Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Proposed Rules 28831

during development of the promulgated

standards and requirements in this

proposal, is available for public

inspection and copying between 8:30

a.m. and 3:30 p.m., Monday through

Friday, at EPA’s Air Docket Section at

the above address. A reasonable fee may

be charged for copying.

FOR FURTHER INFORMATION CONTACT:

Kenon Smith, U.S. Environmental

Protection Agency, Acid Rain Division

(6204J), 401 M Street SW., Washington,

DC 20460, (202) 233–9164, or call the

Acid Rain Hotline at (202) 233–9620.

SUPPLEMENTARY INFORMATION: If no

significant, adverse comments are

timely received, no further activity is

contemplated in relation to this

proposed rule and the direct final rule

in the Final Rules section of this

Federal Register will automatically go

into effect on the date specified in that

rule. If significant, adverse comments

are timely received on any portion of

the direct final rule, that portion will be

withdrawn and all public comment

received on that portion will be

addressed in a subsequent final rule

based on the relevant portions of this

proposed rule. Because the Agency will

not institute a second comment period

on this proposed rule, any parties

interested in commenting should do so

during this comment period.

For further supplemental information,

the detailed rationale, and the rule

revision, see the information provided

in the direct final rule in the Final Rules

section of this Federal Register.

List of Subjects in 40 CFR Part 73

Environmental protection, Acid rain,

Air pollution control, Electric Utilities,

Reporting and record keeping

requirements, and Sulfur dioxide.

Dated: May 24, 1996.

Carol M. Browner,

Administrator.

[FR Doc. 96–14113 Filed 6–5–96; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 6

[Docket No. OST–96–1421 Notice 96–15]

RIN 2105–AB73

Implementation of Equal Access to

Justice Act in Agency Proceedings

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department is proposing

to update its regulation providing for

the award of attorney fees and other

expenses under the Equal Access to

Justice Act to eligible individuals and

entities who are parties to certain

administrative proceedings before the

Department and its various operating

administrations. These revisions are

necessitated by various statutory

changes that have been made since the

Department adopted its present rule in

1983. The Department is not, however,

proposing any other substantive

alterations to its regulation. All of the

Department’s proposed changes to its

regulation either mirror the currentlyapplicable statutory requirements or are

of a minor, non-technical nature. This

action is a response to the President’s

Regulatory Reinvention Initiative and is

designed to update the regulation to

reflect currently applicable law.

DATES: Comments should be received by

August 5, 1996. Late-filed comments

will be considered to the extent

practicable.

ADDRESSES: Comments should be sent to

Docket Clerk, Docket No. OST–96–1421,

Room PL–401, Department of

Transportation, 400 Seventh Street,

SW., Washington, DC 20590. For the

convenience of persons who will be

reviewing the docket, it is requested that

commenters provide an original and

three copies of their comments.

Comments can be inspected from 9 a.m.

to 5 p.m. Commenters who wish the

receipt of their comments to be

acknowledged should include a

stamped, self-addressed postcard with

their comments. The docket clerk will

date-stamp the postcard and mail it to

the commenter. Comments should be on

8 by 11 inch white paper using dark ink

and should be without tabs and

unbound.

FOR FURTHER INFORMATION CONTACT:

Alexander J. Millard, Office of the

General Counsel, U.S. Department of

Transportation, 400 Seventh Street,

SW., Room 4102, Washington, DC

20590, telephone (202) 366–9285, or S.

Reid Alsop, Office of the Chief Counsel,

Federal Highway Administration, U.S.

Department of Transportation, 400

Seventh Street SW., Room 4230,

Washington, DC 20590, telephone (202)

366–1371.

SUPPLEMENTARY INFORMATION: In his

Regulatory Reinvention Initiative

Memorandum of March 4, 1995,

President Clinton directed that Federal

agencies conduct a page-by-page review

of all of their regulations and ‘‘eliminate

or revise those that are outdated or

otherwise in need of reform.’’ In

response to that directive, the

Department has undertaken a review of

its regulations including its rule

governing the award of attorney fees and

other expenses in certain administrative

proceedings under the Equal Access to

Justice Act (EAJA) (Pub. L. 96–481, 94

Stat. 2325). The Department’s regulation

is codified at 49 CFR part 6.

In 1983, the Department of

Transportation (DOT) published a final

regulation implementing EAJA in the

administrative adjudicatory context, 48

FR 1068 (January 10, 1983). EAJA,

which took effect on October 1, 1981,

provides for the award of attorney fees

and other expenses to parties who

prevail over the Federal Government in

certain administrative and court

proceedings under section 554 of the

Administrative Procedure Act (APA). It

requires that agencies conducting

proceedings under section 554 establish

uniform procedures for making awards.

DOT’s final rule, 49 CFR part 6,

therefore, established uniform

procedures under the EAJA for any

adversary adjudications conducted

pursuant to section 554 by this

Department or any of its operating

administrations. As noted in the

Department’s regulation, currently three

types of proceedings are specifically

covered by the regulation; namely, Coast

Guard license, certificate or document

suspension and revocation proceedings,

National Highway Traffic Safety

Administration (NHTSA) fuel economy

enforcement proceedings, and the

Federal Highway Administration

(FHWA) driver qualification and

compliance order proceedings.

Since DOT adopted its final rule in

1983, Congress has amended EAJA on a

number of occasions in several respects.

After reviewing these statutory changes,

DOT has determined that its regulation

needs to be revised to ensure that it

comports with the current statutory

requirements. DOT accordingly is

proposing to modify the following

sections of its rule:

(a) § 6.1 Purpose of these rules.

The second sentence of this section

presently provides:

An eligible party may receive an award

when it prevails over the Department of

Transportation or any of its operating

administrations unless the agency’s position

in the proceeding was substantially justified

or special circumstances make an award

unjust.

The Department is proposing to delete

this sentence. These standards do not

completely reflect the currentlyapplicable requirements given various

statutory changes that have been made

to 5 U.S.C. 504 since 1983. In place of

this sentence, as discussed below, the

Department is proposing to revise

section 6.9. This section, as revised,

would set forth, in some detail, the
28832 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Proposed Rules

statutory standards that now govern the

granting of awards and expenses.

(b) § 6.3 When the Act applies.

This section currently provides:

The Act applies to any adversary

adjudication pending before this agency at

any time between October 1, 1981 and

September 30, 1984. This includes

proceedings begun before October 1, 1981, if

final agency action has not been taken before

that date, and proceedings pending on

September 30, 1984.

This limitation was included in the

Department’s final rule because the

statute as it was originally enacted was

only to be effective for the period

October 1, 1981 to October 1, 1984, on

which date it was to expire pursuant to

a repealer under section 203(c) of Pub.

L. 96–481. That repealer, however, was

itself repealed pursuant to section 6 of

Pub. L. 99–80. Additionally, as

discussed below, new standards

governing awards were enacted

pursuant to Pub. L. 104–121 effective

March 29, 1996. Consequently, the

Department is proposing to delete the

current version of § 6.3, and retitle and

restate that section to read as follows:

§ 6.3 Applicability.

Section 6.9(a) applies to any

adversary adjudication pending before

the Department on or after October 1,

1981. In addition, applicants for awards

must also meet the standards of § 6.9(b)

for any adversary adjudication

commenced on or after March 29, 1996.

(c) § 6.5 Proceedings covered.

This section identifies various

proceedings that are, and are not,

subject to the Department’s regulation.

Currently, three specific types of

proceedings are specifically identified

as being covered by the Department’s

regulation; namely, (a) U.S. Coast Guard

suspension or revocation of licenses,

certificates or document proceedings,

(b) National Highway Traffic Safety

Administration fuel economy

enforcement proceedings, and (c)

Federal Highway Administration driver

qualification and compliance order

proceedings. However, this list is not

exclusive and additional Departmental

proceedings that satisfy the criteria in

this Part can also be covered.

The Department is proposing to add

an several additional proceedings to this

list. First, the Department is proposing

to amend § 6.5 to make it clear that its

regulation is intended to encompass its

aviation economic enforcement

proceedings conducted by its Office of

Aviation Enforcement and Proceedings.

The Department, hence, is proposing to

add the following language to § 6.5:

and the Department’s aviation economic

enforcement proceedings conducted by its

Office of Aviation Enforcement and

Proceedings, 49 U.S.C. Subtitle VII, 14 CFR

Chapter II.

The Department is taking this action

to add these aviation enforcement

proceedings in view of its decision, in

a separate rulemaking, to terminate a

nearly duplicative rule, 14 CFR part

373, that until now has covered these

aviation enforcement proceedings. The

Department inherited part 373 from the

now-defunct Civil Aeronautics Board in

1985 as a result of the shut down of that

agency, and the transfer of that agency’s

remaining functions to DOT pursuant to

the Civil Aeronautics Board Sunset Act

of 1984, Public Law 98–443, 98 Stat.

1703. The Department has determined,

also as a part of the President’s

Regulatory Reinvention Initiative, that it

makes no sense to retain a totally

separate EAJA regulation for its aviation

enforcement proceedings.

The Department is also updating the

citations for the Coast Guard suspension

and revocation proceedings referenced

in section 6.5(a). In this regard, the

Department is proposing to change the

reference to ‘‘46 U.S.C. 239’’ to ‘‘46

U.S.C. 7701 et seq.’’ In addition, the

Department is proposing to add

citations for the three additional Coast

Guard proceedings, specifically:

(a) 33 U.S.C. 1321(b)(6)(B)(ii), 33 CFR part

20 (to include class II civil penalties under

the Clean Water Act); (b) 42 U.S.C. 9609(b)

(to include class II penalty provisions under

the Comprehensive Environmental Response,

Compensation and Liability Act; and (c) 46

CFR part 401 (to cover suspension and

revocation of Certificates of Registry

proceedings for Great Lakes Pilots.)

The Department is further proposing

to amend § 6.5(a) to take note of the fact

that since 1983 Congress has expanded

the list of proceedings that are subject

to the rule. Specifically, the Department

is proposing to add the following

language to this section:

Also covered are any appeal of a decision

made pursuant to section 6 of the Contract

Disputes Act of 1978 (41 U.S.C. 605) before

an agency board of contract appeals as

provided in section 8 of that Act (41 U.S.C.

607), any hearing conducted under Chapter

38 of title 31, and the Religious Freedom

Restoration Act of 1993, 42 U.S.C. 2000bb et

seq.

The inclusion of these additional

proceedings is necessitated by section 6

of Pub.L. 95–563, November 1, 1978, 92

Stat. 2385; Pub.L. 99–509, October 8,

1986, 100 Stat. 1948; and Pub.L. 103–

141, November 16, 1993, 107 Stat. 1489.

(d) § 6.7 Eligibility of applications.

This section sets forth various

minimum financial threshold standards,

and other criteria, that applicants must

satisfy in order to be eligible for an

award. Various changes were made to

these standards and criteria pursuant to

Pub.L. 99–80, section 1(c)(1), August 5,

1985, 99 Stat. 183, 186. For example,

some of the dollar limits have been

increased. Accordingly the Department

is proposing to amend this section as

follows:

(a) Change the words ‘‘5 U.S.C.

551(3)’’ in the second sentence to ‘‘5

U.S.C. 504(b)(1)(B).’’

(b)(1) Change the words ‘‘1 million’’

to ‘‘2 million.’’

(b)(2) Change the words ‘‘5 million’’

to ‘‘7 million.’’

(b)(5) Change the words ‘‘5 million’’

to ‘‘7 million.’’

In addition, the Department is

proposing to add a new § (b)(6), which

would state:

(b)(6) For the purposes of section 6.9(b)

eligible applicants include small entities as

defined in 5 U.S.C. 601.

This change is necessitated by Pub.L.

104–121, March 29, 1996, 104 Stat. 847.

(e) § 6.9 Standards for awards.

Since the Department’s adoption of its

present EAJA regulation in 1983,

Congress has also altered the standards

for granting awards. Section 6.9 sets

forth the standards that were applicable

when DOT adopted its rule. These

standards need to be brought up to date.

The Department, therefore, is proposing

to delete the current version of § 6.9 of

its regulation in its entirety and to

replace that section with a new § 6.9,

which would read as follows:

(a) An eligible applicant may receive an

award for fees and expenses incurred by that

party in connection with a decision in favor

of the applicant in a proceeding covered by

this Part, unless the position of the

Department over which the applicant has

prevailed was substantially justified or

special circumstances make the award sought

unjust. The burden of proof that an award

should not be made to an eligible applicant

is on the Department where it has initiated

the proceeding. No presumption arises that

the Department’s position was not

substantially justified simply because the

Department did not prevail. Whether or not

the position of the Department was

substantially justified shall be determined on

the basis of the administrative record, as a

whole, in the adversary adjudication for

which fees and other expenses are sought.

The ‘‘position of the Department’’ means, in

addition to the position taken by the agency

in the adversary adjudication, the action or

failure to act by the Department upon which

the adversary adjudication may be based.

(b) In the context of a Departmental

proceeding to enforce a party’s compliance

with a statutory or regulatory requirement, if

the demand by the Department is

substantially in excess of the amount

awarded to the government pursuant to the

decision of the adjudicative officer and is

unreasonable when compared with such
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Proposed Rules 28833

decision, under the facts and circumstances

of the case, the adjudicative officer shall

award to an eligible applicant party the fees

and expenses related to defending against the

excessive demand, unless the applicant party

has committed a willful violation of law or

otherwise acted in bad faith, or special

circumstances make an award unjust. Fees

and expenses awarded under this paragraph

shall be paid only as a consequence of

appropriations provided in advance. As used

in this section, ‘‘demand’’ means the express

demand of the Department which led to the

adversary adjudication, but does not include

a recitation by the Department of the

maximum statutory penalty (i) in the

administrative complaint, or (ii) elsewhere

when accompanied by an express demand for

a lesser amount.

(c) The decision of the Department on the

application for fees and other expenses shall

be the final administrative decision under

this section.

(d) An award will be reduced or denied if

the applicant has unduly or unreasonably

protracted the proceeding.

These changes are necessitated by

Pub.L. 99–80, August 5, 1985, 99 Stat.

183, 186; and Pub.L. 104–121, March

29, 1996, 104 Stat. 847.

(f) § 6.11 Allowable fees and

expenses.

The Department is proposing to

change the figure ‘‘$75.00’’ in section

6.11(b) to ‘‘$125.00’’. This is also being

done in response to Pub.L. 104–121,

March 29, 1996, 104 Stat. 847.

(g) § 6.25 Answer to application.

Finally, § 6.25(c) contains a minor

typographical error. Specifically, the

words ‘‘an identify’’ should read ‘‘and

identify’’. The Department is proposing

to correct this error.

Regulatory Analyses and Notices

This NPRM is considered to be a nonsignificant rulemaking under DOT’s

regulatory policies and procedures, 44

FR 11034. The NPRM was not subject to

review by the Office of Information and

Regulatory Affairs pursuant to Executive

Order 12866.

The proposal would have minimal

economic impact, and accordingly no

regulatory evaluation has been

prepared. Indeed, the changes that are

being proposed here, for the most part,

merely track various statutory changes

that have been enacted since the

Department’s adoption of its original

final rule in 1983.

The NPRM has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612, and it has been determined that

it does not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment. I certify

that this proposal, if adopted, would not

have a significant economic impact on

a substantial number of small entities.

This proposal is merely updating the

regulation to reflect current statutory

requirements.

List of Subjects in 49 CFR Part 6

Administrative practice and

proceeding, Transportation.

For the reasons set out in the

preamble, 49 CFR part 5 is proposed to

be amended as follows:

PART 5—IMPLEMENTATION OF

EQUAL ACCESS TO JUSTICE ACT IN

AGENCY PROCEEDINGS.

1. The authority citation for part 6 is

revised to read as follows:

Authority: 5 U.S.C. 504; 28 U.S.C. 2412.

2. Section 6.1 is amended by

removing the second sentence.

3. Section 6.3 is revised to read as

follows:

§ 6.3 Applicability.

Section 6.9(a) applies to any

adversary adjudication pending before

the Department on or after October 1,

1981. In addition, applicants for awards

must also meet the standards of § 6.9(b)

for any adversary adjudication

commenced on or after March 29, 1996.

4. In § 6.5, paragraph (a) is revised to

read as follows:

§ 6.5 Proceedings covered.

(a) The Act applies to adversary

adjudications conducted by the

Department of Transportation. These are

adjudications under 5 U.S.C. 554 in

which the position of the Department is

represented by an attorney or other

representative who enters an

appearance and participates in the

proceeding. Coverage of the Act begins

at designation of a proceeding or

issuance of a charge sheet. Any

proceeding in which the Department

may prescribe or establish a lawful

present or future rate is not covered by

the Act. Proceedings to grant or renew

licenses are also excluded, but

proceedings to modify, suspend, or

revoke licenses are covered if they are

otherwise ‘‘adversary adjudications.’’

For the Department of Transportation,

the types of proceedings covered

include: Coast Guard suspension or

revocation of licenses, certificates or

documents under 46 U.S.C. 7701 et seq.;

Coast Guard class II civil penalty

proceedings under the Clean Water Act,

33 U.S.C. 1321(b)(6)(B)(ii), Coast Guard

class II penalty proceedings under the

Comprehensive Environmental

Response, Compensation and Liability

Act, 42 U.S.C. 9609(b); suspension and

revocation of Certificates of Registry

proceedings for Great Lakes Pilots

pursuant to 46 CFR part 401; National

Highway Traffic Safety Administration

(NHTSA) fuel economy enforcement

under 15 U.S.C. 2001 (49 CFR Part 511);

Federal Highway Administration

(FHWA) enforcement of motor carrier

safety and hazardous materials

regulations under 49 U.S.C. 521 and

5123 (49 CFR part 386); the

Department’s aviation economic

enforcement proceedings conducted by

its Office of Aviation Enforcement and

Proceedings pursuant to 49 U.S.C.

Subtitle VII, 14 CFR Chapter II. Also

covered are any appeal of a decision

made pursuant to section 6 of the

Contract Disputes Act of 1978 (41 U.S.C.

605) before an agency board of contract

appeals as provided in section 8 of that

Act (41 U.S.C. 607), any hearing

conducted under Chapter 38 of title 31,

and the Religious Freedom Restoration

Act of 1993, 42 U.S.C. 2000bb et seq.

* * * * *

5. In § 6.7, paragraph (a) is amended

by replacing the citation ‘‘5 U.S.C.

551(3)’’ with the citation ‘‘5 U.S.C.

504(b)(1)(B)’’; paragraph (b)(1) is

amended by replacing the words ‘‘1

million’’ with the words ‘‘2 million’’;

paragraphs (b((2) and (b)(5) are amended

by replacing the words ‘‘5 million’’ with

the words ‘‘7 million’’; and paragraph

(b)(6) is added to read as follows:

§ 6.7 Eligibility of applications.

* * * * *

(b) * * *

(6) For the purposes of section 6.9(b)

eligible applicants include small entities

as defined in 5 U.S.C. 601.

* * * * *

6. Section 6.9, is revised to read as

follows:

§ 6.9 Standards for awards.

(a) An eligible applicant may receive

an award for fees and expenses incurred

by that party in connection with a

decision in favor of the applicant in a

proceeding covered by this part, unless

the position of the Department over

which the applicant has prevailed was

substantially justified or special

circumstances make the award sought

unjust. The burden of proof that an

award should not be made to an eligible

applicant is on the Department where it

has initiated the proceeding. No

presumption arises that the

Department’s position was not

substantially justified simply because

the Department did not prevail.

Whether or not the position of the

Department was substantially justified

shall be determined on the basis of the

administrative record, as a whole, in the

adversary adjudication for which fees

and other expenses are sought. The

‘‘position of the Department’’ means, in
28834 Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Proposed Rules

addition to the position taken by the

agency in the adversary adjudication,

the action or failure to act by the

Department upon which the adversary

adjudication may be based.

(b) In the context of a Departmental

proceeding to enforce a party’s

compliance with a statutory or

regulatory requirement, if the demand

by the Department is substantially in

excess of the amount awarded to the

government pursuant to the decision of

the adjudicative officer and is

unreasonable when compared with such

decision, under the facts and

circumstances of the case, the

adjudicative officer shall award to an

eligible applicant party the fees and

expenses related to defending against

the excessive demand, unless the

applicant party has committed a willful

violation of law or otherwise acted in

bad faith, or special circumstances make

an award unjust. Fees and expenses

awarded under this paragraph shall be

paid only as a consequence of

appropriations provided in advance. As

used in this section, ‘‘demand’’ means

the express demand of the Department

which led to the adversary adjudication,

but does not include a recitation by the

Department of the maximum statutory

penalty (1) in the administrative

complaint, or (2) elsewhere when

accompanied by an express demand for

a lesser amount.

(c) The decision of the Department on

the application for fees and other

expenses shall be the final

administrative decision under this

section.

(d) An award will be reduced or

denied if the applicant has unduly or

unreasonably protracted the proceeding.

§ 6.11 [Amended]

7. In § 6.11, paragraph (b) is amended

by replacing the figure ‘‘$75.00’’ with

the figure ‘‘$125.00’’.

§ 6.25 [Amended]

8. In § 6.25, paragraph (c) is amended

by replacing the words ‘‘an identify’’

with the words ‘‘and identify’’.

Issued this 31st day of May, 1996 at

Washington, D.C.

Federico Pen ̃ a,

Secretary of Transportation.

[FR Doc. 96–14245 Filed 6–5–96; 8:45 am]

BILLING CODE 4910–62–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife

and Plants; 90-Day Finding for a

Petition To List the Northern Goshawk

in the Western United States

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Notice of 90-day petition

finding and vacation of the June 25,

1992, finding.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) announces a 90-day

finding for a petition to list the northern

goshawk (Accipiter gentilis) in the

Western United States under the

Endangered Species Act, as amended.

The Service has determined that the

petition does not present substantial

information that listing the northern

goshawk in the Western United States

may be warranted. The Service also

vacates the previous June 25, 1992,

finding for the same petitioned action.

DATES: The finding announced in this

document was made on May 28, 1996.

ADDRESSES: Information, comments, or

questions concerning this petition may

be submitted to the Supervisor, Arizona

Ecological Services Field Office, U.S.

Fish and Wildlife Service, 2321 W.

Royal Palm Rd., Suite 103, Phoenix,

Arizona 85021. The petition, finding,

and supporting data are available for

public inspection, by appointment,

during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT: Sam

Spiller, Supervisor (see ADDRESSES

above) (telephone 602/640–2720).

SUPPLEMENTARY INFORMATION:

Background

Section 4(b)(3)(A) of the Endangered

Species Act of 1973, as amended (16

U.S.C. 1531 et seq.) (Act), requires that

the Service make a finding on whether

a petition to list, delist, or reclassify a

species presents substantial scientific or

commercial information to indicate that

the petitioned action may be warranted.

To the maximum extent practicable, this

finding is to be made within 90 days of

the receipt of the petition, and notice of

the finding is to be published promptly

in the Federal Register. If a finding is

made that substantial information was

presented, the Service also is required to

promptly commence a review of the

status of the species involved.

On September 26, 1991, a coalition of

conservation organizations (Babbitt et

al. 1991) submitted a letter to the

Service, requesting to amend a petition

under consideration by the Service to

list a population of northern goshawk

(Accipiter gentilis) as endangered in

Utah, Colorado, New Mexico, and

Arizona (Silver et al. 1991). The

coalition requested expanding the

geographic region under consideration

to include the ‘‘forested west.’’ The

petitioners subsequently refined their

definition of the ‘‘forested west’’ to

mean the forested United States, west of

the 100th meridian. Because this letter

requested consideration of a

substantially different listing action

than the previous petition, the Service

informed the petitioners that their letter

would be considered a separate petition.

On June 25, 1992, the Service

published a 90-day finding that the

petition had not presented substantial

information to indicate that the

petitioned action may be warranted. The

petitioners subsequently filed a lawsuit

to have the finding set aside as arbitrary

and capricious under the

Administrative Procedures Act. On

February 22, 1996, U.S. District Judge

Richard M. Bilby found the June 25,

1992 finding to be arbitrary and

capricious and remanded the finding to

the Service for a new 90-day

determination and vacation of the

previous finding. This notice serves to

inform the public of the Service’s new

90-day finding and vacates the Service’s

June 25, 1992 finding.

A species that is in danger of

extinction throughout all or a significant

portion of its range may be declared an

endangered species under the Act. A

species that is likely to become an

endangered species in the foreseeable

future (as defined above) throughout all

or a significant portion of its range may

be declared a threatened species under

the Act. The term ‘‘species’’ is defined

by the Act to include ‘‘* * * subspecies

* * * and any distinct population

segment of any species of vertebrate fish

or wildlife which interbreeds when

mature * * *’’ (16 U.S.C. 1532 (15)).

In reviewing a listing petition, the

Service must determine whether the

petitioned action includes an entity that

is listable under the Act, and, if so,

whether the petition presented

substantial information that the

petitioned action may be warranted. In

this case, the Service must consider

whether northern goshawks west of the

100th meridian constitute a distinct

population segment under 16 U.S.C.

1532 (15). In making this determination,

the Service relies upon the National

Marine Fisheries Service and Fish and

Wildlife Service final Policy Regarding

the Recognition of Distinct Vertebrate

Population Segments Under the