Endangered and Threatened Wildlife and Plants; Significant Portion of Its Range Analysis for the Northern Distinct Population Segment of the Southern Subspecies of Scarlet Macaw

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 17</CFR> <DEPDOC>[Docket No. FWS-HQ-ES-2022-0134; FXES1111090FEDR-256-FF09E21000]</DEPDOC> <RIN>RIN 1018-BG93</RIN> <SUBJECT>Endangered and Threatened Wildlife and Plants; Significant Portion of Its Range Analysis for the Northern Distinct Population Segment of the Southern Subspecies of Scarlet Macaw</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Final analysis and determination. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service (Service), determine that the northern distinct population segment (DPS) of the southern subspecies of scarlet macaw ( <E T="03">Ara macao macao</E> ) is appropriately listed as a threatened species under the Endangered Species Act of 1973 (Act), as amended. Scarlet macaws are brilliantly colored parrots native to Mexico and Central and South America. This notification affirms the Service's February 26, 2019, final rule listing the scarlet macaw under the Act and provides a final significant portion of its range analysis for the northern DPS. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The final analysis and determination are effective June 3, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> This final notification is available on the internet at <E T="03">https://www.regulations.gov.</E> Comments and materials we received on our December 26, 2024, <E T="04">Federal Register</E> document (87 FR 66093) are available for public inspection at <E T="03">https://www.regulations.gov</E> at Docket No. FWS-HQ-ES-2022-0134. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Rachel London, Manager, Branch of Delisting and Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service; 703-358-2171; <E T="03">rachel_london@fws.gov.</E> 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> Scarlet macaws ( <E T="03">Ara macao</E> ) have the broadest range of all the macaw species (Ridgely 1981, p. 250). The range of the species extends from Mexico, south through Central America, and into the Amazon of South America to central Bolivia and Brazil. In Mexico and Central America, the scarlet macaw's historical range and population have been reduced and fragmented over the last several decades primarily because of habitat destruction and collection of wild birds for the pet trade (Vaughan et al. 2003, pp. 2-3; Collar 1997, p. 421; Wiedenfeld 1994, p. 101; Snyder et al. 2000, p. 150). The majority (83 percent) of the species' range and population lies within the Amazon biome of South America (Birdlife International (BLI) 2011a, unpaginated; BLI 2011b, unpaginated; BLI 2011c, unpaginated). In South America, the scarlet macaw occurs over much of its historical range within the Amazon and occurs in small areas outside the Amazon, such as west of the Andes Mountains in Colombia. The scarlet macaw is classified as two subspecies, the northern subspecies ( <E T="03">A. macao cyanoptera</E> ) and southern subspecies ( <E T="03">A. macao macao</E> ) (Schmidt 2013, pp. 52-53; Schmidt et al. 2019, p. 735). The northern subspecies of scarlet macaw ranges from Mexico, south through Central America in Guatemala, Nicaragua, and Honduras, and down the Atlantic slope of Costa Rica, as well as on Isla Coiba in Panama. The southern subspecies of scarlet macaw occurs along the Pacific slope of Costa Rica and southward through mainland Panama and into the remainder of the species' range in South America. The subspecies are separated by the Central Cordilleras in Costa Rica (Schmidt 2013, pp. 52-53; Schmidt et al. 2019, p. 744). On February 26, 2019, we published in the <E T="04">Federal Register</E> a final rule under the Act (84 FR 6278; 2019 final rule). The 2019 final rule was the outcome of a rulemaking proceeding that began with a proposed rule (77 FR 40222, July 6, 2012; 2012 proposed rule) and a revised proposed rule (81 FR 20302, April 7, 2016; 2016 proposed rule). The 2019 final rule revised the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations (CFR) (at 50 CFR 17.11(h)) to add the northern subspecies of scarlet macaw ( <E T="03">A. m. cyanoptera</E> ) as an endangered species, the northern DPS of the southern subspecies ( <E T="03">A. m. macao</E> ) as a threatened species (hereafter, “the northern DPS”), and the southern DPS of the southern subspecies ( <E T="03">A. m. macao</E> ) and subspecies crosses ( <E T="03">A. m.</E> <E T="03">cyanoptera</E> and <E T="03">A. m.</E> <E T="03">macao</E> ) as threatened species due to similarity of appearance. The 2019 final 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. 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 Species Information section in the 2019 final rule (84 FR 6278 at 6284, February 26, 2019). <HD SOURCE="HD1">This Action</HD> We are reassessing whether the northern DPS of the southern subspecies of scarlet macaw ( <E T="03">A. m. macao</E> ) is in danger of extinction throughout a significant portion of its range (SPR) in response to an order issued by the U.S. District Court for the District of Columbia in <E T="03">Friends of Animals</E> v. <E T="03">Williams,</E> Case No. 1:21-cv-02081-RC. On April 3, 2023, in compliance with the Court's order, we published an initial SPR analysis and final threatened species determination for the northern DPS of the southern subspecies of scarlet macaw (88 FR 19549; hereafter, “the 2023 SPR analysis”). Having determined that the northern DPS is not in danger of extinction throughout a significant portion of its range, we did not propose to revise the status of the southern subspecies of scarlet macaw in the northern DPS. Therefore, we affirmed the listing of the scarlet macaw as set forth in the 2019 final rule. However, on July 10, 2024, the Court found that we inappropriately limited the scope of public comments in the 2022 reconsideration. The Court vacated the 2023 SPR analysis and remanded it to us to reconduct after soliciting and considering public comments on the relevant, substantive issues. On October 8, 2024, the Court further ordered that, “if the Service receives no public comments on the SPR analysis that result in the need to repropose the listing decision for the Northern DPS, the Service will submit a final SPR analysis to the Office of the Federal Register no later than 120 days from the end of the public comment period.” The Court's Order continued, “if the Service does receive public comments on the SPR analysis that cause it to reconsider the Northern DPS's listing determination, the Service will need additional time to revise the listing determination to incorporate analysis of those comments and any additional data that addresses them. If this additional analysis leads the Service to reach a different listing determination that the public could not have anticipated, the Service may need to revise and repropose the Northern DPS listing determination. The Service will then submit any such re-proposal to the Office of the Federal Register no later than September 30, 2025.” The 2019 final rule has remained in effect, including with respect to the listing status (threatened species) and protective regulations under the species-specific section 4(d) rule for the northern DPS of the southern subspecies of scarlet macaw. <HD SOURCE="HD1">Summary of Comments</HD> In the December 26, 2024, <E T="04">Federal Register</E> document (89 FR 104950), we requested any interested party to submit comments on the 2023 SPR analysis for the northern DPS of the southern subspecies of the scarlet macaw ( <E T="03">A. m. macao</E> ), with no limitations on the comments requested. We reviewed all comments received for substantive issues. In total, we received two non-substantive comments and one comment letter, with four attachments, that raised multiple substantive issues. We address these substantive comments below. <E T="03">Comment (1):</E> Commenter Friends of Animals claimed that in 2012 we determined that the northern DPS in Costa Rica was endangered. <E T="03">Our response:</E> Before issuance of the 2019 final rule, the scarlet macaw—including the northern DPS—was not a species listed under the Act. We issued two proposed listing rules for the scarlet macaw before the 2019 final rule: the 2012 proposed rule (77 FR 40222, July 6, 2012) and the 2016 proposed rule (81 FR 20302, April 7, 2016). Friends of Animals repeatedly refers to the 2012 proposed rule as if it represented a final agency action, as opposed to a proposal which, by definition, is subject to change. The fact that the 2016 proposed rule and 2019 final rule differed from the 2012 proposed rule does not mean the agency “reversed course” and must therefore provide more justification for its northern DPS listing decision than is typically required under the Administrative Procedure Act (5 U.S.C. 551 <E T="03">et seq.</E> ). A final rule may properly differ from a proposed rule and indeed must so differ when the record evidence warrants the change ( <E T="03">USW</E> v. <E T="03">Marshall,</E> 6 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 89k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━