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Federal Register/Vol. 72, No. 6/Wednesday, January 10, 2007/Rules and Regulations

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Federal Register/Vol. 72, No. 6/Wednesday, January 10, 2007/Rules and Regulations 1186 Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Rules and Regulations significant energy action. FRA has $7,700 for calendar year 2006, and as threatened. On December 26, 2002, evaluated this final rule in accordance $8,200 for calendar year 2007. The the Court issued a Memorandum of with Executive Order 13211. FRA has procedure for determining the reporting Opinion and Order to have the Service determined that this final rule is not threshold for calendar years 2006 and explain our 2000 finding that likely to have a significant adverse effect beyond appears as paragraphs 1–8 of ‘‘[c]ollectively the Northeast, Great on the supply, distribution, or use of appendix B to part 225. Lakes and Southern Rockies do not energy. Consequently, FRA has * * * * * constitute a significant portion of the determined that this regulatory action is Issued in Washington, DC, on December [lynx] DPS.’’ Pursuant to that order, the not a ‘‘significant energy action’’ within 29, 2006. Service published a notice of remanded the meaning of Executive Order 13211. Joseph H. Boardman, determination and clarification of our Privacy Act Administrator. 2000 finding on July 3, 2003 (68 FR 40075). In that notice, the Service Anyone is able to search the [FR Doc. E7–112 Filed 1–9–07; 8:45 am] attempted to address the court’s order electronic form of all our comments BILLING CODE 4910–06–P and issued a new finding that the lynx received into any of our dockets by the name of the individual submitting the is not endangered throughout a comment (or signing the comment, if DEPARTMENT OF THE INTERIOR significant portion of its range. Plaintiffs submitted on behalf of an association, subsequently brought further action business, labor union, etc.). You may Fish and Wildlife Service claiming that the Service violated the review DOT’s complete Privacy Act court’s 2002 order. Statement in the Federal Register 50 CFR Part 17 On September 29, 2006, the Court published on April 11, 2000 (Volume RIN 1018–AV17 issued another Memorandum of 65, Number 70; Pages 19477–78) or you Opinion and Order remanding the same may visit http://dms.dot.gov. Endangered and Threatened Wildlife portion of the Service’s March 24, 2000, and Plants; Clarification of Significant List of Subjects in 49 CFR Part 225 determination of status for the lynx. The Portion of the Range for the court remanded the finding so that ‘‘the Investigations, Penalties, Railroad Contiguous United States Distinct Service may clearly and specifically safety, Reporting and recordkeeping Population Segment of the Canada address the finding it was ordered to requirements. Lynx explain three years ago: That The Rule AGENCY: Fish and Wildlife Service, ‘[c]ollectively the Northeast, Great Lakes, and Southern Rockies do not I Interior. In consideration of the foregoing, FRA constitute a significant portion of the amends part 225 of chapter II, subtitle ACTION: Clarification of findings. [lynx] DPS’ (Order at 3).’’ This finding B of title 49, Code of Federal SUMMARY: appeared in the final rule that listed the Regulations, as follows: We, the U.S. Fish and Wildlife Service (Service) provide a contiguous U.S. DPS of the lynx as PART 225—[AMENDED] clarification of the finding we made in threatened (65 FR 16052; March 24, support of the final rule that listed the 2000). Because the court remanded the I 1. The authority citation for part 225 contiguous U.S. Distinct Population 2000 listing determination for further continues to read as follows: Segment of the Canada lynx (Lynx explanation of how the Service at that Authority: 49 U.S.C. 103, 322(a), 20103, canadensis) (lynx) as threatened. In that time reached its conclusion the 20107, 20901–02, 21301, 21302, 21311; 28 rule, we found that, ‘‘collectively, the Northeast, Great Lakes, and Southern U.S.C. 2461, note; and 49 CFR 1.49. Northeast, Great Lakes, and Southern Rockies do not constitute a significant I 2. Amend § 225.19 by revising the first Rockies do not constitute a significant portion of the lynx DPS, the following sentence of paragraph (c) and revising portion of the range of the DPS (Distinct discussion addresses the basis for the paragraph (e) to read as follows: Population Segment).’’ In response to a Service’s decision in 2000. The court order, we now clarify that finding. § 225.19 Primary groups of accidents/ conclusions reached in 2000, and the incidents. ADDRESSES: The complete file for this basis for those conclusions, do not clarification is available for inspection, necessarily represent the Service’s * * * * * by appointment, during normal business (c) Group II—Rail equipment. Rail current views, given new information hours at the Montana Ecological regarding the lynx as well as the equipment accidents/incidents are Services Office, 585 Shepard Way, collisions, derailments, fires, evolving views of the courts and the Helena, MT 59601 (telephone 406/449– Service regarding the meaning of the explosions, acts of God, and other 5225). events involving the operation of on- definitions of ‘‘endangered species’’ and track equipment (standing or moving) FOR FURTHER INFORMATION CONTACT: ‘‘threatened species.’’ In fact, when the that result in damages higher than the Mark Wilson, Field Supervisor, Service completed the first remand current reporting threshold (i.e., $6,700 Montana Fish and Wildlife Office, at the decision, it did not reiterate its for calendar years 2002 through 2005, above address (telephone 406/449– conclusion from 2000 on this issue; $7,700 for calendar year 2006, and 5225). instead, it based its new conclusion on $8,200 for calendar year 2007) to SUPPLEMENTARY INFORMATION: The a different line of reasoning. The Service railroad on-track equipment, signals, Service listed the Canada lynx, hereafter recently requested that the Office of the tracks, track structures, or roadbed, referred to as lynx, as threatened on Solicitor examine the definition of including labor costs and the costs for March 24, 2000 (65 FR 16052). After ‘‘endangered species.’’ As a result, the acquiring new equipment and material. listing the lynx as threatened, plaintiffs explanation of the Service’s rational for *** in the case of Defenders of Wildlife v. its decision in 2000 provided here may * * * * * Kempthorne (Civil Action No. 00–2996 not reflect how the Service will apply (e) The reporting threshold is $6,700 (GK)) initiated action in Federal District the definition of ‘‘endangered species’’ for calendar years 2002 through 2005, Court challenging the listing of the lynx in the future. VerDate Aug<31>2005 14:45 Jan 09, 2007 Jkt 211001 PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 E:\FR\FM\10JAR1.SGM 10JAR1 mstockstill on PROD1PC61 with RULES Federal Register / Vol. 72, No. 6 / Wednesday, January 10, 2007 / Rules and Regulations 1187 Background Brunswick and Nova Scotia. In the distribution occurs in habitats at the The Endangered Species Act of 1973, contiguous United States, the current southern extent of the range of the as amended (16 U.S.C. 1531 et seq.) (and historical) range of the lynx boreal forest, comprising subalpine (Act), defines an ‘‘endangered’’ species extends into four geographic areas: the coniferous forest in the West and as one that is ‘‘in danger of extinction Northeast, including the States of southern boreal forest/hardwoods in the throughout all or a significant portion of Maine, New Hampshire, Vermont, and East (for ease of description, we use the its range’’ and a ‘‘threatened’’ species as New York; the western Great Lakes, general term ‘‘southern boreal forest’’ to one that is ‘‘likely to become including the States of Minnesota, describe lynx habitat in the contiguous endangered within the foreseeable Michigan, and Wisconsin; the Southern United States); whereas in Canada and future throughout all or a significant Rocky Mountains in the States of Alaska, lynx inhabit the classic boreal portion of its range’’ (16 U.S.C. 1532(6); Colorado and Wyoming; and the forest ecosystem known as the taiga. 16 U.S.C. 1532(20); 50 CFR 424.02(e) Northern Rocky Mountains/Cascades, Furthermore, lynx and snowshoe hare including the States of Montana, and (m)). The Secretary of the Interior population dynamics in the contiguous Washington, Idaho, Utah, Wyoming, ‘‘shall publish in the Federal Register a United States are different from those in and Oregon. It is notable that the range list of all species determined * * * to northern Canada and Alaska (65 FR of the lynx has not been radically be endangered species and * * * 16060; March 24, 2000). contracted or reduced. threatened species. Each list shall refer Based on the above factors, we When the Service listed the lynx, we determined that the lynx population in to the species contained therein by followed the Policy Regarding the scientific and common name or names, the contiguous United States was Recognition of Distinct Vertebrate discrete and significant under the DPS if any, specify with respect to [each] Population Segments Under the such species over what portion of its Policy and, therefore, qualified as a Endangered Species Act (DPS Policy) to listable entity under the Act (65 FR range it is endangered or threatened, evaluate whether the lynx population in and specify any critical habitat within 16060; March 24, 2000). the contiguous United States constituted We then further considered whether such range’’ (16 U.S.C. 1533(c)(1)). a DPS and thus was a listable entity Apart from the statutory and individually any of the four geographic under the Act (61 FR 4722; February 7, areas (Northeast, Great Lakes, Southern regulatory definitions of ‘‘threatened’’ 1996). Under the DPS Policy, a and ‘‘endangered,’’ no formal guidance Rockies, and Northern Rockies/ population must meet two criteria to Cascades) that make up the current shaped the Service’s analysis in the qualify as a DPS: First, the population 2000 final listing rule of what was to be range of the lynx within the contiguous in question must be determined to be United States fulfilled the DPS Policy considered when evaluating the discrete from other members of the ‘‘significance’’ of any particular area of criteria (65 FR 16060; March 24, 2000).
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