawsuit was subsequently dismissed and the case was closed on May 14, 2007. The new status review will include an analysis of whether any significant portion of the range of the Bonneville cutthroat trout warrants listing as threatened or endangered under the Act. 

                    At this time, we are soliciting new information on the status and potential threats to the Bonneville cutthroat trout. Information submitted in response to our 2001 12-month finding will be considered and need not be resubmitted. We will base our 12-month finding on a review of the best scientific and commercial information available, including all information received as a result of this notice. For more information on the biology, habitat, and range of the Bonneville cutthroat trout, please refer to our previous 12-month finding published in the                     **Federal Register**                     on October 9, 2001 (66 FR 51362).                 

We request any new information concerning the status of the Bonneville cutthroat trout. If you submit information, support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, or copies of any pertinent publications, reports, or letters by knowledgeable sources. We specifically request information regarding data from any systematic surveys, as well as any studies or analysis of data regarding population size or trends; biology or ecology of the species; effects of current land management on population distribution and abundance; current condition of habitat; and conservation measures that have been implemented to benefit the species. Additionally, we specifically request information on the current distribution of populations, and threats to the subspecies in relation to the five listing factors (as defined in section 4(a)(1) of the Act). 

## Author 

The primary authors of this document are staff of U.S. Fish and Wildlife Service, Utah Field Office—Ecological Services. 

## Authority 

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

Dated: February 1, 2008. 

H. Dale Hall, 

Director, Fish and Wildlife Service.

[FR Doc. E8-2222 Filed 2-6-08; 8:45 am] 

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