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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

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Prior analysis and determination; opening of comment period.

# SUMMARY:

                        We, the U.S. Fish and Wildlife Service, are opening a public comment period on a 2023 analysis regarding the significant portion of the range for the northern distinct population segment of the southern subspecies of the scarlet macaw (                        *Ara macao macao*). The analysis was conducted as part of a listing determination under the Endangered Species Act for the distinct population segment. Previously submitted comments related to the analysis need not be resubmitted, as they are already incorporated into the public record and will be fully considered.                    

# DATES:

                        We will accept comments received or postmarked on or before January 27, 2025. Comments submitted electronically using the Federal eRulemaking Portal (see                         **ADDRESSES**                        , below) must be received by 11:59 p.m. eastern time on the closing date.                    

# ADDRESSES:

You may submit comments by one of the following methods:

                        (1)                         *Electronically:*                         Go to the Federal eRulemaking Portal:                         *https://www.regulations.gov*. In the Search box, enter FWS-HQ-ES-2022-0134, which is the docket number for documents related to the analysis and listing determination. Then click on the Search button. You may submit a comment by clicking on “Comment.”                    

                        (2)                         *By hard copy:*                         Submit by U.S. mail to: Public Comments Processing, Attn: FWS-HQ-ES-2022-0134, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.                    

                        We request that you send comments only by the methods described above. We will post all comments on                         *https://www.regulations.gov*. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information).                    

# FOR FURTHER INFORMATION CONTACT:

Rachel London, Manager, Branch of Delisting and Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (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, the U.S. Fish and Wildlife Service (Service), 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 add the northern subspecies of scarlet macaw (                    *A. m. cyanoptera*) as an endangered species, the northern distinct population segment (DPS) of the southern subspecies (                    *A. m. macao*) as a threatened species, and 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. 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 Species Information section in the 2019 rule.                

                    In the 2019 rule, we determined that the northern DPS of the southern subspecies of scarlet macaw meets 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. At that time, we followed our Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's                           ( print page 104951)                        Definitions of “Endangered Species” and “Threatened Species” (Final Policy; 79 FR 37578, July 1, 2014), which provided that if the Service determined that a species was threatened throughout all of its range, the Service would not analyze whether the species was endangered in a significant portion of its range. Therefore, we did not conduct an evaluation of whether the northern DPS of the southern subspecies (                    *A. m. macao*) should be listed as an endangered species due to its status in a significant portion of its range (SPR).                

                    After the 2019 rule was published, the portion of the Final Policy that we had relied upon in the 2019 rule was vacated in                     *Center for Biological Diversity*                     v.                     *Everson,*                     435 F. Supp. 3d 69 (D.D.C. Jan. 28, 2020) (                    *Everson*). Therefore, we sought a voluntary remand of the 2019 rule and the 4(d) rule in an ongoing lawsuit that challenged both rules (                    *Friends of Animals*                     v.                     *Williams*                     (No. 1:21-cv-02081-RC, Doc. 22) (                    *Friends of Animals*)). On August 29, 2022, the U.S. District Court for the District of Columbia (Court) granted our motion for voluntary remand without vacatur of the threatened finding and section 4(d) rule for the northern DPS of the southern subspecies of scarlet macaw.                

                    In response to the Court's decision, we published a document in the                     **Federal Register**                     stating that we were reexamining our 2019 SPR analysis and reconsidering it based on the plain language of the Act and the implications of                     *Everson*                     (87 FR 66093, November 2, 2022). In that document (hereafter, “the 2022 reconsideration”), we sought public comment on how the decision in                     *Everson*                     and the Act's plain language may affect the 2019 rule. Specifically, we were interested in public input on whether and how the                     *Everson*                     opinion affects the SPR analysis in the threatened determination.                

Taking into consideration all public comments received on the 2022 reconsideration and based on our additional analysis, on April 3, 2023, we published a new 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”).

In the 2023 SPR analysis, we assessed four portions of the northern DPS of the southern subspecies of scarlet macaw: the Pacific slope of Costa Rica, mainland Panama, Colombia west of the Andes, and Panama and Colombia combined. We concluded that none of the portions in the northern DPS are both in danger of extinction and significant. Having completed the SPR analysis for the northern DPS and having determined that the northern DPS is not in danger of extinction in any significant portion of its range, we did not propose to revise the current 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 rule.

For a description of previous Federal actions concerning the scarlet macaw, please refer to the 2022 reconsideration (87 FR 66093, November 2, 2022) and the 2023 SPR analysis (88 FR 19549, April 3, 2023).

## This Action

In response to an amended complaint filed by Friends of Animals, the Court found that we inappropriately limited the scope of public comments in the 2022 reconsideration. On July 10, 2024, the Court vacated the 2023 SPR analysis and remanded it to us to reconduct that analysis after soliciting and considering public comments on the relevant, substantive issues. Accordingly, with this document, we hereby open a 30-day public comment period on the 2023 SPR analysis with no limitations on the comments requested.

## Public Comments

                    We will accept written comments and information during this comment period on our 2023 SPR analysis for the northern DPS of the southern subspecies of scarlet macaw (88 FR 19549, April 3, 2023). Consistent with the Court's order in                     *Friends of Animals,*                     we will reconduct that SPR analysis after considering all comments and information that we receive. Our consideration of the comments and information may have different outcomes: Our final SPR analysis and listing determination may differ from the 2023 SPR analysis and, therefore, we may need to revise and repropose the northern DPS listing determination; alternatively, we may affirm our conclusion in the 2023 SPR analysis, and no reproposal of the northern DPS listing determination may be necessary. In either a final SPR analysis and determination or any reproposed northern DPS listing determination, we will clearly explain our rationale and the basis for our determination, including why we made changes, if any, that differ from the 2023 SPR analysis.                

Comments should be as specific as possible. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered species or a threatened species must be made solely on the basis of the best scientific and commercial data available. Comments or information already submitted on the proposed rule (77 FR 40222, July 6, 2012); revised proposed rule (81 FR 20302, April 7, 2016); or the 2022 reconsideration of the 2019 rule (87 FR 66093, November 2, 2022) need not be resubmitted. Any such comments are already incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them as part of this action.

                    You may submit your comments and materials by one of the methods listed in                     **ADDRESSES**                    . We request that you send comments only by the methods described in                     **ADDRESSES**                    . If you submit information via                     *https://www.regulations.gov,*                     your entire submission—including your personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on                     *https://www.regulations.gov*. Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on                     *https://www.regulations.gov*                     at FWS-HQ-ES-2022-0134.                

## Authors

The primary authors of this document are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Branch of Delisting and Foreign Species.

## Authority

                    The Endangered Species Act of 1973, as amended (16 U.S.C. 1531*et seq.*), is the authority for this action.                

## Signing Authority

                    Martha Williams, Director of the U.S. Fish and Wildlife Service, approved this action on December 3, 2024. Acting Director Steve Guertin approved these packages December 15, 2024. On December 16, 2024, the acting Director authorized the undersigned to sign the document electronically and submit it to the Office of the Federal Register for                           ( print page 104952)                        publication as an official document of the U.S. Fish and Wildlife Service.                

Madonna Baucum,

Regulations and Policy Chief, Division of Policy, Economics, Risk Management, and Analytics of the Joint Administrative Operations, U.S. Fish and Wildlife Service.

[FR Doc. 2024-30381 Filed 12-23-24; 8:45 am]

BILLING CODE 4333-15-P