[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]
BILLING CODE 4310-55-U