Endangered and Threatened Wildlife and Plants; Similarity of Appearance Explanation 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; Similarity of Appearance Explanation 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> Notification of final explanation. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 ( <E T="03">Ara macao macao</E> ). We explain why we did not conduct an analysis under section 4(e) of the Act pertaining to the DPS. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This document is effective September 9, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Supporting materials for this action, including comments we received on our March 11, 2025, <E T="04">Federal Register</E> document (90 FR 11674) are available for public inspection in Docket No. FWS-HQ-ES-2022-0134 on <E T="03">https://www.regulations.gov.</E> <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; <E T="03">rachel_london@fws.gov;</E> 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> On February 26, 2019, we published in the <E T="04">Federal Register</E> a final rule under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 <E T="03">et seq.</E> ) (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: • Add the northern subspecies of scarlet macaw ( <E T="03">A. m. cyanoptera</E> ) as an endangered species; • Add the northern distinct population segment (DPS) of the southern subspecies ( <E T="03">A. m. macao</E> ) as a threatened species; and • Add the southern DPS of the southern subspecies ( <E T="03">A. m. macao</E> ) and subspecies crosses ( <E T="03">A. m. cyanoptera</E> and <E T="03">A. m. macao</E> ) as threatened species due to similarity of appearance to the northern subspecies ( <E T="03">A. m. cyanoptera</E> ) and to the northern DPS of the southern subspecies ( <E T="03">A. m. macao</E> ). 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 ( <E T="03">Friends of Animals</E> v. <E T="03">Williams</E> (No. 1:21-cv-02081-RC) ( <E T="03">Friends of Animals</E> )), 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 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: • The 2022 notification of additional analysis (87 FR 66093, November 2, 2022); • The 2023 significant portion of the range (SPR) analysis (88 FR 19549, April 3, 2023); • The 2024 opening of a comment period on the 2023 SPR analysis (89 FR 104950, December 26, 2024); and • The 2025 final SPR analysis (90 FR 23446, June 3, 2025). <HD SOURCE="HD1">Summary of Public Comments</HD> In the March 11, 2025, <E T="04">Federal Register</E> 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. <E T="03">Comment (1):</E> 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.” <E T="03">Response:</E> 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. <E T="03">Comment (2):</E> Friends of Animals suggested that our March 11, 2025, notice was a flawed interpretation of the ESA and inappropriate. <E T="03">Response:</E> 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 thre ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 29k characters. 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