[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28834-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14048]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 90-Day Finding for
a Petition To List the Northern Goshawk in the Western United States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and vacation of the June 25,
1992, finding.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces a 90-
day finding for a petition to list the northern goshawk (Accipiter
gentilis) in the Western United States under the Endangered Species
Act, as amended. The Service has determined that the petition does not
present substantial information that listing the northern goshawk in
the Western United States may be warranted. The Service also vacates
the previous June 25, 1992, finding for the same petitioned action.
DATES: The finding announced in this document was made on May 28, 1996.
ADDRESSES: Information, comments, or questions concerning this petition
may be submitted to the Supervisor, Arizona Ecological Services Field
Office, U.S. Fish and Wildlife Service, 2321 W. Royal Palm Rd., Suite
103, Phoenix, Arizona 85021. The petition, finding, and supporting data
are available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Sam Spiller, Supervisor (see ADDRESSES
above) (telephone 602/640-2720).
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (Act), requires that the Service make
a finding on whether a petition to list, delist, or reclassify a
species presents substantial scientific or commercial information to
indicate that the petitioned action may be warranted. To the maximum
extent practicable, this finding is to be made within 90 days of the
receipt of the petition, and notice of the finding is to be published
promptly in the Federal Register. If a finding is made that substantial
information was presented, the Service also is required to promptly
commence a review of the status of the species involved.
On September 26, 1991, a coalition of conservation organizations
(Babbitt et al. 1991) submitted a letter to the Service, requesting to
amend a petition under consideration by the Service to list a
population of northern goshawk (Accipiter gentilis) as endangered in
Utah, Colorado, New Mexico, and Arizona (Silver et al. 1991). The
coalition requested expanding the geographic region under consideration
to include the ``forested west.'' The petitioners subsequently refined
their definition of the ``forested west'' to mean the forested United
States, west of the 100th meridian. Because this letter requested
consideration of a substantially different listing action than the
previous petition, the Service informed the petitioners that their
letter would be considered a separate petition.
On June 25, 1992, the Service published a 90-day finding that the
petition had not presented substantial information to indicate that the
petitioned action may be warranted. The petitioners subsequently filed
a lawsuit to have the finding set aside as arbitrary and capricious
under the Administrative Procedures Act. On February 22, 1996, U.S.
District Judge Richard M. Bilby found the June 25, 1992 finding to be
arbitrary and capricious and remanded the finding to the Service for a
new 90-day determination and vacation of the previous finding. This
notice serves to inform the public of the Service's new 90-day finding
and vacates the Service's June 25, 1992 finding.
A species that is in danger of extinction throughout all or a
significant portion of its range may be declared an endangered species
under the Act. A species that is likely to become an endangered species
in the foreseeable future (as defined above) throughout all or a
significant portion of its range may be declared a threatened species
under the Act. The term ``species'' is defined by the Act to include
``* * * subspecies * * * and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature *
* *'' (16 U.S.C. 1532 (15)).
In reviewing a listing petition, the Service must determine whether
the petitioned action includes an entity that is listable under the
Act, and, if so, whether the petition presented substantial information
that the petitioned action may be warranted. In this case, the Service
must consider whether northern goshawks west of the 100th meridian
constitute a distinct population segment under 16 U.S.C. 1532 (15). In
making this determination, the Service relies upon the National Marine
Fisheries Service and Fish and Wildlife Service final Policy Regarding
the Recognition of Distinct Vertebrate Population Segments Under the
[[Page 28835]]
Endangered Species Act (61 FR 4722; February 7, 1996).
The petition as submitted requests that the Service list a distinct
population segment of northern goshawks that consists of portions of
the ranges of three separate subspecies: Accipiter gentilis
atricapillus, A. g. laingi, and A. g. apache. The range of each of the
three subspecies extends beyond the area delineated in the petition.
Only A. g. atricapillus and A. g. laingi are recognized by the American
Ornithologists' Union (1957). However, A. g. apache has been recognized
by some biologists and the Service (Brown and Amadon 1968, Hellmayer
and Conover 1949, Hubbard 1992 as cited in Whaley and White 1994,
Stresemann and Amadon 1979, U.S. Fish and Wildlife Service 1994).
Under the Services' February 7, 1996, final policy, the first step
in determining whether the entity petitioned for listing qualifies as a
distinct population segment is ``the discreteness of the population
segment in relation to the remainder of the species to which it
belongs.'' In defining the term ``population,'' the Services' February
7, 1996, final policy provides that in all cases when discussing a
population, ``the organisms in a population are members of a single
species or lesser taxon.'' Since a subspecies is a taxon, by definition
a population segment may not include more than one subspecies. The
Service's determination that a ``population'' cannot be composed of
more than one recognized subspecies is consistent with the use of these
terms in the scientific literature dealing with populations and
subspecies (e.g., Mayr 1969).
This principle that a population may not include more than one
subspecies is reflected in the wording of the first test for
discreteness set forth in the Services' final policy of February 7,
1996. The final policy provides that a population segment is considered
to be discrete if ``it is markedly separated from other populations of
the same taxon as a consequence of physical, physiological, ecological,
or behavioral factors.'' Because the principle concerns the underlying
definition of the term ``population,'' it is also an inherent part of
the second test for discreteness concerning international boundaries,
which is set forth in the final policy. In either case, if the entity
petitioned for listing does not qualify as a ``population,'' it does
not meet the discreteness test under the final vertebrate population
policy.
The Act provides that a single subspecies may be listed as
endangered or threatened (16 U.S.C. 1532 (15)). In this case, the
entity petitioned for listing includes organisms that are not members
of a single taxon, but rather at least two, and possibly three,
subspecies. For the reasons discussed above, the Service has determined
that the petitioned action does not meet the definition of a distinct
vertebrate population and therefore does not meet the discreteness
test. Accordingly, no further evaluation was conducted concerning the
conservation status of the species.
The processing of this petition finding follows the Service's final
listing priority guidance published in the Federal Register on May 16,
1996 (61 FR 24722). The guidance clarifies the order in which the
Service will process rulemakings following two related events: (1) the
lifting, on April 26, 1996, of the moratorium on final listings imposed
on April 10, 1995 (Public Law 104-6), and (2) the restoration of
significant funding for listing through passage of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for prompt processing
of draft rules and petition findings that were in the Service's
Washington office (already approved by the field and regional offices)
prior to the publication of the listing priority guidance on May 16,
1996. A draft of this petition finding was approved by the Service's
Southwest Regional Director on May 8, 1996, and received by the
Washington office on May 9, 1996.
In summary, the Service has reviewed its policies and guidance
along with the petition and has determined that the petitioned entity
is not listable under the Act. Therefore, the Service finds that the
petition does not present substantial information that listing the
northern goshawk in the United States west of the 100th meridian as a
distinct population segment may be warranted. The Service also vacates
its June 25, 1992, finding on the same petitioned action.
References Cited
American Ornithologists' Union. 1957. Check-list of North American
birds, 5th edition. Port City Press, Baltimore, Maryland. 691 pp.
Babbitt, C., P. Galvin, S.M. Hitt, S.W. Hoffman, A. MacFarlane, K.
Rait, C.I. Sandell, M. Sauber, T. Schulke, and G. Wardwell. 1991.
Letter to the Department of the Interior, requesting to amend a
petition to list the northern goshawk. Maricopa Audubon Society,
Phoenix, Arizona. September 26, 1991. 5 pp.
Brown, L., and D. Amadon. 1968. Eagles, hawks and falcons of the
world. Country Life Books, Feltham, Middlesex. 945 pp.
Hellmayer, C.E., and B. Conover. 1949. Catalogue of birds of the
Americas and the adjacent islands. Field Museum of Natural History,
Chicago. Pt. 1, No. 4.
Mayr, E. 1969. Principles of Systematic Zoology. McGraw-Hill, New
York.
Silver, R.D., P. Galvin, S. Hirsch, S.M. Hitt, S.W. Hoffman, A.
MacFarlane, C.I. Sandell, M. Sauber, T. Schulke, G. Wardwell, and S.
Wotkyns. 1991. Letter to the Department of the Interior, petitioning
to list the northern goshawk (Accipiter gentilis) in Utah, Colorado,
New Mexico and Arizona, under the Endangered Species Act. Maricopa
Audubon Society, Phoenix, Arizona. 61 pp.
Stresemann, E., and D. Amadon. 1979. Check-list of birds of the
world. Museum of Comparative Zoology, Cambridge, MA. Vol. 1.
U.S. Fish and Wildlife Service. 1994. Ninety-day administrative
finding for a petition to list the Queen Charlotte goshawk under
provisions of the Endangered Species Act. Memorandum approved by
Acting Director on August 19, 1994. 17 pp.
Whaley, W.H., and C.M. White. 1994. Trends in geographic variation
of Coopers' hawk and northern goshawks in North America: a
multivariate analysis. Proceedings of the Western Foundation of
Vertebrate Zoology. Vol. 5, No. 3.
Author
The primary author of this document is Dr. Steven Chambers, Fish
and Wildlife Service Regional Office, P.O. Box 1306, Albuquerque, New
Mexico 87003.
Authority
The authority for this action is the Endangered Species Act (16
U.S.C. 1531 et seq.).
Dated: May 28, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-14048 Filed 6-5-96; 8:45 am]
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