2011 Federal Register, 76 FR 66255; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 207 (Wednesday, October 26, 2011)

[Federal Register Volume 76, Number 207 (Wednesday, October 26, 2011)]
[Proposed Rules]
[Pages 66255-66260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27644]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2011-0066; 92220-1113-0000; ABC Code: C5]

Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition to Delist the Coastal California Gnatcatcher as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to remove the coastal California
gnatcatcher (Polioptila californica californica) as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
Based on our review, we find that the petition does not present
substantial scientific or commercial information to indicate that
delisting the coastal California gnatcatcher may be warranted.
Therefore, we are not initiating a status review in response to this
petition. We also conclude that the coastal California gnatcatcher
constitutes a valid subspecies and are no longer considering whether to
propose its reclassification to a distinct population segment (DPS)
under the Act. We ask the public to submit to us any new information
that becomes available concerning the status of, or threats to, the
coastal California gnatcatcher or its habitat at any time.

DATES: The finding announced in this document was made on October 26,
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2011-0066. Supporting
documentation we used in preparing this finding is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Please submit any
new information, materials, comments, or questions concerning this
finding to the above address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden
Valley Road, Suite 101, Carlsbad, CA 92011, by telephone at 760-431-
9440, or by facsimile to 760-431-9624. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

Section 4(b)(3)(A) of the 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 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)(1)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly conduct a species status review, which we subsequently
summarize in our 12-month finding.

Petition History

We received a petition, dated April 9, 2010, from the Pacific Legal
Foundation (PLF), representing the Coalition of Labor Agriculture, and
Business (COLAB), Property Owners Association of Riverside County, and
M. Lou Marsh, M.D., on April 12, 2010, to remove the coastal California
gnatcatcher from the Federal List of Endangered and Threatened Wildlife
(List) under the Act (PLF 2010, pp. 1-9). The petition clearly
identifies itself as such and included the requisite identification
information for the petitioner(s), as required in 50 CFR 424.14(a).
This finding addresses the petition.

Previous Federal Actions

The coastal California gnatcatcher has been the subject of numerous
Federal Register publications since its inclusion as a category two
candidate species in 1982 (47 FR 58454, December 30, 1982; Service
2010, p. 3) (see http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=B08X). On March 22, 1991, the Service
published a 90-day finding addressing seven petitions to list five
species as threatened or endangered, including three petitions
pertaining to the coastal California gnatcatcher (56 FR 12146), and
concluded that substantial information was presented to indicate that
listing might be warranted. This finding led to the September 17, 1991,
publication of a proposed rule to list the coastal California
gnatcatcher as endangered; the public comment period for this proposed
rule lasted 6 months, until March 16, 1992 (56 FR 47053). The proposed
rule also constituted our 12-month finding, which the proposed rule
referred to as the ``final finding'', on the petition.
On September 22, 1992, the Service reopened the public comment
period on the proposed rule to list the coastal California gnatcatcher
as endangered for an additional 30 days, from September 22, 1992, until
October 22, 1992, and notified the public that we needed extra time to
obtain and review the information regarding the taxonomy of the coastal
California gnatcatcher (57 FR 43686). On March 30, 1993, the Service
published a final rule to list the coastal California gnatcatcher as a
threatened species (58 FR 16742). In that rule, we

[[Page 66256]]

did not designate critical habitat, because we had determined that
designating critical habitat for the gnatcatcher was not prudent.
On March 30, 1993, the same day that the final listing rule
published in the Federal Register, we also published a proposed rule to
adopt a special rule under section 4(d) of the Act (16 U.S.C. 1531 et
seq.) to allow for the take of the coastal California gnatcatcher (58
FR 65088). On December 10, 1993, the Service published in the Federal
Register a final rule adopting the special rule concerning take of the
coastal California gnatcatcher (58 FR 65088). The special rule is
codified in the Code of Federal Regulations (CFR) at 50 CFR 17.41(b).
In a Memorandum Opinion and Order filed in the U.S. District Court
for the District of Columbia on May 2, 1994 (Building Industry
Association of Southern California et al. v. Babbitt), the Court
vacated the listing determination for the coastal California
gnatcatcher, stating the Secretary of the Interior should have made
available the raw data that formed the basis of Dr. Jonathan Atwood's
report (Atwood 1991) that concluded subspecies recognition for the
coastal California gnatcatcher. We subsequently made these data
available to the public for review and comment on June 2, 1994, for a
period of 60 days, until August 1, 1994 (59 FR 28508). On June 16,
1994, the Court reinstated the threatened status for the coastal
California gnatcatcher until the public could review and comment on the
raw data analyzed by Atwood.
Before the comment period for the June 2, 1994, Federal Register
publication ended, we extended that public comment period (59 FR 38426,
July 28, 1994), and we subsequently extended it two more times, on
August 26, 1994 (59 FR 44125), and October 25, 1994 (59 FR 53628).
Therefore, the public comment period on data pertaining to the
subspecific taxonomy of the coastal California gnatcatcher lasted from
June 2, 1994, until December 1, 1994. Further, on December 27, 1994, we
reopened the public comment period on those data for an additional 30
days, until January 26, 1995 (59 FR 66509).
On March 27, 1995, the Service published in the Federal Register
(60 FR 15693) an extensive review of the Atwood data (including
independent scientific analyses of the Atwood data) received during the
public comment periods concerning the subspecies classification of the
coastal California gnatcatcher. We affirmed our earlier determination
that the coastal California gnatcatcher is a valid subspecies (58 FR
16742, March 30, 1993; 58 FR 65088, December 10, 1993) and affirmed the
coastal California gnatcatcher's threatened status under the Act.
On February 8, 1999, the Service published in the Federal Register
(64 FR 5957) a notice of determination that it was prudent to designate
critical habitat for the coastal California gnatcatcher. We
subsequently published a proposed rule to designate critical habitat
for the coastal California gnatcatcher (65 FR 5945; February 7, 2000);
announced a reopening of comment period and availability of a draft
economic analysis for the February 7, 2000, proposed rule (65 FR 40073;
June 29, 2000); and published a final rule designating critical habitat
for the coastal California gnatcatcher (65 FR 63679; October 24, 2000).
In response to a June 11, 2002, court ruling from the U.S. District
Court for the Central District of California (Building Industry
Association of Southern California et al. v. Norton), the Service
published a proposed rule to revise designated critical habitat for the
coastal California gnatcatcher on April 24, 2003 (68 FR 20228). In this
proposed rule, the Service reconsidered the economic impacts associated
with designating any particular area as critical habitat, announced
that we were considering whether the listing of the coastal California
gnatcatcher should be amended as a DPS in light of a study by Zink et
al. (2000) questioning the genetic distinctiveness of the coastal
California gnatcatcher, and opened a 60-day period for public comments
(68 FR 20228). On April 8, 2004, the Service published two documents
related to the coastal California gnatcatcher: The first reopened the
public comment period on the proposed determination of a DPS of the
coastal California gnatcatcher (69 FR 18515), and the second was a
notice of availability of draft economic analysis and a public hearing
on the proposed April 24, 2003, designation of critical habitat (69 FR
18516). The Service published its final rule concerning the revised
designation of critical habitat on December 19, 2007 (72 FR 72009), for
the coastal California gnatcatcher. In that Federal Register
publication, we announced that we were continuing to evaluate whether
the current listing of the coastal California gnatcatcher as a
subspecies under the Act should be retained or changed.
In 2010, we completed a 5-year status review of the coastal
California gnatcatcher (Service 2010, pp. 1-51). After analyzing all
available information, including Zink et al. (2000), we recommended no
change in its threatened status and indicated that we would not pursue
delineation of a DPS for the coastal California gnatcatcher (Service
2010, p. 36; http://ecos.fws.gov/docs/five_year_review/doc3571.pdf).
With a recommendation of no change in threatened status, the coastal
California gnatcatcher maintains its recovery priority number of 9C,
based on the taxon's status as a subspecies facing a high degree of
threat with a low recovery potential.

Species Information

For information on the biology and life history of the coastal
California gnatcatcher, see the 2010 coastal California gnatcatcher 5-
year review (Service 2010, pp. 6-11).

Evaluation of Information for This Finding

Under section 3(16) of the Act, we may consider for listing any
species, including subspecies, of fish, wildlife, or plants, or any DPS
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C.
1532(16)). Such entities are considered eligible for listing under the
Act (and, therefore, are referred to as listable entities), should we
determine that they meet the definition of an endangered or threatened
species.
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations at 50 CFR 424 set forth the procedures for adding a species
to, or removing a species from the List. 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.
We must consider these same five factors in delisting a species. We
may delist a species according to 50 CFR 424.11(d) if the best
available scientific and commercial data indicate that the species is
neither endangered nor threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is no longer endangered or
threatened; or
(3) The original scientific data used at the time the species was
classified were in error.
In making this 90-day finding, we evaluated whether information

[[Page 66257]]

regarding the coastal California gnatcatcher, as presented in the
petition and other information available in our files, is substantial,
thereby indicating that the petitioned action may be warranted. The
petition did not assert that the coastal California gnatcatcher is
extinct, nor do we have information in our files indicating that the
coastal California gnatcatcher is extinct. The petition did not assert
that the coastal California gnatcatcher has recovered and is no longer
endangered or threatened, nor do we have information in our files
indicating the coastal California gnatcatcher has recovered. The
petition also did not contain any information regarding threats to the
coastal California gnatcatcher. We recently completed a 5-year status
review in which we determined that the threats found at the time of
listing remain, and we recommended that the coastal California
gnatcatcher retain its threatened status (Service 2010, pp. 11-35). The
petition asserts that the original scientific data used at the time the
coastal California gnatcatcher was listed as Threatened under the Act
were in error. Our evaluation of the information included with the
petition is presented below.
The petitioners claim the coastal California gnatcatcher is not a
valid subspecies and request we remove the coastal California
gnatcatcher from the List. The petitioners present an unpublished
literature review prepared for the Pacific Legal Foundation by Dr.
Matthew A. Cronin (2009, in litt. pp. 1-18), which reviewed ``* * *
post-listing studies to explain why the subspecies classification for
the California gnatcatcher is no longer tenable'' (PLF 2010, p. 4). The
petition presented two published journal articles, Zink et al. (2000,
pp. 1394-1405) and Skalski et al. (2008, pp. 199-220), supporting three
issues of concern raised by Cronin (2009, in litt. pp. 1-18). The
issues of concern raised by Cronin and stated in the petition are:
(1) ``Zink et al. (2000, pp. 1394-1405) determined that Atwood's
observed morphological characteristic changes are not representative of
genetic differentiation, which differentiation could support a
subspecies classification. The Zink study's conclusion is all the more
significant given that Atwood was a co-author. In their paper, Zink and
Atwood expressly state that P. californica should have no subspecies.
(2) Skalski et al. (2008, pp. 199-220) determined that Atwood's
statistical analyses were seriously flawed because Atwood's supposed
diagnostic characters support a geographic cline, not a distinct break
in character distribution markers, which could support a subspecies
classification.
(3) Skalski et al. (2008, pp. 199-220) determined that Atwood's
data sets were confounded: many of Atwood's specimens may not have been
representative of wild gnatcatchers.''
The first issue presented by the petitioners refers to Zink et al.
(2000, pp. 1394-1405), which asserts that the morphological differences
(i.e., plumage coloration, body size) identified by Atwood (1988, pp.
iii-vii, 1-74; 1991, pp. 118-133) do not represent genetic
differentiation that supports subspecies classification. Zink et al.
(2000, p. 1399) examined variation within the mitochondrial (mt) mtDNA
control region and three mtDNA genes of the coastal California
gnatcatcher and concluded the genetic information does not support
recognition of the coastal California gnatcatcher as a subspecies. Zink
et al. (2000) does not state that Polioptila californica should have no
subspecies, but instead suggests that currently recognized subspecies
may not be equivalent to ecologically significant units.
As a result of uncertainty in the subspecies status of the coastal
California gnatcatcher raised by Zink et al. (2000, pp. 1394-1405), in
2003 and 2004 the Service solicited public comments on a proposed
determination of a DPS for the coastal California gnatcatcher (68 FR
20228; 69 FR 18515). Public comments received in 2004 on this issue
were highly polarized, though most expressed concern with the validity
or usefulness of redefining the coastal California gnatcatcher as a
DPS. Some commenters advocated delisting the coastal California
gnatcatcher and asserted that the application of the DPS policy was
inappropriate. They argued that the information presented by Zink et
al. (2000, pp. 1394-1405) challenging the subspecies classification for
the coastal California gnatcatcher superseded over 100 years of
previously published taxonomic treatments recognizing morphological
distinctiveness to varying degrees within the greater California
gnatcatcher taxon, including (Brewster 1881, p. 103; Brewster 1902, p.
210; Thayer and Bangs 1907, p. 138; Grinnell 1926, p. 496; Grinnell
1928, p. 227; van Rossem 1931, p. 35; Hellmayr 1934, p. 508; AOU 1957,
p. 451; Miller et al. 1957, pp. 204-205; Mayr and Paynter 1964, pp.
449-450; Atwood 1988, p. 61; Atwood 1991, p. 127; Phillips 1991, p. 25;
Mellink and Rea 1994, p. 53; Howell and Webb 1995, p. 578). However,
many public commenters advocated the retention of the coastal
California gnatcatcher as a listed subspecies and questioned if
information from one scientific publication was sufficient to overrule
information from multiple, previously published, scientific papers that
acknowledge the distinctiveness of the coastal California gnatcatcher
and lend support to its retention as a listed subspecies. The Service
also received comments from peer-reviewers, the majority of which
cautioned against putting too much weight on Zink et al.'s (2000)
conclusions and questioned whether the analysis by Zink et al. (2000,
pp. 1394-1405) supported a change of the coastal California
gnatcatcher's subspecific status (2000, pp. 1394-1405).
In 2004, the Service also convened a panel of seven Federal
scientists (five Service biologists not associated with the listing of
the coastal California gnatcatcher, one Smithsonian Institute
biologist, and one National Park Service biologist) to discuss and
evaluate how well scientific evidence supports the following
statements:
(1) The coastal California gnatcatcher (Polioptila californica
californica) is a valid subspecies.
(2) The coastal California gnatcatcher is discrete (substantially
divergent in physical, physiological, ecological, genetic, or
behavioral characters) from other portions of the species.
(3) Loss of the coastal California gnatcatcher would represent a
significant diminution of the species as a whole (in terms of
evolutionary legacy or range of biological characteristics represented
within the species).
(4) The coastal California gnatcatcher is neither a valid
subspecies nor a discrete and significant portion of the species.
(5) The mtDNA evidence presented by Zink et al. (2000) alone
constitutes sufficient information to overturn the existing taxonomy.
Overall, panelists supported retaining the coastal California
gnatcatcher as a subspecies under the Act for reasons including (but
not limited to):
(1) ``There is evidence showing the coastal California gnatcatcher
differs in several morphological characters from gnatcatcher
populations farther south (body plumage color, tail length, amount of
white in tail, and brownish plumage in females). All authorities have
recognized it as a distinct taxon based on its physical appearance
since it was first described. While some doubt has been cast on recent
analyses of morphological data by Atwood (1991), problems with that
analysis do not invalidate previous and subsequent morphological work
(Grinnell 1926, van

[[Page 66258]]

Rossem 1931, Mellink and Rea 1994).'' (VanderWerf, in litt. 2004, p.
1).
(2) Although Zink et al. (2000) concluded that mitochondrial DNA
does not support the existence of a subspecies of Polioptila
californica, ``mtDNA represents only a single genetic marker among many
potential markers that could provide an indication of population
subdivision, subspecies, or local adaptation. Other molecular markers
with higher mutation rates may reveal more recent patterns of
divergence and would be more likely to show population differentiation,
such as nuclear genetic markers, which might be linked to selected
traits and would be expected to evolve more rapidly than mtDNA. None of
these other markers have been investigated'' (VanderWerf, in litt.
2004, pp. 1-2).
(3) ``Phylogenetic reconstructions and taxonomic determinations
should be, and usually are, based on a variety of morphological,
genetic (including nuclear and mtDNA), and behavioral evidence.''
(VanderWerf, in litt. 2004, p. 2).
(4) ``Patterns in mtDNA variations can be extremely variable and
may or may not have anything to do with the patterns seen in nuclear
markers, or with morphological, ecological, physiological, or
behavioral data, and therefore are often not reflective of important
differences between species, subspecies or populations. Patterns of
genetic variation can be totally different from, and uninformative
about, important adaptive differences between taxa (Crandall et al.
2000). Besides the California gnatcatcher, there are many examples in
which mtDNA evidence failed to detect documented differences in
morphology, nuclear DNA and ecological adaptation, including the Common
raven (Omland et al. 2000), Orchard oriole (Baker et al. 2003), Florida
grasshopper sparrow (Bulgin et al. 2003), and Swamp sparrows (Greenberg
et al. 1998).'' (VanderWerf, in litt. 2004, p. 2).
(5) ``The most comprehensive review of available mtDNA data was
conducted by Funk and Omland (2003), who found that 23 percent of 2,319
species showed evidence of paraphyly or polyphyly based on mtDNA
(sharing of mtDNA haplotypes among species), and they concluded that
the causes of this must be understood to avoid erroneous phylogenetic
interpretations.'' (VanderWerf, in litt. 2004, p. 2).
(6) ``Loss of the coastal California gnatcatcher would
substantially decrease the species' range and, since it occurs in a
somewhat different habitat type from other populations, would diminish
the ecological range of characteristics present in the species.
Although the adaptive significance of the morphological differences has
not been investigated, it is possible they represent important
adaptations to the local environment, and that their loss would
diminish the species evolutionary legacy.'' (VanderWerf, in litt. 2004,
pp. 1-2).
(7) ``Zink et al. (2000) provide some interesting information on
the evolutionary history of [gnatcatcher] populations, but the argument
that the California gnatcatcher is not distinct from other populations
is based on a single genetic character, mtDNA, and this is a far too
narrow and limited technique for making determinations of taxonomic
validity. Most features of an organism are determined by multiple
(nuclear) genes, not by mtDNA. Taxonomists and other biologists
interested in evolutionary units cannot ignore available data on other
aspects of the genome and physical and ecological characters (Crandall
et al. 2000). Under the very narrow criterion of Zink et al. (2000) few
subspecies would be valid, and many full species would not be
recognized, despite abundant and definitive data that they are no
longer capable of interbreeding with other species (Avise 2004).''
(VanderWerf, in litt. 2004, pp. 2-3).
The panel concluded that the scientific evidence: (1) Substantially
supports that the coastal California gnatcatcher is a valid subspecies;
(2) substantially supports that the coastal California gnatcatcher is
discrete from other portions of the species; (3) substantially supports
that the loss of the coastal California gnatcatcher would represent a
significant diminution of the species as a whole; (4) offers little
support for the assertion that the coastal California gnatcatcher is
neither a valid subspecies nor a discrete and significant portion of
the species; and (5) displays little support that the mtDNA evidence
presented by Zink et al. (2000, pp. 1394-1405) alone constitutes
sufficient information to overturn the existing taxonomy. The panel
also noted that further decision on the status of the taxon should wait
for analyses of a variety of morphological, genetic (including nuclear
and mtDNA), and behavioral evidence.
In 2005, Edwards et al. (p. 6552) asserted that nuclear genes, not
mtDNA, should have priority in determining avian species delimitation.
Additionally, Haig and Winker (2010, pp. 172, 174) asserted the best
approach for subspecies recognition is to include multiple characters
(mtDNA, nuclear DNA, morphology) and that reliance on a single locus
with unique properties, such as mtDNA, may not accurately reflect the
genetic differences among populations due to random genetic effects
(Funk et al. 2007, pp. 1287-1288).
We acknowledge that the taxonomic classification of the coastal
California gnatcatcher has been the subject of considerable scientific
debate. The Service also addresses the information presented by Zink et
al. (2000) in a recent 5-year review for the coastal California
gnatcatcher (Service 2010, pp. 4-5). Species experts have recognized
the coastal California gnatcatcher as a distinct taxon based on its
physical appearance since it was first described, and the taxon is
recognized as a distinct subspecies by the American Ornithologists
Union (AOU 1957, p. 451). Some doubt has been cast on analyses of
morphological data by Atwood (1991, pp. 118-133) (e.g., Cronin 1997, p.
663), but problems with those analyses do not invalidate previous and
subsequent morphological work (Grinnell 1926, pp. 493-500; van Rossem
1931, pp. 36-37; Phillips 1991, pp. 25-26; Mellink and Rea 1994, pp.
50-62). Analysis by Zink et al. (2000, p. 1402) suggested that the
northern population of California gnatcatchers does not appear to be
unique, and that not all recognized subspecies equate to evolutionary
significant units, although they were unable to expressly state that P.
californica should have no subspecies, as claimed in the petition. We
concluded in our 5-year review (Service 2010, pp. 4-5), that Zink et
al. (2000, pp. 1394-1405) was insufficient to disregard the existing
taxonomic status of the coastal California gnatcatcher and the
information from multiple scientific papers that support subspecies
classification of P.c. cali- fornica. We affirm that conclusion here.
We conclude that the information and analysis in Zink et al. 2000 does
not present substantial information that the current subspecies
taxonomic classification of the coastal California gnatcatcher may be
in error.
The second issue presented by the petitioners refers to Skalski et
al. (2008, pp. 199-220) and the assertion that the statistical analyses
applied to the morphological data (collected by Atwood in determining
the subspecies status of the coastal California gnatcatcher) were not
appropriate statistical techniques for determining subspecific species
classification. The issue Skalski et al. (2008, pp. 199-220) raises
concerns the use of numerous tests of equality of sample means, cluster
analysis, and discriminant analysis (Atwood 1991; Atwood, in litt.
1994; Link and Pendleton, in litt. 1994;

[[Page 66259]]

McDonald et al., in litt. 1994; Messer, in litt. 1994, Newton, in litt.
1994), which supported the subspecies classification. Skalski et al.
(2008, pp. 199-220) assert these analyses are subject to high rates of
false positives (Type I error) and therefore determination of
classification as a subspecies should be based on analyses designed to
detect specific alternative hypotheses, such as step and spline
regression, while being insensitive to the sample location
distributions (Skalski et al. 2008, p. 217).
We examined this paper and determined the statistical analysis
conducted by Skalski et al. (2008, pp. 210-212), a spline regression
model using the log-length of the white spot on the sixth rectrix (tail
feather) of the California gnatcatcher, was a new interpretation of old
data and examined only one character, as an example of the statistical
analysis of the 31 that Atwood (1988, pp. iii-vii, 1-74; 1991, 118-133)
analyzed in his research. Skalski's analysis of this character, in
contrast to Atwood's analysis, did not detect variation in the
character consistent with subspecific designations within the
California gnatcatcher. However, the Service concludes the results of
this restrictive analysis do not present substantial evidence
supporting potential revision of the subspecific taxonomic
classification of the coastal California gnatcatcher. While the issue
of concern raised by Skalski et al. (2008, pp. 199-220) and the
petitioners relates to the validity of the statistical technique used,
and we acknowledge that application of different statistical methods
may yield different conclusions, the study's application of alternative
methods of data analyses is limited. Without further analysis of
additional characters, few conclusions can be made as to the
appropriate taxonomic classification of the coastal California
gnatcatcher. The current information does not provide substantial
information that the current subspecies taxonomic classification of the
coastal California gnatcatcher may be in error.
We previously analyzed the statistical technique utilized to
determine subspecific classification of the coastal California
gnatcatcher and addressed this topic in a publication in the Federal
Register that determined that the conclusions reached by Atwood (1991)
were reasonable and were largely consistent with five other independent
and alternative scientific analyses (Link and Pendleton, in litt. 1994;
Atwood, in litt. 1994; McDonald et al., in litt. 1994; Messer, in litt.
1994, Newton, in litt. 1994) that were received at that time and
support 30[deg] north latitude as the southern subspecific boundary of
P.c. californica (60 FR 15698; March 27, 1995). We continue to agree
that Atwood's conclusions are reasonable because they are based on
scientifically sound methodology that represents the best available
scientific and commercial data available (60 FR 15699; March 27, 1995),
as required in 50 CFR 424.11(d).
The final issue presented by the petitioners also refers to Skalski
et al. (2008, pp. 199-220) and their assertion that ``foxing'' (the
change in feather color associated with time after preparation of the
specimen) of museum specimens might have biased Atwood's original and
subsequent analysis of phenotypic characters, including plumage
brightness (Atwood 1988, pp. iii-vii, 1-74; 1991, 118-133), by
confounding the specimen's year of collection with measures of
brightness of plumage. Significantly, Skalski et al. (2008) did not
reexamine the specimens evaluated by Atwood, but instead constructed
scatterplot diagrams that compared the area of specimen collection
(latitude) with time (year) collected.
Mellink and Rea (1994, pp. 50-62), in their analyses of coastal
California gnatcatcher taxonomy, collected samples from the field and
specimens from museums for comparison of genetic differences. The
petition argues that the study skins analyzed by Mellink and Rea (1994)
were also subject to foxing. However, Mellink and Rea (1994, pp. 52-53)
excluded samples that were worn, damaged, or soiled to eliminate
discrepancies among samples and concluded that within this species,
foxing is ``* * * slight and seems restricted largely to the gray
underparts, with little or no apparent change in brown areas.''
Additionally, as mentioned under the second issue presented by the
petitioners, five independent statistical analyses were conducted and
submitted to the Service, in response to a request for public comment
(59 FR 28508, 59 FR 38426, 59 FR 44125, 59 FR 53628, 59 FR 66509).
These analyses (Link and Pendleton, in litt. 1994; Atwood, in litt.
1994; McDonald et al., in litt. 1994; Messer, in litt. 1994; Newton, in
litt. 1994) as well as Mellink and Rea (1994) were addressed in the
March 27, 1995, Federal Register publication (60 FR 15693) announcing
our determination that the coastal California gnatcatcher is a valid
subspecies and affirming the coastal California gnatcatcher's
threatened status under the Act (60 FR 15695). In that document, we
concluded that there was no justification to support a claim that
Atwood's 1991 data were incomplete, censored, or otherwise inadequate.
Furthermore, we concluded that the analysts of the five independent
reviews of Atwood's 1991 data took adequate care to remove potential
effects of confounding of specimen age and collection area (60 FR
15695; March 27, 1995).
We conclude that the petitioner did not present substantial new
information regarding the subspecific status of the coastal California
gnatcatcher. The genetic information provided in the petition (Zink et
al. 2000) and assertions of improper statistical analyses (Skalski et
al. 2008) have been the focus of several Service (Service 2010) and
independent scientific reviews (Link and Pendleton, in litt. 1994;
Atwood, in litt. 1994; McDonald et al., in litt. 1994; Messer, in litt.
1994; Newton, in litt. 1994; Mellink and Rea 1994; VanderWerf, in litt.
2004) and the Service has concluded that the information is
insufficient to support reclassification (see Service 2010, pp. 1-51).
Issues regarding morphological analyses and specimen quality have also
been considered by the Service and by numerous other taxonomic
examinations, all of which support the subspecific status of the
coastal California gnatcatcher (Grinnell 1926, pp. 493-500; van Rossem
1931, pp. 36-37; Phillips 1991, pp. 25-26; Mellink and Rea 1994, pp.
50-62). We hereby reaffirm our determination and recognition of the
coastal California gnatcatcher as a distinct taxon, at the rank of
subspecies as Polioptila californica californica.

Finding

In summary, the petition does not present substantial information
to support a finding that the removal of the coastal California
gnatcatcher from the List of Endangered and Threatened Wildlife may be
warranted on the ground that the coastal California gnatcatcher is not
a valid subspecies.
The petition presents an unpublished review by Cronin (2009, pp. 1-
18) contending that subspecies classification for the coastal
California gnatcatcher is not reasonable. The review discusses articles
by Skalski et al. (2008, pp. 1394-1405) and Zink et al. (2000), that
provide analyses of Atwood's (1991) data. We previously reviewed
Atwood's data (1988 and 1991) and concluded that Atwood's conclusion
that the coastal California gnatcatcher is a valid subspecies is
adequately supported (60 FR 15693, March 27, 1995). We also convened a
panel of experts in 2004 to consider the Zink et al. (2000) study. The
panel concluded that Zink et al. (2000) offers

[[Page 66260]]

little and insufficient support for reconsidering the coastal
California gnatcatcher's subspecies classification. Our recent status
review also concluded that the coastal California gnatcatcher
represents a valid subspecies (Service 2010, pp. 1-51).
The petitioners also assert that the Service should overturn the
classification of the coastal California gnatcatcher as a subspecies
due to inappropriate techniques used in Atwood's (1991) statistical
analysis of morphological data and present a review and interpretation
of two journal articles in support of their claim. The Service reviewed
the articles and determined that they do not present new information;
instead they consist of an incomplete interpretation of old data.
Moreover, the concerns raised by petitioners regarding ``foxing'' and
the statistical technique utilized to analyze the data, were previously
considered and rejected in our March 27, 1995, Federal Register
publication affirming that the coastal California gnatcatcher meets the
definition of a ``species'' under the Act (60 FR 15693), a Service
status review (Service 2010, pp. 1-51), and a peer-reviewed journal
(Mellink and Rea 1994, pp. 50-62).
Morphological variation within the California gnatcatcher species
has been recognized as an indicator of the distinctiveness of
populations and subspecific groups by numerous biologists,
publications, and the AOU before and after Atwood's conclusion that the
coastal California gnatcatcher is a valid subspecies (Brewster 1881, p.
103; Brewster 1902, p. 210; Thayer and Bangs 1907, p. 138; Grinnell
1926, p. 496; Grinnell 1928, p. 227; van Rossem 1931, p. 35; Hellmayer
1934, p. 508; AOU 1957, p. 451; Miller et al. 1957, pp. 204-205;
Paynter 1964, pp. 449-450; Atwood 1988, p. 61; Atwood 1991, p. 127;
Phillips 1991, p. 25; Mellink and Rea 1994, p. 53; Howell and Webb
1995, p. 578). Thus, we conclude that the best information available
indicates that the coastal California gnatcatcher is a valid subspecies
and that the original scientific data evaluated and methods of analysis
used at the time of listing were not in error as suggested by the
petitioners.
The sole focus of the petition is the contention that the coastal
California gnatcatcher is not a valid subspecies and therefore should
be delisted. Petitioners do not provide any information related to the
other relevant factors that the Service considers when reviewing
proposals to list or delist a species, including the factors provided
under subsection 4(a)(1) of the Act. The information in Service files,
including our recent 5-year review of the species (Service 2010, pp. 1-
51), confirms that threats to the coastal California gnatcatcher
remain.
We have reviewed the petition, as well as the literature cited in
the petition, and we have evaluated that information and information in
our files. Based on this review and evaluation, we find that the
petition does not present substantial scientific or commercial
information to indicate that removal of the coastal California
gnatcatcher from the List may be warranted. Although we will not
commence a status review in response to this petition, we will continue
to monitor the population status and trends of the coastal California
gnatcatcher, potential threats to the coastal California gnatcatcher,
and ongoing management actions that might be important with regard to
the conservation of the coastal California gnatcatcher across its
range.
Because we conclude that the coastal California gnatcatcher is a
valid subspecies under the Act, we are no longer considering whether to
propose its reclassification to a DPS under the Act. This document
reaffirms our recognition of the coastal California gnatcatcher as a
subspecies. We encourage interested parties to continue to gather data
that will assist with the conservation of the subspecies. If you wish
to provide information regarding the coastal California gnatcatcher,
you may submit your information or materials to the Field Supervisor,
Carlsbad Fish and Wildlife Office (see ADDRESSES), at any time.

References Cited

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

Author

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

Authority

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

Dated: October 14, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-27644 Filed 10-25-11; 8:45 am]
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