Daily Rules, Proposed Rules, and Notices of the Federal Government
Overall, this CNOR recognizes 1 new candidate, changes the LPN for 11 candidates, and removes 2 species from candidate status. Combined with other decisions for individual species that were published separately from this CNOR in the past year, the current number of species that are candidates for listing is 251.
This document also includes our findings on resubmitted petitions and describes our progress in revising the Lists of Endangered and Threatened Wildlife and Plants during the period September 30, 2007, through September 30, 2008.
We request additional status information that may be available for the 251 candidate species identified in this CNOR.
We request additional status information that may be available for any of the candidate species identified in this CNOR. We will consider this information in preparing listing documents and future revisions to the notice of review, as it will help us in monitoring changes in the status of candidate species and in management for conserving them. We also request information on additional species to consider including as candidates as we prepare future updates of this notice.
You may submit your information concerning this notice in general or for any of the species included in this notice by one of the methods listed in the
Species-specific information and materials we receive will be available for public inspection by appointment, during normal business hours, at the appropriate Regional Office listed below in
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531
We maintain this list of candidates for a variety of reasons: to notify the public that these species are facing threats to their survival; to provide advance knowledge of potential listings that could affect decisions of environmental planners and developers; to provide information that may stimulate and guide conservation efforts that will remove or reduce threats to these species and possibly make listing unnecessary; to solicit input from interested parties to help us identify those candidate species that may not require protection under the Act or additional species that may require the
We have been publishing candidate notices of review (CNOR) since 1975. The most recent CNOR (prior to this CNOR) was published on December 6, 2007 (72 FR 69033). CNORs published since 1994 are available on our Internet website,
On September 21, 1983, we published guidance for assigning an LPN for each candidate species (48 FR 43098). Using this guidance, we assign each candidate an LPN of 1 to 12, depending on the magnitude of threats, immediacy of threats, and taxonomic status; the lower the LPN, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). Such a priority ranking guidance system is required under section 4(h)(3) of the Act (15 U.S.C. 1533(h)(3)). As explained below, in using this system we first categorize based on the magnitude of the threat(s), then by the immediacy of the threat(s), and finally by taxonomic status.
Under this priority ranking system, magnitude of threat can be either “high” or “moderate to low.” This criterion helps ensure that the species facing the greatest threats to their continued existence receive the highest listing priority. It is important to recognize that all candidate species face threats to their continued existence, so the magnitude of threats is in relative terms. When evaluating the magnitude of the threat(s) facing the species, we consider information such as: the number of populations and/or extent of range of the species affected by the threat(s); the biological significance of the affected population(s), taking into consideration the life history characteristics of the species and its current abundance and distribution; whether the threats affect the species in only a portion of its range, and if so the likelihood of persistence of the species in the unaffected portions; and whether the effects are likely to be permanent.
As used in our priority ranking system, immediacy of threat is categorized as either “imminent” or “nonimminent” and is not a measure of how quickly the species is likely to become extinct if the threats are not addressed; rather, immediacy is based on when the threats will begin. If a threat is currently occurring or likely to occur in the very near future, we classify the threat as imminent. Determining the immediacy of threats helps ensure that species facing actual, identifiable threats are given priority for listing proposals over those for which threats are only potential or species that are intrinsically vulnerable to certain types of threats but are not known to be presently facing such threats.
Our priority ranking system has three categories for taxonomic status: species that are the sole members of a genus; full species (in a genus that has more than one species); and subspecies, distinct population segments of vertebrate species, and species for which listing is appropriate in a significant portion of their range rather than their entire range.
The result of the ranking system is that we assign each candidate a listing priority number of 1 to 12. For example, if the threat(s) is of high magnitude, with immediacy classified as imminent, the listable entity is assigned an LPN of 1, 2, or 3 based on its taxonomic status (e.g., a species that is the only member of a genus would be assigned to the LPN 1 category, a full species to LPN 2, and a subspecies, DPS, or a species for which listing is appropriate in a significant portion of its range would be assigned to LPN 3). In summary, the LPN ranking system provides a basis for making decisions about the relative priority for preparing a proposed rule to list a given species. No matter which LPN we assign to a species, each species included in this notice as a candidate is one for which we have sufficient information to prepare a proposed rule to list it because it is in danger of extinction or likely to become endangered within the foreseeable future throughout all or a significant portion of its range.
For more information on the process and standards used in assigning LPNs, a copy of the guidance is available on our website at:
This revised notice supersedes all previous animal, plant, and combined candidate notices of review.
Since publication of the CNOR on December 6, 2007 (72 FR 69033), we reviewed the available information on candidate species to ensure that a proposed listing is justified for each species, and reevaluated the relative LPN assigned to each species. We also evaluated the need to emergency-list any of these species, particularly species with high priorities (i.e., species with LPNs of 1, 2, or 3). This review and reevaluation ensures that we focus conservation efforts on those species at greatest risk first.
In addition to reviewing candidate species since publication of the last CNOR, we have worked on numerous findings in response to petitions to list species, and on proposed and final determinations for rules to list species under the Act. Some of these findings and determinations have been completed and published in the
Based on our review of the best available scientific and commercial information, with this CNOR we identify 1 new candidate species (see
Table 2 lists the changes from the previous CNOR, and includes three species identified in the previous CNOR as either proposed for listing or classified as candidates that are no longer in those categories. This includes one species for which we published a final rule to list, plus the two species that we have determined do not warrant preparation of a rule to propose listing and therefore have been removed from candidate status in this CNOR.
Below we present a brief summary of one new plant candidate,
Gunnison's prairie dog (
Northern Mexican gartersnake (
Jollyville Plateau salamander (
Rio Grande cutthroat trout (
We reviewed the LPN for all candidate species and are changing the numbers for the following species discussed below. Some of the changes reflect actual changes in either the magnitude or imminence of the threats. In one case, the LPN change reflects a change in the taxonomy of the species. For some species, the LPN change reflects efforts to ensure national consistency as well as closer adherence to the 1983 guidelines in assigning these numbers, rather than an actual change in the nature of the threats.
Gunnison's prairie dog (
Red knot (
The Delaware Bay area (in Delaware and New Jersey) is the largest known spring migration stopover area, with far fewer migrants congregating elsewhere along the Atlantic coast. The concentration in the Delaware Bay area occurs from the middle of May to early June, corresponding to the spawning season of horseshoe crabs. The knots feed on horseshoe crab eggs, rebuilding energy reserves needed to complete migrations to the Arctic and arrive on the breeding grounds in good condition. In the past, horseshoe crab eggs at Delaware Bay were so numerous that a knot could eat enough in two to three weeks to double its weight.
Surveys at wintering areas and at Delaware Bay during spring migration indicate a substantial decline in the red knot in recent years. At the Delaware
The primary factor threatening the red knot is destruction and modification of its habitat, particularly the reduction in key food resources resulting from reductions in horseshoe crabs, which are harvested primarily for use as bait and secondarily to support a biomedical industry. Commercial harvest increased substantially in the 1990s. Since 1999, a series of timing restrictions and substantially lower harvest quotas have been adopted by the Atlantic States Marine Fisheries Commission (ASMFC), as well as New Jersey and Delaware. In May 2006, the ASMFC adopted restrictions effective from October 1, 2006, to September 30, 2008, including a prohibition on harvest and landing of horseshoe crabs in New Jersey and Delaware from January 1 through June 7, harvest of males only from June 8 through December 31, and harvest limited to no more than 100,000 horseshoe crabs per state per year. The ASMFC also adopted other restrictions applicable to Maryland and Virginia. New Jersey established regulations in 2006 which superseded ASMFC restrictions; resulting in a moratorium on all horseshoe crab harvest in New Jersey from May 15, 2006 through June 7, 2008. In March 2008, New Jersey passed legislation imposing an open-ended moratorium on horseshoe crab harvest or landing within the State until such time as the red knot has fully recovered. In February 2007, Delaware imposed a 2-year moratorium, effective January 1, 2007, on harvest of horseshoe crabs within Delaware lands or waters. In June 2007, following litigation by two businesses involved in the harvesting and sale of horseshoe crabs, Delaware's moratorium was overturned. Consequently Delaware developed regulations allowing for a male-only horseshoe crab harvest, consistent with restrictions adopted by ASMFC. The reductions in commercial harvest since 1999 are substantial: 726,660 horseshoe crab landings for bait were reported in 1999 in Delaware and New Jersey, compared to 173,177 in 2004 and a preliminary 2007 report of 76,663 crabs landed for bait in Delaware and no horseshoe crabs landed in New Jersey as a result of the State-imposed harvest moratorium. However, we do not know whether horseshoe crab populations will rebuild or how long a lag time there may be in increased availability of eggs, as the species needs 8-10 years to reach sexual maturity, and other key information for estimating population response is lacking. A survey in Delaware Bay showed horseshoe crab spawning activity was stable or slightly declining from 1999 to 2004. Updated spawning information following implementation of additional harvest restrictions shows that female horseshoe crab spawning activity in Delaware Bay has been stable for the overall period of 1999 to 2007 and male horseshoe crab spawning increased during that period. Thus, despite additional harvest regulations, numbers of spawning females have not yet shown an increase.
The numbers of red knots at key wintering areas in South America remained relatively steady from 2005 to 2007, giving optimism that the declining trend may have ceased or slowed. In 2008, however, counts of red knots within principal wintering areas showed an all-time low of only 14,800 red knots. Counts of red knots within the principal wintering areas in Chile and Argentina declined by nearly 75 percent from 1985 to 2007 and declined by an additional 15 percent in the past year (2007 to 2008). Thus, in recent years the number of knots in these survey areas has been much lower than in the past and the trend in the abundance is not improving despite a nearly tenfold reduction in horseshoe crab landings since the late 1990s.
Other identified threat factors include habitat destruction due to beach erosion and various shoreline protection and stabilization projects that are affecting areas used by migrating knots for foraging, the inadequacy of existing regulatory mechanisms, human disturbance, and competition with other species for limited food resources. Also, the concentration of red knots in the Delaware Bay areas and at a relatively small number of wintering areas makes the species vulnerable to potential large-scale events in those areas such as oil spills or severe weather in those areas. Overall, we conclude that the threats, in particular the modification of habitat through harvesting of horseshoe crabs, severe enough that it puts the viability of the knot at substantial risk and is therefore of a high magnitude. The threats are currently occurring, and therefore imminent because of continuing suppressed horseshoe-crab-egg forage conditions for red knot within the Delaware Bay stopover. To help ensure consistency in the application of our listing priority process, we changed the LPN from a 6 to a 3 for this subspecies because threats are imminent.
Lesser prairie-chicken (Tympanuchus pallidicinctus) - The following summary is based on information contained in our files and the petition received on October 5, 1995. Additional information can be found in the 12-month finding published on June 7, 1998 (63 FR 31400). This species occurs in Colorado, Kansas, New Mexico, Oklahoma, and Texas. Biologists estimate that the occupied range has declined by 92 percent since the 1800s.
The most serious threat to the lesser prairie-chicken is the present and threatened destruction, modification, and curtailment of its habitat and range. This includes loss of habitat from conversion of native rangelands to introduced forages and cultivation; conversion of suitable restored habitat in the Conservation Reserve Program (CRP) to cropland; cumulative habitat degradation caused by severe grazing; and energy development, including wind, oil, and gas development. The magnitude of threats to the species from wind energy development and conversion of CRP lands to croplands has increased recently, both in terms of ongoing activity and potential activity expected in the next few years. Additional threats are woody plant invasion of open prairies due to fire suppression, herbicide use (including resumption of herbicide use in shinnery oak habitat), and habitat fragmentation caused by structural and transportation developments. Many of these threats may exacerbate the normal effects of periodic drought on lesser- prairie-chicken populations. In many cases, the remaining suitable habitat has become fragmented by the spatial arrangement of these various activities. The increasing level of habitat fragmentation means that (1) some of the remaining habitat patches may become smaller than necessary to meet the requirements of individuals and populations; (2) necessary habitat heterogeneity may be lost to areas of homogeneous habitat structure; (3) areas between habitat patches may harbor higher levels of
Georgetown salamander (
Primary threats to this species are degradation of water quality due to expanding urbanization. Increased impervious cover by development increases the quantity and velocity of runoff that leads to erosion and greater pollution transport. Pollutants and contaminants that enter the Edwards Aquifer are discharged from spring outlets in salamander habitat and have serious morphological and physiological effects to the species. The Texas Commission on Environmental Quality (TCEQ) adopted the Edwards Rules in 1995 and 1997, which require a number of water-quality-protection measures for new development occurring in the recharge and contributing zones of the Edwards Aquifer. New developments are still obligated to comply with regulations that were applicable at the time when project applications for development were first filed. However, Chapter 245 of the Texas Local Government Code permits “grandfathering” of state regulations. Grandfathering allows developments to be exempted from any new local or state requirements for water-quality controls and impervious-cover limits if the developments were planned prior to the implementation of such regulations. As a result of the grandfathering law, very few developments have followed these ordinances. In addition, it is significant that even if they were followed with every new development, these ordinances do not span the entire watershed for the Edwards Aquifer. The TCEQ has developed voluntary water quality protection measures for development in the Edwards Aquifer region of Texas; however, it is unknown if these measures will be implemented throughout a large portion of the watershed or if they will be effective in maintaining or improving water quality.
Development occurring outside the TCEQ's jurisdiction can have negative consequences on water quality and thus affect the species. Water-quality impacts threaten the continued existence of the Georgetown salamander by altering physical aquatic habitats and the food sources of the salamander. The threats are imminent because urbanization is ongoing, and continues to expand over the Northern Segment of the Edwards Aquifer. However, Williamson County and the Williamson County Conservation Fund are currently actively working to protect habitat and acquire land within the contributing watershed for the Georgetown salamander. Also, they are planning to conduct monitoring and data-collecting activities in an effort that is expected to lead to the development of a conservation strategy for this species. Although this species still meets our definition of a candidate, these conservation actions reduce the magnitude of the threat to the Georgetown salamander to a moderate level by reducing the amount of development occurring in the portion of the watershed that affects the species. Thus, we have changed the LPN from a 2 to an 8 for this species.
Headwater chub (
Headwater chub are threatened by introductions of nonnative fish that prey on them and/or compete with them for food. These nonnative fish are difficult to eliminate and, therefore, pose an ongoing threat. Habitat destruction and modification has occurred and continues to occur as a result of dewatering, impoundment, channelization, and channel changes caused by alteration of riparian vegetation and watershed degradation from mining, grazing, roads, water pollution, urban and suburban development, groundwater pumping, and other human actions. Existing regulatory mechanisms do not appear to be adequate for addressing the impact of nonnative fish and also have not removed or eliminated the threats that continue to be posed in relation to habitat destruction or modification. The fragmented nature and rarity of existing populations makes them vulnerable to other natural or manmade factors, such as drought and wildfire.
The Arizona Game and Fish Department has created the Arizona Statewide Conservation Agreement for Roundtail Chub (
Texas hornshell (
The primary threats to this species are habitat alterations such as stream bank channelization, impoundments, and diversions for agriculture and flood control; contamination of water by oil and gas activity; alterations in the natural riverine hydrology; and increased sedimentation from prolonged overgrazing and loss of native vegetation. Although riverine habitats throughout the species' known occupied range are under constant threat from these ongoing or potential activities, numerous conservation actions to benefit the species are underway in New Mexico, including the completion of a state recovery plan for the species and the drafting of a Candidate Conservation Agreement with Assurances, and are beginning in Texas. We changed the LPN from a 2 to an 8 based on our conclusion that these conservation actions have reduced the magnitude of threats from high to moderate. This change in the magnitude of threat is due to the discovery of previously unknown locations where the species persists, as well as the implementation of recovery planning and conservation actions that are underway in New Mexico, and are beginning in Texas. The threats are still occurring, and thus remain imminent.
Slabside pearlymussel (
Habitat destruction and alteration (e.g., impoundments, sedimentation, and pollutants) are the chief factors contributing to the decline of this species, which has been extirpated from numerous regional streams and is no longer found in Kentucky. The slabside pearlymussel was historically known from at least 32 streams, but is currently restricted to no more than 10 isolated stream segments. Current status information for most of the 10 populations deemed to be extant is available from recent periodic sampling efforts (sometimes annually) and other field studies. Comprehensive surveys have taken place in the Middle and North Forks Holston River, Paint Rock River, and Duck River in the past several years. Based on recent information, the overall population of the slabside pearlymussel is declining rangewide. Of the five streams in which the species remains in good numbers (e.g., Clinch, North and Middle Forks Holston, Paint Rock, Duck Rivers), the Middle and upper North Fork Holston Rivers have undergone drastic recent declines, while the Clinch population has been in a longer-term decline. Most of the remaining five populations (e.g., Powell River, Big Moccasin Creek, Hiwassee River, Elk River, Bear Creek) have doubtful viability, and several if not all of them may be on the verge of extirpation.
The threats remain high in magnitude, since all populations of this species are severely affected in numerous ways (impoundments, sedimentation, small population size, isolation of populations, gravel mining, municipal pollutants, agricultural runoff, nutrient enrichment, and coal processing pollution) which result in mortality and/or reduced reproductive output. Since the threats are ongoing, they are imminent. Therefore, to help ensure consistency in the application of our listing priority process, we changed the LPN from a 5 to a 2 because the threats are imminent and high in magnitude.
Fat-whorled pondsnail (
Elongate mud meadows springsnail (
The species and its habitat are threatened by recreational use in the areas where it occurs, as well as by the ongoing impacts of past water diversions and livestock grazing and current off-highway vehicle travel. Conservation measures implemented recently by the Bureau of Land Management include the installation of fencing to exclude livestock, wild horses, burros and other large mammals; closing of access roads to spring, riparian, and wetland areas and the limiting of vehicles to designated routes; the establishment of a designated campground away from the habitats of sensitive species; the installation of educational signage; and increased staff presence, including law enforcement and a volunteer site steward during the 6-month period of peak visitor use. These conservation measures have reduced the magnitude of threats to the
Mardon skipper (
The Mardon skipper spends its entire life cycle in one location, often on the same grassland patch. The dispersal ability of Mardon skipper is restricted. Threats to the Mardon skipper include direct impacts to individuals and local populations by off-road vehicle use, livestock grazing, and pesticide drift. Habitat destruction or modification through conifer encroachment, invasive nonnative plants, roadside maintenance, and grassland/meadow management activities such as prescribed burning and mowing are also threats. However, these threats have been substantially reduced due to protections provided by State and Federal special status species programs. The magnitude of the threats is moderate because current regulatory mechanisms associated with State and Federal special status species programs afford a relatively high level of protection from additional habitat loss or destruction across most of the species' range. Threats are imminent because all sites within the species' range currently have one or more identified threats that are resulting in direct impacts to individuals within the populations, or a gradual loss or degradation of the species' habitats. Mardon skippers face a variety of threats that may occur at any time at any of the locations. Low numbers of individuals have been found at most of the known locations. Only a few locations are known to harbor greater than 100 individuals, and specific locations could easily be lost by changes in vegetation composition or from the threat of wildfire. The great distances between the known locations for the species would not allow for dispersal of the species between populations; thus, loss of any population could lead to extirpation of the species at any of these locations. However, the discovery of new populations and the wide geographic range for the Mardon skipper provides a buffer against threats that could destroy all existing habitat simultaneously or jeopardize the continued existence of the species.
Since the threats are ongoing, they are imminent. Therefore, to help ensure consistency in the application of our listing priority process, we changed the LPN to reflect the fact that the threats are imminent. At the same time, for the reasons described above, the threats are now moderate in magnitude. Therefore, we changed the listing priority number from a 5 to an 8 for the Mardon skipper.
Coral Pink Sand Dunes tiger beetle (
The beetle's habitat is being adversely affected by ongoing, recreational off-road vehicle use that is destroying and degrading the beetle's habitat, especially the interdunal swales used by the larvae. The continued survival of the beetle depends on the preservation of its habitat. The two agencies that manage the dunes field, the Utah Department of Parks and Recreation and the Bureau of Land Management, have restricted recreational off-road vehicle use in some areas, which reduces impacts. However, the protected areas may not be of sufficient size to enable the population to increase in size, and off-road vehicle use continues outside of the protected areas. Ongoing monitoring and research has documented that conservation measures have failed to lessen population declines. The beetle's population is also vulnerable to over-collecting by professional and hobby tiger beetle collectors. The taxon was previously recognized as a full species, resulting in a change in the listing priority from a 9 to an 8, based on imminent threats of a low to moderate magnitude. The magnitude of the threat from off-road vehicle use is now high, since this threat results in direct mortality to adult beetles, reduces available prey, and disturbs and desiccates the microhabitat of the larvae, and in tandem with drought, continues to cause steady declines in the tiger beetle population. The threats continue to be ongoing and are, therefore, imminent. Therefore, we changed the LPN from an 8 to a 2.
Churchill Narrows buckwheat (
Field surveys during 2005 have shown that the habitat of nearly all the 15 known occurrences of
As summarized below, we have evaluated the threats to the following two species and considered factors that, individually and in combination, currently or potentially could pose a risk to these species and their habitat. After a review of the best available
Ogden mountainsnail (formerly considered to be
Indigofera trita subsp.
Although threats remain in Florida, the Florida indigo is now considered to be a taxon that is widely distributed. We are not aware of threats elsewhere in its considerable range; the species does not warrant listing throughout its entire range. We have analyzed whether the Florida population is a significant portion of the range. Based on our evaluation of this population's low level of contribution toward the resiliency, redundancy, and representation of the species as a whole, we conclude that the Florida population of the Florida indigo is not a significant portion of the range. Based on findings and analysis in our updated assessment, we conclude that listing this species under the Endangered Species Act is not warranted throughout all or a significant portion of its range. The species no longer meets our definition of a candidate, and we have removed it from candidate status.
The Act provides two mechanisms for considering species for listing. One method allows the Secretary, on his own initiative, to identify species for listing under the standards of section 4(a)(1). We implement this through the candidate program, discussed above. The second method for listing a species provides a mechanism for the public to petition us to add a species to the Lists. Under section 4(b)(3)(A), when we receive such a petition, we must determine within 90 days, to the maximum extent practicable, whether the petition presents substantial information that listing may be warranted (a “90-day finding”). If we make a positive 90-day finding, we must promptly commence a status review of the species under section 4(b)(3)(A); we must then make and publish one of three possible findings within 12 months of the receipt of the petition (a “12-month finding”):
1. The petitioned action is not warranted;
2. The petitioned action is warranted (in which case we are required to promptly publish a proposed regulation to implement the petitioned action; once we publish a proposed rule for a species, section 4(b)(5) and 4(b)(6) govern further procedures regardless of whether we issued the proposal in response to a petition); or
3. The petitioned action is warranted but (a) the immediate proposal of a regulation and final promulgation of regulation implementing the petitioned action is precluded by pending proposals, and (b) expeditious progress is being made to add qualified species to the lists of endangered or threatened species. (We refer to this as a “warranted-but-precluded finding.”)
Section 4(b)(3)(C) of the Act requires that when we make a warranted-but-precluded finding on a petition, we are to treat such a petition as one that is resubmitted on the date of such a finding. Thus, we are required to publish new 12-month findings on these “resubmitted” petitions on an annual basis.
On December 5, 1996, we made a final decision to redefine “candidate species” to mean those species for which the Service has on file sufficient information on biological vulnerability and threat(s) to support issuance of a proposed rule to list, but for which issuance of the proposed rule is
This publication provides notice of substantial 90-day findings and the warranted-but-precluded 12-month findings pursuant to section 4(b)(3) for candidate species listed on Table 1 that we identified on our own initiative, and that subsequently have been the subject of a petition to list. Even though all candidate species identified through our own initiative already have received the equivalent of substantial 90-day and warranted-but-precluded 12-month findings, we reviewed the status of the newly petitioned candidate species and through this CNOR are publishing specific section 4(b)(3) findings (i.e., substantial 90-day and warranted-but-precluded 12-month findings) in response to the petitions to list these candidate species. We publish these findings as part of the first CNOR following receipt of the petition.
Pursuant to section 4(b)(3)(C)(i) of the Act, once a petition is filed regarding a candidate species, we must make a 12-month petition finding in compliance with section 4(b)(3)(B) of the Act at least once a year, until we publish a proposal to list the species or make a final not-warranted finding. We make these annual findings for petitioned candidate species through the CNOR.
Section 4(b)(3)(C)(iii) of the Act requires us to “implement a system to monitor effectively the status of all species” for which we have made a warranted-but-precluded 12-month finding, and to “make prompt use of the [emergency listing] authority [under section 4(b)(7)] to prevent a significant risk to the well being of any such species.” The CNOR plays a crucial role in the monitoring system that we have implemented for all candidate species by providing notice that we are actively seeking information regarding the status of those species. We review all new information on candidate species as it becomes available, prepare an annual species assessment form that reflects monitoring results and other new information, and identify any species for which emergency listing may be appropriate. If we determine that emergency listing is appropriate for any candidate, whether it was identified through our own initiative or through the petition process, we will make prompt use of the emergency listing authority under section 4(b)(7). We have been reviewing and will continue to review, at least annually, the status of every candidate, whether or not we have received a petition to list it. Thus, the CNOR and accompanying species assessment forms also constitute the Service's annual finding on the status of petitioned species pursuant to section 4(b)(3)(C)(i).
On June 20, 2001, the United States Court of Appeals for the Ninth Circuit held that the 1999 CNOR (64 FR 57534; October 25, 1999) did not demonstrate that we fulfilled the second component of the warranted-but-precluded 12-month petition findings for the Gila chub and Chiracahua leopard frog (
On June 21, 2004, the United States District Court for Oregon agreed that we can use the CNOR as a vehicle for making petition findings and that our reasoning for why listing is precluded does not need to be based on an assessment at a regional level (as opposed to a national level) (
On June 22, 2004, in a similar case, the United States District Court for the Eastern District of California also concluded that our determination of preclusion may appropriately be based on a national analysis (
On March 24, 2005, the United States District Court for the District of Columbia held that we may not consider critical habitat activities in justifying our inability to list candidate species, requiring that we justify both our preclusion findings and our demonstration of expeditious progress by reference to listing proceedings for unlisted species (
In this CNOR we continue to incorporate information that addresses the courts' concerns. We include a description of the reasons why the listing of every petitioned candidate species is both warranted and precluded at this time. We make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis (see below). Regional priorities can also be discerned from Table 1, which includes the lead region and the LPN for each species. Our preclusion determinations are further based upon our budget for listing activities for unlisted species, and we explain the priority system and why the work we have accomplished does preclude action on listing candidate species.
Pursuant to section 4(b)(3)(C)(ii) and the Administrative Procedure Act (5 U.S.C. 551
Nothing in this document or any of our policies should be construed as in any way modifying the Act's requirement that we make a resubmitted 12-month petition finding for each petitioned candidate within 1 year of the date of publication of this CNOR. If we fail to make any such finding on a timely basis, whether through publication of a new CNOR or some