23966 Federal Register / Vol. 73, No. 85 / Thursday, May 1, 2008 / Rules and Regulations 

February 10, 2008, Contractor I 

contributes $700,000 in cash to satisfy 

the principal and interest payment for 

the ESOP loan for FY 2007. This 

contribution results in the bank 

releasing 10,000 shares of stock. On 

March 1, 2008, the ESOP allocates the 

10,000 shares to individual employee 

accounts satisfying the 2007 obligation. 

The 10,000 shares of stock must be 

assigned to FY 2007 (these shares 

cannot be assigned to 2008). 

■ 8. Section 9904.415–63 is revised to 

read as follows: 

9904.415–63 Effective date. 

(a) This Standard 9904.415 is effective 

as of June 2, 2008. 

(b) This Standard shall be followed by 

each contractor on or after the start of 

its next cost accounting period 

beginning after the receipt of a contract 

or subcontract to which this Standard is 

applicable. 

(c) Contractors with prior CAScovered contracts with full coverage 

shall continue to follow Standard 

9904.415 in effect prior to June 2, 2008 

until this Standard, effective June 2, 

2008, becomes applicable following 

receipt of a contract or subcontract to 

which this revised Standard applies. 

(d) For contractors and subcontractors 

that have established advance 

agreements prior to June 2, 2008 

regarding the recognition of the costs of 

existing ESOPs, the awarding agency 

and contractor shall comply with the 

provisions of such advance agreement(s) 

for these existing ESOPs, regardless of 

whether the ESOP was previously 

subject to CAS 412 or 415. These 

advance agreements may be modified, 

by mutual agreement, to incorporate the 

requirements effective on June 2, 2008. 

[FR Doc. E8–9376 Filed 4–30–08; 8:45 am] 

BILLING CODE 3110–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS—R2—ES—2008—0044; 40120—

1113—0000–B3] 

RIN 1018—AW12 

Endangered and Threatened Wildlife 

and Plants; Listing the Potential 

Sonoran Desert Bald Eagle Distinct 

Population Segment as Threatened 

Under the Endangered Species Act 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are issuing a 

final rule to amend the regulations for 

the Federal List of Endangered and 

Threatened Wildlife at 50 CFR 17.11 by 

designating bald eagles (Haliaeetus 

leucocephalus) in the Sonoran Desert 

area of central Arizona as threatened 

under the authority of the Endangered 

Species Act of 1973, as amended (Act). 

We are also reinstating and clarifying 

the former special rule at 50 CFR 17.41 

that applied to threatened members of 

this species. This action revises the CFR 

to reflect a March 6, 2008, court order. 

DATES: This action is effective May 1, 

2008. However, the court order had 

legal effect immediately upon being 

filed on March 6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Steve Spangle, Field Supervisor, U.S. 

Fish and Wildlife Service, Arizona 

Ecological Services Field Office, 2321 

West Royal Palm Road, Suite 103, 

Phoenix, Arizona 85021; telephone 602–

242–0210; facsimile 602–242–2513; 

http://www.fws.gov/southwest/es/ 

arizona/. 

SUPPLEMENTARY INFORMATION: 

Background 

Information about the bald eagle’s life 

history can be found in our July 9, 2007 

(72 FR 37346), final delisting rule for 

bald eagles in the lower 48 States. 

Previous Federal Action 

Information about previous Federal 

actions was provided in our July 9, 2007 

(72 FR 37346), final delisting rule for 

bald eagles in the lower 48 States. 

On October 6, 2004, we received a 

petition, dated October 6, 2004, from the 

Center for Biological Diversity (CBD), 

the Maricopa Audubon Society, and the 

Arizona Audubon Council requesting 

that the ‘‘Southwestern desert nesting 

bald eagle population’’ be classified as 

a distinct population segment (DPS), 

that this DPS be reclassified from a 

threatened species to an endangered 

species, and that we concurrently 

designate critical habitat for the DPS 

under the Act. 

On March 27, 2006, the CBD and the 

Maricopa Audubon Society filed a 

lawsuit against the U.S. Department of 

the Interior and the Service for failing to 

make a timely finding on the petition. 

The parties reached a settlement and the 

Service agreed to complete its petition 

finding by August 2006. We announced 

our 90-day finding, required under 16 

U.S.C. 1533(b)(3)(A), on August 30, 

2006 (71 FR 51549), that the petition did 

not present substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

On January 5, 2007, the CBD and the 

Maricopa Audubon Society filed a 

lawsuit challenging the Service’s 90-day 

finding that the ‘‘Sonoran Desert 

population’’ of the bald eagle did not 

qualify as a DPS, and further 

challenging the Service’s 90-day finding 

that the population should not be uplisted to endangered status. 

On July 9, 2007 (72 FR 37346), we 

published the final delisting rule for 

bald eagles in the lower 48 States. In 

that final delisting rule, we stated that 

our findings on the status of the 

Sonoran Desert population of bald 

eagles superseded our 90-day petition 

finding because the final delisting rule 

constituted a final decision on whether 

the Sonoran Desert population of bald 

eagles qualified for listing as a DPS 

under the Act. 

On August 17, 2007, the CBD and the 

Maricopa Audubon Society filed a 

motion for summary judgment, 

requesting the court to make a decision 

on their January 5, 2007, lawsuit. On 

March 5, 2008, the U.S. District Court 

for the District of Arizona ruled in favor 

of the CBD and the Maricopa Audubon 

Society. The court order (Center for 

Biological Diversity v. Kempthorne, CV 

07–0038–PHX–MHM (D. Ariz)), was 

filed on March 6, 2008. 

The court ruled for the plaintiffs and 

found that the Service: 

(1) Finding on the status of the 

Sonoran Desert population of bald 

eagles in our July 9, 2007 (72 FR 37346), 

final delisting rule did not moot the 

plaintiff’s challenge to the August 30, 

2006, negative 90-day petition finding; 

(2) Applied an inappropriately strict 

evidentiary burden on the petition at the 

90-day review stage and thus arbitrarily 

and capriciously concluded that the 

petition did not present substantial 

information that listing the ‘‘Desert bald 

eagle population’’ may be warranted; 

and 

(3) Arbitrarily and capriciously 

conducted the 90-day review of the 

petition by soliciting information and 

opinions from a limited outside source. 

The court provided the following 

remedies and ordered the Service to: 

(1) Conduct a status review of the 

Desert bald eagle population pursuant to 

the Act to determine whether listing 

that population as a DPS is warranted, 

and if so, whether listing that DPS as 

threatened or endangered pursuant to 

the Act is warranted; 

(2) Issue a 12-month finding, pursuant 

to 16 U.S.C. 1533(b)(3)(B), on whether 

listing the Desert bald eagle population 

as a DPS is warranted, and if so, 

whether listing that DPS as threatened 

or endangered is warranted; and 


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Federal Register / Vol. 73, No. 85 / Thursday, May 1, 2008 / Rules and Regulations 23967 

(3) Issue the 12-month finding within 

nine months of the court order, 

pursuant to 16 U.S.C. 1533(b)(3)(B), 

which translates to on or before 

December 5, 2008. 

Further, the court enjoined the 

Service’s application of the July 9, 2007 

(72 FR 37346), final delisting rule to the 

Sonoran Desert population of bald 

eagles pending the outcome of our 

status review and 12-month petition 

finding. The ‘‘Desert bald eagle 

population’’ referenced in the court 

order consists of those bald eagles in the 

Sonoran Desert of the southwest that 

reside in central Arizona and 

northwestern Mexico. Because these 

Sonoran Desert bald eagles were only 

listed under the Act in Arizona (and not 

in Mexico) at the time of the petition, 

the court’s order enjoining our final 

delisting decision applies only to those 

bald eagles found in the Sonoran Desert 

region of the American Southwest. In 

other words, the court’s order 

temporarily reinstated the listing of the 

bald eagle as a threatened species, but 

only with respect to the eagles that 

reside in the Sonoran Desert of central 

Arizona. The court order was effective 

as of March 6, 2008, the date it was 

filed. 

In order to determine the geographic 

area where the bald eagle would remain 

listed as threatened in Arizona, we 

examined the CBD’s letter sent to us on 

March 5, 2005, clarifying their 

petitioned October 2004 Distinct 

Population Segment boundary. We used 

the information provided by the CBD 

because the court found that their 

October 2004 90-day petition ‘‘may be 

warranted’’ and, therefore, the petition 

represents the basis for determining the 

geographic extent of the area affected by 

this final rule. 

The CBD cited two documents 

describing vegetation communities 

(Brown 1973, 1994) and an Arizona 

Game and Fish Department (AGFD) bald 

eagle nest search report (Canaca et al. 

2004). The CBD notes in the petition 

that information is provided to support 

listing a ‘‘distinct population segment of 

Southwestern Desert Nesting Bald Eagle 

consistent with the geographical 

boundaries including the Sonoran 

Desert riparian areas of Central Arizona 

and northwestern Mexico.’’ With 

regards to the Arizona portion, the 

petition notes that this area in central 

Arizona exists between 329 and 1719 

meters (1080 and 5640 feet) in elevation, 

falling within the Upper and Lower 

Sonoran Life Zones and transition areas 

as described by Brown 1994. We used 

the above three references and the 

specific elevation text to define the 

geographic boundary of the petitioned 

DPS. 

Therefore, while we had specific 

clarification with respect to elevational 

boundaries, bald eagle breeding areas, 

the Upper and Lower Sonoran Life 

Zones, and the State of Arizona, we also 

received ambiguous direction with 

respect to the boundaries of ‘‘central 

Arizona’’ and which transition areas 

outside of the Upper and Lower 

Sonoran Life Zones to include. Because 

of these ambiguities and lack of a 

specific map in the petition, we were 

left to interpret their clarification, 

primarily at the perimeters of the 

boundary. 

We used all the factors provided by 

the CBD (i.e., bald eagle territories, 

elevation, life zones, and transition 

areas) and established a boundary that 

included all known bald eagle breeding 

areas within central Arizona. The 

boundary was difficult to interpret on 

the ground due to irregular lines or gaps 

in elevation from layers of electronic 

geographical data. Therefore, we used 

more identifiable and easily understood 

boundaries of county lines and 

highways that were found at the outer 

edges of the erratic boundaries. It is 

important to note that known bald eagle 

breeding habitat of the Sonoran Desert, 

as described in the petition, is not 

contiguous between Arizona and 

northwestern Mexico. The somewhat 

disjointed nature of bald eagle breeding 

habitat and its well known distribution 

in Arizona is likely why the petitioners 

specified ‘‘central Arizona.’’ Thus, the 

counties in the southern half of Arizona 

were not included in this final rule 

because they do not possess known bald 

eagle breeding areas, known suitable 

habitat for breeding eagles, and fall 

outside of the petitioner’s geographic 

description. 

We determined that the affected area 

covers the following eight Arizona 

counties: (1) Yavapai, Gila, Graham, 

Pinal, and Maricopa Counties in their 

entirety; and (2) southern Mohave 

County (that portion south and east of 

the centerline of Interstate Highway 40 

and east of Arizona Highway 95), 

eastern LaPaz County (that portion east 

of the centerline of U.S. and Arizona 

Highways 95), and northern Yuma 

County (that portion east of the 

centerline of U.S. Highway 95 and north 

of the centerline of Interstate Highway 

8). All bald eagles found within this 

area are protected as a threatened 

species under the Act, with a special 

rule under our regulations at 50 CFR 

17.41. Please refer to the following map 

for details of the geographic area 

affected by this action. 

BILLING CODE 4310–55–P 


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BILLING CODE 4310–55–C 


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Federal Register / Vol. 73, No. 85 / Thursday, May 1, 2008 / Rules and Regulations 23969 

Administrative Procedure 

This rulemaking is necessary to 

comply with a March 6, 2008, court 

order. Therefore, under these 

circumstances, the Director has 

determined, pursuant to 5 U.S.C. 553(b), 

that prior notice and opportunity for 

public comment are impractical and 

unnecessary. The Director has further 

determined, pursuant to 5 U.S.C. 553(d), 

the agency has good cause to make this 

rule effective upon publication and 

require compliance retroactively to the 

date of the court order. 

Effects of the Rule 

Any and all bald eagles, including 

migrants, found within the boundaries 

of the Sonoran Desert area of central 

Arizona, as delineated by the map 

included as part of this rule, are hereby 

listed as a threatened species under the 

Act, with a special rule found at 50 CFR 

17.41. 

The provisions of the special rule at 

50 CFR 17.41 that we are adding here 

under the Act are the same as those in 

the prior special rule that was removed 

per our July 9, 2007 (72 FR 37346), final 

delisting rule removing the threatened 

status for bald eagles in the lower 48 

States. This special rule now applies 

only to bald eagles in the Sonoran 

Desert area of central Arizona, the only 

such population of bald eagles so listed 

under the Act. Under this special rule, 

bald eagle banding and marking permits 

issued under the Migratory Bird Treaty 

Act (MBTA) (16 U.S.C. 703–712) and its 

implementing regulations at 50 CFR 

21.22, and also under the Bald and 

Golden Eagle Protection Act (BGEPA) 

(16 U.S.C. 668–668d) and its 

implementing regulations at 50 CFR part 

22, will be deemed to also satisfy the 

requirements for a permit under the Act 

and its implementing regulations at 50 

CFR 17.31 and 17.32. The BGEPA 

regulations at 50 CFR part 22 authorize 

permits for taking, possession, and 

transportation within the United States 

for scientific, educational, and 

depredation control purposes and for 

the religious purposes of American 

Indian tribes. This part also governs the 

transportation into or out of the United 

States of bald and golden eagle parts for 

scientific, educational, and Indian 

religious purposes. Under this special 

rule, it will not be necessary to obtain 

a separate permit under the Act for the 

same activities already authorized under 

the MBTA and BGEPA permits 

described above. 

Although the petition also included 

Sonoran Desert bald eagles in 

northwestern Mexico, these bald eagles 

remain unlisted because bald eagles in 

this area were not previously listed 

pursuant to the Act and thus their status 

was unaffected by the court order 

limiting the effects of our July 9, 2007 

(72 FR 37346), final delisting rule. 

Consistent with the court’s March 6, 

2008 order, this rule will be in effect 

‘‘pending the outcome of the status 

review and 12-month finding.’’

However, we will immediately remove 

the bald eagle in the Sonoran Desert 

area of central Arizona from the List of 

Endangered and Threatened Wildlife if 

the court’s March 6, 2008, order is 

stayed or reversed in any subsequent 

judicial proceeding, or if, after 

completion of the status review, we 

publish a 12-month finding that listing 

the Sonoran Desert bald eagle is not 

warranted. No decision has been made 

as to whether the government will 

appeal that order. 

We will publish a notice requesting 

public input for the status review 

required under the March 6, 2008, court 

order in the Federal Register in the near 

future. This status review will consider 

the population of bald eagles as 

described in the October 6, 2004, 

petition and any other relevant 

information received during the public 

comment period and will be based upon 

the best scientific and commercial data 

available, pursuant to the Act. 

Under this final rule, the prohibitions 

and conservation measures provided by 

the Act, particularly sections 7, 9, and 

10, apply to bald eagles in the Sonoran 

Desert area of central Arizona. Federal 

agencies are required under the court 

order and this final rule to consult with 

us under section 7 of the Act in the 

event that activities they authorize, 

fund, or carry out may affect listed bald 

eagles. 

In addition to the conservation 

measures provided by the Act, the 

Conservation Assessment and Strategy 

for Bald Eagles in Arizona (CAS) 

(Driscoll et al. 2006) contains guidance 

on measures to eliminate, reduce, or 

minimize effects to eagles in Arizona. 

On January 22, 2007, the Service signed 

a Memorandum of Understanding with 

the AGFD supporting the 

implementation of the AGFD’s CAS. 

The Memorandum of Understanding 

was also signed by the following Federal 

agencies: Bureau of Reclamation, 

Bureau of Land Management, National 

Park Service, Forest Service, and the 

Department of Defense, including the 

U.S. Army Corps of Engineers. The CAS 

provides additional valuable guidance 

for protecting bald eagles in Arizona, 

and we support using it in conjunction 

with our Bald Eagle National 

Management Guidelines to protect bald 

eagles in Arizona. 

All bald eagles, of course, will 

continue to be protected under the 

BGEPA and MBTA. We recommend that 

persons use our Bald Eagle National 

Management Guidelines (Guidelines), 

announced in the Federal Register on 

June 5, 2007 (72 FR 31156), as guidance 

for minimizing the risk of violating the 

protections afforded to all bald eagles 

under these various Acts and their 

respective implementing regulations. 

The Guidelines include suggestions for 

protecting bald eagles and their habitat 

while they are nesting, feeding, and 

roosting. While eagles originating in the 

Sonoran Desert area of central Arizona 

would not be protected by the Act if 

they traveled to other parts of the 

United States, they would still be 

afforded the protections under the 

BGEPA and MBTA. 

This rule will not affect the bald 

eagle’s status under State laws or 

suspend any other legal protections 

provided by State law. This rule will not 

affect the bald eagle’s Appendix II status 

under the Convention on International 

Trade of Endangered Species of Wild 

Fauna and Flora (CITES). 

Additionally, pursuant to section 6 of 

the Act, we are able to grant available 

funds to the State of Arizona for 

management actions promoting the 

protection of bald eagles in the Sonoran 

Desert area of central Arizona. 

Required Determinations 

National Environmental Policy Act 

We have determined that we do not 

need to prepare an Environmental 

Assessment, as defined in the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.), in connection with 

regulations adopted pursuant to section 

4(a) of the Endangered Species Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to consult with Federally recognized 

Tribes on a government-to-government 

basis. Accordingly, we will promptly 

consult with the affected Tribes 

regarding the effects of the court’s 

March 6, 2008, order and this final rule. 


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23970 Federal Register / Vol. 73, No. 85 / Thursday, May 1, 2008 / Rules and Regulations 

We will also consult with the affected 

tribes as we conduct our new status 

review concerning the Sonoran Desert 

nesting bald eagle population. 

References Cited 

Brown, D. 1973. The Natural Vegetative 

Communities of Arizona. Arizona Game 

and Fish Department, Phoenix, AZ. 

Brown, D. (editor). 1994. Biotic Communities 

of the Southwestern United States and 

Northwestern New Mexico. The 

University of Utah Press, Salt Lake City, 

UT. 

Canaca, J.S., K.V. Jacobson, and J.T. Driscoll. 

2004. Arizona Bald Eagle 2003 Nest 

Survey, Nongame and Endangered 

Wildlife Program Technical Report 226. 

Arizona Game and Fish Department, 

Phoenix, AZ. 

Driscoll, J.T., K.V. Jacobson, G.L. Beatty, J.S. 

Canaca, and J.G. Koloszar. 2006. 

Conservation Assessment and strategy 

for the bald eagle in Arizona. Nongame 

and Endangered Wildlife Program 

Technical Report 173. Arizona Game and 

Fish Department, Phoenix, Arizona. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, and 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

§ 17.11 [Amended] 

■ 2. In § 17.11(h), an entry for ‘‘Eagle, 

Bald’’ is added under BIRDS to read as 

follows: 

Species 

Historic range Vertebrate population where 

endangered or threatened Status When listed 

Critical 

habitat 

Special 

Common rules 

name Scientific name 

* * * * * * * 

BIRDS

* * * * * * * 

Eagle, bald Haliaeetus leucocephalus .. North Arizona: South 

to northern Mexico.

Arizona: (1) Yavapai, Gila, 

Graham, Pinal, and Maricopa, 

Counties; and 

(2) Southern Mohave County (that 

portion south and east of the 

center of Interstate Highway 40 

and east of Arizona Highway 

95), eastern LaPaz County (that 

portion east of the centerline of 

U.S. and Arizona Highways 95), 

and north of the centerline of 

Interstate Highway 8).

T ........ ......... NA ........ 17.41(a). 

* * * * * * * 

■ 3. Section 17.41 is amended by adding 

paragraph (a) to read as follows: 

§ 17.41 Special rules—birds. 

(a) Bald eagles (Haliaeetus 

leucocephalus) wherever listed as 

threatened under § 17.11(h). All 

provisions of §§ 17.31 and 17.32 apply 

to any threatened bald eagle, with the 

following exceptions: 

(1) The Service will consider any 

permit that we issue for bald eagles 

under § 21.22 (banding and marking 

permits) or part 22 of this chapter 

(permits for certain activities with bald 

or golden eagles) to satisfy all 

requirements of § 17.31 and the permits 

we issue under § 17.32. 

(2) The Service will not require a 

second permit under § 17.32 for any 

activity that is covered by a permit 

issued under § 21.22 or part 22 of this 

chapter. 

(3) The Service will require a permit 

under § 17.32 for any activity that is not 

covered by a permit issued under 

§ 21.22 or part 22 of this chapter. 

* * * * * 

Dated: April 18, 2008. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. 08–1203 Filed 4–28–08; 4:00 pm] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 080103017–8598–03] 

RIN 0648–AS01 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan Regulations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notice of OMB 

approval of collection -of-information 

collection requirements. 

SUMMARY: NMFS announces approval by 

the Office of Management and Budget 

(OMB) of collection-of-information 

requirements contained in regulations 


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