[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Proposed Rules]
[Pages 36152-36158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17449]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2009-0039; MO 922105 0082-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the White-Sided Jackrabbit (Lepus callotis) as 
Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status and 
critical habitat review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the white-sided jackrabbit (Lepus 
callotis) as an endangered species and designate critical habitat under 
the Endangered Species Act of 1973, as amended. Following a review of 
the petition, we find the petition provides substantial scientific or 
commercial information indicating that listing this species may be 
warranted. Therefore, with the publication of this notice, we are 
initiating a status review to determine if listing this species is 
warranted. To ensure that the status review is comprehensive, we are 
requesting the public to submit scientific and commercial data and 
other information regarding the white-sided jackrabbit. We will make a 
determination on critical habitat if and when we initiate a listing 
action for this species.

DATES: We made the finding announced in this document on July 22, 2009. 
To allow us adequate time to conduct this review, we request that we 
receive information on or before September 21, 2009.

ADDRESSES: You may submit information by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R2-ES-2009-0039 and then follow the instructions 
for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R2-ES-2009-0039; 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 information we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Requested 
section below for more details).

[[Page 36153]]


FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Office, 2105 Osuna NE, Albuquerque, NM 
87113; by telephone (505-346-2525) or by facsimile (505-346-2542). 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information on the status of the white-sided jackrabbit. We request 
information from the public, other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning the status of the white-sided jackrabbit. 
We are seeking information regarding:
    (1) The historical and current status and distribution of the 
white-sided jackrabbit, its biology and ecology, and ongoing 
conservation measures for the species and its habitat in the United 
States and Mexico; and
    (2) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (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) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting the species' 
continued existence and threats to it or its habitat.
    If we determine that listing the white-sided jackrabbit is 
warranted, we intend 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 white-sided jackrabbit, 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 white-sided jackrabbit that are 
essential to the conservation of the species. Please provide specific 
comments and information as to what, if any, critical habitat should be 
proposed for designation if the species is proposed for listing, and 
why that proposed habitat meets the requirements of the Act.
    Please note that submissions 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, 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.'' Based on the status review, we will issue 
a 12-month finding on the petition, as provided in section 4(b)(3)(B) 
of the Act.
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any 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 that 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 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, 
New Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of this 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly commence a review of the status of the species.
    On October 15, 2008, we received a petition dated October 9, 2008, 
from the WildEarth Guardians requesting that the white-sided jackrabbit 
(Lepus callotis) (jackrabbit) be listed as threatened or endangered 
under the Act. The petitioner requested that we evaluate three 
potentially listable entities of the jackrabbit: (1) the northern 
population of the subspecies L. callotis gaillardia as a distinct 
population segment (DPS); (2) the full species L. callotis throughout 
its range; and (3) each of the subspecies of the jackrabbit, which they 
identified as L. callotis gaillardia and L. callotis callotis. 
Additionally, the petition requested that critical habitat be 
designated concurrent with listing of L. callotis, its subspecies, and 
the northern DPS. The petition clearly identified itself as such and 
included the requisite identification information for the petitioner, 
as required by 50 CFR 424.14(a). In a November 26, 2008, letter to the 
petitioner, we responded that we had reviewed the petition and 
determined that an emergency listing was not necessary. In that letter, 
we advised the petitioner that, to the maximum extent practicable, we 
would address the petition within 90 days. During our review of the 
petition, we found that the majority of information cited in the 
petition was not readily available to us. Therefore, on January 13, 
2009, we requested that the petitioner provide references. On February 
13, 2009, the petitioner provided references. We received a 60-day 
notice of intent to sue from the petitioner dated January 28, 2009, and 
on April 15, 2009, the petitioner brought a lawsuit against us for 
failure to make a decision on the Petition within 90 days of its 
receipt.

[[Page 36154]]

Previous Federal Actions

    The white-sided jackrabbit was first listed as a candidate 
(Category 2) for Federal listing as either a threatened or endangered 
species under the Act, in the 1982 Candidate Notice of Review (47 FR 
58454, December 30, 1982). Category 2 status included those taxa for 
which information in the Service's possession indicated that a proposed 
listing rule was possibly appropriate, but for which sufficient data on 
biological vulnerability and threats were not available to support a 
proposed rule. In the Candidate Notice of Review published on February 
28, 1996, we announced a revised list of animal and plant taxa that 
were regarded as candidates for possible addition to the Lists of 
Endangered and Threatened Wildlife and Plants (61 FR 7595). The revised 
candidate list included only former Category 1 species. All former 
Category 2 species were dropped from the list to reduce confusion about 
the conservation status of these species, and to clarify that the 
Service no longer regarded these species as candidates for listing. 
Because the white-sided jackrabbit was a Category 2 species, it was no 
longer recognized as a candidate species.

Species Information

    The white-sided jackrabbit is one of four species of hares (Family 
Leporidae) occurring in New Mexico, including the black-tailed 
jackrabbit (Lepus californicus), which co-occurs with the white-sided 
jackrabbit (Findley et al. 1975). The white-sided jackrabbit can be 
distinguished from the black-tailed jackrabbit by its extensive white 
sides and inconspicuous or absent black ear tips (Findley et al. 1975, 
pp. 92, 96; Best and Henry 1993, p. 1).
    One of the primary issues presented by the petitioner is related to 
the taxonomy of the jackrabbit. The petitioner presents information 
that morphological and genetic data have caused some to question the 
uniqueness of the subspecies Lepus callotis callotis and the subspecies 
L. callotis gaillardi (e.g., InfoNatura 2008). They request that we 
consider each recognized subspecies for listing, if we find them to be 
taxonomically valid. Under section 3(16) of the Act, we may consider 
for listing any species or subspecies of fish, wildlife, or plants, or 
any distinct population segment of vertebrate fish or wildlife which 
interbreeds when mature. Thus, in our 12-month finding, should we 
determine that the species as a whole does not warrant listing, we will 
evaluate whether any valid subspecies warrants listing. If we conclude 
that the subspecies L. callotis gaillardia is valid, but does not 
warrant listing, we will consider whether the northern populations of 
the subspecies is a valid DPS under our policy (61 FR 4722, February 7, 
1996) and, if so, whether it warrants listing. If we conclude that the 
subspecies L. callotis gaillardia is not valid, we will consider 
whether the northern populations of the full species is a valid DPS 
and, if so, whether it warrants listing.
    The core distribution of the white-sided jackrabbit lies within 
Mexico (New Mexico Department of Game and Fish (NMDGF) 2006, p. 114). 
The species historically occurred from southern New Mexico to northern 
Oaxaca, Mexico, within two distinct geographic areas (Best and Henry 
1993, p. 2). One area was located in the southern Animas and Playas 
valleys of Hidalgo County, south to west-central Chihuahua and north-
central Durango, Mexico (Bednarz and Cook 1984, p. 358; Reynolds 1988, 
p. 1). The other area was from central Durango south across the open 
plains of the Mexican Plateau to the State of Oaxaca, Mexico (Hall 
1981, p. 330). The geographic separation of the two areas occurs on 
either side of the Rio Nazas, Durango, Mexico; that river marks the 
dividing line for many subspecies of mammals (Peterson 1976, pp. 496-
498). The jackrabbit's range in New Mexico was restricted to about 121 
square kilometers (47 square miles) (Bednarz 1977, p. 6; Bednarz and 
Cook 1984, p. 359). We are unaware of any similar estimate for Mexico. 
There is no recent information on the amount of habitat occupied by the 
jackrabbit in either country. Moreover, the white-sided jackrabbit has 
not been confirmed as extant in Arizona (Cahalane 1939, p. 436), 
although in 1954, Hoffmeister and Goodpaster reportedly observed what 
they believed to be white-sided jackrabbits along the west base of the 
Huachuca Mountains, Cochise County, Arizona (Hoffmeister 1986). 
Therefore, New Mexico is the only confirmed place in the United States 
where the species has been documented to occur.
    This species is highly elusive. It inhabits predominately well-
developed open grasslands that have low shrub density and level 
terrain, avoiding hills or mountains (Bednarz and Cook 1984, p. 359; 
Cook 1986, p. 15; Desmond 2004, p. 416). It was reported only a few 
times after the species was discovered in 1892 along the International 
Border between the United States and Mexico (Mearns 1895). For example, 
two animals were collected in the Playas Valley in 1931 and one animal 
was collected in the Animas Valley in 1974 (Anderson and Gaunt 1962; 
Bogan and Jones 1975, p. 47; Bednarz 1977, p. 1).
    The petitioner provides information indicating that white-sided 
jackrabbit populations are declining (Bednarz and Cook 1984, p. 360; 
Mehlhop 1995, pp. 3-10; Traphagen 2002, pp. 4-5). The information in 
our files is consistent with the population numbers reported in the 
petition. We judge the information regarding a possible decline in 
jackrabbit numbers to be substantial and reliable. In 1976, the white-
sided jackrabbit was found in New Mexico only in the Animas Valley on 
the Diamond A Ranch (the Diamond A Ranch includes the lands formerly 
called Gray Ranch in southwestern New Mexico) and in limited parts of 
the southern Playas Valley east of the Diamond A Ranch in southern 
Hidalgo County (Bednarz 1977, pp. 4-5). During investigations conducted 
between May and August 1976, Bednarz (1977) speculated that the number 
of white-sided jackrabbits in the Animas Valley was between 250 to 300 
individuals. Five years later, surveys in New Mexico revealed that 
white-sided jackrabbit sightings had decreased to approximately half of 
the mean reported by Bednarz (Bednarz and Cook 1984, pp. 359-360). The 
jackrabbit may now be extirpated from the Playas Valley; no 
observations of the species have been made in this area during recent 
surveys (Traphagen 2002, p. 5; Frey 2004, p. 22; NMDGF 2006, p. 115). 
Surveys in Chihuahua, Mexico, also reported low densities of white-
sided jackrabbits (Desmond 2004, p. 417). We are unaware of any 
additional information on population abundance, or any year-round or 
long-term monitoring data on the white-sided jackrabbit in either the 
United States or Mexico (see also NMDGF 1997, p. 3). As such, the 
status of this species remains unclear in both countries.
    In the white-sided jackrabbit, females are generally larger than 
males (Bednarz 1977, pp. 13, 15). In New Mexico, white-sided 
jackrabbits are observed almost unvaryingly in pairs (Bednarz 1977, p. 
9), suggesting that mated animals remain together on a long-term basis. 
Pair bonds may serve to ensure adequate reproduction, in the context of 
generally low population density (Bednarz 1977, p. 12). The members of 
the pair are usually near each other and run together when approached 
by intruders (Bednarz 1977). Several litters are probably produced each 
year, with litter size appearing to average 2.2 young (Bednarz 1977). 
The young tend to have a soft, woolly coat in early life and attain 
sexual maturity at a rapid rate.

[[Page 36155]]

    In the United States portion of its range, the white-sided 
jackrabbit appears to be found only in association with grasslands 
(Bednarz 1977, p. 6). Plants commonly found in areas inhabited by this 
species in the Animas and Playa valleys of New Mexico include Bouteloua 
gracilis (blue grama), B. eriopoda (black grama), Hilaria mutica 
(tobosa), Buchloe dactyloides (buffalo grass), Lycurus phleoides 
(wolftail), Muhlenbergia torreyi (ring muhly), Cyperus spp. 
(flatsedges), Gutierrezia sarothrae (snakeweed), Yucca elata (soaptree 
yucca), and Prosopis glandulosa (honey mesquite) (Bednarz and Cook 
1984, pp. 358-359; Mehlhop 1995, p. 15; Moore-Craig 1992, p. 4). More 
than 97 percent of all observations of this species have been in pure 
grasslands and less than 3 percent in grasslands with varying amounts 
of forbs (flowering herbs) and shrubs (Bednarz and Cook, 1984). In New 
Mexico, white-sided jackrabbits feed primarily on B. gracilis, 
B.dactyloides, B. eripoda, L. phleoides, and M. torreyi (Bednarz 1977, 
pp. 14, 16).
    Although the white-sided jackrabbit shares its range with the 
black-tailed jackrabbit, the two generally occupy different habitats, 
with white-sided jackrabbit found in areas of pure grassland and the 
black-tailed generally found in areas dominated by shrubs (Bednarz 
1977, p. 17; Bednarz and Cook 1984, p. 359-360; Desmond 2004, p. 417).
    The white-sided jackrabbit constructs and uses forms (scrapes or 
depressions in the ground). Forms provide jackrabbits with concealment 
and protection. The form is usually located in clumps of grass and 
surrounded by dense stands of Hilaria mutica (Bednarz 1977, p. 16). 
Daytime observations of white-sided jackrabbits are uncommon, as the 
species is primarily nocturnal (Bednarz 1977, pp. 6-11; Best and Henry 
1993, p. 5). Although many species of jackrabbit and hare are 
considered pests because they may damage crops, fields, and orchards, 
the white-sided jackrabbit is not known to depredate crops.

Five-Factor Evaluation

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations in the Code of federal Regulations (CFR) at 50 CFR 424, set 
forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (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.
    In making this 90-day finding, we evaluated whether information on 
threats to the white-sided jackrabbit, as presented in the petition and 
other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

    The petition asserts that current and historic grazing practices 
and suppression of wildfire threaten the jackrabbit because they have 
led to shrub encroachment into grasslands. The petitioner correctly 
asserts that the jackrabbit is found only in association with well-
developed, high-elevation (greater than 1,460 meters (4,800 feet)) 
Chihuahuan desert grasslands, characterized by flat topography and few 
shrubs and forbs (Bednarz 1977). Moreover, the petitioner claims that 
declines in grassland health, indicated by increases in shrub and forb 
cover, cause populations of white-sided jackrabbit to decrease while 
populations of black-tailed jackrabbit increase. The petitioner states 
that this change in grassland vegetation is especially apparent in the 
Playas Valley, Hidalgo County, where the white-sided jackrabbit may 
have been recently extirpated (Traphagen 2002, pp. 5, 11; NMDGF 2006, 
p. 4). The petitioner indicates that little is known about the specific 
habitat associations of the white-sided jackrabbit in Mexico, but it 
appears to also inhabit high-elevation grassland similar to that used 
by the species in New Mexico.
    The NMDGF's 2006 biennial review of State threatened and endangered 
species identifies the loss and degradation of grassland habitat 
through drought, shrub encroachment, and changes in grass composition 
as the primary threat to the white-sided jackrabbit in New Mexico 
(NMDGF 2006, p. 115). Numerous sources substantiate that past range-
management practices have contributed to the degradation of desert 
grasslands or their conversion to shrublands (National Museum of 
Natural History 2008, p. 1; Bednarz and Cook 1984, p. 360; Desmond 
2004, p. 417; NatureServe 2008, p. 2; USDA Forest Service 2007, p. 15; 
Service 2008, p. 53). Bednarz and Cook (1984, p. 360) postulated that 
numbers of white-sided jackrabbit had decreased in New Mexico as the 
density and vigor of grasses declined, while black-tailed jackrabbits 
and desert cottontail (Sylvilagus audubonii) numbers increased in 
response to an increase in woody shrubs. Desmond (2004, p. 417) 
reported a similar pattern from Chihuahua, Mexico, where she found that 
increased shrub encroachment into grasslands negatively affected 
populations of white-sided jackrabbits (Desmond 2004, p. 417). It is 
likely that the increase in shrub cover has occurred through a 
combination of fire suppression policies, drought, and intense 
livestock grazing during the late 1800s and early 1900s, which were the 
key causes of the replacement of grasslands by shrublands (Malpai 
Borderlands Habitat Conservation Plan Technical Working Group 2008, p. 
18; Traphagen 2002, p. 12).
    Citing Brown (1994), the petition asserts that the primary cause of 
loss and degradation of grasslands in the Chihuahuan Desert is 
overgrazing by cattle. Overgrazed grassland is susceptible to invasion 
by shrubs and forbs, a cover type which greatly favors the black-tailed 
jackrabbit (Baker 1977, pp. 222-223; Bednarz and Cook 1984, pp. 359-
360; Desmond 2004, p. 417; Moore-Craig 1992, p. 13; NMDGF 2006, p. 
115). Areas where white-sided jackrabbits historically or currently 
occur have been continuously grazed for over a century (Traphagen 
2002). We will explore overgrazing more thoroughly in our 12-month 
finding for the jackrabbit.
    The petitioner claims that wildfire suppression is a cause of 
grassland degradation. We have information in our files to substantiate 
that fire exclusion has led to encroachment of shrubs into the 
grassland habitat of the white-sided jackrabbit. For example, Humphrey 
(1958, p. 245) believed fires were the controlling factor that kept 
shrubs from invading the desert grasslands in southeastern Arizona and 
southwestern New Mexico. The Bureau of Land management (BLM) came to a 
similar conclusion for the region of southwestern New Mexico where the 
white-sided jackrabbit historically occurred (BLM 2009, pp. 1-3). 
Alternatively, Valone et al. (2002, p. 563) reported that two fires in 
5 years did not result in high levels of mortality to woody shrubs such 
as Prosopis glandulosa (mesquite) on the Diamond A Ranch, Hidalgo 
County, which is within the range of the jackrabbit. Based on this 
information, we find that the petition and other readily available

[[Page 36156]]

information in our files support the claim that fire exclusion may have 
led to the degradation of grasslands inhabited by the jackrabbit.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We have evaluated the petition and readily available information in 
our files and find substantial information indicating that listing the 
species throughout its range may be warranted due to the present or 
threatened destruction, modification, or curtailment of the habitat or 
range of the white-sided jackrabbit. We find that substantial 
information was presented that shrub encroachment into grassland 
fostered by current and historic grazing practices, drought, and fire 
exclusion may threaten the species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petitioner identifies hunting of the white-sided jackrabbit for 
sport and food as an ongoing threat to the species. The petition 
reports that the species has been commercially hunted in Mexico and is 
considered a non-game species that is hunted in New Mexico, and thus is 
not protected by State game laws. Matson and Baker (1986, p. 41) 
indicated that the species was heavily hunted and considered highly 
edible. Reynolds (1988) also reported that white-sided jackrabbits were 
commonly hunted in some of the grasslands of Mexico. The species was 
historically hunted for commercial markets in Mexico (Leopold 1959, p. 
349). Thus, hunting may have played a role in the decline of the white-
sided jackrabbit in Mexico (Moore-Craig, 1992, p. 13). While all of the 
citations in the petition that document that the species was hunted in 
Mexico are over 20 years old, we do not have information indicating 
that hunting of the jackrabbit in Mexico has ceased. However, 
information in our files indicates that the species is not currently 
hunted in New Mexico. The white-sided jackrabbit is currently protected 
under the New Mexico Wildlife Conservation Act and may not be hunted 
(NMDGF 2008, p. 10). The petitioner does not detail ongoing or future 
impacts to the species from hunting in the United States.
    The petition claims that the white-sided jackrabbit is currently 
subject to animal damage control programs, and cites the NMDGF in 
saying that some white-sided jackrabbits are known to have been killed 
by gunners and trappers. The NMDGF (1985, p. 2) stated that some white-
sided jackrabbits have been lost to ``gunners and trappers,'' but 
provided no further information. This may be referring to Federal or 
State animal damage control agents. We have information in our files 
that the U.S. Department of Agriculture (USDA) reported that 
jackrabbits (Lepus spp.) have been taken in New Mexico as part of their 
animal damage control program (USDA APHIS 1994, Appendix H, pp. 18-19). 
The petitioner does not describe current or future plans for lethal 
control of any white-sided jackrabbits or quantify the amount that may 
have taken place historically through either the USDA or the general 
public. Therefore, neither information in our files nor the literature 
cited by the petition supports the petitioner's claim that the white-
sided jackrabbit is currently subject to animal damage control programs 
by methods such as trapping or shooting, or is likely to be in the 
future.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petition provides substantial information that hunting of the 
white-sided jackrabbit has been, and may continue to be, a threat to 
its populations in Mexico. Therefore, we find that the petition 
presents substantial information indicating that the petitioned action 
may be warranted due to overutilization.

C. Disease or Predation

    The petitioner cites Bednarz (1977) in indicating that a lung 
infection has been observed in white-sided jackrabbits, but no serious 
diseases were noticed. Moore-Craig (1992, p. 11) noted that the 
infections found by Bednarz (1977) were all of a minor nature, and the 
overall health of the jackrabbit population appeared to be fair to 
good. Tularemia, a common disease among black-tailed jackrabbits, has 
not been found in the white-sided jackrabbit (Moore-Craig 1992, p. 11). 
The petition also notes that a wide variety of predators exists in the 
southern Animas Valley, New Mexico. It is likely that predation occurs 
on white-sided jackrabbits, since native predators occur within the 
range of both subspecies. However, the petitioner provided no data to 
support predation as an impact to populations of the jackrabbit.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We have no information in our files indicating that the petitioned 
action may be warranted due to disease or predation. Therefore, we find 
that the petition does not provide substantial information that listing 
the white-sided jackrabbit due to disease or predation may be 
warranted.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petitioner asserts that existing regulatory mechanisms do not 
provide any protections for the species and have been ineffective in 
mitigating many of the threats. The petitioner states that the species' 
ranking in NatureServe is G3 (vulnerable) and its National and State 
Status rankings are N1S1 (critically imperiled). Its status under the 
International Union for Conservation of Nature and Natural Resources is 
near threatened. We reviewed these designations and find the 
petitioner's claims to be accurate. However, these lists are not 
regulatory mechanisms; they serve only to notify the public of the 
species' status; no conservation or management actions are required; no 
regulatory authority for species conservation is established through 
these listings.
    The petitioner states that the Malpai Borderlands Habitat 
Conservation Plan (MBHCP) does not reliably assure protection to the 
jackrabbit on private lands in New Mexico. The apparent basis of this 
position is that the Service willingly issued an incidental take permit 
on private lands to the Malpai Borderlands Group for the MBHCP. The 
petitioner also contends, based upon observed degradation of grassland 
habitat and declines in the jackrabbit population, that the Malpai 
Borderlands Group is not fulfilling its stated mission to restore and 
maintain natural processes that support diverse and flourishing animal 
life in the borderlands region, which includes the Diamond A Ranch in 
southern Hidalgo County, and is within the range of the white-sided 
jackrabbit in the United States. The petition does not provide 
information that documents the extent, magnitude, or immediacy of the 
perceived inadequacies of the MBHCP or how they threaten the white-
sided jackrabbit in New Mexico.
    The white-sided jackrabbit was listed as threatened by the State of 
New Mexico on January 24, 1975. This designation provides the 
protection of the New Mexico Wildlife Conservation Act, which prohibits 
direct take of the species except under issuance of a scientific 
collecting permit. However, this only conveys protection from 
collection or intentional harm.
    Although the State of New Mexico statutes require the NMDGF to 
develop a recovery plan that will restore and maintain habitat for the 
species, the

[[Page 36157]]

species does not have a finalized recovery plan, conservation plan, or 
conservation agreement (NMDGF 2006a, p. 430). As such, existing State 
of New Mexico regulatory mechanisms are currently inadequate to protect 
the jackrabbit. As discussed above under Factor A, we find that the 
petition presents substantial evidence of threats to the species from 
grassland degradation, and we thus find that the petition presents 
substantial evidence that the inadequacy of existing regulatory 
mechanisms to prevent further grassland degradation or to recover 
grasslands may threaten the white-sided jackrabbit as well.
    The white-sided jackrabbit is on the Regional Forester's Sensitive 
Species List for the Coronado National Forest (USDA Forest Service 
2007, p. 15). However, we found no information in our files to 
substantiate that the jackrabbit is present on any public lands in New 
Mexico. Moreover, the petition asserts that the jackrabbit is only 
found on private lands in New Mexico. If the species is found on 
National Forest System lands, the US Forest Service (USFS) is required 
to analyze the impacts any proposed actions may have on the jackrabbit 
in all applicable National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.) documents. On April 21, 2008, a new USFS planning rule 
(73 FR 21468) was made final. The USFS's new planning rule indicated 
that once a USFS land and resource management plan has been revised, 
the sensitive species designation will no longer be needed because 
species of concern (listed, proposed, or candidate species under the 
Act) or species of interest will replace them. Since the occurrence of 
the jackrabbit on the Coronado National Forest is uncertain, the 
petition and information in our files do not contain substantial 
information that the jackrabbit is faced with current and future 
threats on Forest Service lands.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Neither the petition nor our files provide information about 
existing regulatory mechanisms for the species in Mexico, which 
contains the majority of the current range of the white-sided 
jackrabbit. As such, we have no information that the lack of regulatory 
mechanisms in Mexico is affecting the continued existence of the white-
sided jackrabbit. We intend to assess this factor more thoroughly 
during our status review of the species.
    As noted above, the jackrabbit receives no protection from the 
NatureServe or International Union for Conservation of Nature and 
Natural Resources designations, as these lists serve only to notify the 
public of the species' status rather than requiring any conservation or 
management actions; these listings do not impact either adequacy or 
inadequacy of regulatory mechanisms, since they are not regulatory in 
nature.
    The petitioner does provide substantial information that the white-
sided jackrabbit's status as a State-listed threatened species in New 
Mexico confers little regulatory protection (except against direct 
take). Therefore, we find that the petition presents substantial 
information that the petitioned action may be warranted due to the 
inadequacy of existing mechanisms in the United States.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition cites non-point source habitat change as a threat to 
the jackrabbit, suggesting that no single factor (e.g., grazing, fire 
suppression, shifting rainfall patterns, or increased atmospheric 
carbon dioxide levels) has led to the encroachment of shrubs into the 
grasslands. We find the information cited to be generic in nature and 
not specific to the white-sided jackrabbit or its habitat beyond the 
discussion under Factor A above.
    The petitioner states that climate change and drought threaten the 
white-sided jackrabbit under Factor E. The petitioner cites a variety 
of sources in the body of the petition to support the claim regarding 
climate change and drought and their relation to the persistence of the 
jackrabbit, but did not provide any of these to us. Much of this 
information is not readily available to us. There is uncertainty over 
how climate change will affect the jackrabbit and its habitat. The 
petition claims that climate change will likely cause a deterioration 
of grassland habitat in New Mexico and the Chihuahuan Desert region. 
Further, the petitioner asserts that information indicates that the 
impact of drought and climate change have been implicated as 
influencing shrub encroachment into grasslands. Information readily 
available to us supports the petitioner's assertion that climate change 
might contribute to more frequent and intense drought within the U.S. 
and northern Mexico portion of the range of the jackrabbit (Seager et 
al. 2007, pp. 1181-1182). We will review the possible effects of 
climate change on the white-sided jackrabbit more thoroughly in our 
status review.
    The petitioner reports a case of a New Mexico rancher finding 
several dead white-sided jackrabbits while eradicating mustard plants. 
Bednarz (1977) suggests that this mortality may have been caused by the 
jackrabbits' consumption of mustard plants and ensuing nitrate 
poisoning. Consumption of mustard plants is known to cause nitrate 
poisoning in cattle, and Bednarz (1977, p. 18) cites it as likely 
having the same effect on jackrabbits. No other information or support 
was provided by the petition, nor is there any information readily 
available to us that provides substantial information that food 
poisoning threatens the jackrabbit now or in the foreseeable future. 
The potential for jackrabbit mortality due to food poisoning merits 
further investigation during our status review of the species.
    The petition asserts that road-killed white-sided jackrabbits have 
been found in the past. Nevertheless, the petition does not claim this 
is a threat to the species. Moore-Craig (1992, p. 16) found that 
occasionally white-sided jackrabbits are killed by vehicles. Traphagen 
(2009, p. 1) also noted that white-sided jackrabbits have been reported 
road-killed recently, likely from an increased presence of Border 
Patrol vehicles in New Mexico. Bednarz (1977, p. 18) reported that, 
even though fieldworkers were constantly looking for road-killed white-
sided jackrabbits during a study, the species was rarely observed on 
the roads and tended to avoid approaching vehicles. The NMDGF (1997, p. 
4) found that impacts from this type of mortality are unknown, but 
probably do not represent a significant threat to the species. Based on 
this review, the petition and information readily available to us do 
not provide any substantial information to support that vehicle 
collisions represent a threat to the white-sided jackrabbit currently 
or in the foreseeable future.
    The petition notes that Smith (1999, p. 1) observed a white-sided 
jackrabbit's behavior in response to an approaching wildfire, but does 
not claim this is a threat to the species. The petitioner does not 
present specific information that the wildfire Smith (1999) observed 
resulted in losses of the white-sided jackrabbit. We acknowledge that 
the active fire management program in the Malpai Borderlands area may 
affect the white-sided jackrabbit. Effects during fire management may 
include mortality or injury of individuals as a result of direct 
exposure to fire, smoke inhalation, and crushing by the tires or tracks 
of vehicles used in fire management activities (Service 2008, pp. 64-
65). We

[[Page 36158]]

believe that the jackrabbit is capable of surviving such fire effects 
by running away (Service 2008, p. 64). We find prescribed burns may 
also expose white-sided jackrabbits to higher rates of predation, but 
also allow for easier detection of terrestrial predators (Service 2008, 
p. 65). The effects of a prescribed burn would likely be short-term, 
because the fire-adapted grassland community usually responds quickly, 
with plant species showing regrowth within several days post-fire. 
Nevertheless, a reduction of shrubs would benefit the white-sided 
jackrabbit by improving grassland habitat. Although the MBHCP will 
likely result in short-term adverse effects to the jackrabbit, the 
long-term effects will improve the grassland community used by white-
sided jackrabbits by reducing the shrub component, providing additional 
suitable habitat, and improving the area around occupied habitat for 
potential expansion; thus, implementation of the MBHCP, including the 
fire management program, should promote the conservation of the white-
sided jackrabbit. For these reasons, we found no data or substantial 
information to indicate that wildfires or prescribed burns threaten 
white-sided jackrabbits or their habitat.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We reviewed the petition, supporting information, and the 
information readily available to the Service and find the petition does 
not present any additional substantial information that any natural or 
manmade factors other than those discussed above for Factors A, B, and 
D may affect the white-sided jackrabbit's continued existence.

Finding

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our process for making this 90-day finding under section 4(b)(3)(A) 
of the Act is limited to a determination of whether the information in 
the petition presents ``substantial scientific and commercial 
information,'' which is interpreted in our regulations as ``that amount 
of information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)). 
We have reviewed the petition and the available literature cited in the 
petition, and evaluated the information to determine whether the 
sources cited support the claims made in the petition. We also reviewed 
reliable information that was readily available in our files to clarify 
and verify information in the petition. As described in our Five-Factor 
Evaluation, above, the petition presents substantial information 
indicating that listing the white-sided jackrabbit throughout its 
entire range may be warranted based on Factor A (present or threatened 
destruction, modification, or curtailment of the species' habitat or 
range), Factor B (overutilization for commercial, recreational, 
scientific or educational purposes), and Factor D (inadequacy of 
existing regulatory mechanisms). Based on our Five-Factor Evaluation 
(above), the petition does not present substantial information 
indicating that Factor C (disease or predation) or Factor E (other 
natural or manmade factors affecting the species' continued existence) 
is currently, or in the future will be, a threat to the white-sided 
jackrabbit.
    Based on this review and evaluation, we find that the petition has 
presented substantial scientific or commercial information that listing 
the jackrabbit throughout all of its range may be warranted due to 
current and future threats under Factors A, B, and D. We also find that 
the petition presented substantial information that the northern 
populations of the species may be a valid DPS and may warrant listing. 
Therefore, we are initiating a status review to determine whether 
listing the jackrabbit under the Act is warranted. As part of our 
status review, we will examine whether the full species, subspecies, or 
the petitioned northern DPS of the jackrabbit warrants listing under 
the Act. We will issue a 12-month finding as to whether any of the 
petitioned actions is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
regarding the jackrabbit.
    The ``substantial information'' standard for a 90-day finding is in 
contrast to the Act's ``best scientific and commercial data'' standard 
that applies to a 12-month finding as to whether a petitioned action is 
warranted. A 90-day finding is not a status assessment of the species 
and does not constitute a status review under the Act. Our final 
determination as to whether a petitioned action is warranted is not 
made until we have completed a thorough status review of the species, 
which is conducted following a positive 90-day finding. Because the 
Act's standards for 90-day and 12-month findings are different, as 
described above, a positive 90-day finding does not mean that the 12-
month finding also will be positive.
    The petitioner requested that critical habitat be designated for 
this species. If we determine in our 12-month finding that listing the 
jackrabbit is warranted, we will address the designation of critical 
habitat at the time of the proposed rulemaking.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the New Mexico 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the New 
Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

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

    Dated: July 14, 2009.
James J. Slack,
Acting Deputy Director, Fish and Wildlife Service.
[FR Doc. E9-17449 Filed 7-21-09; 8:45 am]
BILLING CODE 4310-55-S