Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to Delist the Coastal California Gnatcatcher as Threatened, 66255-66260 [2011-27644]
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Federal Register / Vol. 76, No. 207 / Wednesday, October 26, 2011 / Proposed Rules
refer to Appendix A of the DEA of the
proposed critical habitat designation for
a more detailed discussion of potential
economic impacts.
In summary, we have considered
whether the proposed designation
would result in a significant economic
impact on a substantial number of small
entities. Information for this analysis
was gathered from the Small Business
Administration, stakeholders, and the
Service. For the above reasons and
based on currently available
information, we certify that if
promulgated, the proposed designation
would not have a significant economic
impact on a substantial number of small
business entities. Therefore, an initial
regulatory flexibility analysis is not
required.
Authors
The primary authors of this notice are
the staff members of the Idaho Fish and
Wildlife Office, Pacific Region, U.S.
Fish and Wildlife Service.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: October 17, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2011–27727 Filed 10–25–11; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2011–0066;
92220–1113–0000; ABC Code: C5]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition to Delist the Coastal California
Gnatcatcher as Threatened
Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
finding.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to remove
the coastal California gnatcatcher
(Polioptila californica californica) as a
threatened species under the
Endangered Species Act of 1973, as
amended (Act). Based on our review, we
find that the petition does not present
substantial scientific or commercial
information to indicate that delisting the
coastal California gnatcatcher may be
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warranted. Therefore, we are not
initiating a status review in response to
this petition. We also conclude that the
coastal California gnatcatcher
constitutes a valid subspecies and are
no longer considering whether to
propose its reclassification to a distinct
population segment (DPS) under the
Act. We ask the public to submit to us
any new information that becomes
available concerning the status of, or
threats to, the coastal California
gnatcatcher or its habitat at any time.
DATES: The finding announced in this
document was made on October 26,
2011.
ADDRESSES: This finding is available on
the Internet at https://
www.regulations.gov at Docket Number
FWS–R8–ES–2011–0066. Supporting
documentation we used in preparing
this finding is available for public
inspection, by appointment, during
normal business hours at the U.S. Fish
and Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley
Road, Suite 101, Carlsbad, CA 92011.
Please submit any new information,
materials, comments, or questions
concerning this finding to the above
address.
FOR FURTHER INFORMATION CONTACT: Jim
Bartel, Field Supervisor, Carlsbad Fish
and Wildlife Office, U.S. Fish and
Wildlife Service, 6010 Hidden Valley
Road, Suite 101, Carlsbad, CA 92011, by
telephone at 760–431–9440, or by
facsimile to 760–431–9624. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at
800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16
U.S.C. 1531 et seq.) requires that we
make a finding on whether a petition to
list, delist, or reclassify a species
presents substantial scientific or
commercial information indicating that
the petitioned action may be warranted.
We are to base this finding on
information provided in the petition,
supporting information submitted with
the petition, and information otherwise
available in our files. To the maximum
extent practicable, we are to make this
finding within 90 days of our receipt of
the petition, and publish our notice of
the finding promptly in the Federal
Register.
Our standard for substantial scientific
or commercial information within the
Code of Federal Regulations (CFR) with
regard to a 90-day petition finding is
‘‘that amount of information that would
lead a reasonable person to believe that
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66255
the measure proposed in the petition
may be warranted’’ (50 CFR
424.14(b)(1)). If we find that substantial
scientific or commercial information
was presented, we are required to
promptly conduct a species status
review, which we subsequently
summarize in our 12-month finding.
Petition History
We received a petition, dated April 9,
2010, from the Pacific Legal Foundation
(PLF), representing the Coalition of
Labor Agriculture, and Business
(COLAB), Property Owners Association
of Riverside County, and M. Lou Marsh,
M.D., on April 12, 2010, to remove the
coastal California gnatcatcher from the
Federal List of Endangered and
Threatened Wildlife (List) under the Act
(PLF 2010, pp. 1–9). The petition clearly
identifies itself as such and included the
requisite identification information for
the petitioner(s), as required in 50 CFR
424.14(a). This finding addresses the
petition.
Previous Federal Actions
The coastal California gnatcatcher has
been the subject of numerous Federal
Register publications since its inclusion
as a category two candidate species in
1982 (47 FR 58454, December 30, 1982;
Service 2010, p. 3) (see https://
ecos.fws.gov/speciesProfile/profile/
speciesProfile.action?spcode=B08X). On
March 22, 1991, the Service published
a 90-day finding addressing seven
petitions to list five species as
threatened or endangered, including
three petitions pertaining to the coastal
California gnatcatcher (56 FR 12146),
and concluded that substantial
information was presented to indicate
that listing might be warranted. This
finding led to the September 17, 1991,
publication of a proposed rule to list the
coastal California gnatcatcher as
endangered; the public comment period
for this proposed rule lasted 6 months,
until March 16, 1992 (56 FR 47053). The
proposed rule also constituted our
12-month finding, which the proposed
rule referred to as the ‘‘final finding’’, on
the petition.
On September 22, 1992, the Service
reopened the public comment period on
the proposed rule to list the coastal
California gnatcatcher as endangered for
an additional 30 days, from September
22, 1992, until October 22, 1992, and
notified the public that we needed extra
time to obtain and review the
information regarding the taxonomy of
the coastal California gnatcatcher (57 FR
43686). On March 30, 1993, the Service
published a final rule to list the coastal
California gnatcatcher as a threatened
species (58 FR 16742). In that rule, we
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did not designate critical habitat,
because we had determined that
designating critical habitat for the
gnatcatcher was not prudent.
On March 30, 1993, the same day that
the final listing rule published in the
Federal Register, we also published a
proposed rule to adopt a special rule
under section 4(d) of the Act (16 U.S.C.
1531 et seq.) to allow for the take of the
coastal California gnatcatcher (58 FR
65088). On December 10, 1993, the
Service published in the Federal
Register a final rule adopting the special
rule concerning take of the coastal
California gnatcatcher (58 FR 65088).
The special rule is codified in the Code
of Federal Regulations (CFR) at 50 CFR
17.41(b).
In a Memorandum Opinion and Order
filed in the U.S. District Court for the
District of Columbia on May 2, 1994
(Building Industry Association of
Southern California et al. v. Babbitt), the
Court vacated the listing determination
for the coastal California gnatcatcher,
stating the Secretary of the Interior
should have made available the raw
data that formed the basis of Dr.
Jonathan Atwood’s report (Atwood
1991) that concluded subspecies
recognition for the coastal California
gnatcatcher. We subsequently made
these data available to the public for
review and comment on June 2, 1994,
for a period of 60 days, until August 1,
1994 (59 FR 28508). On June 16, 1994,
the Court reinstated the threatened
status for the coastal California
gnatcatcher until the public could
review and comment on the raw data
analyzed by Atwood.
Before the comment period for the
June 2, 1994, Federal Register
publication ended, we extended that
public comment period (59 FR 38426,
July 28, 1994), and we subsequently
extended it two more times, on August
26, 1994 (59 FR 44125), and October 25,
1994 (59 FR 53628). Therefore, the
public comment period on data
pertaining to the subspecific taxonomy
of the coastal California gnatcatcher
lasted from June 2, 1994, until
December 1, 1994. Further, on
December 27, 1994, we reopened the
public comment period on those data
for an additional 30 days, until January
26, 1995 (59 FR 66509).
On March 27, 1995, the Service
published in the Federal Register (60
FR 15693) an extensive review of the
Atwood data (including independent
scientific analyses of the Atwood data)
received during the public comment
periods concerning the subspecies
classification of the coastal California
gnatcatcher. We affirmed our earlier
determination that the coastal California
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gnatcatcher is a valid subspecies (58 FR
16742, March 30, 1993; 58 FR 65088,
December 10, 1993) and affirmed the
coastal California gnatcatcher’s
threatened status under the Act.
On February 8, 1999, the Service
published in the Federal Register (64
FR 5957) a notice of determination that
it was prudent to designate critical
habitat for the coastal California
gnatcatcher. We subsequently published
a proposed rule to designate critical
habitat for the coastal California
gnatcatcher (65 FR 5945; February 7,
2000); announced a reopening of
comment period and availability of a
draft economic analysis for the February
7, 2000, proposed rule (65 FR 40073;
June 29, 2000); and published a final
rule designating critical habitat for the
coastal California gnatcatcher (65 FR
63679; October 24, 2000).
In response to a June 11, 2002, court
ruling from the U.S. District Court for
the Central District of California
(Building Industry Association of
Southern California et al. v. Norton), the
Service published a proposed rule to
revise designated critical habitat for the
coastal California gnatcatcher on April
24, 2003 (68 FR 20228). In this proposed
rule, the Service reconsidered the
economic impacts associated with
designating any particular area as
critical habitat, announced that we were
considering whether the listing of the
coastal California gnatcatcher should be
amended as a DPS in light of a study by
Zink et al. (2000) questioning the
genetic distinctiveness of the coastal
California gnatcatcher, and opened a 60day period for public comments (68 FR
20228). On April 8, 2004, the Service
published two documents related to the
coastal California gnatcatcher: The first
reopened the public comment period on
the proposed determination of a DPS of
the coastal California gnatcatcher (69 FR
18515), and the second was a notice of
availability of draft economic analysis
and a public hearing on the proposed
April 24, 2003, designation of critical
habitat (69 FR 18516). The Service
published its final rule concerning the
revised designation of critical habitat on
December 19, 2007 (72 FR 72009), for
the coastal California gnatcatcher. In
that Federal Register publication, we
announced that we were continuing to
evaluate whether the current listing of
the coastal California gnatcatcher as a
subspecies under the Act should be
retained or changed.
In 2010, we completed a 5-year status
review of the coastal California
gnatcatcher (Service 2010, pp. 1–51).
After analyzing all available
information, including Zink et al.
(2000), we recommended no change in
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its threatened status and indicated that
we would not pursue delineation of a
DPS for the coastal California
gnatcatcher (Service 2010, p. 36;
https://ecos.fws.gov/docs/
five_year_review/doc3571.pdf). With a
recommendation of no change in
threatened status, the coastal California
gnatcatcher maintains its recovery
priority number of 9C, based on the
taxon’s status as a subspecies facing a
high degree of threat with a low
recovery potential.
Species Information
For information on the biology and
life history of the coastal California
gnatcatcher, see the 2010 coastal
California gnatcatcher 5-year review
(Service 2010, pp. 6–11).
Evaluation of Information for This
Finding
Under section 3(16) of the Act, we
may consider for listing any species,
including subspecies, of fish, wildlife,
or plants, or any DPS of vertebrate fish
or wildlife that interbreeds when mature
(16 U.S.C. 1532(16)). Such entities are
considered eligible for listing under the
Act (and, therefore, are referred to as
listable entities), should we determine
that they meet the definition of an
endangered or threatened species.
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations at 50
CFR 424 set forth the procedures for
adding a species to, or removing a
species from the List. A species may be
determined to be an endangered or
threatened species due to one or more
of the five factors described in section
4(a)(1) of the Act:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
We must consider these same five
factors in delisting a species. We may
delist a species according to 50 CFR
424.11(d) if the best available scientific
and commercial data indicate that the
species is neither endangered nor
threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is
no longer endangered or threatened; or
(3) The original scientific data used at
the time the species was classified were
in error.
In making this 90-day finding, we
evaluated whether information
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regarding the coastal California
gnatcatcher, as presented in the petition
and other information available in our
files, is substantial, thereby indicating
that the petitioned action may be
warranted. The petition did not assert
that the coastal California gnatcatcher is
extinct, nor do we have information in
our files indicating that the coastal
California gnatcatcher is extinct. The
petition did not assert that the coastal
California gnatcatcher has recovered
and is no longer endangered or
threatened, nor do we have information
in our files indicating the coastal
California gnatcatcher has recovered.
The petition also did not contain any
information regarding threats to the
coastal California gnatcatcher. We
recently completed a 5-year status
review in which we determined that the
threats found at the time of listing
remain, and we recommended that the
coastal California gnatcatcher retain its
threatened status (Service 2010, pp. 11–
35). The petition asserts that the original
scientific data used at the time the
coastal California gnatcatcher was listed
as Threatened under the Act were in
error. Our evaluation of the information
included with the petition is presented
below.
The petitioners claim the coastal
California gnatcatcher is not a valid
subspecies and request we remove the
coastal California gnatcatcher from the
List. The petitioners present an
unpublished literature review prepared
for the Pacific Legal Foundation by Dr.
Matthew A. Cronin (2009, in litt. pp. 1–
18), which reviewed ‘‘* * * post-listing
studies to explain why the subspecies
classification for the California
gnatcatcher is no longer tenable’’ (PLF
2010, p. 4). The petition presented two
published journal articles, Zink et al.
(2000, pp. 1394–1405) and Skalski et al.
(2008, pp. 199–220), supporting three
issues of concern raised by Cronin
(2009, in litt. pp. 1–18). The issues of
concern raised by Cronin and stated in
the petition are:
(1) ‘‘Zink et al. (2000, pp. 1394–1405)
determined that Atwood’s observed
morphological characteristic changes
are not representative of genetic
differentiation, which differentiation
could support a subspecies
classification. The Zink study’s
conclusion is all the more significant
given that Atwood was a co-author. In
their paper, Zink and Atwood expressly
state that P. californica should have no
subspecies.
(2) Skalski et al. (2008, pp. 199–220)
determined that Atwood’s statistical
analyses were seriously flawed because
Atwood’s supposed diagnostic
characters support a geographic cline,
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not a distinct break in character
distribution markers, which could
support a subspecies classification.
(3) Skalski et al. (2008, pp. 199–220)
determined that Atwood’s data sets
were confounded: many of Atwood’s
specimens may not have been
representative of wild gnatcatchers.’’
The first issue presented by the
petitioners refers to Zink et al. (2000,
pp. 1394–1405), which asserts that the
morphological differences (i.e., plumage
coloration, body size) identified by
Atwood (1988, pp. iii–vii, 1–74; 1991,
pp. 118–133) do not represent genetic
differentiation that supports subspecies
classification. Zink et al. (2000, p. 1399)
examined variation within the
mitochondrial (mt) mtDNA control
region and three mtDNA genes of the
coastal California gnatcatcher and
concluded the genetic information does
not support recognition of the coastal
California gnatcatcher as a subspecies.
Zink et al. (2000) does not state that
Polioptila californica should have no
subspecies, but instead suggests that
currently recognized subspecies may
not be equivalent to ecologically
significant units.
As a result of uncertainty in the
subspecies status of the coastal
California gnatcatcher raised by Zink et
al. (2000, pp. 1394–1405), in 2003 and
2004 the Service solicited public
comments on a proposed determination
of a DPS for the coastal California
gnatcatcher (68 FR 20228; 69 FR 18515).
Public comments received in 2004 on
this issue were highly polarized, though
most expressed concern with the
validity or usefulness of redefining the
coastal California gnatcatcher as a DPS.
Some commenters advocated delisting
the coastal California gnatcatcher and
asserted that the application of the DPS
policy was inappropriate. They argued
that the information presented by Zink
et al. (2000, pp. 1394–1405) challenging
the subspecies classification for the
coastal California gnatcatcher
superseded over 100 years of previously
published taxonomic treatments
recognizing morphological
distinctiveness to varying degrees
within the greater California gnatcatcher
taxon, including (Brewster 1881, p. 103;
Brewster 1902, p. 210; Thayer and
Bangs 1907, p. 138; Grinnell 1926, p.
496; Grinnell 1928, p. 227; van Rossem
1931, p. 35; Hellmayr 1934, p. 508; AOU
1957, p. 451; Miller et al. 1957, pp. 204–
205; Mayr and Paynter 1964, pp. 449–
450; Atwood 1988, p. 61; Atwood 1991,
p. 127; Phillips 1991, p. 25; Mellink and
Rea 1994, p. 53; Howell and Webb 1995,
p. 578). However, many public
commenters advocated the retention of
the coastal California gnatcatcher as a
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listed subspecies and questioned if
information from one scientific
publication was sufficient to overrule
information from multiple, previously
published, scientific papers that
acknowledge the distinctiveness of the
coastal California gnatcatcher and lend
support to its retention as a listed
subspecies. The Service also received
comments from peer-reviewers, the
majority of which cautioned against
putting too much weight on Zink et al.’s
(2000) conclusions and questioned
whether the analysis by Zink et al.
(2000, pp. 1394–1405) supported a
change of the coastal California
gnatcatcher’s subspecific status (2000,
pp. 1394–1405).
In 2004, the Service also convened a
panel of seven Federal scientists (five
Service biologists not associated with
the listing of the coastal California
gnatcatcher, one Smithsonian Institute
biologist, and one National Park Service
biologist) to discuss and evaluate how
well scientific evidence supports the
following statements:
(1) The coastal California gnatcatcher
(Polioptila californica californica) is a
valid subspecies.
(2) The coastal California gnatcatcher
is discrete (substantially divergent in
physical, physiological, ecological,
genetic, or behavioral characters) from
other portions of the species.
(3) Loss of the coastal California
gnatcatcher would represent a
significant diminution of the species as
a whole (in terms of evolutionary legacy
or range of biological characteristics
represented within the species).
(4) The coastal California gnatcatcher
is neither a valid subspecies nor a
discrete and significant portion of the
species.
(5) The mtDNA evidence presented by
Zink et al. (2000) alone constitutes
sufficient information to overturn the
existing taxonomy.
Overall, panelists supported retaining
the coastal California gnatcatcher as a
subspecies under the Act for reasons
including (but not limited to):
(1) ‘‘There is evidence showing the
coastal California gnatcatcher differs in
several morphological characters from
gnatcatcher populations farther south
(body plumage color, tail length,
amount of white in tail, and brownish
plumage in females). All authorities
have recognized it as a distinct taxon
based on its physical appearance since
it was first described. While some doubt
has been cast on recent analyses of
morphological data by Atwood (1991),
problems with that analysis do not
invalidate previous and subsequent
morphological work (Grinnell 1926, van
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Rossem 1931, Mellink and Rea 1994).’’
(VanderWerf, in litt. 2004, p. 1).
(2) Although Zink et al. (2000)
concluded that mitochondrial DNA does
not support the existence of a
subspecies of Polioptila californica,
‘‘mtDNA represents only a single
genetic marker among many potential
markers that could provide an
indication of population subdivision,
subspecies, or local adaptation. Other
molecular markers with higher mutation
rates may reveal more recent patterns of
divergence and would be more likely to
show population differentiation, such as
nuclear genetic markers, which might be
linked to selected traits and would be
expected to evolve more rapidly than
mtDNA. None of these other markers
have been investigated’’ (VanderWerf, in
litt. 2004, pp. 1–2).
(3) ‘‘Phylogenetic reconstructions and
taxonomic determinations should be,
and usually are, based on a variety of
morphological, genetic (including
nuclear and mtDNA), and behavioral
evidence.’’ (VanderWerf, in litt. 2004,
p. 2).
(4) ‘‘Patterns in mtDNA variations can
be extremely variable and may or may
not have anything to do with the
patterns seen in nuclear markers, or
with morphological, ecological,
physiological, or behavioral data, and
therefore are often not reflective of
important differences between species,
subspecies or populations. Patterns of
genetic variation can be totally different
from, and uninformative about,
important adaptive differences between
taxa (Crandall et al. 2000). Besides the
California gnatcatcher, there are many
examples in which mtDNA evidence
failed to detect documented differences
in morphology, nuclear DNA and
ecological adaptation, including the
Common raven (Omland et al. 2000),
Orchard oriole (Baker et al. 2003),
Florida grasshopper sparrow (Bulgin et
al. 2003), and Swamp sparrows
(Greenberg et al. 1998).’’ (VanderWerf,
in litt. 2004, p. 2).
(5) ‘‘The most comprehensive review
of available mtDNA data was conducted
by Funk and Omland (2003), who found
that 23 percent of 2,319 species showed
evidence of paraphyly or polyphyly
based on mtDNA (sharing of mtDNA
haplotypes among species), and they
concluded that the causes of this must
be understood to avoid erroneous
phylogenetic interpretations.’’
(VanderWerf, in litt. 2004, p. 2).
(6) ‘‘Loss of the coastal California
gnatcatcher would substantially
decrease the species’ range and, since it
occurs in a somewhat different habitat
type from other populations, would
diminish the ecological range of
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characteristics present in the species.
Although the adaptive significance of
the morphological differences has not
been investigated, it is possible they
represent important adaptations to the
local environment, and that their loss
would diminish the species
evolutionary legacy.’’ (VanderWerf, in
litt. 2004, pp. 1–2).
(7) ‘‘Zink et al. (2000) provide some
interesting information on the
evolutionary history of [gnatcatcher]
populations, but the argument that the
California gnatcatcher is not distinct
from other populations is based on a
single genetic character, mtDNA, and
this is a far too narrow and limited
technique for making determinations of
taxonomic validity. Most features of an
organism are determined by multiple
(nuclear) genes, not by mtDNA.
Taxonomists and other biologists
interested in evolutionary units cannot
ignore available data on other aspects of
the genome and physical and ecological
characters (Crandall et al. 2000). Under
the very narrow criterion of Zink et al.
(2000) few subspecies would be valid,
and many full species would not be
recognized, despite abundant and
definitive data that they are no longer
capable of interbreeding with other
species (Avise 2004).’’ (VanderWerf, in
litt. 2004, pp. 2–3).
The panel concluded that the
scientific evidence: (1) Substantially
supports that the coastal California
gnatcatcher is a valid subspecies; (2)
substantially supports that the coastal
California gnatcatcher is discrete from
other portions of the species; (3)
substantially supports that the loss of
the coastal California gnatcatcher would
represent a significant diminution of the
species as a whole; (4) offers little
support for the assertion that the coastal
California gnatcatcher is neither a valid
subspecies nor a discrete and significant
portion of the species; and (5) displays
little support that the mtDNA evidence
presented by Zink et al. (2000, pp.
1394–1405) alone constitutes sufficient
information to overturn the existing
taxonomy. The panel also noted that
further decision on the status of the
taxon should wait for analyses of a
variety of morphological, genetic
(including nuclear and mtDNA), and
behavioral evidence.
In 2005, Edwards et al. (p. 6552)
asserted that nuclear genes, not mtDNA,
should have priority in determining
avian species delimitation.
Additionally, Haig and Winker (2010,
pp. 172, 174) asserted the best approach
for subspecies recognition is to include
multiple characters (mtDNA, nuclear
DNA, morphology) and that reliance on
a single locus with unique properties,
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such as mtDNA, may not accurately
reflect the genetic differences among
populations due to random genetic
effects (Funk et al. 2007, pp. 1287–
1288).
We acknowledge that the taxonomic
classification of the coastal California
gnatcatcher has been the subject of
considerable scientific debate. The
Service also addresses the information
presented by Zink et al. (2000) in a
recent 5-year review for the coastal
California gnatcatcher (Service 2010, pp.
4–5). Species experts have recognized
the coastal California gnatcatcher as a
distinct taxon based on its physical
appearance since it was first described,
and the taxon is recognized as a distinct
subspecies by the American
Ornithologists Union (AOU 1957, p.
451). Some doubt has been cast on
analyses of morphological data by
Atwood (1991, pp. 118–133) (e.g.,
Cronin 1997, p. 663), but problems with
those analyses do not invalidate
previous and subsequent morphological
work (Grinnell 1926, pp. 493–500; van
Rossem 1931, pp. 36–37; Phillips 1991,
pp. 25–26; Mellink and Rea 1994, pp.
50–62). Analysis by Zink et al. (2000, p.
1402) suggested that the northern
population of California gnatcatchers
does not appear to be unique, and that
not all recognized subspecies equate to
evolutionary significant units, although
they were unable to expressly state that
P. californica should have no
subspecies, as claimed in the petition.
We concluded in our 5-year review
(Service 2010, pp. 4–5), that Zink et al.
(2000, pp. 1394–1405) was insufficient
to disregard the existing taxonomic
status of the coastal California
gnatcatcher and the information from
multiple scientific papers that support
subspecies classification of P.c. californica. We affirm that conclusion here.
We conclude that the information and
analysis in Zink et al. 2000 does not
present substantial information that the
current subspecies taxonomic
classification of the coastal California
gnatcatcher may be in error.
The second issue presented by the
petitioners refers to Skalski et al. (2008,
pp. 199–220) and the assertion that the
statistical analyses applied to the
morphological data (collected by
Atwood in determining the subspecies
status of the coastal California
gnatcatcher) were not appropriate
statistical techniques for determining
subspecific species classification. The
issue Skalski et al. (2008, pp. 199–220)
raises concerns the use of numerous
tests of equality of sample means,
cluster analysis, and discriminant
analysis (Atwood 1991; Atwood, in litt.
1994; Link and Pendleton, in litt. 1994;
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McDonald et al., in litt. 1994; Messer, in
litt. 1994, Newton, in litt. 1994), which
supported the subspecies classification.
Skalski et al. (2008, pp. 199–220) assert
these analyses are subject to high rates
of false positives (Type I error) and
therefore determination of classification
as a subspecies should be based on
analyses designed to detect specific
alternative hypotheses, such as step and
spline regression, while being
insensitive to the sample location
distributions (Skalski et al. 2008,
p. 217).
We examined this paper and
determined the statistical analysis
conducted by Skalski et al. (2008, pp.
210–212), a spline regression model
using the log-length of the white spot on
the sixth rectrix (tail feather) of the
California gnatcatcher, was a new
interpretation of old data and examined
only one character, as an example of the
statistical analysis of the 31 that Atwood
(1988, pp. iii–vii, 1–74; 1991, 118–133)
analyzed in his research. Skalski’s
analysis of this character, in contrast to
Atwood’s analysis, did not detect
variation in the character consistent
with subspecific designations within the
California gnatcatcher. However, the
Service concludes the results of this
restrictive analysis do not present
substantial evidence supporting
potential revision of the subspecific
taxonomic classification of the coastal
California gnatcatcher. While the issue
of concern raised by Skalski et al. (2008,
pp. 199–220) and the petitioners relates
to the validity of the statistical
technique used, and we acknowledge
that application of different statistical
methods may yield different
conclusions, the study’s application of
alternative methods of data analyses is
limited. Without further analysis of
additional characters, few conclusions
can be made as to the appropriate
taxonomic classification of the coastal
California gnatcatcher. The current
information does not provide
substantial information that the current
subspecies taxonomic classification of
the coastal California gnatcatcher may
be in error.
We previously analyzed the statistical
technique utilized to determine
subspecific classification of the coastal
California gnatcatcher and addressed
this topic in a publication in the Federal
Register that determined that the
conclusions reached by Atwood (1991)
were reasonable and were largely
consistent with five other independent
and alternative scientific analyses (Link
and Pendleton, in litt. 1994; Atwood, in
litt. 1994; McDonald et al., in litt. 1994;
Messer, in litt. 1994, Newton, in litt.
1994) that were received at that time
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and support 30° north latitude as the
southern subspecific boundary of P.c.
californica (60 FR 15698; March 27,
1995). We continue to agree that
Atwood’s conclusions are reasonable
because they are based on scientifically
sound methodology that represents the
best available scientific and commercial
data available (60 FR 15699; March 27,
1995), as required in 50 CFR 424.11(d).
The final issue presented by the
petitioners also refers to Skalski et al.
(2008, pp. 199–220) and their assertion
that ‘‘foxing’’ (the change in feather
color associated with time after
preparation of the specimen) of museum
specimens might have biased Atwood’s
original and subsequent analysis of
phenotypic characters, including
plumage brightness (Atwood 1988, pp.
iii–vii, 1–74; 1991, 118–133), by
confounding the specimen’s year of
collection with measures of brightness
of plumage. Significantly, Skalski et al.
(2008) did not reexamine the specimens
evaluated by Atwood, but instead
constructed scatterplot diagrams that
compared the area of specimen
collection (latitude) with time (year)
collected.
Mellink and Rea (1994, pp. 50–62), in
their analyses of coastal California
gnatcatcher taxonomy, collected
samples from the field and specimens
from museums for comparison of
genetic differences. The petition argues
that the study skins analyzed by Mellink
and Rea (1994) were also subject to
foxing. However, Mellink and Rea
(1994, pp. 52–53) excluded samples that
were worn, damaged, or soiled to
eliminate discrepancies among samples
and concluded that within this species,
foxing is ‘‘* * * slight and seems
restricted largely to the gray underparts,
with little or no apparent change in
brown areas.’’
Additionally, as mentioned under the
second issue presented by the
petitioners, five independent statistical
analyses were conducted and submitted
to the Service, in response to a request
for public comment (59 FR 28508, 59 FR
38426, 59 FR 44125, 59 FR 53628, 59 FR
66509). These analyses (Link and
Pendleton, in litt. 1994; Atwood, in litt.
1994; McDonald et al., in litt. 1994;
Messer, in litt. 1994; Newton, in litt.
1994) as well as Mellink and Rea (1994)
were addressed in the March 27, 1995,
Federal Register publication (60 FR
15693) announcing our determination
that the coastal California gnatcatcher is
a valid subspecies and affirming the
coastal California gnatcatcher’s
threatened status under the Act (60 FR
15695). In that document, we concluded
that there was no justification to support
a claim that Atwood’s 1991 data were
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66259
incomplete, censored, or otherwise
inadequate. Furthermore, we concluded
that the analysts of the five independent
reviews of Atwood’s 1991 data took
adequate care to remove potential
effects of confounding of specimen age
and collection area (60 FR 15695; March
27, 1995).
We conclude that the petitioner did
not present substantial new information
regarding the subspecific status of the
coastal California gnatcatcher. The
genetic information provided in the
petition (Zink et al. 2000) and assertions
of improper statistical analyses (Skalski
et al. 2008) have been the focus of
several Service (Service 2010) and
independent scientific reviews (Link
and Pendleton, in litt. 1994; Atwood, in
litt. 1994; McDonald et al., in litt. 1994;
Messer, in litt. 1994; Newton, in litt.
1994; Mellink and Rea 1994;
VanderWerf, in litt. 2004) and the
Service has concluded that the
information is insufficient to support
reclassification (see Service 2010, pp. 1–
51). Issues regarding morphological
analyses and specimen quality have also
been considered by the Service and by
numerous other taxonomic
examinations, all of which support the
subspecific status of the coastal
California gnatcatcher (Grinnell 1926,
pp. 493–500; van Rossem 1931, pp. 36–
37; Phillips 1991, pp. 25–26; Mellink
and Rea 1994, pp. 50–62). We hereby
reaffirm our determination and
recognition of the coastal California
gnatcatcher as a distinct taxon, at the
rank of subspecies as Polioptila
californica californica.
Finding
In summary, the petition does not
present substantial information to
support a finding that the removal of the
coastal California gnatcatcher from the
List of Endangered and Threatened
Wildlife may be warranted on the
ground that the coastal California
gnatcatcher is not a valid subspecies.
The petition presents an unpublished
review by Cronin (2009, pp. 1–18)
contending that subspecies
classification for the coastal California
gnatcatcher is not reasonable. The
review discusses articles by Skalski et
al. (2008, pp. 1394–1405) and Zink et al.
(2000), that provide analyses of
Atwood’s (1991) data. We previously
reviewed Atwood’s data (1988 and
1991) and concluded that Atwood’s
conclusion that the coastal California
gnatcatcher is a valid subspecies is
adequately supported (60 FR 15693,
March 27, 1995). We also convened a
panel of experts in 2004 to consider the
Zink et al. (2000) study. The panel
concluded that Zink et al. (2000) offers
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little and insufficient support for
reconsidering the coastal California
gnatcatcher’s subspecies classification.
Our recent status review also concluded
that the coastal California gnatcatcher
represents a valid subspecies (Service
2010, pp. 1–51).
The petitioners also assert that the
Service should overturn the
classification of the coastal California
gnatcatcher as a subspecies due to
inappropriate techniques used in
Atwood’s (1991) statistical analysis of
morphological data and present a
review and interpretation of two journal
articles in support of their claim. The
Service reviewed the articles and
determined that they do not present
new information; instead they consist of
an incomplete interpretation of old data.
Moreover, the concerns raised by
petitioners regarding ‘‘foxing’’ and the
statistical technique utilized to analyze
the data, were previously considered
and rejected in our March 27, 1995,
Federal Register publication affirming
that the coastal California gnatcatcher
meets the definition of a ‘‘species’’
under the Act (60 FR 15693), a Service
status review (Service 2010, pp. 1–51),
and a peer-reviewed journal (Mellink
and Rea 1994, pp. 50–62).
Morphological variation within the
California gnatcatcher species has been
recognized as an indicator of the
distinctiveness of populations and
subspecific groups by numerous
biologists, publications, and the AOU
before and after Atwood’s conclusion
that the coastal California gnatcatcher is
a valid subspecies (Brewster 1881, p.
103; Brewster 1902, p. 210; Thayer and
Bangs 1907, p. 138; Grinnell 1926, p.
496; Grinnell 1928, p. 227; van Rossem
1931, p. 35; Hellmayer 1934, p. 508;
AOU 1957, p. 451; Miller et al. 1957, pp.
204–205; Paynter 1964, pp. 449–450;
Atwood 1988, p. 61; Atwood 1991, p.
127; Phillips 1991, p. 25; Mellink and
Rea 1994, p. 53; Howell and Webb 1995,
p. 578). Thus, we conclude that the best
information available indicates that the
coastal California gnatcatcher is a valid
subspecies and that the original
scientific data evaluated and methods of
analysis used at the time of listing were
not in error as suggested by the
petitioners.
The sole focus of the petition is the
contention that the coastal California
gnatcatcher is not a valid subspecies
and therefore should be delisted.
Petitioners do not provide any
information related to the other relevant
factors that the Service considers when
reviewing proposals to list or delist a
species, including the factors provided
under subsection 4(a)(1) of the Act. The
information in Service files, including
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our recent 5-year review of the species
(Service 2010, pp. 1–51), confirms that
threats to the coastal California
gnatcatcher remain.
We have reviewed the petition, as
well as the literature cited in the
petition, and we have evaluated that
information and information in our
files. Based on this review and
evaluation, we find that the petition
does not present substantial scientific or
commercial information to indicate that
removal of the coastal California
gnatcatcher from the List may be
warranted. Although we will not
commence a status review in response
to this petition, we will continue to
monitor the population status and
trends of the coastal California
gnatcatcher, potential threats to the
coastal California gnatcatcher, and
ongoing management actions that might
be important with regard to the
conservation of the coastal California
gnatcatcher across its range.
Because we conclude that the coastal
California gnatcatcher is a valid
subspecies under the Act, we are no
longer considering whether to propose
its reclassification to a DPS under the
Act. This document reaffirms our
recognition of the coastal California
gnatcatcher as a subspecies. We
encourage interested parties to continue
to gather data that will assist with the
conservation of the subspecies. If you
wish to provide information regarding
the coastal California gnatcatcher, you
may submit your information or
materials to the Field Supervisor,
Carlsbad Fish and Wildlife Office (see
ADDRESSES), at any time.
References Cited
A complete list of references cited is
available on the Internet at https://
www.regulations.gov and upon request
from the Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION
CONTACT).
Author
The primary authors of this notice are
the staff members of the Carlsbad Fish
and Wildlife Office.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: October 14, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. 2011–27644 Filed 10–25–11; 8:45 am]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 110707371–1617–01]
RIN 0648–BB28
Fisheries of the Northeastern United
States; Atlantic Mackerel, Squid, and
Butterfish Fisheries; Specifications
and Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule, request for
comments.
AGENCY:
NMFS proposes 2012
specifications and management
measures for Atlantic mackerel and
butterfish, and 2012–2014 specifications
for Illex and longfin squid. This is the
first year that the specifications are
being recommended for Atlantic
mackerel and butterfish under the
provisions of the Mid-Atlantic Fishery
Management Council’s (Council)
Annual Catch Limit and Accountability
Measure Omnibus Amendment
(Omnibus Amendment). The two squid
species are exempt from these
requirements because they have a life
cycle of less than 1 year. This action
also proposes to adjust the closure
threshold for the commercial mackerel
fishery to 95 percent (from 90 percent),
to allow the use of jigging gear to target
longfin squid if the longfin squid fishery
is closed due to the butterfish mortality
cap, and to require a 3-inch (76-mm)
minimum codend mesh size in order to
possess more than 2,000 lb (0.9 mt) of
butterfish (up from 1,000 lb (0.45mt)).
Finally, this rule proposes minor
corrections in existing regulatory text
intended to clarify the intent of the
regulations. These proposed
specifications and management
measures promote the utilization and
conservation of the Atlantic Mackerel,
Squid, and Butterfish (MSB) resource.
DATES: Public comments must be
received no later than 5 p.m., eastern
standard time, on November 25, 2011.
ADDRESSES: Copies of supporting
documents used by the Mid-Atlantic
Fishery Management Council (Council),
including the Environmental
Assessment (EA) and Regulatory Impact
Review (RIR)/Initial Regulatory
Flexibility Analysis (IRFA), are
available from: Dr. Christopher M.
Moore, Executive Director, Mid-Atlantic
Fishery Management Council, Suite 201,
SUMMARY:
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[Federal Register Volume 76, Number 207 (Wednesday, October 26, 2011)]
[Proposed Rules]
[Pages 66255-66260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27644]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2011-0066; 92220-1113-0000; ABC Code: C5]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition to Delist the Coastal California Gnatcatcher as Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to remove the coastal California
gnatcatcher (Polioptila californica californica) as a threatened
species under the Endangered Species Act of 1973, as amended (Act).
Based on our review, we find that the petition does not present
substantial scientific or commercial information to indicate that
delisting the coastal California gnatcatcher may be warranted.
Therefore, we are not initiating a status review in response to this
petition. We also conclude that the coastal California gnatcatcher
constitutes a valid subspecies and are no longer considering whether to
propose its reclassification to a distinct population segment (DPS)
under the Act. We ask the public to submit to us any new information
that becomes available concerning the status of, or threats to, the
coastal California gnatcatcher or its habitat at any time.
DATES: The finding announced in this document was made on October 26,
2011.
ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket Number FWS-R8-ES-2011-0066. Supporting
documentation we used in preparing this finding is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Please submit any
new information, materials, comments, or questions concerning this
finding to the above address.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden
Valley Road, Suite 101, Carlsbad, CA 92011, by telephone at 760-431-
9440, or by facsimile to 760-431-9624. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires
that we make a finding on whether a petition to list, delist, or
reclassify a species presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. We
are to base this finding on information provided in the petition,
supporting information submitted with the petition, and information
otherwise available in our files. To the maximum extent practicable, we
are to make this finding within 90 days of our receipt of the petition,
and publish our notice of the finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)(1)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly conduct a species status review, which we subsequently
summarize in our 12-month finding.
Petition History
We received a petition, dated April 9, 2010, from the Pacific Legal
Foundation (PLF), representing the Coalition of Labor Agriculture, and
Business (COLAB), Property Owners Association of Riverside County, and
M. Lou Marsh, M.D., on April 12, 2010, to remove the coastal California
gnatcatcher from the Federal List of Endangered and Threatened Wildlife
(List) under the Act (PLF 2010, pp. 1-9). The petition clearly
identifies itself as such and included the requisite identification
information for the petitioner(s), as required in 50 CFR 424.14(a).
This finding addresses the petition.
Previous Federal Actions
The coastal California gnatcatcher has been the subject of numerous
Federal Register publications since its inclusion as a category two
candidate species in 1982 (47 FR 58454, December 30, 1982; Service
2010, p. 3) (see https://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=B08X). On March 22, 1991, the Service
published a 90-day finding addressing seven petitions to list five
species as threatened or endangered, including three petitions
pertaining to the coastal California gnatcatcher (56 FR 12146), and
concluded that substantial information was presented to indicate that
listing might be warranted. This finding led to the September 17, 1991,
publication of a proposed rule to list the coastal California
gnatcatcher as endangered; the public comment period for this proposed
rule lasted 6 months, until March 16, 1992 (56 FR 47053). The proposed
rule also constituted our 12-month finding, which the proposed rule
referred to as the ``final finding'', on the petition.
On September 22, 1992, the Service reopened the public comment
period on the proposed rule to list the coastal California gnatcatcher
as endangered for an additional 30 days, from September 22, 1992, until
October 22, 1992, and notified the public that we needed extra time to
obtain and review the information regarding the taxonomy of the coastal
California gnatcatcher (57 FR 43686). On March 30, 1993, the Service
published a final rule to list the coastal California gnatcatcher as a
threatened species (58 FR 16742). In that rule, we
[[Page 66256]]
did not designate critical habitat, because we had determined that
designating critical habitat for the gnatcatcher was not prudent.
On March 30, 1993, the same day that the final listing rule
published in the Federal Register, we also published a proposed rule to
adopt a special rule under section 4(d) of the Act (16 U.S.C. 1531 et
seq.) to allow for the take of the coastal California gnatcatcher (58
FR 65088). On December 10, 1993, the Service published in the Federal
Register a final rule adopting the special rule concerning take of the
coastal California gnatcatcher (58 FR 65088). The special rule is
codified in the Code of Federal Regulations (CFR) at 50 CFR 17.41(b).
In a Memorandum Opinion and Order filed in the U.S. District Court
for the District of Columbia on May 2, 1994 (Building Industry
Association of Southern California et al. v. Babbitt), the Court
vacated the listing determination for the coastal California
gnatcatcher, stating the Secretary of the Interior should have made
available the raw data that formed the basis of Dr. Jonathan Atwood's
report (Atwood 1991) that concluded subspecies recognition for the
coastal California gnatcatcher. We subsequently made these data
available to the public for review and comment on June 2, 1994, for a
period of 60 days, until August 1, 1994 (59 FR 28508). On June 16,
1994, the Court reinstated the threatened status for the coastal
California gnatcatcher until the public could review and comment on the
raw data analyzed by Atwood.
Before the comment period for the June 2, 1994, Federal Register
publication ended, we extended that public comment period (59 FR 38426,
July 28, 1994), and we subsequently extended it two more times, on
August 26, 1994 (59 FR 44125), and October 25, 1994 (59 FR 53628).
Therefore, the public comment period on data pertaining to the
subspecific taxonomy of the coastal California gnatcatcher lasted from
June 2, 1994, until December 1, 1994. Further, on December 27, 1994, we
reopened the public comment period on those data for an additional 30
days, until January 26, 1995 (59 FR 66509).
On March 27, 1995, the Service published in the Federal Register
(60 FR 15693) an extensive review of the Atwood data (including
independent scientific analyses of the Atwood data) received during the
public comment periods concerning the subspecies classification of the
coastal California gnatcatcher. We affirmed our earlier determination
that the coastal California gnatcatcher is a valid subspecies (58 FR
16742, March 30, 1993; 58 FR 65088, December 10, 1993) and affirmed the
coastal California gnatcatcher's threatened status under the Act.
On February 8, 1999, the Service published in the Federal Register
(64 FR 5957) a notice of determination that it was prudent to designate
critical habitat for the coastal California gnatcatcher. We
subsequently published a proposed rule to designate critical habitat
for the coastal California gnatcatcher (65 FR 5945; February 7, 2000);
announced a reopening of comment period and availability of a draft
economic analysis for the February 7, 2000, proposed rule (65 FR 40073;
June 29, 2000); and published a final rule designating critical habitat
for the coastal California gnatcatcher (65 FR 63679; October 24, 2000).
In response to a June 11, 2002, court ruling from the U.S. District
Court for the Central District of California (Building Industry
Association of Southern California et al. v. Norton), the Service
published a proposed rule to revise designated critical habitat for the
coastal California gnatcatcher on April 24, 2003 (68 FR 20228). In this
proposed rule, the Service reconsidered the economic impacts associated
with designating any particular area as critical habitat, announced
that we were considering whether the listing of the coastal California
gnatcatcher should be amended as a DPS in light of a study by Zink et
al. (2000) questioning the genetic distinctiveness of the coastal
California gnatcatcher, and opened a 60-day period for public comments
(68 FR 20228). On April 8, 2004, the Service published two documents
related to the coastal California gnatcatcher: The first reopened the
public comment period on the proposed determination of a DPS of the
coastal California gnatcatcher (69 FR 18515), and the second was a
notice of availability of draft economic analysis and a public hearing
on the proposed April 24, 2003, designation of critical habitat (69 FR
18516). The Service published its final rule concerning the revised
designation of critical habitat on December 19, 2007 (72 FR 72009), for
the coastal California gnatcatcher. In that Federal Register
publication, we announced that we were continuing to evaluate whether
the current listing of the coastal California gnatcatcher as a
subspecies under the Act should be retained or changed.
In 2010, we completed a 5-year status review of the coastal
California gnatcatcher (Service 2010, pp. 1-51). After analyzing all
available information, including Zink et al. (2000), we recommended no
change in its threatened status and indicated that we would not pursue
delineation of a DPS for the coastal California gnatcatcher (Service
2010, p. 36; https://ecos.fws.gov/docs/five_year_review/doc3571.pdf).
With a recommendation of no change in threatened status, the coastal
California gnatcatcher maintains its recovery priority number of 9C,
based on the taxon's status as a subspecies facing a high degree of
threat with a low recovery potential.
Species Information
For information on the biology and life history of the coastal
California gnatcatcher, see the 2010 coastal California gnatcatcher 5-
year review (Service 2010, pp. 6-11).
Evaluation of Information for This Finding
Under section 3(16) of the Act, we may consider for listing any
species, including subspecies, of fish, wildlife, or plants, or any DPS
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C.
1532(16)). Such entities are considered eligible for listing under the
Act (and, therefore, are referred to as listable entities), should we
determine that they meet the definition of an endangered or threatened
species.
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations at 50 CFR 424 set forth the procedures for adding a species
to, or removing a species from the List. A species may be determined to
be an endangered or threatened species due to one or more of the five
factors described in section 4(a)(1) of the Act:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
We must consider these same five factors in delisting a species. We
may delist a species according to 50 CFR 424.11(d) if the best
available scientific and commercial data indicate that the species is
neither endangered nor threatened for the following reasons:
(1) The species is extinct;
(2) The species has recovered and is no longer endangered or
threatened; or
(3) The original scientific data used at the time the species was
classified were in error.
In making this 90-day finding, we evaluated whether information
[[Page 66257]]
regarding the coastal California gnatcatcher, as presented in the
petition and other information available in our files, is substantial,
thereby indicating that the petitioned action may be warranted. The
petition did not assert that the coastal California gnatcatcher is
extinct, nor do we have information in our files indicating that the
coastal California gnatcatcher is extinct. The petition did not assert
that the coastal California gnatcatcher has recovered and is no longer
endangered or threatened, nor do we have information in our files
indicating the coastal California gnatcatcher has recovered. The
petition also did not contain any information regarding threats to the
coastal California gnatcatcher. We recently completed a 5-year status
review in which we determined that the threats found at the time of
listing remain, and we recommended that the coastal California
gnatcatcher retain its threatened status (Service 2010, pp. 11-35). The
petition asserts that the original scientific data used at the time the
coastal California gnatcatcher was listed as Threatened under the Act
were in error. Our evaluation of the information included with the
petition is presented below.
The petitioners claim the coastal California gnatcatcher is not a
valid subspecies and request we remove the coastal California
gnatcatcher from the List. The petitioners present an unpublished
literature review prepared for the Pacific Legal Foundation by Dr.
Matthew A. Cronin (2009, in litt. pp. 1-18), which reviewed ``* * *
post-listing studies to explain why the subspecies classification for
the California gnatcatcher is no longer tenable'' (PLF 2010, p. 4). The
petition presented two published journal articles, Zink et al. (2000,
pp. 1394-1405) and Skalski et al. (2008, pp. 199-220), supporting three
issues of concern raised by Cronin (2009, in litt. pp. 1-18). The
issues of concern raised by Cronin and stated in the petition are:
(1) ``Zink et al. (2000, pp. 1394-1405) determined that Atwood's
observed morphological characteristic changes are not representative of
genetic differentiation, which differentiation could support a
subspecies classification. The Zink study's conclusion is all the more
significant given that Atwood was a co-author. In their paper, Zink and
Atwood expressly state that P. californica should have no subspecies.
(2) Skalski et al. (2008, pp. 199-220) determined that Atwood's
statistical analyses were seriously flawed because Atwood's supposed
diagnostic characters support a geographic cline, not a distinct break
in character distribution markers, which could support a subspecies
classification.
(3) Skalski et al. (2008, pp. 199-220) determined that Atwood's
data sets were confounded: many of Atwood's specimens may not have been
representative of wild gnatcatchers.''
The first issue presented by the petitioners refers to Zink et al.
(2000, pp. 1394-1405), which asserts that the morphological differences
(i.e., plumage coloration, body size) identified by Atwood (1988, pp.
iii-vii, 1-74; 1991, pp. 118-133) do not represent genetic
differentiation that supports subspecies classification. Zink et al.
(2000, p. 1399) examined variation within the mitochondrial (mt) mtDNA
control region and three mtDNA genes of the coastal California
gnatcatcher and concluded the genetic information does not support
recognition of the coastal California gnatcatcher as a subspecies. Zink
et al. (2000) does not state that Polioptila californica should have no
subspecies, but instead suggests that currently recognized subspecies
may not be equivalent to ecologically significant units.
As a result of uncertainty in the subspecies status of the coastal
California gnatcatcher raised by Zink et al. (2000, pp. 1394-1405), in
2003 and 2004 the Service solicited public comments on a proposed
determination of a DPS for the coastal California gnatcatcher (68 FR
20228; 69 FR 18515). Public comments received in 2004 on this issue
were highly polarized, though most expressed concern with the validity
or usefulness of redefining the coastal California gnatcatcher as a
DPS. Some commenters advocated delisting the coastal California
gnatcatcher and asserted that the application of the DPS policy was
inappropriate. They argued that the information presented by Zink et
al. (2000, pp. 1394-1405) challenging the subspecies classification for
the coastal California gnatcatcher superseded over 100 years of
previously published taxonomic treatments recognizing morphological
distinctiveness to varying degrees within the greater California
gnatcatcher taxon, including (Brewster 1881, p. 103; Brewster 1902, p.
210; Thayer and Bangs 1907, p. 138; Grinnell 1926, p. 496; Grinnell
1928, p. 227; van Rossem 1931, p. 35; Hellmayr 1934, p. 508; AOU 1957,
p. 451; Miller et al. 1957, pp. 204-205; Mayr and Paynter 1964, pp.
449-450; Atwood 1988, p. 61; Atwood 1991, p. 127; Phillips 1991, p. 25;
Mellink and Rea 1994, p. 53; Howell and Webb 1995, p. 578). However,
many public commenters advocated the retention of the coastal
California gnatcatcher as a listed subspecies and questioned if
information from one scientific publication was sufficient to overrule
information from multiple, previously published, scientific papers that
acknowledge the distinctiveness of the coastal California gnatcatcher
and lend support to its retention as a listed subspecies. The Service
also received comments from peer-reviewers, the majority of which
cautioned against putting too much weight on Zink et al.'s (2000)
conclusions and questioned whether the analysis by Zink et al. (2000,
pp. 1394-1405) supported a change of the coastal California
gnatcatcher's subspecific status (2000, pp. 1394-1405).
In 2004, the Service also convened a panel of seven Federal
scientists (five Service biologists not associated with the listing of
the coastal California gnatcatcher, one Smithsonian Institute
biologist, and one National Park Service biologist) to discuss and
evaluate how well scientific evidence supports the following
statements:
(1) The coastal California gnatcatcher (Polioptila californica
californica) is a valid subspecies.
(2) The coastal California gnatcatcher is discrete (substantially
divergent in physical, physiological, ecological, genetic, or
behavioral characters) from other portions of the species.
(3) Loss of the coastal California gnatcatcher would represent a
significant diminution of the species as a whole (in terms of
evolutionary legacy or range of biological characteristics represented
within the species).
(4) The coastal California gnatcatcher is neither a valid
subspecies nor a discrete and significant portion of the species.
(5) The mtDNA evidence presented by Zink et al. (2000) alone
constitutes sufficient information to overturn the existing taxonomy.
Overall, panelists supported retaining the coastal California
gnatcatcher as a subspecies under the Act for reasons including (but
not limited to):
(1) ``There is evidence showing the coastal California gnatcatcher
differs in several morphological characters from gnatcatcher
populations farther south (body plumage color, tail length, amount of
white in tail, and brownish plumage in females). All authorities have
recognized it as a distinct taxon based on its physical appearance
since it was first described. While some doubt has been cast on recent
analyses of morphological data by Atwood (1991), problems with that
analysis do not invalidate previous and subsequent morphological work
(Grinnell 1926, van
[[Page 66258]]
Rossem 1931, Mellink and Rea 1994).'' (VanderWerf, in litt. 2004, p.
1).
(2) Although Zink et al. (2000) concluded that mitochondrial DNA
does not support the existence of a subspecies of Polioptila
californica, ``mtDNA represents only a single genetic marker among many
potential markers that could provide an indication of population
subdivision, subspecies, or local adaptation. Other molecular markers
with higher mutation rates may reveal more recent patterns of
divergence and would be more likely to show population differentiation,
such as nuclear genetic markers, which might be linked to selected
traits and would be expected to evolve more rapidly than mtDNA. None of
these other markers have been investigated'' (VanderWerf, in litt.
2004, pp. 1-2).
(3) ``Phylogenetic reconstructions and taxonomic determinations
should be, and usually are, based on a variety of morphological,
genetic (including nuclear and mtDNA), and behavioral evidence.''
(VanderWerf, in litt. 2004, p. 2).
(4) ``Patterns in mtDNA variations can be extremely variable and
may or may not have anything to do with the patterns seen in nuclear
markers, or with morphological, ecological, physiological, or
behavioral data, and therefore are often not reflective of important
differences between species, subspecies or populations. Patterns of
genetic variation can be totally different from, and uninformative
about, important adaptive differences between taxa (Crandall et al.
2000). Besides the California gnatcatcher, there are many examples in
which mtDNA evidence failed to detect documented differences in
morphology, nuclear DNA and ecological adaptation, including the Common
raven (Omland et al. 2000), Orchard oriole (Baker et al. 2003), Florida
grasshopper sparrow (Bulgin et al. 2003), and Swamp sparrows (Greenberg
et al. 1998).'' (VanderWerf, in litt. 2004, p. 2).
(5) ``The most comprehensive review of available mtDNA data was
conducted by Funk and Omland (2003), who found that 23 percent of 2,319
species showed evidence of paraphyly or polyphyly based on mtDNA
(sharing of mtDNA haplotypes among species), and they concluded that
the causes of this must be understood to avoid erroneous phylogenetic
interpretations.'' (VanderWerf, in litt. 2004, p. 2).
(6) ``Loss of the coastal California gnatcatcher would
substantially decrease the species' range and, since it occurs in a
somewhat different habitat type from other populations, would diminish
the ecological range of characteristics present in the species.
Although the adaptive significance of the morphological differences has
not been investigated, it is possible they represent important
adaptations to the local environment, and that their loss would
diminish the species evolutionary legacy.'' (VanderWerf, in litt. 2004,
pp. 1-2).
(7) ``Zink et al. (2000) provide some interesting information on
the evolutionary history of [gnatcatcher] populations, but the argument
that the California gnatcatcher is not distinct from other populations
is based on a single genetic character, mtDNA, and this is a far too
narrow and limited technique for making determinations of taxonomic
validity. Most features of an organism are determined by multiple
(nuclear) genes, not by mtDNA. Taxonomists and other biologists
interested in evolutionary units cannot ignore available data on other
aspects of the genome and physical and ecological characters (Crandall
et al. 2000). Under the very narrow criterion of Zink et al. (2000) few
subspecies would be valid, and many full species would not be
recognized, despite abundant and definitive data that they are no
longer capable of interbreeding with other species (Avise 2004).''
(VanderWerf, in litt. 2004, pp. 2-3).
The panel concluded that the scientific evidence: (1) Substantially
supports that the coastal California gnatcatcher is a valid subspecies;
(2) substantially supports that the coastal California gnatcatcher is
discrete from other portions of the species; (3) substantially supports
that the loss of the coastal California gnatcatcher would represent a
significant diminution of the species as a whole; (4) offers little
support for the assertion that the coastal California gnatcatcher is
neither a valid subspecies nor a discrete and significant portion of
the species; and (5) displays little support that the mtDNA evidence
presented by Zink et al. (2000, pp. 1394-1405) alone constitutes
sufficient information to overturn the existing taxonomy. The panel
also noted that further decision on the status of the taxon should wait
for analyses of a variety of morphological, genetic (including nuclear
and mtDNA), and behavioral evidence.
In 2005, Edwards et al. (p. 6552) asserted that nuclear genes, not
mtDNA, should have priority in determining avian species delimitation.
Additionally, Haig and Winker (2010, pp. 172, 174) asserted the best
approach for subspecies recognition is to include multiple characters
(mtDNA, nuclear DNA, morphology) and that reliance on a single locus
with unique properties, such as mtDNA, may not accurately reflect the
genetic differences among populations due to random genetic effects
(Funk et al. 2007, pp. 1287-1288).
We acknowledge that the taxonomic classification of the coastal
California gnatcatcher has been the subject of considerable scientific
debate. The Service also addresses the information presented by Zink et
al. (2000) in a recent 5-year review for the coastal California
gnatcatcher (Service 2010, pp. 4-5). Species experts have recognized
the coastal California gnatcatcher as a distinct taxon based on its
physical appearance since it was first described, and the taxon is
recognized as a distinct subspecies by the American Ornithologists
Union (AOU 1957, p. 451). Some doubt has been cast on analyses of
morphological data by Atwood (1991, pp. 118-133) (e.g., Cronin 1997, p.
663), but problems with those analyses do not invalidate previous and
subsequent morphological work (Grinnell 1926, pp. 493-500; van Rossem
1931, pp. 36-37; Phillips 1991, pp. 25-26; Mellink and Rea 1994, pp.
50-62). Analysis by Zink et al. (2000, p. 1402) suggested that the
northern population of California gnatcatchers does not appear to be
unique, and that not all recognized subspecies equate to evolutionary
significant units, although they were unable to expressly state that P.
californica should have no subspecies, as claimed in the petition. We
concluded in our 5-year review (Service 2010, pp. 4-5), that Zink et
al. (2000, pp. 1394-1405) was insufficient to disregard the existing
taxonomic status of the coastal California gnatcatcher and the
information from multiple scientific papers that support subspecies
classification of P.c. cali- fornica. We affirm that conclusion here.
We conclude that the information and analysis in Zink et al. 2000 does
not present substantial information that the current subspecies
taxonomic classification of the coastal California gnatcatcher may be
in error.
The second issue presented by the petitioners refers to Skalski et
al. (2008, pp. 199-220) and the assertion that the statistical analyses
applied to the morphological data (collected by Atwood in determining
the subspecies status of the coastal California gnatcatcher) were not
appropriate statistical techniques for determining subspecific species
classification. The issue Skalski et al. (2008, pp. 199-220) raises
concerns the use of numerous tests of equality of sample means, cluster
analysis, and discriminant analysis (Atwood 1991; Atwood, in litt.
1994; Link and Pendleton, in litt. 1994;
[[Page 66259]]
McDonald et al., in litt. 1994; Messer, in litt. 1994, Newton, in litt.
1994), which supported the subspecies classification. Skalski et al.
(2008, pp. 199-220) assert these analyses are subject to high rates of
false positives (Type I error) and therefore determination of
classification as a subspecies should be based on analyses designed to
detect specific alternative hypotheses, such as step and spline
regression, while being insensitive to the sample location
distributions (Skalski et al. 2008, p. 217).
We examined this paper and determined the statistical analysis
conducted by Skalski et al. (2008, pp. 210-212), a spline regression
model using the log-length of the white spot on the sixth rectrix (tail
feather) of the California gnatcatcher, was a new interpretation of old
data and examined only one character, as an example of the statistical
analysis of the 31 that Atwood (1988, pp. iii-vii, 1-74; 1991, 118-133)
analyzed in his research. Skalski's analysis of this character, in
contrast to Atwood's analysis, did not detect variation in the
character consistent with subspecific designations within the
California gnatcatcher. However, the Service concludes the results of
this restrictive analysis do not present substantial evidence
supporting potential revision of the subspecific taxonomic
classification of the coastal California gnatcatcher. While the issue
of concern raised by Skalski et al. (2008, pp. 199-220) and the
petitioners relates to the validity of the statistical technique used,
and we acknowledge that application of different statistical methods
may yield different conclusions, the study's application of alternative
methods of data analyses is limited. Without further analysis of
additional characters, few conclusions can be made as to the
appropriate taxonomic classification of the coastal California
gnatcatcher. The current information does not provide substantial
information that the current subspecies taxonomic classification of the
coastal California gnatcatcher may be in error.
We previously analyzed the statistical technique utilized to
determine subspecific classification of the coastal California
gnatcatcher and addressed this topic in a publication in the Federal
Register that determined that the conclusions reached by Atwood (1991)
were reasonable and were largely consistent with five other independent
and alternative scientific analyses (Link and Pendleton, in litt. 1994;
Atwood, in litt. 1994; McDonald et al., in litt. 1994; Messer, in litt.
1994, Newton, in litt. 1994) that were received at that time and
support 30[deg] north latitude as the southern subspecific boundary of
P.c. californica (60 FR 15698; March 27, 1995). We continue to agree
that Atwood's conclusions are reasonable because they are based on
scientifically sound methodology that represents the best available
scientific and commercial data available (60 FR 15699; March 27, 1995),
as required in 50 CFR 424.11(d).
The final issue presented by the petitioners also refers to Skalski
et al. (2008, pp. 199-220) and their assertion that ``foxing'' (the
change in feather color associated with time after preparation of the
specimen) of museum specimens might have biased Atwood's original and
subsequent analysis of phenotypic characters, including plumage
brightness (Atwood 1988, pp. iii-vii, 1-74; 1991, 118-133), by
confounding the specimen's year of collection with measures of
brightness of plumage. Significantly, Skalski et al. (2008) did not
reexamine the specimens evaluated by Atwood, but instead constructed
scatterplot diagrams that compared the area of specimen collection
(latitude) with time (year) collected.
Mellink and Rea (1994, pp. 50-62), in their analyses of coastal
California gnatcatcher taxonomy, collected samples from the field and
specimens from museums for comparison of genetic differences. The
petition argues that the study skins analyzed by Mellink and Rea (1994)
were also subject to foxing. However, Mellink and Rea (1994, pp. 52-53)
excluded samples that were worn, damaged, or soiled to eliminate
discrepancies among samples and concluded that within this species,
foxing is ``* * * slight and seems restricted largely to the gray
underparts, with little or no apparent change in brown areas.''
Additionally, as mentioned under the second issue presented by the
petitioners, five independent statistical analyses were conducted and
submitted to the Service, in response to a request for public comment
(59 FR 28508, 59 FR 38426, 59 FR 44125, 59 FR 53628, 59 FR 66509).
These analyses (Link and Pendleton, in litt. 1994; Atwood, in litt.
1994; McDonald et al., in litt. 1994; Messer, in litt. 1994; Newton, in
litt. 1994) as well as Mellink and Rea (1994) were addressed in the
March 27, 1995, Federal Register publication (60 FR 15693) announcing
our determination that the coastal California gnatcatcher is a valid
subspecies and affirming the coastal California gnatcatcher's
threatened status under the Act (60 FR 15695). In that document, we
concluded that there was no justification to support a claim that
Atwood's 1991 data were incomplete, censored, or otherwise inadequate.
Furthermore, we concluded that the analysts of the five independent
reviews of Atwood's 1991 data took adequate care to remove potential
effects of confounding of specimen age and collection area (60 FR
15695; March 27, 1995).
We conclude that the petitioner did not present substantial new
information regarding the subspecific status of the coastal California
gnatcatcher. The genetic information provided in the petition (Zink et
al. 2000) and assertions of improper statistical analyses (Skalski et
al. 2008) have been the focus of several Service (Service 2010) and
independent scientific reviews (Link and Pendleton, in litt. 1994;
Atwood, in litt. 1994; McDonald et al., in litt. 1994; Messer, in litt.
1994; Newton, in litt. 1994; Mellink and Rea 1994; VanderWerf, in litt.
2004) and the Service has concluded that the information is
insufficient to support reclassification (see Service 2010, pp. 1-51).
Issues regarding morphological analyses and specimen quality have also
been considered by the Service and by numerous other taxonomic
examinations, all of which support the subspecific status of the
coastal California gnatcatcher (Grinnell 1926, pp. 493-500; van Rossem
1931, pp. 36-37; Phillips 1991, pp. 25-26; Mellink and Rea 1994, pp.
50-62). We hereby reaffirm our determination and recognition of the
coastal California gnatcatcher as a distinct taxon, at the rank of
subspecies as Polioptila californica californica.
Finding
In summary, the petition does not present substantial information
to support a finding that the removal of the coastal California
gnatcatcher from the List of Endangered and Threatened Wildlife may be
warranted on the ground that the coastal California gnatcatcher is not
a valid subspecies.
The petition presents an unpublished review by Cronin (2009, pp. 1-
18) contending that subspecies classification for the coastal
California gnatcatcher is not reasonable. The review discusses articles
by Skalski et al. (2008, pp. 1394-1405) and Zink et al. (2000), that
provide analyses of Atwood's (1991) data. We previously reviewed
Atwood's data (1988 and 1991) and concluded that Atwood's conclusion
that the coastal California gnatcatcher is a valid subspecies is
adequately supported (60 FR 15693, March 27, 1995). We also convened a
panel of experts in 2004 to consider the Zink et al. (2000) study. The
panel concluded that Zink et al. (2000) offers
[[Page 66260]]
little and insufficient support for reconsidering the coastal
California gnatcatcher's subspecies classification. Our recent status
review also concluded that the coastal California gnatcatcher
represents a valid subspecies (Service 2010, pp. 1-51).
The petitioners also assert that the Service should overturn the
classification of the coastal California gnatcatcher as a subspecies
due to inappropriate techniques used in Atwood's (1991) statistical
analysis of morphological data and present a review and interpretation
of two journal articles in support of their claim. The Service reviewed
the articles and determined that they do not present new information;
instead they consist of an incomplete interpretation of old data.
Moreover, the concerns raised by petitioners regarding ``foxing'' and
the statistical technique utilized to analyze the data, were previously
considered and rejected in our March 27, 1995, Federal Register
publication affirming that the coastal California gnatcatcher meets the
definition of a ``species'' under the Act (60 FR 15693), a Service
status review (Service 2010, pp. 1-51), and a peer-reviewed journal
(Mellink and Rea 1994, pp. 50-62).
Morphological variation within the California gnatcatcher species
has been recognized as an indicator of the distinctiveness of
populations and subspecific groups by numerous biologists,
publications, and the AOU before and after Atwood's conclusion that the
coastal California gnatcatcher is a valid subspecies (Brewster 1881, p.
103; Brewster 1902, p. 210; Thayer and Bangs 1907, p. 138; Grinnell
1926, p. 496; Grinnell 1928, p. 227; van Rossem 1931, p. 35; Hellmayer
1934, p. 508; AOU 1957, p. 451; Miller et al. 1957, pp. 204-205;
Paynter 1964, pp. 449-450; Atwood 1988, p. 61; Atwood 1991, p. 127;
Phillips 1991, p. 25; Mellink and Rea 1994, p. 53; Howell and Webb
1995, p. 578). Thus, we conclude that the best information available
indicates that the coastal California gnatcatcher is a valid subspecies
and that the original scientific data evaluated and methods of analysis
used at the time of listing were not in error as suggested by the
petitioners.
The sole focus of the petition is the contention that the coastal
California gnatcatcher is not a valid subspecies and therefore should
be delisted. Petitioners do not provide any information related to the
other relevant factors that the Service considers when reviewing
proposals to list or delist a species, including the factors provided
under subsection 4(a)(1) of the Act. The information in Service files,
including our recent 5-year review of the species (Service 2010, pp. 1-
51), confirms that threats to the coastal California gnatcatcher
remain.
We have reviewed the petition, as well as the literature cited in
the petition, and we have evaluated that information and information in
our files. Based on this review and evaluation, we find that the
petition does not present substantial scientific or commercial
information to indicate that removal of the coastal California
gnatcatcher from the List may be warranted. Although we will not
commence a status review in response to this petition, we will continue
to monitor the population status and trends of the coastal California
gnatcatcher, potential threats to the coastal California gnatcatcher,
and ongoing management actions that might be important with regard to
the conservation of the coastal California gnatcatcher across its
range.
Because we conclude that the coastal California gnatcatcher is a
valid subspecies under the Act, we are no longer considering whether to
propose its reclassification to a DPS under the Act. This document
reaffirms our recognition of the coastal California gnatcatcher as a
subspecies. We encourage interested parties to continue to gather data
that will assist with the conservation of the subspecies. If you wish
to provide information regarding the coastal California gnatcatcher,
you may submit your information or materials to the Field Supervisor,
Carlsbad Fish and Wildlife Office (see ADDRESSES), at any time.
References Cited
A complete list of references cited is available on the Internet at
https://www.regulations.gov and upon request from the Carlsbad Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: October 14, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-27644 Filed 10-25-11; 8:45 am]
BILLING CODE 4310-55-P
