[Federal Register Volume 62, Number 161 (Wednesday, August 20, 1997)]
[Rules and Regulations]
[Page 44228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22086]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Southwestern Willow 
Flycatcher; Correction

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; correction.

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SUMMARY: On July 22, 1997, the U.S. Fish and Wildlife Service (Service) 
designated critical habitat for the southwestern willow flycatcher 
(Empidonax traillii extimus), a species federally listed as endangered 
under the authority of the Endangered Species Act of 1973, as amended 
(62 FR 39129). When proposed (58 FR 39495), the lateral extent of 
critical habitat for the southwestern willow flycatcher was defined as 
``* * * within 100 meters of the edge of areas with surface water 
during the May to September breeding season and within 100 meters of 
areas where such surface water no longer exists owing to habitat 
degradation but may be recovered with habitat rehabilitation.'' In the 
final rule (62 FR 39129), the Fish and Wildlife Service mistakenly 
identified the lateral extent of each river mile designated to include 
areas within the 100-year floodplain. The Service herein revises the 
lateral extent of designated critical habitat to be within 100 meters 
of the edge of areas with surface water during the May to September 
breeding season and within 100 meters of areas where such surface water 
no longer exists owing to habitat degradation but may be recovered with 
habitat rehabilitation. This includes areas with thickets of riparian 
trees and shrubs and areas where such riparian vegetation does not 
currently exist but may become established with natural regeneration or 
habitat rehabilitation.
    The Service, given the time constraints of complying with a court 
order, decided to designate critical habitat as it was proposed in 
1993. This decision was made, in part, because any changes that would 
result in significant additions to the proposed critical habitat might 
require a new proposal and comment period, and the Service had neither 
sufficient time nor resources available. The only changes from the 
proposed rule that the Service intended to make in the final rule were 
the deletion of some minor areas that were found to have been proposed 
in error. See 62 FR 39136. The change in the lateral extent of critical 
habitat between the proposed and final rules was inadvertent and 
inconsistent with the intent of the Service. Because of its efforts to 
comply with the court-imposed deadline, the Service did not become 
aware of this error prior to the publication of the final rule.
    The Service finds that notice and public procedure on this 
correction are impracticable, unnecessary, and contrary to the public 
interest pursuant to 5 U.S.C. 553(b)(B). The public has already had the 
opportunity to comment on the substance of this correction, as it is 
the language of the original proposal. The final rule's deviation from 
the proposal in this regard was unintended by the Service. Because the 
rule which this rule corrects becomes effective on August 21, 1997, 
this correction must also become effective at that time in order to 
avoid unnecessary confusion.

EFFECTIVE DATE: August 21, 1997.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Arizona Ecological Services 
Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, Arizona 85021. The 
complete file for this rule will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Sam F. Spiller, Field Supervisor, 
Arizona Ecological Services Office, U.S. Fish and Wildlife Service, at 
the above address (Telephone 602/640-2720).


 Sec. 17.95   [Corrected]

    Accordingly, under the authority of 16 U.S.C. 1361-1407, 1531-1544, 
4201-4245, Pub. L. 99-625, 100 Stat. 3500, throughout the preamble and 
the final rule for the southwestern willow flycatcher (Empidonax 
traillii extimus) published on July 22, 1997, the phrase ``within the 
100 year floodplain'' is revised to read ``within 100 meters of the 
edge of areas with surface water during the May to September breeding 
season and within 100 meters of areas where such surface water no 
longer exists owing to habitat degradation but may be recovered with 
habitat rehabilitation.'' In addition, on page 39137, column 1, 
paragraph 4, the last sentence should be deleted and replaced with the 
following: ``However, the proposed rule established the lateral 
boundaries of critical habitat as within 100 meters of the edge of 
areas with surface water during the breeding season, and changing the 
lateral boundaries of critical habitat would result in significant 
additions to the areas proposed in 1993. Because there has been no 
proposed rulemaking for these additions, the Service determines that 
the lateral boundaries of critical habitat will remain, as proposed, 
within 100 meters of the edge of areas with surface water during the 
breeding season. The Service believes that these criteria provide 
reasonable critical habitat for the flycatcher, but recognizes that 
criteria that incorporate the dynamic nature of riparian habitat, such 
as the 100-year floodplain, may be appropriate and will take this into 
consideration should critical habitat for this species be revised.''

    Dated: August 14, 1997.
Donald J. Barry,
 Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 97-22086 Filed 8-15-97; 3:33 pm]
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