Rule2023-20291
Endangered and Threatened Wildlife and Plants; Technical Corrections for Eight Species of Endangered and Threatened Fish and Wildlife
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 20, 2023
Effective
December 19, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), correct the information provided in the "Where listed" column of the List of Endangered and Threatened Wildlife (List) for eight species listed as endangered species under the Endangered Species Act of 1973, as amended (Act). Errors introduced into the List may be interpreted as indicating that only some populations of these species are listed. We are correcting the List to clarify that protections apply to these species wherever found.
Full Text
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<title>Federal Register, Volume 88 Issue 181 (Wednesday, September 20, 2023)</title>
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[Federal Register Volume 88, Number 181 (Wednesday, September 20, 2023)]
[Rules and Regulations]
[Pages 64824-64831]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20291]
[[Page 64824]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2023-0027; FXES1113090FEDR-234-FF09E22000]
RIN 1018-BA54
Endangered and Threatened Wildlife and Plants; Technical
Corrections for Eight Species of Endangered and Threatened Fish and
Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Direct final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), correct the
information provided in the ``Where listed'' column of the List of
Endangered and Threatened Wildlife (List) for eight species listed as
endangered species under the Endangered Species Act of 1973, as amended
(Act). Errors introduced into the List may be interpreted as indicating
that only some populations of these species are listed. We are
correcting the List to clarify that protections apply to these species
wherever found.
DATES: This rule is effective December 19, 2023 without further action,
unless significant adverse comment is received by October 20, 2023. If
significant adverse comment is received, we will publish a timely
withdrawal of the applicable portions of this rule in the Federal
Register.
ADDRESSES: You may submit comments by one of the following methods:
<bullet> Electronically: Go to the Federal eRulemaking Portal:
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-HQ-ES-2023-
0027, which is the docket number for this rulemaking. Then, click the
Search button. In the Search panel on the left side of the screen,
under the Document Type heading, click on the box next to Rule to
locate this document. You may submit a comment by clicking on
``Comment.''
<bullet> By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-HQ-ES-2023-0027, U.S. Fish and
Wildlife Service, MS: PRB (JAO/3W); 5275 Leesburg Pike, Falls Church,
VA 22041-3803.
See Public Comments under SUPPLEMENTARY INFORMATION for more
information about submitting comments.
FOR FURTHER INFORMATION CONTACT: Elizabeth Maclin, Chief, Division of
Restoration and Recovery, U.S. Fish and Wildlife Service, Ecological
Services, MS:ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803;
telephone 703-358-2646. 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. For information on a particular
species, contact the appropriate person listed in table 1 under
SUPPLEMENTARY INFORMATION, below.
SUPPLEMENTARY INFORMATION:
Purpose of Direct Final Rule and Next Steps
The purpose of this direct final rule is to revise the List to
reflect the correct geographical scope of the listing of eight
endangered wildlife species under section 4 of the Act (16 U.S.C. 1531
et seq.). The List is set forth in title 50 of the Code of Federal
Regulations (CFR) at Sec. 17.11(h) (50 CFR 17.11(h)). Table 1 shows
the species for which we are correcting the information provided in the
``Where listed'' column of the List, as well as the name, telephone
number, and U.S. mail address of the person to contact for additional
information on a particular species.
Table 1--Species With Corrected Entries and Contact Information
----------------------------------------------------------------------------------------------------------------
Contact person's U.S.
Common name Scientific name Contact person, phone mail address
----------------------------------------------------------------------------------------------------------------
Margay............................... Leopardus (=Felis) Rachel London, Branch U.S. Fish and Wildlife
wiedii. Chief, 703-358-2491. Service, 5275 Leesburg
Pike, Falls Church, VA
22041.
Condor, California................... Gymnogyps californianus Ashleigh Blackford, Pacific Southwest
California Condor Regional Office, 2800
Coordinator, 916-414- Cottage Way,
6464. Sacramento, CA 95825.
Kite, Everglade snail................ Rostrhamus sociabilis Victoria Garcia, 772- Vero Beach Fish and
plumbeus. 562-3909. Wildlife Office, 1339
20th Street, Vero
Beach, FL 32960-3559.
Parrot, thick-billed................. Rhynchopsitta Heather Whitlaw, Field Arizona Ecological
pachyrhyncha. Supervisor, 602-242- Services Office, 9828
0210. North 31st Avenue,
#C3, Phoenix, AZ 85051-
2517.
Rail, light-footed Ridgway's......... Rallus obsoletus Lauren Kershek and Carlsbad Fish and
levipes. Sandra Hamilton, 760- Wildlife Office, 2177
431-9440. Salk Avenue, Suite
250, Carlsbad, CA
92008.
Rail, Yuma Ridgway's................. Rallus obsoletus Heather Whitlaw, Field Arizona Ecological
yumanensis. Supervisor, 602-242- Services Office, 9828
0210. North 31st Avenue,
#C3, Phoenix, AZ 85051-
2517.
Topminnow, Gila...................... Poeciliopsis Heather Whitlaw, Field Arizona Ecological
occidentalis. Supervisor, 602-242- Services Office, 9828
0210. North 31st Avenue,
#C3, Phoenix, AZ 85051-
2517.
Skipper, Carson wandering............ Pseudocopaeodes eunus Lara Enders, 775-861- Reno Fish and Wildlife
obscurus. 6300. Office, 1340 Financial
Boulevard, Suite 234,
Reno, NV 89502-7147.
----------------------------------------------------------------------------------------------------------------
We are publishing this rule without a prior proposal because this
is a noncontroversial action that, in the best interest of the public,
should be undertaken as quickly as possible. This rule will be
effective, as published in this document, on the effective date
specified above in DATES, unless we receive significant adverse
comments on or before the comment due date specified above in DATES.
Significant adverse comments are comments that provide strong
justification as to why our rule should not be adopted or why it should
be changed.
If we receive significant adverse comments, we will publish a
document in the Federal Register withdrawing this rule for the species
in question before the effective date, and we will
[[Page 64825]]
determine whether to engage in the normal rulemaking process to
promulgate changes to 50 CFR 17.11(h) for that species.
Public Comments
You may submit your comments and materials regarding this direct
final rule by one of the methods listed in ADDRESSES. Please include
sufficient information with your comments that allows us to verify any
scientific or commercial information you include. We will not consider
comments sent by email or fax, or to an address not listed in
ADDRESSES. We will not consider hand-delivered comments that we do not
receive, or mailed comments that are not postmarked, by the date
specified in DATES.
We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us. Before including your address, phone number, email address, or
other personal information in your comment, you should be aware that
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask us in
your comment to withhold your personal identifying information from
public review, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we use in preparing this direct final rule, will be
available for public inspection on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or by appointment, during normal business hours at
the U.S. Fish and Wildlife Service. Please note that comments posted to
<a href="https://www.regulations.gov">https://www.regulations.gov</a> are not immediately viewable. When you
submit a comment, the system receives it immediately. However, the
comment will not be publicly viewable until we post it, which might not
occur until several days after submission. Information regarding this
rule is available in alternative formats upon request (see FOR FURTHER
INFORMATION CONTACT).
Background for the Current List
In accordance with 50 CFR 17.11(a), the ``Common name,''
``Scientific name,'' ``Where listed,'' and ``Status'' columns of the
List provide regulatory information; together, they identify listed
wildlife species within the meaning of the Act and describe where they
are protected. Under 50 CFR 17.11(d), the ``Where listed'' column sets
forth the geographic area where the species is listed for purposes of
the Act. Except when providing a geographic description of a distinct
population segment (DPS) of vertebrate fish or wildlife, an
evolutionary significant unit of salmon stock, or an experimental
population designation, ``Wherever found'' is used to indicate that the
Act's protections apply to all individuals of the species, wherever
found. If only specific populations of the species are included in the
listed entity, then those populations are specifically described in the
``Where listed'' column and the name of the population listed is
included in brackets in the ``Common name'' column.
We note that in 2016 we revised the format of the List at 50 CFR
17.11(h) and the List of Endangered and Threatened Plants at 50 CFR
17.12(h) (2016 revision; 81 FR 51550, August 4, 2016). Among other
things, the 2016 revision changed the former column heading of
``Vertebrate population where threatened or endangered'' to ``Where
listed.'' Information in this column for non-DPS listings was changed
from ``Entire'' (or ``do'' for ``ditto'') to ``Wherever found.'' The
2016 revision revised this column heading and its information to
reflect their meaning and usage more accurately, but also to provide
equivalent information and have the same regulatory effect. For a
detailed description of the changes to the format of the Lists, see the
2016 revision.
In this rule, discussion of entries in the List prior to the 2016
revision may reference the column headings and information of the
previous format. The columns ``Where listed'' and ``Vertebrate
population where endangered or threatened,'' and the information
``Wherever found'' and ``Entire'' (or ``do''), are synonymous.
Background for the Corrections in This Direct Final Rule
The Service has identified several species that appear in the List
as if they are listed under the Act as a DPS even though we listed them
as endangered species in their entirety. Information in the ``Where
listed'' column in the List erroneously describes these species as
population listings. Review of the listing histories of these species
indicates that they are protected in their entirety despite their
appearance in the List as DPS listings that protect only certain
populations of the taxonomic species or subspecies. These species are
the Mexican grizzly bear (Ursus arctos), northern swift fox (Vulpes
velox hebes), margay (Leopardus wiedii), California condor (Gymnogyps
californianus), Everglade snail kite (Rostrhamus sociabilis plumbeus),
thick-billed parrot (Rhynchopsitta pachyrhyncha), light-footed
Ridgway's rail (Rallus obsoletus levipes), Yuma Ridgway's rail (Rallus
obsoletus yumanensis), Gila topminnow (Poeciliopsis occidentalis), and
Carson wandering skipper (Pseudocopaeodes eunus obscurus).
In this direct final rule, we are correcting the entries for 8 of
these 10 species. We are correcting the List at 50 CFR 17.11(h) by
revising the information in the ``Where listed'' column to ``Wherever
found'' for margay, California condor, Everglade snail kite, thick-
billed parrot, light-footed Ridgway's rail, Yuma Ridgway's rail, Gila
topminnow, and Carson wandering skipper. This action is based on a
review of changes to the List made in the 1980s that erroneously
altered the listed ranges for these species from ``Entire'' (equivalent
to ``Wherever found'' in the 2016 revision) to geographically defined
DPS listings.
We are not correcting the entries for Mexican grizzly bear (Ursus
arctos) and northern swift fox (Vulpes velox hebes) at this time
because we believe they may no longer be valid taxonomic subspecies
and, therefore, may warrant delisting as a result. Because removal of
Mexican grizzly bear and northern swift fox from the List would require
publication of a proposed rule and request for public comment, it would
be inappropriate to include those actions in this administrative direct
final rule, which merely corrects errors without changing the listed
entities or their statuses. Therefore, we will not correct the entries
for Mexican grizzly bear and northern swift fox pending further review
of their appropriate listing statuses.
Below, we explain the nature and information known about the errors
we are correcting in this document.
Pre-Act Listings
Prior to the Act, two statutes allowed listing of, and certain
protections for, endangered species. In 1966, the Endangered Species
Preservation Act (ESPA; Pub. L. 89-669, October 15, 1966) provided for
the listing of species of native fish and wildlife found to be
threatened with extinction (see section 1(c), 80 Stat. 926 (1966)). In
1969, the ESPA was amended and renamed the Endangered Species
Conservation Act (ESCA; Pub. L. 91-135, December 5, 1969). The ESCA
retained, without change, the ESPA's standard for listing native
species found to be threatened with extinction. In addition, section
3(a) of the ESCA called for the Secretary to list species or subspecies
of fish or wildlife deemed to be threatened with worldwide extinction
(see Pub. L. 91-
[[Page 64826]]
135, section 3(a), 83 Stat. 275 (1969)). The new standard for listing
foreign species was codified separately from the standard for listing
native species.
Five species (California condor, Everglade snail kite, light-footed
Ridgway's rail, Yuma Ridgway's rail, and Gila topminnow) were all
listed as endangered native wildlife under the ESPA (32 FR 4001, March
11, 1967; 34 FR 5034, March 8, 1969). These five species listed under
the ESPA were transferred to the new list of endangered native fish and
wildlife promulgated under the ESCA (35 FR 16047; October 13, 1970). On
June 2, 1970, we published a final rule adding the Mexican grizzly
bear, northern swift fox, and thick-billed parrot to the list of
endangered foreign fish and wildlife under the ESCA (35 FR 8491), and
we added the margay on March 30, 1972 (37 FR 6476).
The Service's new regulations implementing the ESCA explained, in
particular for species listed under the new authority, that the entire
species or subspecies was protected under the ESCA. For foreign species
listings, the definition of ``Endangered Species List'' explained that
it included species or subspecies of fish and wildlife found in other
countries that are threatened with worldwide extinction (see Sec.
17.2(g) in 35 FR 8491, June 2, 1970). The foreign species list included
geographic descriptions for each species in a ``Where found'' column,
but the introduction also explained that this information was a general
guide to the native countries or regions where the named animals are
found. It was not intended to be definitive. For domestic listings, the
definition of ``Native Endangered Species List'' explained that it
included species or subspecies of fish and wildlife native to the
United States that are threatened with extinction (see Sec. 17.2(h) in
35 FR 8491, June 2, 1970).
Listings Under the Endangered Species Act of 1973, as Amended
On December 28, 1973, the current Act (16 U.S.C. 1531 et seq.) was
enacted and repealed the ESCA. However, section 4(c)(3) of the Act
provided that any list of endangered species issued under the ESCA was
to be republished, without public hearing or comment, as the initial
list of species under the Act (Pub. L. 93-205, section 4(c)(3), 87
Stat. 884, 888 (1973)). (Section 4(c)(3) was repealed in a subsequent
amendment of the Act because it had no legal effect once the earlier
lists had been republished.) Thus, those species previously listed
under the ESPA or ESCA were automatically provided protection under the
newly enacted Endangered Species Act. Accordingly, these species were
transferred to the lists of endangered species published pursuant to
the Act, with the Service originally keeping separate lists for native
and foreign species (see the 1974 issue of the CFR at 50 CFR 17.11
(Endangered foreign wildlife) and 50 CFR 17.12 (Endangered native
wildlife)).
One of the major changes between the Act and the prior ESPA and
ESCA was that it provided the legal authority for population-based
listings. Similar to the ESPA and the ESCA, the Act provided for the
listing of species (or subspecies), but the new definition of
``species'' included any subspecies of fish or wildlife or plants and
any other group of fish or wildlife of the same species or smaller taxa
in common spatial arrangement that interbreed when mature (Pub. L. 93-
205, section 3(11), 87 Stat. 884, 886 (1973)). (This definition was
amended in 1978 to the current statutory language in which species
includes any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.) The original lists under the Act did not
accommodate this option, with the native endangered species list
containing only the scientific and common names of each protected
species. The foreign endangered species list continued to include a
``Where found'' column, now with the further clarification that the
information provided there was for the convenience of the public, was
not exhaustive, was not required to be given by law, and had no legal
significance (see 39 FR 1158, January 4, 1974, p. 1171).
Consistent with the new listing option under the Act, the first
unified list of native and foreign wildlife contained a new column,
``Population'', to provide for population-based listings (see 40 FR
44412; September 26, 1975). In the September 26, 1975, rule, at 50 CFR
17.11(b), the regulations explained that the columns entitled ``Common
name'', ``Scientific name'', and ``Population'' defined the ``species''
of wildlife within the meaning of the Act. Thus, for example, in that
rule, the ``Population'' column indicated that the grizzly bear was
listed only in the ``USA (48 conterminous States).'' The ``Population''
column read ``N/A'' (for ``not applicable'') for the Mexican grizzly
bear, northern swift fox, margay, California condor, Everglade snail
kite, thick-billed parrot, light-footed Ridgway's rail, Yuma Ridgway's
rail, and Gila topminnow, indicating that these were not population-
based listings and each species was listed in its entirety. The
September 26, 1975, rule, at 50 CFR 17.11(b), noted that the
prohibitions of the Act and regulations apply to all specimens of the
``species'' listed, wherever they are found, and to their progeny. The
September 26, 1975, rule also established a new column, ``Known
Distribution,'' with countries or geographic regions included for each
listed species similar to the previous ``Where found'' column; however,
the rule explained at 50 CFR 17.11(d) that this column was for
informational purposes only and did not imply any limitation on the
application of the prohibitions in the Act and 50 CFR part 17.
It is clear, therefore, that all of these listed species were
originally listed in their entirety. All were originally listed as
endangered under either the ESPA or the ESCA, statutes that did not
provide the legal authority for population-based listings. The ESCA and
the Service's regulations implementing the statute made it clear,
especially for species listed under the ESCA, that listed species were
those threatened with worldwide extinction. When the Act was enacted in
1973 (with its authority for population-based listings), the Service's
first regulations to accommodate population-based listings (through the
addition of the ``Population'' column to the List) indicated that the
listing of these species was not based on the authority for population-
based listings (through the use of ``N/A,'' or not applicable, in the
``Population'' column). The CFR continued to reflect that all these
species were listed in their entirety for a number of years. In 1980,
the Service adopted the organization of the List (see the 1980 edition
of the CFR at 50 CFR 17.11(h)) that immediately preceded the current
format adopted in 2016. The ``Population'' column was removed and a new
column--``Vertebrate population where endangered or threatened''--
indicated whether a species was listed in its entirety or whether it
was a DPS listing.
For six of these species, the Mexican grizzly bear, California
condor, Everglade snail kite, light-footed Ridgway's rail, Yuma
Ridgway's rail, and Gila topminnow, the 1980 list indicated that all
six of the species at issue here were listed in their entirety (i.e.,
the word ``Entire'' appears for each one in the ``Vertebrate population
where endangered or threatened'' column of the List) (see the 1980
edition of the CFR at 50 CFR 17.11(h)). Then in the mid-1980s, the
information in the ``Vertebrate population where endangered or
threatened'' column was
[[Page 64827]]
inadvertently changed from ``Entire'' (or its equivalent of ``do'' for
``ditto'') for each of the six species to new information that
indicated geographically limited listings. The only manner in which the
scope of a listed entity (a taxonomic species, subspecies, or DPS) can
be changed is through the rulemaking procedures specified in section
553 of the Administrative Procedure Act (APA; 5 U.S.C. 551 et seq.) and
section 4(b)(4) of the Act, and those procedures were never undertaken
for these six species.
On July 25, 1979, we published in the Federal Register (44 FR
43705) a ``notification'' document announcing that for seven listed
species, including the northern swift fox, margay, and thick-billed
parrot, with the consolidation of the ``foreign'' and ``native''
species lists under the Act, the native populations of these species
were not listed as endangered, although the foreign populations were
listed and received all the protections of the Act. The document stated
that the ESCA requires consultation with States prior to listing native
species as endangered, and for the seven species, the Service had
failed to consult with the governors of the States with U.S.
populations of these species; therefore, the Service concluded that the
U.S. populations were not listed under the Act. That July 25, 1979,
document went on to say that it has always been the intent of the
Service that all populations of those species deserve to be listed as
endangered, whether they occur in the United States or in foreign
countries; that the status of these native populations is truly
endangered; and that it is only as a result of an oversight that the
native populations of these species are currently excluded from the
protections of the Act.
No rulemakings to change the scope of the northern swift fox,
margay, or thick-billed parrot listings that meet the requirements of
section 4(b)(5) and 4(b)(6) of the Act were ever promulgated, yet on
May 20, 1980, we published a final rule (45 FR 33768) that republished
the Lists, and in that rule, the entries for northern swift fox,
margay, and thick-billed parrot were amended to indicate that only
populations of the species outside the United States were listed under
the Act. Specifically, the northern swift fox appeared as a DPS listing
in ``Canada,'' the margay appeared as a DPS listing in ``Mexico
southward,'' and the thick-billed parrot appeared as a DPS listing in
``Mexico.'' The entries for the other four species addressed in the
July 25, 1979, ``notification'' document (44 FR 43705) have already
been corrected in other rulemakings and are therefore not addressed
further in this document.
In an April 30, 2009, memorandum from the Assistant Solicitor for
Fish and Wildlife to the Director of the Fish and Wildlife Service, the
Solicitor's Office explained that these species are listed in their
entirety despite their appearance as DPS listings in the List at 50 CFR
17.11(h) (DOI 2009). As explained in the 2009 memorandum, the Service
did not have the legal authority to change the scope of the listed
entity through a Federal Register notice. The memo advised us that,
without going through the proper rulemaking procedures required under
section 553 of the APA and section 4(b)(4) of the Act, the Service had
no authority to simply remove the U.S. populations of the northern
swift fox, margay, and thick-billed parrot, along with the other
species, from their protected status under the Act. As a result, the
Solicitor's Office instructed us that the July 25, 1979,
``notification'' document (44 FR 43705) was without legal effect, and
no other rulemakings consistent with the Act's requirements occurred to
change the listings from the species or subspecies level to DPSs.
Furthermore, we were advised that failure to consult with a State
under the ESCA did not invalidate the species' legal status under the
Act. In fact, in 1973, Congress validated the lists under the ESCA by
its explicit incorporation of them into the Act through section 4(c)(3)
of the Act. Also, for species where there were no populations within
the United States at the time of the listing, there were no States with
which to consult. This may have been the case with at least two of the
species at issue here. For example, the last verified report of the
thick-billed parrot in the United States was in the 1930s, decades
before it was listed as endangered under the ESCA (see 45 FR 49844,
July 25, 1980). The margay was known in the United States from a single
specimen taken in Texas, and by 1980, there were almost certainly no
resident populations in the United States (see 45 FR 49844, July 25,
1980).
The 2009 memorandum concluded that the changes to the CFR in the
1980s, indicating that only a particular DPS of each of these species
is endangered while the remainder of the species is not protected under
the Act, are without legal effect because the Service had no authority
to change the scope of the listed entity without following the
rulemaking procedures required by section 553 of the APA and section
4(b)(4) of the Act. Therefore, these species continue to be listed in
their entirety despite their appearance as DPS listings in the CFR. As
such, we are correcting the List to read ``Wherever found'' in the
``Where listed'' column for the following species: margay, Everglade
snail kite, thick-billed parrot, light-footed Ridgway's rail, Yuma
Ridgway's rail, and Gila topminnow. Likewise, we are correcting the
information in the ``Where listed'' column of the California condor's
entry to read, ``Wherever found, except where listed as an experimental
population.'' (As noted above, we are not correcting the entries for
Mexican grizzly bear and northern swift fox at this time due to the
likelihood that they are not valid subspecies.)
The final species with an erroneous entry is the Carson wandering
skipper, a subspecies of butterfly, which incorrectly appears as a DPS
listing despite being listed in its entirety. The Service listed the
Carson wandering skipper as an endangered species on August 7, 2002 (67
FR 51116). The final rule amended the List to indicate ``U.S.A.,
(Lassen County, CA; Washoe County, NV)'' in the ``Vertebrate population
where endangered or threatened'' column. However, the Service intended
to list the subspecies in its entirety. The rulemaking analyzed the
status of the species rangewide and did not include a DPS analysis. In
addition, the locations included in the ``Vertebrate population where
endangered or threatened'' column encompassed the entire known range of
the species at the time of its listing.
The Service also lacks the legal authority to list a DPS of this or
any invertebrate subspecies. The Act's section 4(a)(1) authorizes the
Service to determine whether any species is an endangered species or a
threatened species. The term ``species,'' as defined in the Act (see
section 3(16)), includes any distinct population segment of any species
of vertebrate fish or wildlife which interbreeds when mature. Distinct
population segments of invertebrate wildlife do not fall within the
Act's definition of ``species.'' Accordingly, DPSs of invertebrate
wildlife cannot be included on the List. Instead, when the Service
determines that a species of invertebrate wildlife is endangered or
threatened, the species may only be listed in its entirety.
Because the rulemaking analyzed the species in its entirety and the
Service was without legal authority to list a subspecies of butterfly
as a DPS, the subspecies is in fact listed in its entirety despite its
appearance as a DPS listing in the CFR. Therefore, we are correcting
the List by replacing ``U.S.A., (Lassen County, CA; Washoe County,
NV)'' with
[[Page 64828]]
``Wherever found'' in the ``Where listed'' column in the entry for the
Carson wandering skipper.
Correction of Listed Range
The table below summarizes information regarding the entries in the
List at 50 CFR 17.11(h) for each of the species, followed by a
narrative description of the changes being made to the entries. Please
note that we do not include a narrative description for the Carson
wandering skipper, as that description is provided above.
Table 2--List of Corrections
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date of incorporated Current ``where Corrected ``where
Species Scientific name Original listing error listed'' information listed'' information
--------------------------------------------------------------------------------------------------------------------------------------------------------
Margay............................. Leopardus (=Felis) 37 FR 6476; 3/30/1972. 5/20/1980 (45 FR Mexico southward..... Wherever found.
wiedii. 33768).
California condor.................. Gymnogyps 32 FR 4001; 3/11/1967. 1987 (1987 edition of U.S.A. only, except Wherever found,
californianus. CFR). where listed as an except where listed
experimental as an experimental
population. population.
Everglade snail kite............... Rostrhamus sociabilis 32 FR 4001; 3/11/1967. 1986 (1986 edition of U.S.A. (FL).......... Wherever found.
plumbeus. CFR).
Thick-billed parrot................ Rhynchopsitta 35 FR 8491; 6/2/1970.. 5/20/1980 (45 FR Mexico............... Wherever found.
pachyrhyncha. 33768).
Light-footed Ridgway's rail........ Rallus obsoletus 34 FR 5034; 3/8/1969.. 1988 (1988 edition of U.S.A. only.......... Wherever found.
levipes. CFR).
Yuma Ridgway's rail................ Rallus obsoletus 32 FR 4001; 3/11/1967. 1988 (1988 edition of U.S.A. only.......... Wherever found.
yumanensis. CFR).
Gila topminnow..................... Poeciliopsis 32 FR 4001; 3/11/1967. 1988 (1988 edition of U.S.A. only.......... Wherever found.
occidentalis. CFR).
Carson wandering skipper........... Pseudocopaeodes eunus 67 FR 51116; 8/7/2002. 8/7/2002 (67 FR U.S.A., (Lassen Wherever found.
obscurus. 51116). County, CA; Washoe
County, NV).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Corrected Species Where Listed
Margay (Leopardus (=Felis) Wiedii)
The margay was originally listed as endangered under the ESCA of
1969 (37 FR 6476; March 30, 1972). Currently, the information in the
``Where listed'' column for this species reads, ``Mexico southward.''
As explained above, this current information erroneously indicates that
protections are afforded only to a subset of the species as a DPS. We
are correcting the margay's entry in the List at 50 CFR 17.11(h) so
that the information in the ``Where listed'' column reads, ``Wherever
found.'' This correction reflects the intent of the original listing
that the species, not a DPS, is in danger of extinction and that
protections of the Act extend to all individuals of the species
wherever found. Currently, the species is known to occur in Mexico and
southward in Central and South America. There is a single record of a
specimen taken in United States in Texas, and it is believed that there
are no resident margay populations in the United States. Regardless,
because the species is listed in its entirety and protections of the
Act extend to all individuals of the species wherever found, any
individual of the species found in the United States would be afforded
the full protections of the Act. This correction does not change the
description, distribution, or endangered status of the margay.
California Condor (Gymnogyps Californianus)
The California condor was originally listed as endangered under the
ESPA of 1966 (32 FR 4001; March 11, 1967). In 1996, a nonessential
experimental population of condors was established in Arizona, and
special regulations pursuant to that rulemaking apply to the population
of California condors found in parts of Arizona, Utah, and Nevada (61
FR 54044; October 16, 1996). Subsequently, another nonessential
experimental population of condors was established in the Pacific
Northwest, and special regulations pursuant to that rulemaking apply to
the population of California condors found in Oregon, and specific
portions of northern California and northwest Nevada (86 FR 15602;
March 24, 2021).
Currently, in the California condor's first (original) entry on the
List, the information in the ``Where listed'' column reads, ``U.S.A.
only, except where listed as an experimental population.'' As explained
above, this current information erroneously indicates that protections
are afforded only to a subset of the species as a DPS. We are
correcting that entry's ``Where listed'' information to read,
``Wherever found, except where listed as an experimental population.''
This correction reflects the intent of the original listing that the
species, not a DPS, is in danger of extinction and that protections of
the Act extend to all individuals of the species wherever found, except
as modified by the current nonessential experimental population
designations and their associated rules. Currently, the species is
known to occur in the United States in California, northern Arizona,
southern Utah, Nevada, and Oregon. This correction does not change the
description, distribution, or endangered status of the California
condor.
In addition, in the California condor's first (original) entry on
the List, in the ``Listing citations and applicable rules'' column, we
are removing the Federal Register citation for the rule establishing
the nonessential experimental population of condors in Arizona. The
subject rule will continue to be cited under the appropriate entry in
the List. This correction ensures consistency in our presentation of
citations in the List.
Everglade Snail Kite (Rostrhamus Sociabilis Plumbeus)
The Everglade snail kite was originally listed as endangered under
the ESPA of 1966 (32 FR 4001; March 11, 1967). Currently, the
information in the ``Where listed'' column for this subspecies reads,
``U.S.A. (FL).'' As explained above, this current information
erroneously indicates that protections are afforded only to a subset of
the subspecies as a DPS. We are correcting the Everglade snail kite's
entry in the List at 50 CFR 17.11(h) so that the information in the
``Where listed'' column reads, ``Wherever found.'' This correction
reflects the intent of the original listing that the subspecies, not a
DPS, is in danger of extinction and that protections of the Act extend
to all individuals of the subspecies wherever found. Currently, the
subspecies is known to occur in the United States in Florida and in
Cuba. This correction does not change the
[[Page 64829]]
description, distribution, or endangered status of the Everglade snail
kite.
In addition, we are making a nonsubstantive correction to the
information in the ``Common name'' column of the Everglade snail kite's
entry to present the standard usage.
Thick-Billed Parrot (Rhynchopsitta Pachyrhyncha)
The thick-billed parrot was originally listed as endangered under
the ESCA of 1969 (35 FR 8491; June 2, 1970). Currently, the information
in the ``Where listed'' column for this species reads, ``Mexico.'' As
explained above, this current information erroneously indicates that
protections are afforded only to a subset of the species as a DPS. We
are correcting the thick-billed parrot's entry in the List at 50 CFR
17.11(h) so that the information in the ``Where listed'' column reads,
``Wherever found.'' This correction reflects the intent of the original
listing that the species, not a DPS, is in danger of extinction and
that protections of the Act extend to all individuals of the species
wherever found. Currently, the species is known to occur primarily in
Mexico. Historically the thick-billed parrot's range extended as far
north as the mountains of southeastern Arizona and possibly
southwestern New Mexico, but whether the species ever bred historically
in the United States has not been confirmed. The last confirmed
sighting of a naturally occurring flock in the United States was in
1938, in the Chiricahua Mountains of Arizona. However, should
individuals of the species be found in the United States in the future,
pursuant to the original listing, they will be afforded the full
protections of the Act. This correction does not change the
description, distribution, or endangered status of the thick-billed
parrot.
Light-Footed Ridgway's Rail (Rallus Obsoletus Levipes)
The light-footed Ridgway's rail was originally listed as endangered
under the ESPA of 1966 (34 FR 5034; March 8, 1969). The species name on
the List was recently revised to reflect the current scientifically
accepted taxonomy and nomenclature (88 FR 49314; July 31, 2023).
Currently, the information in the ``Where listed'' column for this
subspecies reads, ``U.S.A. only.'' As explained above, this current
information erroneously indicates that protections are afforded only to
a subset of the subspecies as a DPS. We are correcting the light-footed
Ridgway's rail's entry in the List at 50 CFR 17.11(h) so that the
information in the ``Where listed'' column reads, ``Wherever found.''
This correction reflects the intent of the original listing that the
subspecies, not a DPS, is in danger of extinction and that protections
of the Act extend to all individuals of the subspecies wherever found.
Currently, the subspecies is known to occur in the United States in
California and in Mexico in Baja California. This correction does not
change the description, distribution, or endangered status of the
light-footed Ridgway's rail.
Yuma Ridgway's Rail (Rallus Obsoletus Yumanensis)
The Yuma Ridgway's rail was originally listed as endangered under
the ESPA of 1966 (32 FR 4001; March 11, 1967). Currently the
information in the ``Where listed'' column for this subspecies reads,
``U.S.A. only.'' As explained above, this current information
erroneously indicates that protections are afforded only to a subset of
the subspecies as a DPS. We are correcting the Yuma Ridgway's rail's
entry in the List at 50 CFR 17.11(h) so that the information in the
``Where listed'' column reads, ``Wherever found.'' This correction
reflects the intent of the original listing that the subspecies, not a
DPS, is in danger of extinction and that protections of the Act extend
to all individuals of the subspecies wherever found. Currently, the
subspecies is known to occur in the United States in Arizona and
California and in Mexico. This correction does not change the
description, distribution, or endangered status of the Yuma Ridgway's
rail.
Gila Topminnow (Poeciliopsis Occidentalis)
The Gila topminnow was originally listed as endangered under the
ESPA of 1966 (32 FR 4001; March 11, 1967). Currently, the information
in the ``Where listed'' column for this species reads, ``U.S.A. only.''
As explained above, this current information erroneously indicates that
protections are afforded only to a subset of the species as a DPS. We
are correcting the Gila topminnow's entry in the List at 50 CFR
17.11(h) so that the information in the ``Where listed'' column reads,
``Wherever found.'' This correction reflects the intent of the original
listing that the species, not a DPS, is in danger of extinction and
that protections of the Act extend to all individuals of the species
wherever found. Currently, the species is known to occur in Arizona and
New Mexico in the United States, and in Sonora in Mexico. This
correction does not change the description, distribution, or endangered
status of the Gila topminnow.
Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To help us to
revise this rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.), need
not be prepared in connection with regulations issued pursuant to
section 4(a) of the Act. We published a notice outlining our reasons
for this determination in the Federal Register on October 25, 1983 (48
FR 49244). Even if NEPA were to apply, this amendment of the
regulations is purely administrative in nature, and therefore is
categorically excluded under the Department of the Interior's NEPA
procedures in 43 CFR 46.210(i); no exceptional circumstances apply.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal
[[Page 64830]]
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act), we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that Tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes. We have determined that this rule
will not affect Tribes or Tribal lands.
References Cited
A complete list of the referenced materials is provided in Docket
No. FWS-HQ-ES-2023-0027 at <a href="https://regulations.gov">https://regulations.gov</a> or is available upon
request from the U.S. Fish and Wildlife Service (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, amend paragraph (h), in the List of Endangered and
Threatened Wildlife, by:
0
a. Under MAMMALS, revising the entry for ``Margay'';
0
b. Under BIRDS, revising the first entry for ``Condor, California'',
and the entries for ``Kite, snail (Everglade)'''', ``Parrot, thick-
billed'', ``Rail, light-footed Ridgway's'', and ``Rail, Yuma
Ridgway's'';
0
c. Under FISHES, revising the entry for ``Topminnow, Gila (incl.
Yaqui)''; and
0
d. Under INSECTS, revising the entry for ``Skipper, Carson wandering''.
The revisions read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Margay......................... Leopardus (=Felis) Wherever found.... E................... 37 FR 6476, 3/30/
wiedii. 1972.
* * * * * * *
Birds
* * * * * * *
Condor, California............. Gymnogyps Wherever found, E................... 32 FR 4001, 3/11/
californianus. except where 1967; 50 CFR
listed as an 17.95(b).\CH\
experimental
population.
* * * * * * *
Kite, Everglade snail.......... Rostrhamus Wherever found.... E................... 32 FR 4001, 3/11/
sociabilis 1967; 50 CFR
plumbeus. 17.95(b).\CH\
* * * * * * *
Parrot, thick-billed........... Rhynchopsitta Wherever found.... E................... 35 FR 8491, 6/2/
pachyrhyncha. 1970.
* * * * * * *
Rail, light-footed Ridgway's... Rallus obsoletus Wherever found.... E................... 34 FR 5034, 3/8/
levipes. 1969; 35 FR
16047, 10/13/
1970.
* * * * * * *
Rail, Yuma Ridgway's........... Rallus obsoletus Wherever found.... E................... 32 FR 4001, 3/11/
yumanensis. 1967.
* * * * * * *
Fishes
* * * * * * *
Topminnow, Gila (incl. Yaqui).. Poeciliopsis Wherever found.... E................... 32 FR 4001, 3/11/
occidentalis. 1967.
* * * * * * *
Insects
* * * * * * *
Skipper, Carson wandering...... Pseudo copaeodes Wherever found.... E................... 67 FR 51116, 8/7/
eunus obscurus. 2002.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 64831]]
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-20291 Filed 9-19-23; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on September 20, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.