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1186

Federal Register

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

significant energy action. FRA hasevaluated this final rule in accordancewith Executive Order 13211. FRA hasdetermined that this final rule is notlikely to have a significant adverse effecton the supply, distribution, or use of energy. Consequently, FRA hasdetermined that this regulatory action isnot a

‘‘

significant energy action

’’

withinthe meaning of Executive Order 13211.

Privacy Act

Anyone is able to search theelectronic form of all our commentsreceived into any of our dockets by thename of the individual submitting thecomment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You mayreview DOT

’

s complete Privacy ActStatement in the

Federal Register

published on April 11, 2000 (Volume65, Number 70; Pages 19477

–

78) or youmay visit

http://dms.dot.gov.

List of Subjects in 49 CFR Part 225

Investigations, Penalties, Railroadsafety, Reporting and recordkeepingrequirements.

The Rule

In consideration of the foregoing, FRAamends part 225 of chapter II, subtitleB of title 49, Code of FederalRegulations, as follows:

PART 225

—

[AMENDED]

1. The authority citation for part 225continues to read as follows:

Authority:

49 U.S.C. 103, 322(a), 20103,20107, 20901

–

02, 21301, 21302, 21311; 28U.S.C. 2461, note; and 49 CFR 1.49.

2. Amend

225.19 by revising the firstsentence of paragraph (c) and revisingparagraph (e) to read as follows:

225.19Primary groups of accidents/ incidents.

* * * * *(c)

Group II

—

Rail equipment.

Railequipment accidents/incidents arecollisions, derailments, fires,explosions, acts of God, and otherevents involving the operation of on-track equipment (standing or moving)that result in damages higher than thecurrent reporting threshold (

i.e.

, $6,700for calendar years 2002 through 2005,$7,700 for calendar year 2006, and$8,200 for calendar year 2007) torailroad on-track equipment, signals,tracks, track structures, or roadbed,including labor costs and the costs foracquiring new equipment and material.**** * * * *(e) The reporting threshold is $6,700for calendar years 2002 through 2005,$7,700 for calendar year 2006, and$8,200 for calendar year 2007. Theprocedure for determining the reportingthreshold for calendar years 2006 and beyond appears as paragraphs 1

–

8 of appendix B to part 225.* * * * *

Issued in Washington, DC, on December29, 2006.

Joseph H. Boardman,

Administrator.

[FR Doc. E7

–

112 Filed 1

–

07; 8:45 am]

BILLING CODE 4910

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DEPARTMENT OF THE INTERIORFish and Wildlife Service50 CFR Part 17

RIN 1018

–

AV17

Endangered and Threatened Wildlifeand Plants; Clarification of SignificantPortion of the Range for theContiguous United States DistinctPopulation Segment of the CanadaLynx

AGENCY

Fish and Wildlife Service,Interior.

ACTION

Clarification of findings.

SUMMARY

We, the U.S. Fish andWildlife Service (Service) provide aclarification of the finding we made insupport of the final rule that listed thecontiguous U.S. Distinct PopulationSegment of the Canada lynx (

Lynx canadensis

) (lynx) as threatened. In thatrule, we found that,

‘‘

collectively, theNortheast, Great Lakes, and SouthernRockies do not constitute a significantportion of the range of the DPS (DistinctPopulation Segment).

’’

In response to acourt order, we now clarify that finding.

ADDRESSES

The complete file for thisclarification is available for inspection, by appointment, during normal businesshours at the Montana EcologicalServices Office, 585 Shepard Way,Helena, MT 59601 (telephone 406/449

–

5225).

FOR FURTHER INFORMATION CONTACT

Mark Wilson, Field Supervisor,Montana Fish and Wildlife Office, at theabove address (telephone 406/449

–

5225).

SUPPLEMENTARY INFORMATION

TheService listed the Canada lynx, hereafterreferred to as lynx, as threatened onMarch 24, 2000 (65 FR 16052). Afterlisting the lynx as threatened, plaintiffsin the case of

Defenders of Wildlife

Kempthorne

(Civil Action No. 00

–

2996(GK)) initiated action in Federal DistrictCourt challenging the listing of the lynxas threatened. On December 26, 2002,the Court issued a Memorandum of Opinion and Order to have the Serviceexplain our 2000 finding that

‘‘

[c]ollectively the Northeast, GreatLakes and Southern Rockies do notconstitute a significant portion of the[lynx] DPS.

’’

Pursuant to that order, theService published a notice of remandeddetermination and clarification of our2000 finding on July 3, 2003 (68 FR40075). In that notice, the Serviceattempted to address the court

’

s orderand issued a new finding that the lynxis not endangered throughout asignificant portion of its range. Plaintiffssubsequently brought further actionclaiming that the Service violated thecourt

’

s 2002 order.On September 29, 2006, the Courtissued another Memorandum of Opinion and Order remanding the sameportion of the Service

’

s March 24, 2000,determination of status for the lynx. Thecourt remanded the finding so that

‘‘

theService may clearly and specificallyaddress the finding it was ordered toexplain three years ago: That

‘

[c]ollectively the Northeast, GreatLakes, and Southern Rockies do notconstitute a significant portion of the[lynx] DPS

’

(Order at 3).

’’

This findingappeared in the final rule that listed thecontiguous U.S. DPS of the lynx asthreatened (65 FR 16052; March 24,2000). Because the court remanded the2000 listing determination for furtherexplanation of how the Service at thattime reached its conclusion theNortheast, Great Lakes, and SouthernRockies do not constitute a significantportion of the lynx DPS, the followingdiscussion addresses the basis for theService

’

s decision in 2000. Theconclusions reached in 2000, and the basis for those conclusions, do notnecessarily represent the Service

’

scurrent views, given new informationregarding the lynx as well as theevolving views of the courts and theService regarding the meaning of thedefinitions of

‘‘

endangered species

’’

and

‘‘

threatened species.

’’

In fact, when theService completed the first remanddecision, it did not reiterate itsconclusion from 2000 on this issue;instead, it based its new conclusion ona different line of reasoning. The Servicerecently requested that the Office of theSolicitor examine the definition of

‘‘

endangered species.

’’

As a result, theexplanation of the Service

’

s rational forits decision in 2000 provided here maynot reflect how the Service will applythe definition of

‘‘

endangered species

’’

in the future.

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

Background

The Endangered Species Act of 1973,as amended (16 U.S.C. 1531 et seq.)(Act), defines an

‘‘

endangered

’’

speciesas one that is

‘‘

in danger of extinctionthroughout all or a significant portion of its range

’’

and a

‘‘

threatened

’’

species asone that is

‘‘

likely to becomeendangered within the foreseeablefuture throughout all or a significantportion of its range

’’

(16 U.S.C. 1532(6);16 U.S.C. 1532(20); 50 CFR 424.02(e)and (m)). The Secretary of the Interior

‘‘

shall publish in the

Federal Register

alist of all species determined *** to be endangered species and ***threatened species. Each list shall referto the species contained therein byscientific and common name or names,if any, specify with respect to [each]such species over what portion of itsrange it is endangered or threatened,and specify any critical habitat withinsuch range

’’

(16 U.S.C. 1533(c)(1)).Apart from the statutory andregulatory definitions of

‘‘

threatened

’’

and

‘‘

endangered,

’’

no formal guidanceshaped the Service

’

s analysis in the2000 final listing rule of what was to beconsidered when evaluating the

‘‘

significance

’’

of any particular area of a species

’’

range. Furthermore, at thattime there was no case law concerningwhat should be considered in adetermination of a

‘‘

significant portion

’’

of a species

’’

range. Since publication of the 2000 final listing rule, several courtshave interpreted the meaning of

‘‘

significant portion of its range.

’’

See,

Defenders of Wildlife

Norton

258 F.3d 1136 (9th Cir. 2001);

Center for Biological Diversity

Norton

, 411 F.Supp. 2d 1271 (D.N.M. 2005);

Southwester Center for Biological Diversity

Norton

, 2002 U.S. Dist.Lexis 13661 (D.D.C. July 29, 2002);

Defenders of Wildlife

Norton

, 239 F.Supp. 2d 9 (D.D.C. 2002;

Center for Biological Diversity

Lohn

, 296 FSupp. 2d 1223 (W.D. Wash. 2003);

Environmental Protection InformationCtr.

National Marine FisheriesService

, Civ. No. 02

–

5401 ED2 (N.O.Cal. Mar. 1, 2004);

Defenders of Wildlife

Norton

, Civ. No. 99

–

02072 HHK(D.D.C. Dec. 13, 2001);

Defenders of Wildlife

Secretary, U.S. Department of Interior

, 354 F. Supp. 2d 1156 (D. Or.2005);

National Wildlife Federation

Norton

, 386 F. Supp. 2d 553 (D. Vt.2005).The historical and current range of theCanada lynx north of the contiguousUnited States includes Alaska and thatpart of Canada that extends from theYukon and Northwest Territories southacross the border with the contiguousUnited States and east to NewBrunswick and Nova Scotia. In thecontiguous United States, the current(and historical) range of the lynxextends into four geographic areas: theNortheast, including the States of Maine, New Hampshire, Vermont, andNew York; the western Great Lakes,including the States of Minnesota,Michigan, and Wisconsin; the SouthernRocky Mountains in the States of Colorado and Wyoming; and theNorthern Rocky Mountains/Cascades,including the States of Montana,Washington, Idaho, Utah, Wyoming,and Oregon. It is notable that the rangeof the lynx has not been radicallycontracted or reduced.When the Service listed the lynx, wefollowed the Policy Regarding theRecognition of Distinct VertebratePopulation Segments Under theEndangered Species Act (DPS Policy) toevaluate whether the lynx population inthe contiguous United States constituteda DPS and thus was a listable entityunder the Act (61 FR 4722; February 7,1996). Under the DPS Policy, apopulation must meet two criteria toqualify as a DPS: First, the populationin question must be determined to bediscrete from other members of thetaxon, and second, the population inquestion must be determined to besignificant to the taxon. In this case, thetaxon is the species

Lynx canadensis

,whose range extends throughout Alaskaand Canada into the contiguous UnitedStates, as described above.The DPS Policy allows the use of international boundaries to definediscreteness if there are differences incontrol of exploitation, management of habitat, conservation status, orregulatory mechanisms between the twocountries. In the final rule, wedetermined that, because Canada had nooverarching forest practices legislationgoverning management of national landsand/or providing for consideration of wildlife habitat requirements, and also because of lynx harvest regulations thatexist in Canadian Provinces, thedifferences in management of lynx andlynx habitat between Canada and theUnited States were sufficient to enableus to use the international boundary between Canada and the contiguousUnited States to delineate the DPSaccording to the discreteness criterion(65 FR 16060; March 24, 2000).In the final rule, we found that lynxin the contiguous United States aresignificant to the taxon under the DPSPolicy because of the climatic,vegetative, and ecological differences between lynx habitat in the contiguousUnited States and that in northernlatitudes in Canada and Alaska. In thecontiguous United States, lynxdistribution occurs in habitats at thesouthern extent of the range of the boreal forest, comprising subalpineconiferous forest in the West andsouthern boreal forest/hardwoods in theEast (for ease of description, we use thegeneral term

‘‘

southern boreal forest

’’

todescribe lynx habitat in the contiguousUnited States); whereas in Canada andAlaska, lynx inhabit the classic borealforest ecosystem known as the taiga.Furthermore, lynx and snowshoe harepopulation dynamics in the contiguousUnited States are different from those innorthern Canada and Alaska (65 FR16060; March 24, 2000).Based on the above factors, wedetermined that the lynx population inthe contiguous United States wasdiscrete and significant under the DPSPolicy and, therefore, qualified as alistable entity under the Act (65 FR16060; March 24, 2000).We then further considered whetherindividually any of the four geographicareas (Northeast, Great Lakes, SouthernRockies, and Northern Rockies/Cascades) that make up the currentrange of the lynx within the contiguousUnited States fulfilled the DPS Policycriteria (65 FR 16060; March 24, 2000).We determined that, within thecontiguous United States, each of theseareas was discrete from the others.However, we found none of the areas to be significant.Because of the extensive range of thelynx within the contiguous U.S. DPS,we structured the 2000 final listing todescribe the status of the species in thefour geographic areas (Northeast, GreatLakes, Southern Rockies, and NorthernRockies/Cascades) (65 FR 16060; March24, 2000). We determined

‘‘

thatcollectively, the Northeast, Great Lakes,and Southern Rockies regions do notconstitute a significant portion of theDPS range.

’’

The final rule prefaced thisfinding with the following discussion:

Within the contiguous United States, therelative importance of each region to thepersistence of the DPS varies. The NorthernRockies/Cascades Region supports the largestamount of lynx habitat and has the strongestevidence of persistent occurrence of residentlynx populations, both historically andcurrently. In the Northeast (where residentlynx populations continue to persist) andSouthern Rockies regions, the amount of lynxhabitat is naturally limited and does notcontribute substantially to the persistence of the contiguous United States DPS. Much of the habitat in the Great Lakes Region isnaturally marginal and may not support preydensities sufficient to sustain lynxpopulations. As such, the Great Lakes Regiondoes not contribute substantially to thepersistence of the contiguous United StatesDPS. We conclude the Northern Rockies/Cascades Region is the primary region

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necessary to support the long-term existenceof the contiguous United States DPS (65 FR16061, 16082).

In summary, the Service determinedthat, collectively, the Northeast, GreatLakes, and Southern Rockies regions donot constitute a significant portion of the range of the DPS because (1) theamount of lynx habitat in the Northeastand Southern Rockies is naturallylimited and (2) much of the habitat inthe Great Lakes Region is marginal andmay not support prey densitiessufficient to sustain lynx.The analysis in the 2000 final listingrule concerning

‘‘

significance

’’

specifically addressed and focused onthe biological

‘‘

significance

’’

of areas of habitat within the range of the lynx (65FR 16060; March 24, 2000). The biological context that we viewed asimportant in the 2000 final listing ruleincluded the distribution of lynx andthe contribution of each area to the life-history needs of the species. Forexample, the final listing rule found thatlynx exist in areas with forest types andvegetation that can support snowshoehares, the primary prey of lynx, andwhere cover exists for denning. Lynx arehighly specialized predators of snowshoe hares. Both lynx andsnowshoe hares have evolved to survivein areas that receive fluffy and/or deepsnow. Snowshoe hares prefer denseforest understories for forage, cover toescape from predators, and protectionduring extreme weather (Wolfe et al.1982; Monthey 1986; Hodges 1999a,1999b). Lynx use large woody debris,such as downed logs and windfalls, toprovide denning sites with security andthermal cover for kittens (McCord andCardoza 1982; Koehler 1990; Koehlerand Brittell 1990; Squires and Laurion1999; J. Organ, U.S. Fish and WildlifeService,

in litt.

1999).In the 2000 final listing rule, weevaluated

‘‘

significance

’’

primarily inthis biological context. In that rule, weexpressed the belief (which we stillmaintain) that significance should not be determined based on the size of anarea alone. We considered the ability of the area to support populations neededfor recovery to be the primaryconsideration. We did not considersizable area with poor-quality habitat forthe species or prey limitations to besignificant from a biological perspective.Thus, we viewed a significant portionto be an important portion, not just ageographically large portion.

‘‘

Important,

’’

in turn, we viewed in thelarger context of the Act. The primarypurpose of the Act is to conserveimperiled species. See 16 U.S.C.

1531(b). Moreover, the use of sciencein pursuing this goal is a theme in theAct. In particular, in identifyingendangered and threatened species, theAct requires that we use

‘‘

the bestscientific and commercial dataavailable.

’’

Id.

16 U.S.C. 1533(b)(1)(A).In this context, we concluded in 2000that the importance of a portion of aspecies

’

range should be measured withrespect to the conservation of imperiledspecies, and we looked to all of the toolsof conservation science available to helpdefine what portion of the range of thelynx was important.In the case of the lynx, despite theextensive contiguous U.S. range, not allof the existing range contains high-quality habitat. Many areas within whatis generally described as the historical(and current) range of lynx have never been capable of supporting residentlynx populations because the habitat isnaturally marginal. As such, this habitatcannot be biologically

‘‘

significant

’’

because, even in its original (pre-European settlement) state, it could notsupport lynx populations or prevent thespecies from becoming extinct if habitatelsewhere (the

‘‘

significant

’’

portion of the habitat) were to lose its value aslynx habitat.As explained in the 2000 final listingrule, much of the area depicted on rangemaps for lynx in the contiguous UnitedStates contains only naturally patchyhabitat because that area is the southernedge of the boreal forest, where the boreal forest is transitional with otherforest types. Because of the naturallypatchy condition of southern borealforests, snowshoe hares (the primaryprey of lynx) are unable to achievedensities similar to those in Canada andAlaska, where the northern boreal forestis expansive and continuous, enablingsnowshoe hares to reach extremely highdensities (65 FR 16053, 16077, 16081).Lower snowshoe hare densities in thecontiguous United States in turnnaturally limit the lynx populations.The quality and size of habitat patchesaffect the ability of areas to supportlynx.The persistence of a species maydepend on whether the reproductivesuccess of individuals in good habitats,or sources, exceeds that of individualsin marginal habitats, or sinks. In sinkhabitats, local recruitment into thepopulation (through reproduction orimmigration) is lower than mortality.Patches of higher quality and larger sizeare more likely to act as

‘‘

sources

’’

of lynx or support resident lynxpopulations, whereas smaller patchesand/or patches where habitat quality ismarginal likely act as

‘‘

sinks

’’

becausesuch areas are less likely to be able tosupport lynx populations (McKelvey etal. 1999a; 65 FR 16052, March 24, 2000).We must clarify here that, just because habitat is marginal, does notmean that lynx can no longer live there,as may be the impression of the Court.Instead, marginal habitat means thatsuch areas cannot and may never havesupported resident lynx populations.They may support breeding pairs over ashort term, or the regular presence of nonbreeding individuals, migrating intoor passing in and out of such areas fromsource (

‘‘

significant

’’

) habitats. Theseareas also may be natural

‘‘

sinks,

’’

where lynx mortality is greater thanrecruitment and lynx are lost from theoverall population.Furthermore, the habitat is marginal because it is at the southern edge of the boreal forest, where the boreal forest isnaturally in transition with other foresttypes. Therefore, the Service did notview the overall size of an area mappedas lynx habitat to be directly relevant tothe analysis of

‘‘

significance

’’

withoutconsideration of the quality of thehabitat. Marginal habitat for lynx, nomatter how large, is not a significantportion of the range of the lynx becauseit cannot, and has never been able to,support resident lynx populations forany length of time.The 2000 final rule described whathabitat values existed in the Northeast,Great Lakes, and Southern Rockiesregions. Specifically, we carefullyexplained that:

Northeast Region

—

Most lynx occurrencerecords in the Northeast were found withinthe

‘‘

Mixed Forest

—

Coniferous Forest

—

Tundra

’’

cover type (McKelvey et al. 1999b).This habitat type occurs along the northernAppalachian Mountain range fromsoutheastern Quebec, western NewBrunswick, and western Maine, souththrough northern New Hampshire. Thishabitat type becomes naturally morefragmented and begins to diminish to thesouth and west. Most of the historical lynxrecords from this region were from Maineand northern New Hampshire, which aredirectly connected with lynx populations inQuebec and New Brunswick, Canada.

To further clarify this, we note that inVermont, only four verified records of historic lynx occurrence exist(McKelvey

et al.

1999b). In fact, we haveno evidence of a breeding populationever occurring in Vermont.Great Lakes Region

—

The majority of lynx occurrence records in the GreatLakes Region are associated with the

‘‘

mixed deciduous-coniferous forest

’’

type (McKelvey

et al.

1999b) foundprimarily in northeastern Minnesota,northern Wisconsin, and the westernportion of Michigan

’

s upper peninsula.Most of the historical lynx records inthis region are from northeasternMinnesota, which supported higher

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