Endangered and Threatened Wildlife and Plants; Notice of Availability of Data Pertaining to the Subspecies Taxonomy of the California Gnatcatcher

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB

Endangered and Threatened Wildlife and Plants; Notice of

Availability of Data Pertaining to the Subspecies Taxonomy of the

California Gnatcatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability, opening of public comment period.

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SUMMARY: The Fish and Wildlife Service (Service) listed the coastal

California gnatcatcher (Polioptila californica californica) as a

threatened species on March 25, 1993. On May 2, 1994, this listing was

invalidated by the United States District Court for the District of

Columbia on the basis that the Secretary of the Interior failed to

obtain and make available for public review and comment the data

underlying a published scientific report on the subspecific taxonomy of

the California gnatcatcher. In response to the court's decision the

author of that report has provided these data to the Service. The

Service if seeking public comment on these data.

DATES: Comments and materials must be received August 1, 1994.

ADDRESSES: Copies of the subject data are available from the U.S. Fish

and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue West,

Carlsbad, California, 92008. Comments and materials concerning these

data should be submitted to the above address. The data, public

comments, and other materials received will be available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Gail Kobetich, Field Supervisor, at

the address listed above (619/431-9440; facsimile 619/431-9624).

SUPPLEMENTARY INFORMATION:

Background

On March 30, 1993, the U.S. Fish and Wildlife Service published a

final rule in the Federal Register determining the coastal California

gnatcatcher to be a threatened species (58 FR 16741). In its decision

to list the gnatcatcher the Service relied, in part, on taxonomic

studies conducted by Dr. Jonathan Atwood of the Manomet Bird

Observatory, Manomet, Massachusetts. As is standard practice in the

scientific community, the Service did not request, nor was it offered,

the data used by Dr. Atwood in reaching his conclusions. Instead, the

Service relied upon the conclusions published in Dr. Atwood's peer

reviewed scientific report on the subspecific taxonomy of the

California gnatcatcher (Atwood 1991). This report was used by the

Secretary to support, in part, a finding that the southern range limit

of the coastal California gnatcatcher occurs at 30 degrees north

latitude in Baja California, Mexico.

The Building Industry Association of Southern California (BIA) and

others filed suit in Federal court challenging the listing on several

grounds, including the claim that the Service was legally required to

obtain and make Atwood's data available for review and comment. On May

2, 1994, the court ruled in favor of the BIA and vacated the listing.

In response to the court's decision, Dr. Atwood has agreed to release

his data to the Service. With this notice, the Service makes available

for public review and comment Dr. Atwood's data.

The Secretary has filed a motion for reconsideration of the court's

decision and, alternatively, a motion to stay the portion of the

decision that vacated the listing while the Service receives public

comment on these data. These motions are currently pending before the

court. The Service is also reviewing several other options to provide

the protection of the Endangered Species Act to the gnatcatcher. These

options include appealing the court's decision, listing the gnatcatcher

on an emergency basis, and proposing a new rule to list the

gnatcatcher.

The Service solicits public comments on Dr. Atwood's data in order

to assist it in further evaluating the decision to list the coastal

California gnatcatcher pursuant to the Endangered Species Act.

References Cited

Atwood, J.L. 1991. Subspecies limits and geographic patterns of

morphological variation in California gnatcatchers (Polioptila

californica). Bull. Southern California Acad. Sci. 90(3):118-133

Authority

The authority for this action is the Endangered Species Act (16

U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Dated: May 25, 1994.

Thomas J. Dwyer,

Acting Regional Director, Region I, U.S. Fish and Wildlife Service.

[FR Doc. 94-13375 Filed 6-11-94; 8:45 am]

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