Rule2025-17320
Endangered and Threatened Wildlife and Plants; Similarity of Appearance Explanation for the Northern Distinct Population Segment of the Southern Subspecies of Scarlet Macaw
Primary source
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Published
September 9, 2025
Effective
September 9, 2025
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
In response to an order by the United States District Court for the District of Columbia, we, the U.S. Fish and Wildlife Service (Service), are providing our final explanation related to a specific issue regarding our listing determination under the Endangered Species Act (ESA or Act) for the northern distinct population segment (DPS) of the southern subspecies of the scarlet macaw (Ara macao macao). We explain why we did not conduct an analysis under section 4(e) of the Act pertaining to the DPS.
Full Text
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<title>Federal Register, Volume 90 Issue 172 (Tuesday, September 9, 2025)</title>
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[Federal Register Volume 90, Number 172 (Tuesday, September 9, 2025)]
[Rules and Regulations]
[Pages 43395-43399]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-17320]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-HQ-ES-2022-0134; FXES1111090FEDR-256-FF09E21000]
RIN 1018-BG93
Endangered and Threatened Wildlife and Plants; Similarity of
Appearance Explanation for the Northern Distinct Population Segment of
the Southern Subspecies of Scarlet Macaw
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notification of final explanation.
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SUMMARY: In response to an order by the United States District Court
for the District of Columbia, we, the U.S. Fish and Wildlife Service
(Service), are providing our final explanation related to a specific
issue regarding our listing determination under the Endangered Species
Act (ESA or Act) for the northern distinct population segment (DPS) of
the southern subspecies of the scarlet macaw (Ara macao macao). We
explain why we did not conduct an analysis under section 4(e) of the
Act pertaining to the DPS.
DATES: This document is effective September 9, 2025.
ADDRESSES: Supporting materials for this action, including comments we
received on our March 11, 2025, Federal Register document (90 FR 11674)
are available for public inspection in Docket No. FWS-HQ-ES-2022-0134
on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Rachel London, Manager, Branch of
Delisting and Foreign Species, Ecological Services Program, U.S. Fish
and Wildlife Service; <a href="/cdn-cgi/l/email-protection#dba9bab8b3beb784b7b4b5bfb4b59bbdaca8f5bcb4ad"><span class="__cf_email__" data-cfemail="b8cad9dbd0ddd4e7d4d7d6dcd7d6f8decfcb96dfd7ce">[email protected]</span></a>; 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
On February 26, 2019, we published in the Federal Register a final
rule under the Endangered Species Act of 1973, as amended (Act; 16
U.S.C. 1531 et seq.) (84 FR 6278; hereafter, referred to as ``the 2019
rule''). The 2019 rule was the outcome of a rulemaking proceeding that
began with a proposed rule (77 FR 40222, July 6, 2012) and a revised
proposed rule (81 FR 20302, April 7, 2016).
The 2019 rule revised the List of Endangered and Threatened
Wildlife in title 50 of the Code of Federal Regulations (at 50 CFR
17.11(h)) to:
<bullet> Add the northern subspecies of scarlet macaw (A. m.
cyanoptera) as an endangered species;
<bullet> Add the northern distinct population segment (DPS) of the
southern subspecies (A. m. macao) as a threatened species; and
<bullet> Add the southern DPS of the southern subspecies (A. m.
macao) and subspecies crosses (A. m. cyanoptera and A. m. macao) as
threatened species due to similarity of appearance to the northern
subspecies (A. m. cyanoptera) and to the northern DPS of the southern
subspecies (A. m. macao).
The 2019 rule also added protective regulations to 50 CFR 17.41
pursuant to section 4(d) of the Act for the northern and southern DPSs
of the southern subspecies and for subspecies crosses (hereafter, ``the
4(d) rule''). For a more thorough discussion of the taxonomy, life
history, distribution, and the determination of listing status for
scarlet macaws under the Act, please refer to the 2019 rule.
In the 2019 rule, we determined that the northern DPS of the
southern subspecies of scarlet macaw met the definition of a threatened
species because it was likely to become in danger of extinction within
the foreseeable future throughout all of its range. In response to
litigation, on April 3, 2023 (88 FR 19549), we published additional
analyses and a final threatened species determination for the northern
DPS of the southern subspecies of scarlet macaw.
As part of a lawsuit in the United States District Court for the
District of Columbia that challenged the macaw listing (Friends of
Animals v. Williams (No. 1:21-cv-02081-RC) (Friends of Animals)), on
July 10, 2024, the court found that the 2019 rule was flawed in part
because it did not include an explanation as to why we decided not to
consider listing the northern DPS of the southern subspecies as an
endangered species based on similarity of appearance to the northern
subspecies. The court remanded the 2019 rule back to us for further
explanation on this issue. However, the court did not vacate the 2019
rule, instead finding ``the deficiency
[[Page 43396]]
identified in the 2019 Final Rule--the Service's lack of explanation
for why it decided not to consider listing the Northern DPS as
endangered based on similarity of appearance--is relatively minor and
also has `a real possibility of being cured by further explanation on
remand.' '' The court further explained, ``On remand, the Service may,
for instance, be able to explain why it exercised its significant
discretion not to consider a similarity-of-appearance listing for the
Northern DPS, or it may decide to reconsider uplisting the Northern DPS
based on such a rationale.''
Subsequently, on October 8, 2024, the court ordered the Service to
submit to the Office of the Federal Register (OFR) no later than March
7, 2025, a ``notice opening a 30-day public comment period on either
(1) a draft ESA Section 4(e) analysis for the Northern DPS, or (2) an
explanation regarding why the Service exercised its significant
discretion not to consider a similarity-of-appearance listing for the
Northern DPS.'' On March 11, 2025 (90 FR 11674), we published a notice
seeking comments on our explanation regarding why we did not conduct an
analysis under section 4(e) of the Act pertaining to the DPS.
The court further ordered the Service to submit to the OFR the
final section 4(e) analysis or explanation no later than 150 days after
the end of the public comment period on our March 11, 2025,
explanation. Accordingly, this document provides the court-ordered
explanation as to why we did not consider a similarity-of-appearance
listing as endangered under section 4(e) for the northern DPS of the
southern subspecies, in addition to the determination of threatened
status under section 4(a). We are providing this explanation in
compliance with the court's order. The government filed a notice of
appeal of the court's order on December 5, 2024, and its opening
appellate brief on the court's order regarding similarity of appearance
on July 2, 2025.
By providing this explanation, we are not indicating our agreement
with the court's holding. As addressed further below, it is our
position that section 4(e) of the Act does not provide us with
authority to treat a threatened species listed pursuant to section 4(a)
of the Act as an endangered species based on similarity of appearance
to an endangered species. Therefore, we do not intend in future
rulemakings to provide explanations as to why we did not consider
treating other species as endangered under section 4(e) of the Act if
those species separately warrant listing as threatened species under
section 4(a) of the Act. If we receive a favorable decision on our
appeal, we intend to publish a notice rescinding this analysis.
For a description of previous Federal actions concerning the
scarlet macaw, please refer to:
<bullet> The 2022 notification of additional analysis (87 FR 66093,
November 2, 2022);
<bullet> The 2023 significant portion of the range (SPR) analysis
(88 FR 19549, April 3, 2023);
<bullet> The 2024 opening of a comment period on the 2023 SPR
analysis (89 FR 104950, December 26, 2024); and
<bullet> The 2025 final SPR analysis (90 FR 23446, June 3, 2025).
Summary of Public Comments
In the March 11, 2025, Federal Register document (90 FR 11674), we
requested any interested party to submit written comments and
information on our analysis and explanation. We reviewed all comments
received for substantive issues; we received two non-substantive
comments, and one comment letter from Friends of Animals that raised
multiple substantive issues. We address the substantive comments below.
Comment (1): Friends of Animals does not believe that the notice
complies with the court's order, and they expressed concern that our
rationale that the Act prohibits the Service from listing the northern
DPS as an endangered species will limit public comment. They also
suggested that for this reason, we should ``reissue the notice, disavow
its flawed interpretation, and reinvite public comments.''
Response: With our March 11, 2025, notice, we complied with the
court's order to submit to the OFR a ``notice opening a 30-day public
comment period on either (1) a draft ESA Section 4(e) analysis for the
Northern DPS, or (2) an explanation regarding why the Service exercised
its significant discretion not to consider a similarity-of-appearance
listing for the Northern DPS.'' We decline to reopen the public comment
period.
Comment (2): Friends of Animals suggested that our March 11, 2025,
notice was a flawed interpretation of the ESA and inappropriate.
Response: For the reasons set forth in our appeal to the United
States District Court for the District of Columbia (U.S. Court of
Appeals Case #24-5278; July 2, 2025, opening brief Document #2123523),
and as discussed below, we disagree that section 4(e) of the Act
authorizes the Service to treat a listed threatened species as an
endangered species based on similarity of appearance. We are issuing
this final notice because we are complying with the court's October 8,
2024, order.
Explanation
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range (16 U.S.C. 1532(6), (20)).
The Act requires that we determine whether any species is an endangered
species or a threatened species because of any of the following five
factors in section 4(a):
(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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
Section 2 of the Act states that the purposes of the Act include
providing a means to conserve the ecosystems upon which endangered and
threatened species depend, developing a program for the conservation of
listed species, and achieving the purposes of certain treaties and
conventions (16 U.S.C. 1531(b)). The ultimate goal of conservation
efforts is the recovery of listed species so that they no longer need
the protective measures of the Act. The Act provides multiple tools to
conserve species that warrant protection under section 4(a) and have
been added to the List of Endangered and Threatened Wildlife (50 CFR
17.11) or
[[Page 43397]]
List of Endangered and Threatened Plants (50 CFR 17.12). These include,
among other protections, the designation of critical habitat, recovery
planning under section 4(f), protective regulations for threatened
species under section 4(d), and Federal agency requirements to ensure
their actions are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat
under section 7(a)(2).
One of these tools, section 4(e), provides us with the discretion
to treat species as endangered species or threatened species when they
are not listed under section 4(a). This authority to treat species as
endangered or threatened when they are similar in appearance to (i.e.,
resemble) a species that is listed under section 4(a) is limited to
situations when treating the species as endangered or threatened under
section 4(e) could help protect the listed species that it resembles.
In other words, under section 4(e), we may treat an unlisted species as
an endangered or threatened species if doing so will facilitate
enforcement of the Act for the benefit of, and reduce threats to, the
species listed under section 4(a). The Act's tools and protections for
endangered and threatened species are directed at the species that meet
the definitions of endangered species or threatened species under
section 4(a), not the species that are treated as endangered or
threatened under section 4(e) solely because of a similarity in
appearance.
Section 4(e) of the Act provides that the Secretary may, by
regulation of commerce or taking, and to the extent he deems advisable,
treat any species as an endangered species or threatened species even
though it is not listed pursuant to section 4 of the Act if the
Secretary finds three criteria are met that: (A) such species so
closely resembles in appearance, at the point in question, a species
which has been listed pursuant to the Act that enforcement personnel
would have substantial difficulty in attempting to differentiate
between the listed and unlisted species; (B) the effect of this
substantial difficulty is an additional threat to an endangered or
threatened species; and (C) such treatment of an unlisted species will
substantially facilitate the enforcement and further the policy of the
Act (16 U.S.C. 1533(e)). The Act provides the Service discretion in
determining both when and how to apply section 4(e). However, as
discussed below, there are several ways in which the statutory language
demonstrates that Congress did not intend for the 4(e) authority to
apply to species that warrant listing under section 4(a). Moreover, the
legislative history further underscores this limitation on 4(e)
authority.
First, the plain language of the Act provides for no circumstances
in which a species that meets the definition of a threatened species
under section 4(a) would also meet the criteria at section 4(e)(A)-(C)
for being ``treated'' as an endangered species. Treating a species as
endangered under section 4(e), when that species separately warrants
protection in its own right as a threatened species under section 4(a),
would circumvent the protections intended for species that qualify for
listing under section 4(a) and would never satisfy the requirements
under 4(e)(C) to further the policy of the Act (i.e., section 2(b)-(c)
of the Act). Sections 4(a)-(c) establish the primary mechanism for
determining whether species meet the definition of an endangered
species or a threatened species. For species that meet the definition
of an endangered species or a threatened species based on the factors
and standards set out in sections 4(a)-(b), section 4(c)(l) provides
the mandatory requirement that the Secretary list those species
according to the definition they meet. Nowhere does section 4(a)-(c)
include a requirement to consider a species' similarity of appearance
to an already listed species when making a listing determination, nor
does 4(e) either address, alter, or amend any of the provisions in
sections 4(a)-(c) or characterize the similarity-of-appearance
authority it provides as mandatory.
Moreover, for species that meet the definition of a threatened
species under section 4(a), treating the species instead as endangered
under section 4(e) would not provide any greater protections than the
species would otherwise receive as a threatened species listed under
section 4(a). In most cases, doing so would actually provide species
with fewer protections than listing them as threatened species under
section 4(a). This is because species treated as endangered or
threatened under section 4(e) do not receive the protections of the Act
provided to species listed under section 4(a), such as the designation
of critical habitat, consultation requirements for Federal agencies
under section 7, and the recovery planning provisions under section
4(f).
Section 4(e) specifies that the authority to ``treat'' any
similarity-of-appearance species as an endangered or threatened species
is to be exercised ``by regulation of commerce or taking, and to the
extent [the Secretary] deems advisable.'' Therefore, all applicable
prohibitions and exceptions for species treated under section 4(e) of
the Act as endangered or threatened based on their similarity of
appearance to a species listed under section 4(a) are set forth by
regulation, such as in a species-specific rule, and are determined with
the goal of furthering the conservation of the species listed under
section 4(a) that the 4(e) species resembles. The Act does not
differentiate how the Service should regulate commerce or taking of
species treated as endangered based on similarity of appearance as
compared to those treated as threatened based on similarity of
appearance. In either situation, the Service issues regulations that it
deems are advisable relating to commerce or taking of the species.
Moreover, there is no requirement that those regulations for a species
being treated as endangered under section 4(e) provide greater
protections than the regulations for treating a species as threatened
under section 4(e). For all these reasons, treating a species as
endangered under section 4(e), when that species separately warrants
protection as a threatened species under section 4(a), will not
facilitate the enforcement or further the policy of the Act.
Second, the court's interpretation in Friends of Animals that the
section 4(e) ``similarity of appearance'' provision requires the
Service to consider treating a species as endangered when it is listed
as threatened under section 4(a) is in direct conflict with the plain
language of section 4 of the Act. Section 4(e) explicitly limits its
applicability to unlisted species, authorizing the Secretary to treat
any species as an endangered species or threatened species ``even
though it is not listed pursuant to section 4 of this Act.'' Similarly,
the third criterion for treating a species as endangered or threatened
pursuant to section 4(e) requires that ``such treatment of an unlisted
species will substantially facilitate the enforcement and further the
policy of this Act'' (sections 4(e) and 4(e)(C) (emphases added)).
Thus, our authority to treat species as endangered species or
threatened species due to similarity of appearance is limited to
species that are otherwise ``unlisted'' or ``not listed'' and does not
extend to species that are listed under section 4(a).
If Congress had intended for section 4(e) to apply to any species
that warrant listing as endangered species or threatened species under
section 4(a), Congress would have no need to include the terms
``unlisted'' and ``not listed'' in section 4(e). Congress also used the
latter of those terms--``not listed''--in section 9 of the Act. In both
section 4(e)
[[Page 43398]]
and section 9, those terms are used as a necessary precondition for any
species to qualify for the statutory provision at issue. Under section
4(e), only a species that is ``not listed'' may be considered for
treatment as an endangered or threatened species based on similarity of
appearance to a listed species. Under section 9, the term ``not
listed'' is a precondition for the limited exceptions to import or
export prohibitions (i.e., ``It is unlawful [to import or export] . . .
fish or wildlife (other than shellfish and fishery products which (i)
are not listed pursuant to section 4 of this Act as endangered species
or threatened species, and . . . )'' (section 9(d)(1)(A), with similar
language in sections 9(e) and (f)).
This conclusion is also supported by the Act's legislative history.
Multiple congressional reports--from both houses of Congress--made this
clear. For example, when the Act was enacted in 1973, the Senate Report
described how the statute deals with the problem presented by two
species that are so similar in appearance that people without
specialized training cannot distinguish between them: ``If one species
is listed under section 4, but the other is not, the Secretary may
treat the unlisted species as an endangered or threatened species if
such treatment will substantially facilitate the enforcement and
further the policy of this Act'' (S. Rept. 93-307, at 9 (1973)
(emphasis added)); see also H. Rept. 93-412, at 12 (1973), and H. Rept.
100-928, at 20 (1988)). In light of the clear statutory language and
legislative history, while the Service has discretion in when to treat
an ``unlisted'' or ``not listed'' species as an endangered species or
threatened species under section 4(e), this discretion does not extend
to species that warrant listing under section 4(a), like the northern
DPS (16 U.S.C. 1533(a); 1532 (6), (20)).
In accordance with the statutory language and legislative history,
our regulations, guidance, and longstanding practice all provide for
treatment of a species as endangered or threatened under section 4(e)
only when the species is not listed under section 4(a). Our regulations
provide that ``whenever a species which is not Endangered or Threatened
closely resembles an Endangered or Threatened species, such species may
be treated as either Endangered or Threatened'' (50 CFR 17.50, emphasis
added). These regulations have remained substantively unchanged since
their promulgation in 1975 (although they were amended for other
reasons at various times). Moreover, since the inception of section
4(e), we have only ever considered invoking its authority for species
that do not warrant listing under section 4(a), and we have never
evaluated a section 4(a)-listed species under section 4(e). For
example, in invoking section 4(e) to treat the American alligator as
listed in 1975, we first delisted three populations of alligators that
had previously been listed as endangered species under section 4(a) and
then decided to treat those unlisted populations as listed under
section 4(e) (40 FR 44412, Sept. 26, 1975).
In light of the above points, the Service does not evaluate whether
to treat a species as endangered under section 4(e) of the Act if that
species separately meets the definition of a threatened species under
section 4(a). Therefore, because we found that the northern DPS of the
southern subspecies of scarlet macaw meets the definition of a
threatened species under section 4(a), we did not evaluate whether it
should be treated as an endangered species under section 4(e).
However, even if the Act did give us the authority to evaluate
whether the northern DPS of the southern subspecies of macaw should be
treated as an endangered species under section 4(e), we would not find
that the northern DPS met the criteria for such treatment identified in
section 4(e)(A)-(C). As explained above, and further discussed below,
treating the northern DPS as endangered under section 4(e) of the Act
rather than actually listing it as a threatened species under section
4(a) would not provide any additional protections for either the
northern DPS or the northern subspecies, meaning such treatment would
not facilitate the enforcement or further the policy of the Act.
This conclusion is further supported by the court's ruling in
Friends of Animals upholding our treatment of the southern DPS as a
threatened (rather than endangered) species pursuant to section 4(e) of
the Act. We found it was appropriate to treat the southern DPS of the
southern subspecies as threatened, not endangered, under section 4(e)
``because the 4(d) rule . . . provide[d] adequate protections for'' the
section 4(a)-listed scarlet macaws that the southern DPS resembled, and
the treatment of the southern DPS as threatened would substantially
facilitate law enforcement actions to protect and conserve those 4(a)-
listed macaws, including the endangered northern subspecies (84 FR
6278, February 26, 2019). The court in Friends of Animals upheld that
determination finding, ``[h]aving reviewed the whole record--and
cognizant of the significant discretion that Congress vested in the
Service to make similarity-of-appearance listing decisions, see 16
U.S.C. 1533(e)--the Court finds that the Service satisfactorily
discharged its duty to articulate a `rational connection between the
facts found and the choice made' to list the Southern DPS as
threatened'' and not endangered as plaintiff argued. The same reasoning
would apply when evaluating whether to treat the northern DPS as
endangered under section 4(e), rather than listing it as a threatened
species under section 4(a). Specifically, the 4(d) rule for the
northern DPS also provides adequate protections for the northern
subspecies. Additionally, treating the southern DPS as threatened under
section 4(e) and listing the northern DPS as a threatened species under
section 4(a) will facilitate law enforcement actions to protect and
conserve both the northern DPS and the northern subspecies.
Further, in addition to the Act, three other laws provide critical
safeguards for all scarlet macaws: the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES), the Wild
Bird Conservation Act (WBCA; 16 U.S.C. 4901 et seq.), and the Lacey Act
Amendments of 1981 (Lacey Act; 16 U.S.C. 3371-3378). Pursuant to these
laws, import, use after import, export, and re-export of scarlet macaw
is strictly regulated. For example, under CITES, such activities are
prohibited for primarily commercial purposes for any scarlet macaw
removed from the wild or bred in captivity on or after the inclusion of
the scarlet macaw in the CITES Appendices on October 28, 1976, as there
are currently no CITES-registered commercial breeding facilities for
the Appendix-I species (CITES Art. III, VII(2), VII(4); 16 U.S.C.
1538(c)(1); 50 CFR 23.5, 23.13, 23.20, 23.23, 23.24, 23.26, 23.27,
23.45, 23.46, 23.55). Additionally, under the WBCA, imports may only be
for scientific research, zoological breeding or display, cooperative
breeding, or personal pet purposes (16 U.S.C. 4910, 4911; 50 CFR 15.11,
15.22-15.26). Under the Lacey Act, imports and exports are prohibited
for any scarlet macaw and its offspring that were taken, possessed,
transported, or sold in violation of foreign law (16 U.S.C. 3371-3378).
As such, the Service would have no basis for extending additional
protections to the northern DPS if it were treated as endangered based
on similarity of appearance to the northern subspecies. Therefore, we
would not treat the northern DPS as endangered under section 4(e)
rather than list it as a threatened species under section 4(a) because
doing so would not facilitate enforcement or further the
[[Page 43399]]
policy of the Act for the conservation of either the northern DPS of
the southern subspecies of scarlet macaw, or the northern subspecies of
scarlet macaw.
Authority
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et
seq.), is the authority for this action.
Brian R. Nesvik,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2025-17320 Filed 9-8-25; 8:45 am]
BILLING CODE 4333-15-P
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