[Federal Register Volume 62, Number 188 (Monday, September 29, 1997)]
[Proposed Rules]
[Pages 50892-50896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-25695]


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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 Contiguous United States 
West of the 100th Meridian

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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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 contiguous United States west of the 100th meridian 
under the Endangered Species Act, as amended. Due to court remands and 
the need to complete a thorough status review on this controversial 
species, the Service has determined that the petition presents 
substantial information indicating that listing of the northern goshawk 
(comprising portions of the subspecies A.g. atricapillus and A.g. 
apache) as a threatened or endangered species in the contiguous United 
States west of the 100th meridian may be warranted. The Service 
initiates a status review for the northern goshawk and will prepare a 
12-month finding at the conclusion of the review. Through issuance of 
this notice, the Service is requesting additional information regarding 
the subspecies A.g. atricapillus and A.g. apache in the western 
contiguous United States. The Service vacates the previous finding for 
the same petitioned action dated June 6, 1996.

DATES: Comments and materials related to this petition finding must be 
received on or before December 29, 1997.

ADDRESSES: Information, comments, or questions concerning this petition 
may be submitted to the Field 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, supporting 
data, and comments will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Sam Spiller, Field Supervisor (see 
ADDRESSES section) (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 (90-day finding), 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 is required to 
promptly commence a status review of the species involved and determine 
whether the petitioned action is warranted.
    On July 19, 1991, the Service received a petition from Dr. Robin 
Silver, M.D., Maricopa Audubon Society, Phoenix, Arizona (Silver et al. 
1991), to list the northern goshawk (Accipiter gentilis) as an 
endangered species in Utah, Colorado, New Mexico, and Arizona with 
critical habitat. On September 26, 1991, a letter was received by the 
Service from Mr. Charles Babbitt, Maricopa Audubon Society, and a 
coalition of conservation organizations (Babbitt et al. 1991) 
requesting to amend the petition already under consideration by the 
Service. Co-sponsors of this request to amend the previous petition 
were the Arizona Audubon Council, Southwest New Mexico Audubon Society, 
Mesilla Valley Audubon Society, Forest Guardians, Friends of the Owls, 
Greater Gila Biodiversity Project, HawkWatch, Rio Grande

[[Page 50893]]

Chapter of the Sierra Club, and Southern Utah Wilderness Alliance. The 
coalition requested expanding the geographic region under consideration 
to include the ``forested west.'' The forested west was subsequently 
defined as the forested United States west of the 100th meridian. 
Because the request to amend the previous petition required 
consideration of a listing action substantially broader in scope than 
the petition under review at that time, the Service informed the 
coalition that their request for an amendment would be considered as a 
separate, new petition.
    On January 7, 1992, the Service published a finding that the first 
petition (on the northern goshawk in Utah, Colorado, New Mexico, and 
Arizona) did not present substantial information to indicate that the 
goshawk in that petitioned region constituted a listable entity (57 FR 
546). However, the Service concluded that the petition presented 
substantial information indicating that northern goshawk population 
declines and loss or modification of habitat may be occurring. 
Therefore, the Service announced in a separate Federal Register notice 
(January 7, 1992; 57 FR 544) the initiation of a status review for the 
northern goshawk throughout its range in the United States. That status 
review specifically solicited information to be used in evaluation of 
the potential for distinct population segments within the range of the 
northern goshawk in North America.
    On June 25, 1992 (57 FR 28474), the Service published a 90-day 
finding that the petition did not present substantial information to 
indicate that the northern goshawk in the western United States was a 
listable entity. The Service found that the petition presented no 
evidence of reproductive isolation or genetic differentiation between 
the goshawk in the west and the goshawk in the eastern United States, 
and that goshawk habitat was contiguous from the western United States 
to the eastern United States through Canada. The petitioners 
subsequently filed a lawsuit to have the finding set aside under the 
Administrative Procedure Act. On February 22, 1996, U.S. District Judge 
Richard M. Bilby found the June 25, 1992, not substantial petition 
finding to be arbitrary and capricious, and remanded the finding to the 
Service for a new 90-day determination and vacated the previous 
finding.
    On June 6, 1996 (61 FR 28834), the Service published a notice 
vacating the petition finding of June 25, 1992, and published a new 90-
day finding that the petition to list the northern goshawk in the 
western had not presented substantial information that the petitioned 
action may be warranted. The Service determined that since the entity 
petitioned for listing was comprised of more than one subspecies it did 
not meet the definition of a distinct vertebrate population as defined 
in the National Marine Fisheries Service and Fish and Wildlife Service 
Final Policy Regarding the Recognition of Distinct Vertebrate 
Population Segments Under the Endangered Species Act (DPS policy; 
February 7, 1996; 61 FR 4722).
    The petitioners subsequently filed a lawsuit to have that finding 
set aside. On June 6, 1997, Judge Bilby found the June 6, 1996, finding 
to be arbitrary and capricious, and remanded the finding to the Service 
for another 90-day finding. On August 19, 1997, Judge Bilby clarified 
that the decision on remand was to be made using the Service's DPS 
policy without the ``one subspecies'' rule the Service had relied on in 
making its June 6, 1996, finding. In addition, on August 22, 1997, the 
petitioners amended their petition to seek listing of northern goshawks 
west of the 100th meridian in the contiguous 48 states.
    The Service has determined that a substantial 90-day finding on the 
petition to list northern goshawks in the contiguous United States west 
of the 100th meridian is appropriate at this time in order to be 
responsive to the court ordered remand and to allow for a thorough 
status review of this species. This notice serves to inform the public 
of the Service's new 90-day finding and vacation of the Service's June 
6, 1996, finding. This finding is based on various documents, including 
published and unpublished studies, agency files, field survey records, 
and consultation with Federal and state agency personnel and other 
management and research authorities. All documents on which this 
finding is based are on file in the Fish and Wildlife Service's Arizona 
Ecological Services Field Office (see ADDRESSES section).

Northern Goshawk Taxonomy and Distribution

    The northern goshawk has a wide distribution and occurs in forested 
regions throughout the higher latitudes of the northern hemisphere. 
Approximately 12 subspecies have been recognized, with seven to nine 
occurring across northern Europe and Asia (Gladkov 1941, Palmer 1988). 
Three subspecies of northern goshawk have been recognized in North 
America. Queen Charlotte goshawk (A.g. laingi) is located in coastal 
British Columbia and southeastern Alaska and does not occur within the 
petitioned area.
    The population segment of the northern goshawk under petition 
includes portions of the ranges of A.g. atricapillus, and A.g. apache. 
The most widespread subspecies, A.g. atricapillus, occurs from the 
northeastern United States across the boreal forests of Canada and 
Alaska, and southward through the upland forests of the western United 
States. The Apache goshawk (A.g. apache) occurs in montane areas in 
southern Arizona and New Mexico, extending southward into the Sierra 
Madre of Mexico (American Ornithologists' Union 1957, Hubbard 1978, 
Johnsgard 1990, Monson and Phillips 1981, Palmer 1988, Phillips et al. 
1964, Reynolds et al. 1992, van Rossem 1938, Wattel 1973, Webster 
1988).
    The taxonomic distinctness of A.g. apache remains in debate. The 
American Ornithologist's Union (1957) did not include A.g. apache in 
its last listing of birds which included subspecies. However, A.g. 
apache is recognized by Brown and Amadon (1968), Hubbard (1978 and 
1992), Hellmayer and Conover (1949), Johnsgard (1990), Monson and 
Phillips (1981), Phillips et al. (1964), Stresemann and Amadon (1979), 
van Rossem (1938), and Wattel (1973). Mensural analysis of various size 
and mass parameters conducted by Whaley and White (1994) provide 
additional support for the recognition of A.g. apache.
    The primary nesting habitat of the goshawk is mature riparian, 
coniferous, or deciduous forests with large and tall trees (Crocker-
Bedford and Chaney 1988, Fischer 1986, Hayward and Escano 1989, Kennedy 
1988, Marquiss and Newton 1982, Moore and Henny 1983, Reynolds 1988, 
Reynolds et al. 1982, Reynolds et al. 1992, Saunders 1982, Schuster 
1980). Some variation exists in habitat used for breeding, but even in 
atypical habitat, nest sites are generally located in wooded areas with 
the largest trees and greatest canopy closure (Bond 1940, Bull and 
Hohmann 1994, Hall 1984, Hargis et al. 1994, White et al. 1965, 
Woodbridge and Detrich 1994). In the drier areas of the west such as 
the Great Basin, goshawks also nest in high-elevation shrubsteppe 
habitat supporting small, highly fragmented stands of mature aspen 
(Populus tremuloides) (Younk and Bechard 1994).
    Goshawks display a high degree of nest site fidelity, and are 
generally nonmigratory or weakly migratory (Johnsgard 1990, Kennedy 
1989, McGowan 1975, Palmer 1988, Reynolds 1988, Snyder 1995). Reynolds 
(1988) believes the goshawk is more migratory

[[Page 50894]]

in the northern part of its range. Seasonal movements have been 
documented which appear to be along north-south axes (Hoffman 1991, 
Mueller and Berger 1967, Titus and Fuller 1990), on elevational 
gradients (Phillips et al. 1964), or in response to food availability 
on breeding areas during the winter (Squires and Reynolds 1997). 
Juvenile dispersal is generally less than 40 kilometers (25 miles) from 
the natal site (Anonymous 1990, Marquiss and Newton 1982, McGowan 1975, 
Widen 1985). However, goshawks are capable of moving very long 
distances and occasionally do so, especially subadults (Hoffman 1991). 
The best information available suggests that goshawks do not tend to 
make significant movements for the purpose of seeking new breeding 
sites. Migratory or other seasonal movements, by definition, typically 
do not provide for mixing of individuals from diverse geographic 
regions for reproductive purposes.

Distinct Population Segment Determination

    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 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)).
    The Service's decision on the issue of whether a particular 
population qualifies for listing under the Act is governed by the 
Service's DPS policy which requires that the Service consider (1) 
discreteness of the population segment in relation to the remainder of 
the species to which it belongs; (2) the significance of the population 
segment to the species to which it belongs; and (3) the population 
segment's conservation status in relation to the Act's standards for 
listing.
    For a listable entity, the information submitted with and 
referenced in the petition, and other available data, must represent 
``substantial information.'' This information must present both 
adequate and reliable data on the status of the species' biological 
vulnerability and the threats to the species and/or its habitat, and 
which tends to show that the petitioned action may be warranted. The 
standard for substantial information is stated at 50 CFR 424.14(b) as 
``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.''

Population Discreteness

    Under the DPS policy the Service must evaluate whether the northern 
goshawk in the contiguous United States west of the 100th meridian is a 
discrete population segment based on consideration whether--(1) It is 
markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors; or (2) It is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of Section 4(a)(1)(D) of the Act.
    The goshawk and its habitat in the United States are separable into 
two broad regions--(1) the forested east, including the Appalachian 
Mountains and far northern reaches of the Great Lakes region; and (2) 
the forested highlands west of the 100th meridian (Johnsgard 1990). The 
100th meridian bisects the United States, passing north to south 
approximately through the center of North and South Dakota, Nebraska, 
Kansas, western Oklahoma, and Texas. The intervening Great Plains lack 
goshawk nesting habitat. However, in Canada north of the Great Plains, 
potential goshawk habitat is continuous across the continent from east 
to west.
    Eastern and western subspecies of the ``American Goshawk'' were 
once recognized (Baird et al. 1874, cited in Taverner 1940). This 
taxonomy was recognized by Wolfe (1932), Dixon and Dixon (1938), and 
Abbott (1941). However, Taverner (1940) determined that the plumage 
variations on which these distinctions were made are related to age, 
not geographic variation. The degree of genetic interchange between 
goshawks in eastern and western United States is unknown, as is the 
degree of interchange across western United States between Canada and 
Mexico.
    The range of the goshawk in the contiguous United States west of 
the 100th meridian includes portions of two identified subspecies and 
is bounded by the ecological barrier of the Great Plains to the east. 
Delimiting the northern boundary of the population segment as the 
United States-Canadian border, and the southern boundary as the United 
States-Mexico border, recognizes differences in management of habitat, 
control of exploitation, knowledge on the status of the species, and 
existing regulatory mechanisms across international boundaries. For 
example, the goshawks in the western United States occurring on Federal 
lands are managed under various United States laws, such as the 
National Forest Management Act (U. S. Forest Service), the Federal Land 
Policy and Management Act (Bureau of Land Management), and the Organic 
Act (National Park Service). While Canada and Mexico also have laws 
governing management of wildlife, the Service has insufficient 
information to determine whether there are differences that are 
significant to the conservation of the species. For these reasons, the 
Service concludes that the available information tends to support a 
finding that the 100th meridian and the U.S. borders with Canada and 
Mexico demarcate a discrete population segment of goshawks under the 
DPS policy. The Service seeks further information for purposes of 
making a 12-month finding on this issue, including information on the 
status of goshawks and relevant management practices in Canada and 
Mexico.

Population Significance

    Under the DPS policy, the Service must next evaluate whether the 
northern goshawk in the lower 48 states west of the 100th meridian is a 
significant population segment. To do so, the Service must consider 
whether--(1) the population represents an ecological situation unique 
for the taxon; (2) whether the loss of the population would result in a 
significant gap in the range of the taxon; (3) whether the population 
represents the only surviving natural occurrence of a taxon occurring 
elsewhere as an introduced species; and/or (4) whether the population 
differs markedly in its genetic characteristics.
    The Service has determined that the population of northern goshawks 
in the contiguous United States west of the 100th meridian constitutes 
a significant portion of the goshawk's range, and that loss of goshawks 
in the petitioned area would result in a significant gap in the 
species' range. Thus, the Service determines that goshawks in the 
contiguous United States west of the 100th meridian are significant in 
terms of the Service's DPS policy.

Population Status

    The petition contends that goshawk numbers are few and declining, 
essential habitat is subject to widespread present and threatened 
destruction, and the existing regulatory mechanisms for protection are 
inadequate. In an overview prepared for a northern goshawk symposium, 
Block

[[Page 50895]]

et al. (1994) reports that within the previous five years evidence has 
arisen which suggests that populations of northern goshawks have 
declined, particularly in the western United States. Declines in 
goshawk nest site occupancy and reproductive success have been 
suggested in Arizona, California, and Nevada (Crocker-Bedford 1990b; 
Reynolds et al. 1994 citing Herron et al. 1995 and Bloom et al. 1980; 
Snyder 1995; Zinn and Tibbitts 1990), Idaho (Patla 1991), and New 
Mexico (Kennedy 1989).
    Keane and Morrison (1994) (citing Reynolds et al. 1992, Reynolds 
1987, and Bloom et al. 1986) suggest that the major threat to the 
goshawk is the loss or degradation of mature forests used for nesting 
and foraging, due to timber harvesting and livestock grazing in some 
areas. Snyder (1995 citing Marshall 1957) attributes a probable 
decrease in goshawk carrying capacity to decreased habitat quality as a 
result of fire protection which has led to increased thickets of young 
trees, fuel buildup, and ultimately catastrophic wildfire that destroys 
large areas of habitat.
    There exists much debate regarding the scientific validity and 
rigor of many of the studies citing goshawk population responses to 
forest management activities. The Service has not fully evaluated the 
scientific methods used in the studies cited in this finding, nor made 
determinations about the cause and effect relationships of population 
changes and the relationship of these changes to the range-wide status 
of the goshawk. The Service will do this during preparation of the 12-
month finding.
    The northern goshawk is known to experience fluctuations in 
population size, density, and nesting success, presumably in response 
to natural factors such as prey availability. Several authors (Doyle 
and Smith 1994, McGowan 1975, Mueller and Berger 1968, Snyder 1995, 
Widen 1985) speculated that goshawk nest site occupancy and seasonal 
movements may be affected by fluctuations in prey availability. Snyder 
(1995), studying the conservation biology of the Apache goshawk, found 
evidence to suggest some declines in nesting goshawk numbers over a ten 
year period on the Coronado National Forest in Arizona. However, Snyder 
was not able to conclude if this is within normal, expected variation 
in site occupancy due in part to drought affecting prey species. 
Additionally, past and potential future conflicts between people and 
birds is at issue due to close proximity of goshawk nest sites and 
human activity.
    Timber extraction may significantly alter forest structure and 
ecology. Many studies have attempted to investigate the implications of 
forest management on goshawk populations. In Idaho, Patla (1991) found 
nest site occupancy dropped from 72 percent before timber harvesting to 
18 percent following harvest. In Arizona, Crocker-Bedford (1990b) found 
productivity was associated with varying intensity of timber harvest, 
with 2.0 nestlings/nest in unharvested locales; 1.8 with 25 percent of 
acres harvested; 1.0 in areas 50 percent harvested; and 0.0 with 75 
percent of acres harvested. Also in Arizona, Bright-Smith and Mannan 
(1994) found that timber harvest that creates large areas with sparse 
tree cover is potentially detrimental to goshawks.
    In northern California, Woodbridge and Detrich (1994) found that 
despite intensive timber harvest and fragmentation of mature forest, 
their study area supported high densities of nesting goshawks. However, 
goshawks in this study were associated with the larger remaining 
patches of mature forest. Woodbridge and Detrich (1994) theorized that 
prey found in open habitat, in this case, the golden-mantled ground 
squirrel (Spermophilus lateralis), may offset losses of prey species 
associated with mature forest. Hargis et al. (1994) found in the Inyo 
National Forest of northern California, that goshawks nested in stands 
that were substantially more open than those used in other geographic 
areas. Goshawks in this study selected stands that were denser than the 
average available, both for nesting and foraging. In addition, Hargis 
et al. (1994) found that all goshawk territories associated with timber 
sales were active for approximately two-thirds of the years since the 
harvests, based on nesting records, over a period of 14 years.
    The results of a population viability analysis conducted by the 
Arizona Game and Fish Department in 1992 for the goshawk on the Kaibab 
National Forest, North Kaibab Ranger District, Arizona, could not 
conclude that the population was stable, increasing, or decreasing 
(Maguire 1993). Kennedy (1997) concluded that there was no evidence to 
support the hypothesis that goshawk populations are declining. A panel 
with members from The Wildlife Society and American Ornithologist's 
Union found no evidence to indicate that northern goshawk populations 
are declining, threatened, or endangered in the southwest or anywhere 
within its range (Braum et al. 1996). However, the panel recognized a 
need to conduct additional research of goshawk demographics and 
additional inventory and monitoring of goshawk populations (Braum et 
al. 1996).
    Presently, the northern goshawk is regarded as a management 
indicator species of specific habitat conditions in many regions of the 
U.S. Forest Service and is a Forest Service Sensitive Species within 
the Rocky Mountain, Intermountain, Southwest and Pacific Southwest 
Regions (Block et al. 1994; Squires and Reynolds 1997). The goshawk is 
not afforded sensitive status in the Pacific Northwest Region.
    The Southwest Region of the Forest Service (National Forests in the 
states of Arizona and New Mexico) issued interim guidelines for the 
management of the goshawk in June 1992. These interim guidelines 
adopted the Management Recommendations for the Northern Goshawk in the 
Southwestern United States (Reynolds et al. 1992). Permanent guidelines 
were added to the Forest Service Directives System as a Regional 
Supplement in June, 1995 (U.S. Forest Service 1995), and the 
Southwestern Region of the Forest Service adopted Reynolds et al. 
(1992) in their Forest Plan Amendments in 1996 (U.S. Forest Service 
1996). Management strategies for the goshawk in the Upper Columbia 
River Basin, including Idaho and portions of neighboring states, have 
been developed (Patla et al. 1995). The Northwest Forest Plan has 
established late successional reserves throughout the range of the 
northern spotted owl (Strix occidentalis caurina) in Oregon and 
Washington. The success of these and other strategies in the western 
United States will be evaluated during the status review and as the 12-
month finding is prepared.
    Because the court ordered the previous not substantial 90-day 
finding remanded and current literature offers conflicting views of 
goshawk population trends and threats facing goshawks in the contiguous 
United States west of the 100th meridian, the Service has determined 
that a status review is necessary to examine whether the northern 
goshawk warrants listing. Current literature presents contradicting 
views on the purported decline of goshawks. Threats to the goshawk's 
habitat and the effects of those threats also must be analyzed before 
the Service can issue a determination regarding the status of goshawks 
in the western contiguous United States. Current data need to be 
scrutinized to determine goshawk population trends and subspecies (A. 
gentilis apache) validity.
    After a review of the petition, the references cited, and 
information otherwise available to the Service, the Service finds that, 
on the basis of the best scientific and commercial

[[Page 50896]]

information available, the petition presented substantial information 
that listing A. gentilis in the contiguous United States west of the 
100th meridian as a threatened or endangered species may be warranted. 
The Service determines that, although significant disagreement may 
exist as to the status of this species, the petition presents 
substantial information that indicates northern goshawks in the 
petitioned region may be declining in response to habitat loss and 
modification, and lack of existing regulatory mechanisms. Upon 
completion of a thorough status review, a 12-month finding will be made 
to determine whether listing is warranted for the northern goshawk in 
the western contiguous United States.
    The Service seeks any additional data, information, or comments 
from the public, other concerned government agencies, the scientific 
community, industry, or any other interested party concerning the 
status of A.g. atricapillus and A.g. apache. The Service is interested 
in information from throughout the subspecies' ranges in the United 
States, Canada, and Mexico. The following issues are of particular 
interest to the Service--
    1. The genetic, morphological, and ecological differences, 
including variations or intergradation of A.g. atricapillus and A.g. 
apache within their range;
    2. Data on historic and current population trends and dynamics, and 
documented or suspected influencing factors which may assist in 
determining population trends;
    3. Reproduction trends and documented or suspected influencing 
factors;
    4. Trends in loss, modification, and recovery of forested habitat 
of the two subspecies, and the extent and affect of habitat conversion 
and fragmentation on goshawks and their prey;
    5. Taxonomic clarification of North American goshawk subspecies;
    6. Migration and dispersal; and
    7. Information on the status of the goshawk in Canada and Mexico, 
as well as information on its management and relevant regulatory 
mechanisms.

References Cited

    A complete list of all references cited herein is available on 
request from the Field Supervisor, Arizona Ecological Services Field 
Office, (see ADDRESSES section).

Authors

    The primary authors of this document are Michele James and Bruce K. 
Palmer, of the Arizona Ecological Services Field Office, (see 
ADDRESSEES section).

Authority

    The authority for this action is the Endangered Species Act (16 
U.S.C. 1531 et seq.).

    Dated: September 22, 1997.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 97-25695 Filed 9-26-97; 8:45 am]
BILLING CODE 4310-55-P