[Federal Register Volume 87, Number 211 (Wednesday, November 2, 2022)]
[Rules and Regulations]
[Pages 66093-66094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23812]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2022-0134; FF09E21000 FXES1111090FEDR 232]
RIN 1018-BG93
Endangered and Threatened Wildlife and Plants; Possible Effects
of Court Decision on Significant Portion of the Range Analysis for the
Northern Distinct Population Segment of the Southern Subspecies of
Scarlet Macaw
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; notification of additional analysis and request for
comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are seeking
public comment on how recent case law on the Service's significant
portion of the range (SPR) policy and the plain language of the
Endangered Species Act (Act) may affect our February 26, 2019, final
rule designating the northern distinct population segment (DPS) of the
southern subspecies of scarlet macaw (Ara macao macao), as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
DATES: We will accept comments received or postmarked on or before
December 2, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2022-0134,
which is the docket number for this rulemaking. Then, click on the
Search button. You may submit a comment by clicking on ``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-HQ-ES-2022-0134, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Request for Public Comments, below, for more information).
[[Page 66094]]
FOR FURTHER INFORMATION CONTACT: Bridget Fahey, Chief, Division of
Conservation and Classification, Ecological Services Program, U.S. Fish
and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA
22041-3803 (telephone 703-358-2171). Individuals in the United States
who are deaf, deafblind, hard of hearing, or have a speech disability
may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications
relay services. Individuals outside the United States should use the
relay services offered within their country to make international calls
to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
In response to a petition for rulemaking, on July 6, 2012, we
published in the Federal Register (77 FR 40222) a proposed rule to list
as endangered under the Act (16 U.S.C. 1531 et seq.) the northern
subspecies of scarlet macaw (Ara macao cyanoptera) and the northern DPS
of the southern subspecies of scarlet macaw (A. m. macao). That
document also announced our finding that listing the southern DPS of A.
m. macao as endangered or threatened was not warranted.
On April 7, 2016, we published in the Federal Register (81 FR
20302) a revised proposed rule that made changes to the July 6, 2012,
proposed rule. Changes we proposed in the April 7, 2016, revised
proposed rule included, but were not limited to, revising our proposed
listing of the northern DPS of A. m. macao from endangered to
threatened and proposing to treat the southern DPS of A. m. macao and
subspecies crosses (A. m. macao and A. m. cyanoptera) as threatened
based on similarity of appearance. The proposed rule also included a
proposed section 4(d) rule for the northern DPS of A. m. macao,
southern DPS of A. m. macao, and subspecies crosses.
On February 26, 2019, we published in the Federal Register (84 FR
6278) a final rule listing the northern subspecies of scarlet macaw (A.
m. cyanoptera) as endangered, the northern DPS of the southern
subspecies (A. m. macao) as threatened, the southern DPS of the
southern subspecies (A. m. macao) and subspecies crosses (A. m.
cyanoptera and A. m. macao) as threatened due to similarity of
appearance, and finalizing the section 4(d) rule.
In Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69
(D.D.C. Jan. 28, 2020) (CBD v. Everson), the Court vacated the
provision of the ``Policy on Interpretation of the Phrase `Significant
Portion of Its Range' in the ESA's Definitions of Endangered Species
and Threatened Species'' (79 FR 37578; July 1, 2014), issued jointly by
the Service and the National Marine Fisheries Service, which provides
that if the Services determine that a species is threatened throughout
all of its range, the Services will not analyze whether the species is
endangered in a significant portion of its range.
This Action
We are reexamining the SPR analysis for the northern DPS of the
southern subspecies of scarlet macaw (A. m. macao). On August 29, 2022,
the U.S. District Court for the District of Columbia granted our motion
for voluntary remand without vacatur of the threatened finding and
section 4(d) rule for the northern DPS of the southern subspecies of
scarlet macaw (Friends of Animals v. Williams, No. 1:21-cv-02081-RC,
Doc. 22). As submitted to and approved by the Court, we will reconsider
our SPR analysis based on the plain language of the Act and the
implications of CBD v. Everson, and submit our findings to the Federal
Register by March 28, 2023. If the SPR analysis determines that there
are no significant portions of the range for the northern DPS of the
southern subspecies of scarlet macaw, the SPR analysis ends the
process. If the SPR analysis determines that one or more significant
portions of the range exist but do not warrant endangered status, the
SPR analysis ends the process. However, if the SPR analysis finds one
or more significant portions of the range and finds the northern DPS of
the southern subspecies of scarlet macaw should be listed as endangered
instead of threatened, we will submit a proposed rule to the Federal
Register by March 28, 2024, seeking public comment on the proposed
reclassification of the northern DPS of the southern subspecies of
scarlet macaw. Throughout this process, the February 26, 2019, final
rule (84 FR 6278) remains in effect, including with respect to the
threatened listing and section 4(d) rule for the northern DPS of the
southern subspecies of scarlet macaw.
Request for Public Comments
We invite written comments on the manner in which the plain
language of the Act and CBD v. Everson decision may affect our February
26, 2019, final rule designating the northern DPS of the southern
subspecies of scarlet macaw (A. m. macao) as a threatened species.
Specifically, we are interested in public input on whether and how the
CBD v. Everson opinion affects the SPR analysis in the threatened
determination.
We request comments from any interested party that pertain to the
issues raised in the preceding paragraph only.
Public Availability of Comments
If you submit a comment via https://www.regulations.gov, your
entire comment--including any personal identifying information--will be
posted on the website. If you submit a hardcopy comment that includes
personal identifying information, you may request that we withhold this
information from public review, but we cannot guarantee that we will be
able to do so. We will post all hardcopy comments on https://www.regulations.gov. Comments and materials we receive will be
available for public inspection at https://www.regulations.gov.
Author
The primary authors of this announcement are the staff members of
the U.S. Fish and Wildlife Service's Branch of Delisting and Foreign
Species.
Authority
This document is published under the authority of the Endangered
Species Act, as amended (16 U.S.C. 1531 et seq.).
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-23812 Filed 11-1-22; 8:45 am]
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