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
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 / Proposed Rules 28835

Endangered Species Act (61 FR 4722;

February 7, 1996).

The petition as submitted requests

that the Service list a distinct

population segment of northern

goshawks that consists of portions of the

ranges of three separate subspecies:

Accipiter gentilis atricapillus, A. g.

laingi, and A. g. apache. The range of

each of the three subspecies extends

beyond the area delineated in the

petition. Only A. g. atricapillus and A.

g. laingi are recognized by the American

Ornithologists’ Union (1957). However,

A. g. apache has been recognized by

some biologists and the Service (Brown

and Amadon 1968, Hellmayer and

Conover 1949, Hubbard 1992 as cited in

Whaley and White 1994, Stresemann

and Amadon 1979, U.S. Fish and

Wildlife Service 1994).

Under the Services’ February 7, 1996,

final policy, the first step in determining

whether the entity petitioned for listing

qualifies as a distinct population

segment is ‘‘the discreteness of the

population segment in relation to the

remainder of the species to which it

belongs.’’ In defining the term

‘‘population,’’ the Services’ February 7,

1996, final policy provides that in all

cases when discussing a population,

‘‘the organisms in a population are

members of a single species or lesser

taxon.’’ Since a subspecies is a taxon, by

definition a population segment may

not include more than one subspecies.

The Service’s determination that a

‘‘population’’ cannot be composed of

more than one recognized subspecies is

consistent with the use of these terms in

the scientific literature dealing with

populations and subspecies (e.g., Mayr

1969).

This principle that a population may

not include more than one subspecies is

reflected in the wording of the first test

for discreteness set forth in the Services’

final policy of February 7, 1996. The

final policy provides that a population

segment is considered to be discrete if

‘‘it is markedly separated from other

populations of the same taxon as a

consequence of physical, physiological,

ecological, or behavioral factors.’’

Because the principle concerns the

underlying definition of the term

‘‘population,’’ it is also an inherent part

of the second test for discreteness

concerning international boundaries,

which is set forth in the final policy. In

either case, if the entity petitioned for

listing does not qualify as a

‘‘population,’’ it does not meet the

discreteness test under the final

vertebrate population policy.

The Act provides that a single

subspecies may be listed as endangered

or threatened (16 U.S.C. 1532 (15)). In

this case, the entity petitioned for listing

includes organisms that are not

members of a single taxon, but rather at

least two, and possibly three,

subspecies. For the reasons discussed

above, the Service has determined that

the petitioned action does not meet the

definition of a distinct vertebrate

population and therefore does not meet

the discreteness test. Accordingly, no

further evaluation was conducted

concerning the conservation status of

the species.

The processing of this petition finding

follows the Service’s final listing

priority guidance published in the

Federal Register on May 16, 1996 (61

FR 24722). The guidance clarifies the

order in which the Service will process

rulemakings following two related

events: (1) the lifting, on April 26, 1996,

of the moratorium on final listings

imposed on April 10, 1995 (Public Law

104–6), and (2) the restoration of

significant funding for listing through

passage of the omnibus budget

reconciliation law on April 26, 1996,

following severe funding constraints

imposed by a number of continuing

resolutions between November 1995

and April 1996. The guidance calls for

prompt processing of draft rules and

petition findings that were in the

Service’s Washington office (already

approved by the field and regional

offices) prior to the publication of the

listing priority guidance on May 16,

1996. A draft of this petition finding

was approved by the Service’s

Southwest Regional Director on May 8,

1996, and received by the Washington

office on May 9, 1996.

In summary, the Service has reviewed

its policies and guidance along with the

petition and has determined that the

petitioned entity is not listable under

the Act. Therefore, the Service finds that

the petition does not present substantial

information that listing the northern

goshawk in the United States west of the

100th meridian as a distinct population

segment may be warranted. The Service

also vacates its June 25, 1992, finding on

the same petitioned action.

References Cited

American Ornithologists’ Union. 1957.

Check-list of North American birds, 5th

edition. Port City Press, Baltimore,

Maryland. 691 pp.

Babbitt, C., P. Galvin, S.M. Hitt, S.W.

Hoffman, A. MacFarlane, K. Rait, C.I.

Sandell, M. Sauber, T. Schulke, and G.

Wardwell. 1991. Letter to the

Department of the Interior, requesting to

amend a petition to list the northern

goshawk. Maricopa Audubon Society,

Phoenix, Arizona. September 26, 1991. 5

pp.

Brown, L., and D. Amadon. 1968. Eagles,

hawks and falcons of the world. Country

Life Books, Feltham, Middlesex. 945 pp.

Hellmayer, C.E., and B. Conover. 1949.

Catalogue of birds of the Americas and

the adjacent islands. Field Museum of

Natural History, Chicago. Pt. 1, No. 4.

Mayr, E. 1969. Principles of Systematic

Zoology. McGraw-Hill, New York.

Silver, R.D., P. Galvin, S. Hirsch, S.M. Hitt,

S.W. Hoffman, A. MacFarlane, C.I.

Sandell, M. Sauber, T. Schulke, G.

Wardwell, and S. Wotkyns. 1991. Letter

to the Department of the Interior,

petitioning to list the northern goshawk

(Accipiter gentilis) in Utah, Colorado,

New Mexico and Arizona, under the

Endangered Species Act. Maricopa

Audubon Society, Phoenix, Arizona. 61

pp.

Stresemann, E., and D. Amadon. 1979.

Check-list of birds of the world. Museum

of Comparative Zoology, Cambridge,

MA. Vol. 1.

U.S. Fish and Wildlife Service. 1994. Ninetyday administrative finding for a petition

to list the Queen Charlotte goshawk

under provisions of the Endangered

Species Act. Memorandum approved by

Acting Director on August 19, 1994. 17

pp.

Whaley, W.H., and C.M. White. 1994. Trends

in geographic variation of Coopers’ hawk

and northern goshawks in North

America: a multivariate analysis.

Proceedings of the Western Foundation

of Vertebrate Zoology. Vol. 5, No. 3.

Author

The primary author of this document

is Dr. Steven Chambers, Fish and

Wildlife Service Regional Office, P.O.

Box 1306, Albuquerque, New Mexico

87003.

Authority

The authority for this action is the

Endangered Species Act (16 U.S.C. 1531

et seq.).

Dated: May 28, 1996.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 96–14048 Filed 6–5–96; 8:45 am]

BILLING CODE 4310–55–U