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PART 391—QUALIFICATION OF 120 days if the driver is convicted of DEPARTMENT OF THE INTERIOR DRIVERS AND LONGER three or more violations of § 392.80(a) of COMBINATION VEHICLE (LCV) this chapter in separate incidents during Fish and Wildlife Service DRIVER INSTRUCTIONS any 3-year period. [Docket No. FWS-R8-ES-2009-0078] [MO 99210-0-0009-B4] 9. The authority citation for part 391 PART 392—DRIVING OF COMMERCIAL continues to read as follows: MOTOR VEHICLES 50 CFR Part 17 Authority: 49 U.S.C. 322, 504, 508, 31133, RIN 1018-AW53 31136, and 31502; sec. 4007(b) of Pub. L. 12. The authority citation for part 392 102–240, 105 Stat. 2152; sec. 114 of Pub. L. continues to read as follows: Endangered and Threatened Wildlife 103–311, 108 Stat. 1673, 1677; sec. 215 of Pub. L. 106–159, 113 Stat. 1767; and 49 CFR Authority: 49 U.S.C. 13902, 31136, 31151, and Plants; Proposed Revised 1.73. 31502; and 49 CFR 1.73. Designation of Critical Habitat for Astragalus jaegerianus (Lane Mountain 10. Revise § 391.2 to read as follows: 13. Amend part 392 by adding a new milk-vetch). subpart H to read as follows: § 391.2 General exceptions. AGENCY: Fish and Wildlife Service, (a) Farm custom operation. The rules Subpart H—Limiting the Use of Interior. in this part (except for § 391.15(e)) do Electronic Devices ACTION: Proposed rule. not apply to a driver who drives a commercial motor vehicle controlled § 392.80 Prohibition against texting. SUMMARY: We, the U.S. Fish and and operated by a person engaged in Wildlife Service (Service), propose to custom-harvesting operations, if the (a) Prohibition. No driver shall engage revise designated critical habitat for the commercial motor vehicle is used to— in texting while driving. Lane Mountain milk-vetch (Astragalus (1) Transport farm machinery, (b) Motor Carriers. No motor carrier jaegerianus) under the Endangered supplies, or both, to or from a farm for shall allow or require its drivers to Species Act of 1973, as amended (Act). custom-harvesting operations on a farm; engage in texting while driving. The previous final rule designated 0 acres (ac) (0 hectares (ha)) of critical or (c) Definition. For the purpose of this (2) Transport custom-harvested crops habitat and was published in the section only, driving means operating a to storage or market. Federal Register on April 8, 2005. We commercial motor vehicle, with the (b) Apiarian industries. The rules in now propose to designate approximately this part (except for § 391.15(e)) do not motor running, including while 16,156 ac (6,538 ha) of land located in apply to a driver who is operating a temporarily stationary because of traffic, the Mojave Desert in San Bernardino commercial motor vehicle controlled a traffic control device, or other County, California, which, if finalized as and operated by a beekeeper engaged in momentary delays. Driving does not proposed, would result in an increase of the seasonal transportation of bees. include operating a commercial motor approximately 16,156 ac (6,538 ha). (c) Certain farm vehicle drivers. The vehicle with or without the motor DATES: We will accept comments until rules in this part (except for § 391.15(e)) running when the driver has moved the June 1, 2010. We must receive requests do not apply to a farm vehicle driver vehicle to the side of, or off, a highway for public hearings, in writing, at the except a farm vehicle driver who drives and has halted in a location where the address shown in the FOR FURTHER an articulated (combination) vehicle can safely remain stationary. INFORMATION CONTACT section by May commercial motor vehicle, as defined in (d) Exceptions. (1) The provisions of 17, 2010. § 390.5. (For limited exemptions for § 390.3(f)(1) of this chapter (school bus ADDRESSES: You may submit comments farm vehicle drivers of articulated operations) are not applicable to this by one of the following methods: • Federal eRulemaking Portal: http:// commercial motor vehicles, see section. § 391.67.) www.regulations.gov. Follow the 11. Amend § 391.15 by adding a new (2) Texting is permissible by drivers instructions for submitting comments to paragraph (e) to read as follows: of a commercial motor vehicle when Docket No. [FWS-R8-ES-2009-0078]. necessary to communicate with law • U.S. mail or hand-delivery: Public § 391.15 Disqualification of drivers. enforcement officials or other Comments Processing, Attn: [FWS-R8- * * * * * emergency services. ES-2009-0078]; Division of Policy and (e) Disqualification for violation of Directives Management; U.S. Fish and Issued on: March 29, 2010. prohibition of texting while driving a Wildlife Service; 4401 N. Fairfax Drive, commercial motor vehicle— Anne S. Ferro, Suite 222; Arlington, VA 22203. (1) General rule. A driver who is Administrator. We will post all comments on http:// convicted of violating the prohibition of [FR Doc. 2010–7367 Filed 3–31–10; 4:15 pm] www.regulations.gov. This generally texting in § 392.80(a) of this chapter is BILLING CODE 4910–EX–P means that we will post any personal disqualified for the period of time information you provide us (see the specified in paragraph (e)(2) of this Public Comments section below for section. more information). (2) Duration. Disqualification for FOR FURTHER INFORMATION CONTACT: violation of prohibition of texting while Diane Noda, Field Supervisor, Ventura driving a commercial motor vehicle— Fish and Wildlife Office, U.S. Fish and (i) Second violation. A driver is Wildlife Service, 2493 Portola Road, disqualified for not less than 60 days if Suite B, Ventura, CA 93003; telephone the driver is convicted of two violations (805) 644-1766; facsimile (805) 644- of § 392.80(a) of this chapter in separate 3958. If you use a telecommunications incidents during any 3-year period. device for the deaf (TDD), call the (ii) Third or subsequent violation. A Federal Information Relay Service driver is disqualified for not less than (FIRS) at (800) 877-8339.

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SUPPLEMENTARY INFORMATION: of including or excluding any particular Background areas that exhibit these impacts; and Public Comments It is our intent to discuss only those (9) Whether we could improve or topics directly relevant to the revised We intend any final action resulting modify our approach to designating designation of critical habitat in this from this proposal to be based on the critical habitat in any way to provide for proposed rule. Additional information best scientific and commercial data greater public participation and on the Lane Mountain milk-vetch may available and be as accurate and as understanding, or to better also be found in the final listing rule effective as possible. Therefore, we accommodate public concerns and published in the Federal Register on request comments or information from comments. October 6, 1998 (63 FR 53596) and the the public, other governmental agencies, Our final determination concerning previous proposed critical habitat of Tribes, the scientific community, critical habitat for Astragalus April 6, 2004 (69 FR 18018). These industry, or other interested parties jaegerianus will take into consideration documents are available on the Ventura concerning this proposed rule. We all written comments we receive during Fish and Wildlife Office website at particularly seek comments concerning: the comment period, including http://www.fws.gov/ventura. (1) The reasons why we should or comments from peer reviewers, should not revise the designation of comments we receive during a public Species Description habitat as ‘‘critical habitat’’ under hearing, should one be requested, and Astragalus jaegerianus is a member of section 4 of the Endangered Species Act any additional information we receive the pea family (Fabaceae), and has a of 1973, as amended (Act) (16 U.S.C. during the 60–day comment period. All range restricted to a portion of the west 1531 et seq.), including whether there comments will be included in the Mojave Desert that is north of Barstow, are threats to the species from human public record for this rulemaking. On in San Bernardino County, California. activity, the degree of which can be the basis of peer reviewer and public The plant is an herbaceous perennial expected to increase due to the comments, we may, during the that typically dies back at the end of designation, and whether that increase development of our final determination, each growing season, and persists in threat outweighs the benefit of find that areas within the proposed through the dry season as a taproot. The designation such that the designation of designation do not meet the definition stems often grow in a zigzag pattern, critical habitat is not prudent. of critical habitat, that some usually up through low bushes, referred (2) Specific information on: modifications to the described to in this proposed rule as host shrubs. • The amount and distribution of boundaries are appropriate, or that areas This species can be considered a Astragalus jaegerianus habitat included may or may not be appropriate for hemicryptophyte (partially hidden), in this proposed revised rule; exclusion under section 4(b)(2) of the because it is usually found growing • What areas within the geographic Act. within the canopy of a host shrub. Like area occupied by the species at the time You may submit your comments and other species of Astragalus, the roots of of listing contain features essential to materials concerning this proposed rule Astragalus jaegerianus contain nodules the conservation of the species and why; by one of the methods listed in the that fix nitrogen. Gibson et al. (1998, p. and ADDRESSES section. 81) postulate that A. jaegerianus may • What areas outside the geographical We will post your entire comment— have a mutually beneficial relationship area occupied by the species at the time including your personal identifying with the host shrub, wherein the host of listing are essential for the information—on http:// shrub provides trellis-like support for A. conservation of the species and why. www.regulations.gov. If your written jaegerianus, and benefits from higher (3) Land use designations and current comments provide personal identifying levels of soil nitrogen derived from the or planned activities in the subject areas information, you may request at the top litter and roots of A. jaegerianus. and their possible impacts on proposed of your document that we withhold this critical habitat; information from public review. Life History (4) Any foreseeable economic, However, we cannot guarantee that we As with other perennial species in the national security, or other relevant will be able to do so. We will post all Mojave Desert, the plant begins impacts of designating any area that hardcopy comments on http:// regrowth in the late fall or winter, once may be included in the final www.regulations.gov. Please include sufficient soil moisture is available. designation. We are particularly sufficient information with your Individuals go dormant in the late interested in any impacts on small comment to allow us to verify any spring or summer when soil moisture entities, and the benefits of including or scientific or commercial data you has been depleted (Bagley 1999, p. 2). excluding areas that exhibit these submit. Blooming typically occurs in April and impacts; Comments and materials we receive, May. However, if climatic conditions (5) Comments or information that may as well as supporting documentation we are unfavorable, the plants may assist us in identifying or clarifying the used in preparing this proposed rule, desiccate (dry out) prior to flowering or primary constituent elements; will be available for public inspection setting seed. Therefore, substantial (6) How the proposed revised critical on http://www.regulations.gov, or by contributions to the seed bank may habitat boundaries could be refined to appointment, during normal business occur primarily in climatically favorable more closely circumscribe the hours, at the U.S. Fish and Wildlife years. landscapes identified as essential; Service, Ventura Fish and Wildlife Production of pods and the number of (7) Information on the currently Office (see FOR FURTHER INFORMATION seeds per pod can be highly variable, predicted effects of climate change on CONTACT). both in the field and in greenhouse Astragalus jaegerianus and its habitat; You may obtain copies of the conditions. Seed pods can contain as (8) Any foreseeable impacts on energy proposed revised rule by mail from the many as 18 seeds, but more typically 4 supplies, distribution, and use resulting Ventura Fish and Wildlife Office (see to 14 seeds (Sharifi et al. 2003, p. 5). In from the proposed revised designation FOR FURTHER INFORMATION CONTACT) or the field, seeds that do not germinate and, in particular, any impacts on by visiting the Federal eRulemaking during the subsequent year become part electricity production, and the benefits Portal at http://www.regulations.gov. of the seed bank. Seed germination rates

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in the field may resemble the low megachilid family. Hopkins also Current Distribution germination rate of 5 percent that is observed two species of flies associated After the early collections in 1939 and observed in germination trials of with Astragalus jaegerianus flowers. 1941, the plant was not collected again unscarified (outer cover is not broken) However, Hopkins concluded that the until 1985 at the sites referred to as seed (Sharifi in litt. 2004, p. 1). common hoverfly (Eupeodes volucris) Brinkman Wash, Montana Mine, and Seeds collected from Astragalus and bee fly (Lordotus albidus) were not Paradise Wash. Throughout the 1990s, jaegerianus range in size from .000053 effective pollinators of A. jaegerianus hundreds more plants were located in ounces (1.5 milligrams) to .000764 flowers (Hopkins 2005, p. 1). these areas (Lee and Ro Consulting ounces (5.0 milligrams) in weight Although the aboveground portion of Engineers 1986, pp. 10-13; Brandt et al. (Sharifi in litt. 2003, p. 5). The relatively the plant dies back each year, 1993, p. 4; Prigge 2000a, p. 6) in surveys large size of these seeds, compared to individuals of Astragalus jaegerianus sponsored by the Department of the those of many desert annual species, persist as a perennial rootstock through Army (Army). Surveys in 1999 makes them an attractive food source to the dry season. The perennial rootstock established that the Brinkman Wash and ants and other large insects, small may also allow A. jaegerianus to survive Montana Mine sites together support mammals, and birds (Brown et al. 1979, occasional dry years, while longer one large spatially contiguous p. 203). These animal species would periods of drought might be endured by also be the most likely vectors to population (Prigge et al. 2000a, p. 7), remaining dormant (Beatley in Bagley and thus these areas are now considered disperse A. jaegerianus seeds within 1999, p. 2). In another federally listed and between populations. Sharifi (pers. one population. In 1992, the species, Osterhout milk-vetch southernmost and now considered the comm. 2004) confirmed the presence of (Astragalus osterhoutii), which occurs A. jaegerianus seeds within native ant third population was found 9 miles (mi) in sagebrush steppe habitat in Colorado, (14 kilometers (km)) to the south, on coppices (mounds). individuals have remained dormant for Limited observations on Astragalus Coolgardie Mesa, a few miles west of up to 4 years (Dawson in litt. 1999, p. jaegerianus pollinators were carried out Lane Mountain. This site closely 1). in 2003 (Kearns 2003, pp. 9-16), 2004, approximates the location of the type and 2005 (Hopkins 2005, p. 1). Kearns Although a substantial Astragalus locality (the location where a type made observations at two plants in one jaegerianus seedbank most likely exists, specimen originated) as described by population for 7 days. Although 30 establishment of new individuals may Edmund C. Jaeger (1940, p. 119). different insect species were observed not occur with great frequency, and may Extensive surveys funded by the visiting flowers in the area, only 4 pose a large bottleneck for the continued Army were conducted in 2001 (Charis visited A. jaegerianus flowers. The most persistence of the species. In addition to 2002, pp. 1-85). The 2001 surveys frequent pollinator was Anthidium the possible low seed germination rates contributed greatly to our knowledge of dammersi, a solitary bee in the discussed earlier, several other the overall distribution and abundance megachilid family (Megachilidae). observations contribute to this assertion. of Astragalus jaegerianus in the three Anthidium dammersi occurs in the First, we have some indication that populations (Brinkman Wash–Montana Mojave and Colorado deserts of individuals may have a long life span; Mine, Paradise Wash, and Coolgardie). California, Nevada, and Arizona (Kearns in one long-term plot, individuals have In addition, a fourth population was 2003, p. 12), and will fly up to 0.6 mile been tracked for a period of 13 years. located during these surveys on Army (1 kilometer (km)) away from their nest; Out of a total of 9 individuals, 1 has lands within the bounds of the National although if floral resources are persisted over a period of 13 years, 1 has Training Center at Fort Irwin (NTC) in abundant, they will decrease their flight persisted 12 years, 1 has persisted 10 an area referred to as Goldstone. distances accordingly (Yanega, pers. years, 1 has persisted 6 years, 1 has Approximately 20 percent of this comm. 2003). Kearns (2003) found that persisted 5 years, and 2 have persisted population is on lands leased by the the Anthidium individuals he inspected 3 years (Rutherford in litt. 2004). Army to the National Aeronautics and carried pollen primarily from phacelia Secondly, despite careful observation, Space Administration (NASA) for (Phacelia distans) (82 percent of very few seedlings have been observed. tracking facilities. Much of the individuals) and A. jaegerianus (64 During the extensive surveys of 2001, information on population distribution percent of individuals). The three approximately 2 percent of the 4,964 included in this proposed rule is taken occasional visitors to A. jaegerianus individuals observed were thought to be from the Army survey report (Charis were a hover fly (Eupeodes volucris), a seedlings (Charis 2002, p. 36). However, 2002, pp. 1-85). large anthophrid bee (Anthophora sp.), the actual number of seedlings may Individuals of Astragalus jaegerianus and the white-lined sphinx moth (Hyles have been even lower, because resprouts are concentrated in four geographically lineata). The extent to which Astragalus from established individuals were most distinct areas. In this rule, a population jaegerianus relies on these and other likely mistaken for seedlings (Sharifi refers to a concentration of A. pollinators to achieve seed set is not yet pers. comm. 2004). jaegerianus individuals, a site refers to the land that supports the population, known. However, in a greenhouse Geographical Area Occupied at the and a unit refers to specific sites that are experiment, 25 percent of pollinated Time of Listing Astragalus jaegerianus flowers set seed, being considered for critical habitat while only 5 percent of nonpollinated At the time of listing, Astragalus designation. The four populations of A. flowers set seed (Sharifi pers. comm. jaegerianus was known to occur in four jaegerianus are arrayed more or less 2004). geographically distinct areas, referred to linearly along a 20-mile-long (32- In a study conducted in 2004 and as Brinkman Wash, Montana Mine, kilometer) axis that trends in a 2005, Hopkins collected three bee Paradise Wash, and Coolgardie. The northeasterly-to-southwesterly species observed on the flowers of species was found from a fifth area, direction. The names of the four Astragalus jaegerianus. Yanega referred to as Goldstone in 2001. Based populations, from northeast to identified the three bee species as on what we understand about the southwest, and land ownership are as Osmia laisulcata, Anthidium lifespan of the species, we infer that the follows: the Goldstone population emarginatum, and Anthidium Goldstone area was also occupied at the occurs on Army lands including a dammersi, all of which belong to the time of listing (see below). portion leased to NASA; the Brinkman

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Wash–Montana Mine population occurs not be developed enough to support A. frequency of use of host shrub species entirely on Army lands; the Paradise jaegerianus (Prigge 2000b, p. 6; Charis by Astragalus jaegerianus and the Wash population occurs primarily on 2002, p. 40). Prigge (pers. comm. 2003) relative frequency with which these Army lands, with a small portion of the examined and found no relationship shrubs occurred in the plant community remaining population occurring on between the abundance and distribution was statistically significant, indicating Bureau of Land Management (Bureau) of A. jaegerianus and levels of that some shrubs are more suitable as lands intermixed with private lands micronutrients or heavy metals, such as hosts than others. During Army surveys along the southwestern fringe of the selenium, in the soil. in 2001, host shrubs were noted for population; the Coolgardie population At the broad landscape level, the 4,899 individuals of A. jaegerianus. Six occurs primarily on Bureau-managed plant community within which shrub species (Thamnosma montana, lands and to a lesser extent lands owned Astragalus jaegerianus occurs can be Ambrosia dumosa, Eriogonum by the Army, with a number of small described as Mojave mixed woody scrub fasciculatum ssp. polifolium, privately owned parcels scattered (Holland 1986 p. 13), Mojave creosote Ericameria cooperi var. cooperi, within. bush scrub (Cheatham and Haller 1975, Ephedra nevadensis, Salazaria Based on the information available, p. 2; Thorne 1976, p. 23; Holland 1986, mexicana) accounted for 75 percent of including historic records and current p. 13), or creosote bush series (Sawyer the host shrub records. Some relatively location information, there is nothing to and Keeler-Wolf 1995, p. 144). These frequent shrubs had an extremely low suggest that Astragalus jaegerianus was broad descriptions, however, are not frequency of occurrence as a host. These more widespread prior to listing than sufficiently detailed to be useful in included Larrea tridentata, Krameria the currently-known distribution. The describing the communities where A. erecta, Psorothamnus arborescens var. Army surveys in 2001 (Charis 2002, p. jaegerianus is found. While creosote minutifolius, Lepidium fremontii, and 17) included reconnaissance surveys on bush (Larrea tridentata) is present in the Lycium cooperi (Charis 2001, p. 41). habitat that appeared suitable but landscape, its presence and abundance outside the known range of A. is not as extensive in the specific areas Population Characteristics jaegerianus, including the Mount where A. jaegerianus occurs, The cumulative total number of General area near Barstow and in the presumably because these soils are Astragalus jaegerianus individuals Alvord Mountains 20 mi (32 km) to the shallower than optimal depth for found from all surveys to date is east. In addition, since 1996, rare plant creosote bush. approximately 5,800 (Charis 2002, p. surveys have been conducted on the Data gathered from the four sites that 34). Charis (2002) attempted to Naval Air Weapons Station at China support Astragalus jaegerianus extrapolate the total number of Lake 6 miles (4.8 km) northwest of the populations have been detailed, and individuals by factoring in the amount known distribution (Silverman in litt. thus very useful in describing the of intervening suitable habitat between 2003). None of these surveys have particular plant community within transects in confirmed occupied habitat, resulted in the location of any other which A. jaegerianus grows. Common to along with an ‘‘observability’’ factor populations. all four sites is the remarkably high ranging from 30 percent to 70 percent; diversity of desert shrub species, this results in estimations of the total Habitat although the relative frequency of these number of individuals ranging from Astragalus jaegerianus is most species varies slightly from site to site. 20,524 to 47,890. The actual numbers of frequently found on shallow soils The shrub species that occur in the individuals observed during the surveys derived from Jurassic or Cretaceous highest densities at A. jaegerianus sites at the four population sites during the granitic bedrock. A small portion of the include turpentine bush (Thamnosma climatically favorable year of 2001 are individuals located to date occur on montana), white bursage (Ambrosia as follows: Goldstone, 555; Brinkman soils derived from diorite or gabbroid dumosa), Mormon tea (Ephedra Wash–Montana Mine, 1,487; Paradise bedrock (Charis 2002, p. 35). In one nevadensis), Cooper goldenbush Wash, 1,667; Coolgardie, 2,014 (Charis location on the west side of the (Ericameria cooperi var. cooperi), 2002, p. 36). Low numbers of Coolgardie site, plants were found on California buckwheat (Eriogonum individuals observed in prior and granitic soils overlain by scattered fasciculatum var. polifolium), subsequent years (2000, 2002, and 2003) rhyolitic cobble, gravel, and sand. Soils brittlebush (Encelia farinosa or E. suggest that this species may well tend to be shallower immediately actoni), desert aster (Xylorrhiza follow the pattern of other perennial adjacent to milk-vetch plants (within 30 tortifolia), goldenheads desert species that rely on climatic feet (ft) (10 meters (m))) than in the (Acamptopappus spherocephalus), conditions (particularly a heavy rainfall surrounding landscape (Brandt et al. spiny hop-sage (Grayia spinosa), during October or November) that are 1997, p. 8). At the Montana Mine site, cheesebush (Hymenoclea salsola), infrequent and unpredictable (Beatley highly weathered granite bedrock was winter fat (Kraschenninikovia lanata), 1974, p. 860; Kearns 2003, p. 5; Prigge, reached within 2 inches (6 centimeters and paper bag bush (Salazaria pers. comm. 2003). (cm)) of the soil surface near A. mexicana). jaegerianus plants (Fahnestock 1999, p. Astragalus jaegerianus utilizes a Reasons for Decline and Threats 3). The topography where A. jaegerianus variety of species as host shrubs. At the time Astragalus jaegerianus most frequently occurs is on low ridges Individuals of A. jaegerianus are was listed as endangered in 1998, and rocky low hills where bedrock is sometimes found growing within dead threats to the species included: Dry exposed or near the surface and the soils shrubs, and are rarely observed on bare wash mining, recreational off-highway are coarse or sandy (Prigge 2000b, p. 5; ground. Host shrubs may be important vehicle use, military maneuvers on Charis 2002, p. 35). Most of the in providing appropriate microhabitat Army lands at the NTC and its future individuals found to date occur between conditions for A.jaegerianus seed training expansion lands (see New 3,100 and 4,200 ft (945 and 1,280 m) in germination and seedling establishment Information Since the Time of Listing elevation (Charis 2002, p. 40). At lower (Charis 2003, p. 25). section below), and the lack of elevations, the alluvial soils appear to At the Brinkman-Montana Mine site, regulatory mechanisms that would offer be too fine to support A. jaegerianus, Prigge et al. (2000b, p. 6) showed that formal protection for the species or its and at higher elevations the soils may the difference between the relative habitat. Stochastic extinction (extinction

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from random natural events) resulting Fourteen of the 123 plants (11.4 percent) jaegerianus. Therefore, of the three from flooding (that could wash were new recruits (new individuals populations on the NTC lands, all of one substantial amounts of the seedbank from seeds) in 2008; this was correlated and a portion of a second are on sites into unsuitable habitat), prolonged with increased rainfall that resulted in that have been designated as drought (that could reduce the the germination of new individuals as conservation areas, and a portion of a abundance of viable seed in the well as the reappearance of older, third population is on a site designated seedbank), or unforeseen events established individuals that had gone as a no-dig zone. dormant during the previous years of including wildfire, wildfire suppression Bureau land transfers and management activities, or pipeline breaks or repairs drought. In 2009, the total number of were also of concern. living plants observed in the study plots As discussed above under ‘‘Army land was 124 plants. Eleven of these plants transfers and management,’’ New Information Since the Time of were new plants that had not been approximately 118,674 ac (48,026 ha) of Listing observed or tagged previously (Hessing lands, primarily Bureau lands, were Survey information 2009, p. 3). Long-term recruitment into transferred to the Army in 2002. This the population is expected to be less, transfer included lands that support a Surveys conducted in 2001 (Charis because of seedling and juvenile large portion of the population of 2002, pp. 1-85) increased our mortality. For example, only 35 percent Astragalus jaegerianus at Brinkman understanding of the distribution of the of the new recruits in 2006 plants Wash–Montana Mine and almost all the species. The areal extent of the three survived until 2008 (Hessing 2008, pp. Astragalus jaegerianus population at populations that were previously known 2-6). Paradise Wash. The Bureau continues to was found to be much greater, and the Population demography studies have jurisdiction on lands that support fourth population (Goldstone) was conducted at permanent survey plots the Astragalus jaegerianus population at discovered during these surveys. Also, showed that Astragalus jaegerianus Coolgardie. the size of the populations (as populations at the Montana Mine and In 2005, the Bureau amended the represented by the number of Goldstone sites are failing to recruit new California Desert Conservation Area individuals that can be observed in a plants into those populations as a result plan with respect to the management of favorable climatic year) is now known of low seedling survival and perhaps a approximately 3,300,000 ac (1,335,477 to be larger than was thought at the time depleted seed bank (Sharifi et al. 2009, ha) of Bureau lands in the western of listing. p. 10). Additionally, recruitment is Mojave Desert. As part of the plan Army land transfers and management probably episodic and requires two or amendment of the CDCA, the Bureau more uncommon conditions such as: A established two Areas of Critical A substantial change in land large seed bank, precipitation greater Environmental Concern (ACEC) for management occurred since the time of than 200 mm and frequently spaced Astragalus jaegerianus. The first ACEC, listing. On January 11, 2002, the Fort (approximately four times a month), and referred to as the West Paradise Irwin Military Lands Withdrawal Act of a subsequent wet year or summer Conservation Area, comprises 1,243 ac 2001 (Public Law 107-107) was signed precipitation (Sharifi et al. 2009, p. 10). (503 ha), and is contiguous with the into law. This legislation withdrew Recent genetic analysis of A. jaegerianus Army’s Paradise Valley Conservation approximately 110,000 acres (ac) showed that the species exhibits low Area along the southwestern boundary (44,516 hectares (ha)) of land, formerly levels of genetic variation likely due to of the NTC. This area was previously managed by the Bureau, for military use its small population size and restricted designated as land-use class L by the and management by the Army at the geographical range (over a 20-mi long Bureau, which denotes limited use. The NTC. Subsequent surveys and (32-km) area) (Walker and Metcalf 2009, second ACEC is the Coolgardie Mesa Geographic Information System (GIS) p. 18). Conservation Area (CMCA); it comprises analysis indicated that the expansion Three of the four populations of approximately 13,354 ac (5,404 ha) at area was actually 118,674 ac (48,026 Astragalus jaegerianus (Goldstone, the Coolgardie site. This area was ha). Brinkman Wash–Montana Mine, and previously designated as land-use class As part of their Integrated Natural Paradise Wash populations) occur M by the Bureau, which denotes Resources Management Plan (INRMP) almost entirely on Army lands at the moderate use. Under the plan responsibilities, the Army established NTC. The Army established two amendments to the CDCA, both 40 study plots in 2005 to study the conservation areas for A. jaegerianus in conservation areas are now managed to demographics of Astragalus jaegerianus 2005. The first conservation area, maintain habitat for A. jaegerianus with and reports annually to the Service. Ten referred to as the Goldstone the following management study plots were established in each of Conservation Area, comprises 2,470 ac prescriptions: Implement a minerals the four populations. Information (1,000 ha) at the Goldstone site where withdrawal and notify claimholders of summarized from the 2008 annual the Goldstone population occurs and the presence of A. jaegerianus, prohibit monitoring report indicates that the encompasses almost the entire grazing, issue no permits that allow take total number of A. jaegerianus plants population. The second conservation of this species, require a 5-to-1 observed above-ground within the plots area, referred to as Paradise Valley mitigation ratio for land-disturbing has decreased since 2005 (Hessing 2008, Conservation Area, comprises 4,302 ac projects, acquire private lands to the pp. 2-6). Study plot surveys in 2005 (1,741 ha) along the southwestern extent feasible, and limit total ground documented 224 individuals. In 2006 boundary of the NTC where the Paradise disturbance to 1 percent of the the total number of individual plants Wash population occurs. A portion of conservation areas. increased to 230. In 2007, the total the Brinkman Wash-Montana Mine Since 2005, Congress and the number of plants observed in the study population occurs on a site designated Department of Interior supported the plots was 4 plants; drought conditions as a ‘‘no-dig zone’’ by the Army; while use of public lands for alternative are suspected to be the cause of not as protective as a conservation area, energy development, including passage decreased numbers observed above- the no-dig zone limits the extent of of the Energy Policy Act of 2005. The ground. In 2008 the observed ground disturbance, and hence purpose of the act is to encourage population total rose to 123 plants. disturbance to the habitat of Astragalus energy efficiency and conservation,

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promote alternative and renewable Congress to work on critical habitat associated with scientific resources energy sources, reduce our dependence designations in 2003 prior to completing management such as research, census, on foreign sources of energy, and the proposed rule. On September 8, law enforcement, habitat acquisition increase domestic production in an 2003, the court issued an order and maintenance, propagation, live environmentally responsible way. extending the date for issuance of the trapping and transplantation, and in the Stepdown orders address more proposed critical habitat designation for extraordinary case where population specifically how to implement the A. jaegerianus to April 1, 2004, and the pressures within a given ecosystem Energy Policy Act of 2005 (for example, final designation to April 1, 2005. cannot otherwise be relieved, may Order No. 3283 (DOI 2009a pp. 1-2) and On April 6, 2004 (69 FR 18018), we include regulated taking. Order No. 3285 (DOI 2009b pp. 1-3)). In published a proposed critical habitat Critical habitat receives protection addition, the Bureau has issued its own designation that included 29,522 ac under section 7 of the Act through the guidelines for implementing these (11,947 ha) in 4 units in San Bernardino prohibition against destruction or policies and orders on Bureau lands. In County, California. On April 8, 2005 (70 adverse modification of critical habitat 2008, the Bureau issued IM 2009-043, FR 18220), we published our final with regard to discretionary actions the Wind Energy Development Policy, designation of critical habitat for carried out, funded, or authorized by a which includes guidelines for the Astragalus jaegerianus. Because we Federal agency. Section 7(a)(2) of the development of wind energy projects excluded all proposed acreage from the Act requires consultation on Federal within designated ACEC areas (Bureau designation, the final designation actions that may affect critical habitat. 2008, p. 2). In accordance with these included zero (0) acres (0 hectares). The designation of critical habitat does guidelines, the Bureau will not issue On December 19, 2007, the 2005 not affect land ownership or establish a right-of-way authorizations for wind critical habitat determination was refuge, wilderness, reserve, preserve, or energy development in ACECs when challenged by the Center for Biological other conservation area. Such wind energy development is Diversity (Center for Biological Diversity designation does not allow the incompatible with specific resource v. United States Fish and Wildlife government or public to access private values. Since 2005, the Bureau has Service et al., Case No. CV-07-08221- lands. Such designation does not received two applications to install JFW-JCRx). In a settlement agreement require implementation of restoration, meteorological monitoring towers accepted by the court on June 27, 2008, recovery, or enhancement measures by adjacent to Astragalus jaegerianus we agreed to reconsider the critical private landowners. Where a landowner habitat on Coolgardie Mesa. These habitat designation for A. jaegerianus. seeks or requests Federal agency applications were denied due to The settlement stipulated that we funding or authorization of an activity concerns over habitat alteration and submit a proposed revised critical that may affect a listed species or potential impacts to A. jaegerianus. The habitat rule for A. jaegerianus to the critical habitat, the consultation Bureau worked with the applicants to Federal Register for publication on or requirements of section 7(a)(2) would relocate these two wind energy projects before April 1, 2010, and submit a final apply, but even in the event of a outside of the ACECs designated for A. revised determination on the proposed destruction or adverse modification jaegerianus (Trost 2009), thereby critical habitat rule to the Federal finding, the landowner’s obligation is avoiding impacts to A. jaegerianus Register for publication on or before not to restore or recover the species, but while pursuing alternative energy April 1, 2011. This revised proposed to implement reasonable and prudent development. rule complies with the June 27, 2008, alternatives to avoid destruction or court order. adverse modification of critical habitat. Previous Federal Action To be included in a critical habitat The final rule listing Astragalus Critical Habitat designation, habitat within the jaegerianus as an endangered species Critical habitat is defined in section 3 geographical area occupied by the was published on October 6, 1998 (63 of the Act as: species at the time it was listed must FR 53596). (1) The specific areas within the contain the physical and biological On November 15, 2001, our decision geographical area occupied by a species, features that are essential to the not to designate critical habitat for at the time it is listed in accordance conservation of the species. Areas Astragalus jaegerianus and seven other with the Act, on which are found those containing the essential physical and plant and wildlife species at the time of physical or biological features biological features are identified, to the listing was challenged in Southwest (a) essential to the conservation of the extent known using the best scientific Center for Biological Diversity and species, and data available, as the habitat areas that California Native Plant Society v. (b) that may require special provide essential life cycle needs of the Norton (Case No. 01-CV-2101-IEG management considerations or species; that is, areas on which are (S.D.Cal.). On July 1, 2002, the court protection; and found the primary constituent elements ordered the Service to reconsider its not (2) Specific areas outside the laid out in the appropriate quantity and prudent determination, and propose geographical area occupied by a species spatial arrangement essential to the critical habitat, if prudent, for the at the time it is listed, upon a conservation of the species. Habitat species by September 15, 2003, and a determination that such areas are within the geographical area occupied final critical habitat designation, if essential for the conservation of the by the species at the time of listing that prudent, no later than September 15, species. contains features essential to the 2004. In light of Natural Resources Conservation, as defined under conservation of the species meets the Defense Council v. U.S. Department of section 3 of the Act, means the use of definition of critical habitat only if these the Interior, 113 F.3d 1121 (9th Cir. all methods and procedures that are features may require special 1997), and the diminished threat of necessary to bring any endangered management considerations or overcollection, the Service reconsidered species or threatened species to the protection. Under the Act and the its decision and determined that it was point at which the measures provided regulations at 50 CFR 424.12, we can prudent to propose critical habitat for under the Act are no longer necessary. designate critical habitat in areas the species. However, the Service Such methods and procedures include, outside the geographical area occupied exhausted the funding appropriated by but are not limited to, all activities by the species at the time it is listed

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only when we determine that the best estimates of the location and magnitude peer-reviewed articles; data from our available scientific data demonstrate of the effects. Nor are we currently files that we used for listing the species; that the designation of those areas is aware of any climate change geologic maps (California Geologic essential for the conservation of the information specific to the habitat of Survey 1953); recent biological surveys species. Astragalus jaegerianus that would and reports, particularly from the Army Section 4 of the Act requires that we indicate what areas may become surveys of 2001 (Charis 2002, pp. 1-85); designate critical habitat on the basis of important to the species in the future. additional information provided by the the best scientific and commercial data Therefore, we are unable to determine Army, the Bureau, and other interested available. Further, our ‘‘Policy on what additional areas, if any, may be parties; and discussions with botanical Information Standards Under the appropriate to include in the proposed experts. We also conducted site visits to Endangered Species Act’’ (published in revised critical habitat for this species to all three units that are being proposed the Federal Register on July 1, 1994 (59 respond to potential effects of climate for designation. FR 34271)), the Information Quality Act change; however, we specifically The long-term probability of the (section 515 of the Treasury and General request information from the public on survival and recovery of Astragalus Government Appropriations Act for the currently predicted effects of climate jaegerianus is dependent upon: The Fiscal Year 2001 (Pub. L. 106-554; H.R. change on A. jaegerianus and its habitat. protection of existing population sites; 5658)), and our associated Information Additionally, we recognize that critical the maintenance of ecologic functions Quality Guidelines, provide criteria, habitat designated at a particular point within these sites, including establish procedures, and provide in time may not include all of the connectivity within and between guidance to ensure that our decisions habitat areas that we may later populations in close geographic are based on the best scientific data determine are necessary for the recovery proximity to one another (to facilitate available. They require our biologists, to of the species. For these reasons, a pollinator activity and seed dispersal the extent consistent with the Act and critical habitat designation does not mechanisms); and keeping these areas with the use of the best scientific data signal that habitat outside the free of major ground-disturbing available, to use primary and original designated critical habitat area is activities. The areas we are proposing to sources of information as the basis for unimportant or may not be required for designate as critical habitat provide all recommendations to designate critical recovery of the species. of the features essential for the habitat. Areas that support populations of conservation of A. jaegerianus. When we determine which areas to Astragalus jaegerianus, but are outside In our delineation of the proposed propose as revised critical habitat, our the critical habitat designation, may critical habitat units, we initially primary source of information is continue to be subject to conservation selected areas to provide for the generally the information developed actions we implement under section conservation of Astragalus jaegerianus during the listing process for the species 7(a)(1) of the Act. They are also subject at the four population sites where it is and any previous designation of critical to the regulatory protections afforded by known to occur. As discussed under the habitat. Additional information sources the section 7(a)(2) jeopardy prohibition, section on Distribution, at the time of may include the recovery plan and 5– as determined on the basis of the best listing, A. jaegerianus was known to year reviews for the species, articles in available information at the time of the occur from Brinkman Wash and peer-reviewed journals, conservation agency action. Federally funded or Montana Mine (these two sites plans developed by States and counties, permitted projects affecting listed subsequently determined to be scientific status surveys and studies, species outside their designated critical contiguous and thus considered one biological assessments, or other habitat areas may still result in jeopardy population), Paradise Wash, and unpublished materials and expert findings in some cases. Similarly, Coolgardie; due to our understanding of opinion or personal knowledge. critical habitat designations made on the the lifespan of the species, we also Habitat is dynamic, and species may basis of the best available information at conclude that the Goldstone site was move from one area to another over the time of designation will not control occupied at the time of listing even time. In particular, we recognize that the direction and substance of future though this was not confirmed until climate change may cause changes in recovery plans, habitat conservation three years subsequent to listing. All the arrangement of occupied habitat plans (HCPs), section 7 consultations, or four sites are important because A. patches. Current climate change other species conservation planning jaegerianus exhibits life history predictions for terrestrial areas in the efforts if new information available to attributes, including variable seed Northern Hemisphere indicate warmer these planning efforts calls for a production, low germination rates, and air temperatures, more intense different outcome. habitat specificity in the form of a precipitation events, and increased dependence on a co-occurring organism summer continental drying (Field et al. Methods (host shrubs), that make it vulnerable to 1999, pp. 1–3; Hayhoe et al. 2004, p. As required by section 4(b) of the Act extinction (see previous rules (69 FR 12422; Cayan et al. 2005, p. 6; and 50 CFR 424.12, we used the best 18018 and 70 FR 18220) and Keith 1998, Intergovernmental Panel on Climate scientific information available in p. 1080; Gilpin and Soule 1986, p. 33). Change 2007, p. 11; Cayan et al. 2009, determining which areas within the We believe the proposed designation is p. xi). However, predictions of climatic geographic area occupied by the species of sufficient size to maintain landscape- conditions for smaller subregions such at the time of listing contain the features scale processes and to minimize the as California remain uncertain. It is essential to the conservation of secondary impacts resulting from unknown at this time if climate change Astragalus jaegerianus, and which areas human occupancy and human activities in California will result in a warmer outside the geographic area occupied at occurring in adjacent areas. We mapped trend with localized drying, higher the time of listing are essential for the the units with a degree of precision precipitation events, or other effects. conservation of the species. We commensurate with the best available Thus, the information currently reviewed information used to prepare information and the size of the unit. available on the effects of global climate the 2004 proposed critical habitat rule Of principle importance in the change and increasing temperatures (69 FR 18018); the 5–year review process of delineating the proposed does not make sufficiently precise (Service 2008, pp. 1–21); published critical habitat units are data in a

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geographic information system (GIS) sliver from the central portion of the spaced at 100-m intervals; the grid lines format provided by the Army, depicting southern boundary of the Brinkman- following the Universal Transverse the results of Army field surveys for Montana MCP. Mercator (UTM) coordinate system ties Astragalus jaegerianus conducted in For the Goldstone and Brinkman- to the North American Datum of 1927. 2001 (Charis 2002, pp. 1-85). These data Montana populations, expansion of the Vertices defining the critical habitat consisted of three files depicting the MCP boundaries by 0.25 mi (0.4 km) left boundary polygon were then moved to locations of transects that were surveyed a narrow corridor (about 0.125 mi (0.2 the closest vertex on the 100-m UTM for A. jaegerianus, the locations of A. km)) between the revised polygons. We grid lying inside of the critical habitat jaegerianus individuals found during chose to bridge the gap between the two boundary. Vertices not necessary to the surveys, and minimum convex polygons by incorporating the define the shape of the boundary polygons (MCP) calculated to represent intervening habitat that is within the polygon were deleted. Changing the the outer bounds of A. jaegerianus geographic area occupied by the species boundaries in this fashion serves two populations (Charis 2002, pp. 1-85). between the Goldstone and Brinkman- purposes: (1) It creates a list of For mapping proposed critical habitat Montana polygons into a single critical coordinates that is easier for the public units, we proceeded through a multi- habitat unit, called the Goldstone- to use when looking at USGS 7.5– step process. First, we started with the Brinkman unit. We did this for several minute topographic maps, and (2) it MCPs that had been calculated by the reasons: The intervening habitat minimizes the number of coordinates Army (Charis 2002, pp. 1-85) based on between the two MCPs contains the necessary to define the shapes of the the presence of documented PCEs with the appropriate elevational critical habitat units. individuals. We then expanded these range, granitic soils, and plant In selecting areas of proposed critical boundaries outward from the edge of communities (based on topographic habitat, we typically make an effort to each of the 4 populations by a distance maps, geologic maps, and aerial photos) avoid developed areas that are unlikely of 0.25 mi (0.4 km). We did this to that Astragalus jagerianus requires; to contribute to the conservation of the include Astragalus jaegerianus there were no obvious physical barriers species at issue. However, we did not individuals that are part of these between the two MCPs; the distance map critical habitat in sufficient detail populations, but were not noted during between the two closest A. jaegerianus to exclude patches of habitat within the surveys. The basis for determining that individuals across the gap of the two larger areas being mapped that are these additional land areas are occupied MCPs was smaller than the distance unlikely to contain the primary is as follows: (1) This habitat has the between individuals within the MCPs; constituent elements essential for the appropriate elevational range, and and the distance between the two MCPs conservation of Astragalus jaegerianus. includes the granitic soils and plant was small enough that it could be easily Land within the boundaries of the communities that support host plants traversed by a pollinator with a mapped units upon which are located required by A. jaegerianus; (2) botanists potential flight distance of 0.6 mi (1 facilities, such as buildings, roads, involved in the Army surveys stated km), or a seed disperser such as certain parking lots, communication tower that ‘‘the estimate of [A. jaegerianus] small mammals and birds. Granitic soil pads, and other paved areas, does not distribution is a minimum’’ (SAIC 2003, and the plant community in the and will not contain any of the primary pp. 1-2), and that additional individuals intervening area between the two constituent elements. In addition, old of A. jaegerianus most likely occurred polygons also provide habitat for the mining sites, where the soil profile and on the fringes of the MCPs (SAIC 2003, pollinators that visit A. jaegerianus topography have been altered such that pp. 1-2); (3) this 0.25-mi (0.4-km) flowers, habitat for seed dispersers no native vegetation can grow, also do distance is commensurate in scale with (birds, small mammals, and large not and will not contain any of the the distance between transects where insects) that carry seed between the primary constituent elements. Federal individuals were found and the distance coppices of suitable host shrubs, and the between individuals along one transect, area functions as long-term storage for actions limited to these areas, therefore, and it is well within the distance that the soil seedbank of A. jaegerianus. would not trigger a section 7 can be traversed by pollinators and seed For the Paradise population, we consultation under the Act, unless they dispersers; (4) mapping errors during removed a small portion of habitat (47 affect the species and/or primary the 2001 surveys indicated that the ac (19 ha)) from the eastern edge of the constituent elements in adjacent critical location of individuals did not match up 5,497-ac (2,225-ha) MCP, thereby habitat. precisely with the location of the eliminating a small cluster of three Primary Constituent Elements transect boundaries (Charis 2002); and individuals and the surrounding (5) limited surveys were conducted in suitable habitat from the proposed In accordance with section 3(5)(A)(i) 2003, and despite the unfavorable critical habitat unit. We did this for two of the Act and regulations at 50 CFR climatic conditions for A. jaegerianus, reasons: The distance between this 424.12(b), in determining which areas 13 additional individuals were located small cluster of three individuals and occupied at the time of listing to outside the MCPs (SAIC 2003). Three of the other 1,487 individuals mapped propose as critical habitat, we consider the four areas where new plants were within the MCP was greater than the the physical and biological features that found were within the 0.25-mi (0.4-km) distance between other clusters of are essential to the conservation of the distance around the MCPs. individuals within the MCP, and this species and that may require special We next removed areas on the cluster of individuals was not adjacent management considerations or margins of the resultant polygons where or providing connectivity to any other protection. These include, but are not we determined, by referring to digital known population of Astragalus limited to: raster graphic maps, the topography is jaegerianus. 1. Space for individual and either too steep or the elevation too high Finally, the boundaries of the critical population growth and for normal to support additional Astragalus habitat units were modified slightly in behavior; jaegerianus individuals. This boundary the process of creating the legal 2. Food, water, air, light, minerals, or modification involved editing the descriptions of the critical habitat units. other nutritional or physiological eastern and southeastern edge of the This process consisted of overlaying the requirements; Coolgardie MCP and a cirque-shaped critical habitat units with grid lines 3. Cover or shelter;

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4. Sites for breeding, reproduction, or habitat for Astragalus jaegerianus level of management to address the rearing (or development) of offspring; consist of: current and future threats to Astragalus and (1) Shallow soils at elevations jaegerianus and to maintain the 5. Habitats that are protected from between 3,100 and 4,200 ft (945 to 1,280 physical and biological features disturbance or are representative of the m) derived primarily from Jurassic or essential to the conservation of the historic, geographical, and ecological Cretaceous granitic bedrock, and less species. In units that were occupied at distributions of a species. frequently on soils derived from diorite the time of listing and are currently The appropriate quantity and spatial or gabbroid bedrock, or on granitic soils occupied, special management will be arrangement of the principal biological overlain by scattered rhyolitic cobble, needed to ensure that designated habitat or physical features within the defined gravel, and sand. is able to provide areas for germination, area essential to the conservation of the (2) Host shrubs at elevations between pollination, reproduction, and sites for species compromise the ‘‘primary 3,100 and 4,200 ft (945 to 1,280 m). The the host plants that provide structural constituent elements’’ (PCEs) of critical primary host shrubs are Thamnosma support for A. jaegerianus; intervening habitat. As defined by our implementing montana, Ambrosia dumosa, Eriogonum areas that allow gene flow and provide regulations at 50 CFR 424.12(b), these fasciculatum ssp. polifolium, connectivity or linkage within segments primary constituent elements may Ericameria cooperi var. cooperi, of the larger population; and areas that include, but are not limited to, features Ephedra nevadensis, and Salazaria provide basic requirements for growth, such as roost sites, nesting grounds, mexicana that are usually found in such as water, light, and minerals. spawning sites, feeding sites, seasonal mixed desert shrub communities. There will be impacts from military wetlands or drylands, water quality and Special Management Considerations or activities on Astragalus jaegerianus and quantity, host species or plant Protection its habitat at NTC. We will not discuss pollinators, geological formations, the impacts any further, because areas vegetation types, tides, and specific soil The term critical habitat is defined in where A. jaegerianus occurs on NTC are types. section 3(5)(A) of the Act as geographic being exempted. Army-owned lands in Much of what is known about the areas on which are found those physical the Paradise and Coolgardie units are specific physical and biological or biological features essential to the not part of the NTC. The lands were requirements of Astragalus jaegerianus conservation of the species and which purchased for A. jaegerianus is described in the Background section may require special management conservation and will not be impacted of this proposal and in the final listing considerations or protection. by military activities. rule. The proposed revised critical Accordingly, when designating critical The designation of critical habitat habitat is designed to provide sufficient habitat, we assess whether the primary does not imply that lands outside of habitat to maintain self-sustaining constituent elements within the areas critical habitat do not play an important populations of A. jaegerianus occupied at the time of listing may role in the conservation of Astragalus throughout its range and to provide require special management jaegerianus. Activities with a Federal those habitat components essential for considerations or protection. Although nexus that may affect those areas the conservation of the species. The the determination that special outside of critical habitat, such as proposed revised critical habitat: (1) management may be required is not a development, surface mining, provides for individual and population prerequisite to designating critical agricultural, military, and road growth, including sites for germination, habitat in areas essential to the construction activities, are still subject pollination, reproduction, pollen and conservation of the species that were to review under section 7 of the Act if seed dispersal, and seed banks; (2) unoccupied at the time of listing, all they may affect A. jaegerianus. The provides sites for the host plants that areas being proposed as critical habitat prohibitions of section 9 of the Act provide structural support for require some level of management to applicable to plants also continue to A.jaegerianus; (3) includes intervening address current and future threats to apply both inside and outside of areas that allow gene flow and provide Astragalus jaegerianus, to maintain or designated critical habitat. With respect connectivity or linkage within segments enhance the physical and biological to plants, section 9 of the Act includes of the larger population; and (4) features essential to its conservation, among its prohibitions the import or includes areas that provide basic and to ensure the recovery and survival export of listed species, the removal to requirements for growth, such as water, of the species. possession or malicious damage or light, and minerals. A detailed discussion of threats destruction of species on areas under Annual distribution of Astragalus affecting the physical and biological Federal jurisdiction, or the removal, jaegerianus varies due to a variety of features essential to the conservation of damage or destruction of species in factors. Some of the factors associated Astragalus jaegerianus, and that may violation of State law (16 U.S.C. with the observed and actual require special management §1538(a)(2)). distribution of this species include the considerations or protection, can be following: The degree to which found in the previous proposed critical Criteria Used to Identify Critical Habitat germination requirements of habitat of April 6, 2004 (69 FR 18018), Using the best scientific and scarification and moisture are met and the 5–year review (Service 2008, commercial data available as required within a germination time frame for the pp. 1-21). In summary, these threats by section 4(b)(1)(A) of the Act, we species; the distribution of the seed include surface mining, off-highway identified those areas to propose for bank in the soils; and the existence of vehicle recreation, military training revised designation as critical habitat favorable climatic conditions in a activities competition with nonnative that, within the geographical area particular year. Therefore, including species, and habitat fragmentation. In occupied by the species at the time of habitat surrounding the known addition, the Bureau has received listing (see ‘‘Geographical Range populations outward for a distance of interest from wind energy companies Occupied at the Time of Listing’’ 0.25 mi (0.4 km) would ensure inclusion that are seeking sites for wind energy section), possess those physical and of most of the population. development. biological features essential to the Based on our current knowledge, the The areas proposed for designation as conservation of Astragalus jaegerianus primary constituent elements of critical revised critical habitat will require some and which may require special

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management considerations or and abundance of A. jaegerianus. We (1) In 2004 we proposed 9,627 ac protection. We also considered the area believe the survey results capture the (3,896 ha) of Bureau lands and 4,427 ac outside the geographical area occupied fullest expression of A. jaegerianus and (1,792 ha) of private lands. Currently we by the species at the time of listing for provide an accurate representation of are proposing 9,888 ac (4,002 ha) of any areas that are essential for the habitat occupied by the species. Bureau lands and 2,899 ac (1,169 ha) of conservation of A. jaegerianus. The We are proposing to designate all private lands. material we used included the 1998 habitat occupied by Astragalus (2) In 2004 we proposed 211 ac (85 final listing rule (63 FR 53596), the 2004 jaegerianus during the extensive Army ha) of lands inaccurately identified as proposed critical habitat rule (69 FR surveys conducted in 2001. Because the State Lands. Currently we are not 18018), data in reports submitted during species is long lived and the surveys including, through exemption, 211 ac section 7 consultations and by biologists were conducted under optimal (85 ha) of the NTC lands covered under holding section 10(a)(1)(A) recovery conditions, we believe the species was the Army’s INRMP. The land was permits, research published in peer- growing in all potential habitat for the inaccurately identified as State Lands in reviewed articles and presented in species. our 2004 proposed critical habitat rule. academic theses and agency reports, the (3) Currently we are proposing 1,282 Summary of Changes from Previously 5–year review (Service 2008, pp. 1-21), ac (519 ha) of lands that were formerly Proposed Critical Habitat Army surveys of 2001 (Charis 2002, pp. in private ownership but have been 1-85), and regional GIS coverages. We In our proposed revised critical acquired by the Department of the analyzed this information to develop habitat rules, we typically provide a Defense for the purposes of conservation criteria for identifying areas that contain Summary of Changes that compares the of Astragalus jaegerianus. These lands the PCEs in the appropriate quantity proposed revised critical habitat are not contiguous with the NTC and are and spatial arrangement essential to the designation with the previously not covered under the Army’s INRMP. conservation of the Astragalus designated critical habitat. However, we (4) Currently we are not including jaegerianus that may require special designated zero (0) acres (0 hectares) in through exemption 16,462 ac (6,662 ha) management considerations or our previous designation. Therefore, we of the NTC lands covered under the protection, or that are essential for the are also providing comparison between Army’s INRMP. conservation of A. jaegerianus. the previously proposed critical habitat Below is a table that compares the Extensive surveys funded by the Army designation from April 6, 2004 (69 FR acreage by land ownership included in were conducted in 2001 (Charis 2002). 18018), and the current proposed the previous proposed critical habitat The 2001 surveys were conducted under revised critical habitat designation The designation and the previous final optimal growing conditions for the current proposed revision compares critical habitat designation with what species and contributed greatly to our with the previous proposed designation we are proposing in this proposed knowledge of the overall distribution as follows: revised critical habitat designation.

TABLE 1: COMPARISON OF ACREAGES INCLUDED IN 2004 PROPOSED CRITICAL HABITAT RULE, 2005 FINAL CRITICAL HABITAT RULE, AND 2010 PROPOSED REVISED CRITICAL HABITAT RULE.

2004 proposed designation of 2005 final revision to the crit- Name of critical habitat unit critical habitat ical habitat designation 2010 revised proposed designation of critical (69 FR 18018) (63 FR 53596) habitat

Goldstone-Brinkman 9,906 ac (4,008 ha) Excluded0 ac (0 ha) 10,394 ac (4,206 ha) exempted due to INRMP on NTC lands

Paradise 6,828 ac (2,763 ha) Excluded0 ac (0 ha) A portion exempted due to INRMP on NTC lands, 6,068 ac (2,456 ha); a portion in- cluded 964 ac (390 ha)

Coolgardie 12,788 ac (5,175 ha) Excluded0 ac (0 ha) 13,105 ac (5,303 ha) included

Totals 29,522 ac (11,947 ha) 0 ac (0 ha) 14,069 ac (5,693 ha)

Proposed Revised Critical Habitat Brinkman unit and a large portion of the owned land located adjacent to the Designation previously proposed Paradise unit (from NTC, and approximately 409 ac (166 ha) the 2004 proposed critical habitat rule) is on adjacent Federal lands managed by The proposed revised critical habitat because NTC now has an approved the Bureau. The remaining 6,068 acres areas described below constitute our INRMP. Please see discussion in (2456 ha) within this unit are on Army best assessment at this time of the areas Exemptions section below for a lands at NTC subject to the INRMP and needed for the species’ conservation. description of the importance of these have been exempted as discussed The two units being proposed as critical exempted areas to A. jaegerianus. below, in the Exemptions section. habitat are all within an area that is As part of the plan amendments to the north of the town of Barstow in the Paradise Unit: CDCA, the Bureau in 2005 designated Mojave Desert in San Bernardino The Paradise unit consists of an area of approximately 1,000 ac (405 County, California, were occupied at the approximately 7,032 ac (2,846 ha). We ha) as part of the West Paradise Valley time of listing, are currently occupied, are proposing critical habitat for Conservation Area (See section on and contain the primary constituent Astragalus jaegerianus on 964 ac (390 Bureau land transfers and management elements that sustain Astragalus ha). Of this, 318 ac (129 ha) is Army- above for a description of current jaegerianus. We are exempting the owned land adjacent to the NTC (off management of this ACEC). It generally previously proposed Goldstone- Fort Irwin), 237 ac (96 ha) is privately overlaps with the 964 ac (390 ha) being

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proposed here for critical habitat. The community may be altered by the for the pollinators that visit A. boundary of the West Paradise Valley spread of nonnative plants, and direct jaegerianus flowers and result in the Conservation Area encompasses some and indirect effects of dust may production of seed; (2) provide habitat Army lands not on NTC and some increase. All of these threats would for seed dispersers (birds, small private inholdings. This unit is render the habitat less suitable for A. mammals, and large insects) that carry important because it supports a portion jaegerianus, and special management seed between the coppices of suitable of the Paradise population, only one of may be needed to address them. host shrubs; and (3) provide for long- four populations of Astragalus Coolgardie Unit: term seedbank storage for A. jaegerianus; in 2001 surveys, 1,667 jaegerianus. individuals were observed in this The Coolgardie unit consists of The Coolgardie unit may require population. The land within this unit approximately 13,105 ac (5,303 ha), special management considerations or supports the granitic soils (PCE 1) and primarily on Federal lands managed by protection due to the threats to the host shrubs (PCE 2) that are necessary the Bureau. The proposed Coolgardie for the growth, reproduction, and critical habitat unit overlaps to a great species and its habitat posed by: establishment of A. jaegerianus extent with the Bureau’s Coolgardie Invasions of non-native plants such as individuals. These granitic soils and Mesa Conservation Area (CMCA) (See Sahara mustard (Brassica tournefortii) host shrubs also provide habitat for the section on Bureau land transfers and and other plant species that may take pollinators that visit A. jaegerianus management above for a description of over habitat for the species; habitat flowers that results in the production of current management of the CMCA). Of fragmentation that detrimentally affects seed, habitat for seed dispersers (birds, this acreage, approximately 9,479 ac plant–host plant and plant-pollinator small mammals, and large insects) that (3,836 ha) are managed by the Bureau, interactions (composition and structure carry seed between the coppices of and approximately 964 ac (390 ha) were of the desert scrub community), leading suitable host shrubs, and the soils formerly in private ownership, but have to a decline in species reproduction and provide sites for long-term storage for been acquired by the Army for the increasing susceptibility to nonnative seedbank of A. jaegerianus. purposes of conservation of Astragalus plant invasion; vehicles that cause The Paradise unit may require special jaegerianus since 2005. These lands are direct and indirect impacts, such as management considerations or not contiguous with the NTC and are excessive dust, to the plant; and limited protection due to the threats to the not covered under the Army’s INRMP. mining activities that can lead to species and its habitat posed by: Parcels of private land are scattered changes in habitat conditions (e.g., Invasions of non-native plants such as throughout this unit and total decreases in plant cover, and increases Sahara mustard (Brassica tournefortii) approximately 2,662 ac (1,077 ha). Some in nonnative species). Habitat for and other plant species that may take of these parcels may be acquired by the Astragalus jaegerianus in the Coolgardie over habitat for the species; habitat Bureau and added to the CMCA. This unit has been fragmented to a moderate fragmentation that detrimentally affects unit supports one of only four extent from current and historical plant-host plant and plant-pollinator populations of A. jaegerianus. In 2001, mining and from off-road vehicle use, interactions (i.e., composition and surveyors observed 2,014 plants in this and nonnative species have been structure of the desert scrub population. introduced into the area. We anticipate community), leading to a decline in The land within this unit supports the that in the future, habitat fragmentation species reproduction and increasing granitic soils (PCE 1) and host shrubs may increase, and composition and susceptibility to nonnative plant (PCE 2) that are necessary for the structure of the plant community may invasion; and vehicles that cause direct growth, reproduction, and be altered by the continued spread of and indirect impacts, such as excessive establishment of Astragalus jaegerianus nonnative plants. Due to increased dust, to the plant. Habitat for Astragalus individuals. It should be noted that the recreational pressure, off-road vehicle jaegerianus in the Paradise unit has proposed critical habitat does not use has increased in the past 4 years. All been fragmented to a minor extent. We include the ‘‘donut hole’’ in the center of of these threats would render the habitat anticipate that in the future, habitat the unit, where granitic soils are absent. less suitable for A. jaegerianus, and fragmentation may increase, Within the proposed unit, the granitic special management may be needed to composition and structure of the plant soils and host shrubs (1) provide habitat address them.

TABLE 2. APPROXIMATE AREAS, GIVEN IN ACRES (AC)1 AND HECTARES (HA), OF PROPOSED CRITICAL HABITAT FOR Astragalus jaegerianus BY LAND OWNERSHIP.

Bureau of Land Unit Name Army lands (Federal) Management State Lands Private lands Totals (Federal) Commission

Paradise 318 ac(129 ha) 409 ac(166 ha) 0 ac(0 ha) 237 ac(96 ha) 964 ac (390 ha)

Coolgardie 964 ac(390 ha) 9,479 ac (3,836 ha) 0 ac(0 ha) 2,662 ac (1,077 ha) 13,105 ac (5,303 ha)

Totals 1,282 ac(519 ha) 9,888 ac (4,002 ha) 0 ac(0 ha) 2,899 ac (1,173 ha) 14,069 ac(5,693ha) 1 Approximate acres have been converted to hectares (1 ac = 0.4047 ha). Fractions of acres and hectares have been rounded to the nearest whole number. Totals are sums of units.

Effects of Critical Habitat Designation to ensure that actions they fund, Courts of Appeal have invalidated our authorize, or carry out do not destroy or definition of ‘‘destruction or adverse Section 7 Consultation adversely modify critical habitat. modification’’ (50 CFR 402.02) (see Section 7(a) of the Act requires Decisions by the Fifth and Ninth Circuit Gifford Pinchot Task Force v. U.S. Fish Federal agencies, including the Service,

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and Wildlife Service, 378 F.3d 1059 (9th in the action alter the content of the Federal activities that may affect Cir. 2004) and Sierra Club v. U.S. Fish opinion (see 50 CFR 402.10(d)). The Astragalus jaegerianus or its designated and Wildlife Service et al., 245 F.3d conservation recommendations in a critical habitat will require section 434, 442F (5th Cir. 2001)), and we do conference report are advisory. 7(a)(2) consultation under the Act. not rely on this regulatory definition If a species is listed or critical habitat Activities on State, Tribal, local, or when analyzing whether an action is is designated, section 7(a)(2) requires private lands requiring a Federal permit likely to destroy or adversely modify Federal agencies to ensure that activities (such as a permit from the U.S. Army critical habitat. Under the statutory they authorize, fund, or carry out are not Corps of Engineers under section 404 of provisions of the Act, we determine likely to jeopardize the continued the Clean Water Act (33 U.S.C. 1251 et destruction or adverse modification on existence of such a species or to destroy seq.) or a permit under section 10 of the the basis of whether, with or adversely modify its critical habitat. Act from the Service or involving some implementation of the proposed Federal If a Federal action may affect a listed other Federal action (such as funding action, the affected critical habitat species or its critical habitat, the from the Federal Highway would remain functional (or retain the responsible Federal agency must enter Administration, Federal Aviation current ability for the PCEs to be into consultation with us. Administration, or the Federal functionally established) to serve its As a result of this consultation, we Emergency Management Agency) will intended conservation role for the document compliance with the also be subject to the section 7(a)(2) species. requirements of section 7(a)(2) of the consultation process. Federal actions Section 7(a)(2) of the Act requires Act through our issuance of: not affecting listed species or critical Federal agencies, including the Service, (1) A concurrence letter for Federal habitat, and actions on State, Tribal, to evaluate their actions with respect to actions that may affect, but are not local, or private lands that are not any species that is endangered or likely to adversely affect, listed species federally funded, authorized, or threatened and with respect to its or critical habitat; or permitted, do not require section 7(a)(2) critical habitat, if any is proposed or (2) A biological opinion for Federal consultations. designated. Regulations implementing actions that may affect, and are likely to Designation of critical habitat could this interagency cooperation provision adversely affect, listed species or critical affect the following agencies and/or of the Act are codified at 50 CFR part habitat. actions: 402. If we issue a biological opinion (1) Military-related and construction Section 7(a)(4) of the Act requires concluding that a project is likely to activities of the Army on its lands or Federal agencies to confer with us on result in the destruction or adverse lands under its jurisdiction not covered any action that is likely to jeopardize modification of critical habitat, we also by an INRMP; the continued existence of a species provide reasonable and prudent (2) Activities of the Bureau of Land proposed for listing or result in alternatives to the project, if any are Management on its lands or lands under destruction or adverse modification of identifiable. Reasonable and prudent its jurisdiction; proposed critical habitat. This is a alternatives are defined at 50 CFR (3) Activities of the Federal Energy procedural requirement only, as any 402.02 as alternative actions identified Regulatory Commission (FERC); conservation recommendations in a during consultation that can be (4) The release or authorization of conference report or opinion are strictly implemented in a manner consistent release of biological control agents by advisory. However, once proposed with the intended purpose of the action, Federal agencies, including the Bureau species become listed, or proposed that are consistent with the scope of the of Land Management, the Army, and the critical habitat is designated as final, the Federal agency’s legal authority and U.S. Department of Agriculture; and full prohibitions of section 7(a)(2) of the jurisdiction, that are economically and (5) Habitat restoration projects on Act apply to any Federal action. The technologically feasible, and that the private lands receiving funding from primary utility of the conference Director believes would avoid the Federal agencies, such as from the procedures is to maximize the destruction or adverse modification of Natural Resources Conservation Service. opportunity for a Federal agency to critical habitat. Reasonable and prudent As discussed previously in this rule, adequately consider proposed species alternatives can vary from slight project we completed consultation with both and critical habitat and avoid potential modifications to extensive redesign or the Army and the Bureau on activities delays in implementing their proposed relocation of the project. Costs that are being proposed on their lands. action as a result of the section 7(a)(2) associated with implementing a We consulted with the Army on its compliance process, should those reasonable and prudent alternative are proposed addition of training lands on species be listed or the critical habitat similarly variable. the NTC (Charis 2003; Service 2005). designated. Regulations at 50 CFR 402.16 require We also consulted with the Bureau as Conference reports provide Federal agencies to reinitiate the lead Federal agency on the plan conservation recommendations to assist consultation on previously reviewed amendments to the CDCA plan (Bureau the action agency in eliminating actions in instances where critical 2005; Service 2005). conflicts with the proposed species or habitat is subsequently designated, and Where federally listed wildlife species proposed critical habitat that may be the Federal agency has retained occur on private lands proposed for caused by the proposed action. We may discretionary involvement or control development, any habitat conservation issue a formal conference report if over the action or such discretionary plans submitted by the applicant to requested by a Federal agency. Formal involvement or control is authorized by secure an incidental take permit, under conference reports on proposed critical law. Consequently, some Federal section 10(a)(1)(B) of the Act, would be habitat contain an opinion that is agencies may request reinitiation of subject to the section 7 consultation prepared according to 50 CFR 402.14, as consultation or conference with us on process. The Superior-Cronese Critical if critical habitat were designated. We actions for which formal consultation Habitat Unit for the desert tortoise may adopt the formal conference report has been completed, if those actions (Gopherus agassizii), a species that is as the biological opinion when the may affect designated critical habitat or listed as threatened under the Act, critical habitat is designated, if no adversely modify or destroy proposed overlaps in range with Astragalus substantial new information or changes critical habitat. jaegerianus in a portion of the Paradise

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and population of the species. We with implementation of the proposed pesticides, herbicides, fertilizers, anticipate that most of the activities Federal action, the affected critical tackifiers, obscurants, and chemical fire occurring on private lands within the habitat would continue to serve its retardants. range of A. jaegerianus will eventually intended conservation role for the Exemptions be included under the umbrella of the species, or would retain its current HCP to be prepared by the County of ability for the PCEs to be functionally Application of Section 4(a)(3) of the Act San Bernardino. However, there may be established. Activities that may destroy The National Defense Authorization activities proposed for private lands that or adversely modify critical habitat are Act for Fiscal Year 2004 (Pub. L. 108- either need to be completed prior to the those that alter the physical and 136) amended the Endangered Species biological features, or other approval of the HCP, or there may be a Act to limit areas eligible for conservation role and function of the proposed activity that is not covered by designation as critical habitat. affected designated area, to an extent the HCP, and therefore may require a Specifically, section 4(a)(3)(B)(i) of the that appreciably reduces the separate habitat conservation plan. Act (16 U.S.C. 1533(a)(3)(B)(i)) now conservation value of critical habitat for If you have questions regarding provides: ‘‘The Secretary shall not Astragalus jaegerianus. Generally, the whether specific activities will likely designate as critical habitat any lands or conservation role of A. jaegerianus constitute destruction or adverse other geographical areas owned or critical habitat units is to support viable modification of critical habitat, contact controlled by the Department of core populations and areas that the Field Supervisor, Ventura Fish and Defense, or designated for its use, that Wildlife Office (see FOR FURTHER maintain connectivity between core area populations. are subject to an integrated natural INFORMATION CONTACT section). Requests resources management plan (INRMP) for copies of the regulations on listed Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any prepared under section 101 of the Sikes wildlife and inquiries about Improvement Act of 1997 (16 U.S.C. prohibitions and permits may be proposed or final regulation that designates critical habitat, activities 670a), if the Secretary determines in addressed to the U.S. Fish and Wildlife writing that such plan provides a benefit Service, Pacific Southwest Region, 2800 involving a Federal action that may destroy or adversely modify such to the species for which critical habitat Cottage Way, Suite W-2606, is proposed for designation.’’ Sacramento, CA 95825-1846 (telephone habitat, or that may be affected by such designation. Activities that may destroy The Sikes Act required each military (916) 414-6464; facsimile (916) 414- installation that includes land and water 6486). or adversely modify critical habitat may also jeopardize the continued existence suitable for the conservation and Application of the Jeopardy and of the species. management of natural resources to Adverse Modification Standard Activities that, when carried out, complete, by November 17, 2001, an INRMP. An INRMP integrates Jeopardy Standard funded, or authorized by a Federal agency, may directly or indirectly affect implementation of the military mission Currently, the Service applies an critical habitat and, therefore, should of the installation with stewardship of analytical framework for Astragalus result in consultation for Astragalus the natural resources found on the base. jaegerianus jeopardy analyses that relies jaegerianus include, but are not limited Each INRMP includes: heavily on the importance of known to: (1) An assessment of the ecological populations to the species’ survival and (1) Activities that would disturb the needs on the installation, including the recovery. The section 7(a)(2) of the Act upper layers of soil, including need to provide for the conservation of analysis is focused not only on these disturbance of the soil crust, soil listed species; populations but also on the habitat compaction, soil displacement, and soil (2) A statement of goals and priorities; conditions necessary to support them. destabilization. These activities include, (3) A detailed description of The jeopardy analysis usually but are not limited to, livestock grazing, management actions to be implemented expresses the survival and recovery fire management, and recreational use to provide for these ecological needs; needs of Astragalus jaegerianus in a that would include mechanical and qualitative fashion without making disturbance such as would occur with (4) A monitoring and adaptive distinctions between what is necessary tracked vehicles, heavy-wheeled management plan. for survival and what is necessary for vehicles, off-highway vehicles Among other things, each INRMP recovery. Generally, the jeopardy (including motorcycles), and mining must, to the extent appropriate and analysis focuses on the range-wide activities, such as ‘‘club mining’’ with applicable, provide for fish and wildlife statuses of A. jaegerianus, the factors drywashers and sluices. management, fish and wildlife habitat responsible for that condition, and what (2) Activities that appreciably degrade enhancement or modification, wetland is necessary for the species to survive or destroy the native desert scrub protection, enhancement, and and recover. An emphasis is also placed communities that support host shrubs, restoration where necessary to support on characterizing the conditions of A. including but not limited to livestock fish and wildlife, and enforcement of jaegerianus in the area affected by the grazing, clearing, discing, fire applicable natural resource laws. proposed Federal action and the role of management, and recreational use that Army lands within the boundaries of affected populations in the survival and would include mechanical disturbance the NTC at Fort Irwin are subject to an recovery of A. jaegerianus. That context such as would occur with tracked INRMP for 2006-2011 (NTC 2005), is then used to determine the vehicles, heavy-wheeled vehicles, off- which includes management guidelines significance of adverse and beneficial highway vehicles (including for Astragalus jaegerianus. The Service effects of the proposed Federal action motorcycles), and mining activities such will monitor the status of the INRMP to and any cumulative effects for purposes as ‘‘club mining’’ with drywashers and assure that it adequately addresses of making the jeopardy determination. sluices. management guidelines for Astragalus (3) The application or runoff of jaegerianus prior to the completion of Adverse Modification Standard chemical or biological agents into the the final critical habitat rule. As part of The key factor related to the adverse air, onto the soil, or onto native the Army’s consultation on the modification determination is whether, vegetation, including substances such as proposed expansion of training lands at

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NTC (Service 2005), the Army benefits of such exclusion outweigh the solicit the expert opinions of at least established a 4,300-ac (1,740-ha) East benefits of specifying such area as part three appropriate and independent Paradise Conservation Area on NTC. of the critical habitat, unless he specialists regarding this proposed rule. This area contains approximately 80 determines, based on the best scientific The purpose of such review is to ensure percent of the East Paradise population data available, that the failure to that our critical habitat designation is of A. jaegerianus. The Army established designate such area as critical habitat based on scientifically sound data, a 3,700-ac (1497-ha) Brinkman Wash will result in the extinction of the assumptions, and analyses. We will Restricted Access Area (no-dig zone) on species. In making that determination, send these peer reviewers copies of this NTC. This area contains 1,872 ac (758 the legislative history is clear that the proposed rule immediately following ha) of A. jaegerianus habitat and Secretary has broad discretion regarding publication in the Federal Register. We approximately 51 percent of the which factor(s) to use and how much will invite these peer reviewers to Montana Mine population of A. weight to give to any factor. comment, during the public comment jaegerianus. The Army also maintains Under section 4(b)(2) of the Act, we period, on the specific assumptions and the 2,471-ac (1,000-ha) Goldstone consider all relevant impacts, including conclusions regarding the proposed Conservation Area. The Army’s INRMP economic impacts. In compliance with designation of critical habitat. management guidelines provide a section 4(b)(2) of the Act, we are We will consider all comments and benefit to A. jaegerianus by prohibiting preparing a new analysis of the information received within the 60-day off-road activity. The Army will reduce economic impacts of this proposed comment period on this proposed rule threats to A. jaegerianus caused by dust revision to critical habitat for Astragalus as we prepare our final rulemaking. through the application of soil binders. jaegerianus to evaluate the potential Accordingly, the final determination They will also collect and store site- economic impact of the proposed may differ from this proposal. specific seed from host plants to restore revised designation. We will announce Public Hearings closed routes and other disturbed areas the availability of the draft economic with A. jaegerianus habitat. Contingent analysis as soon as it is completed, at The Act provides for one or more on funds, the Army will perform which time we will seek public review public hearings on this proposal, if intensive nonnative species control and and comment. At that time, copies of requested. Requests must be received eradication efforts at conservation areas the draft economic analysis will be within 45 days of the date of publication if such species are found there. available for downloading from the of the proposal in the Federal Register. In the previous 2004 proposed Internet at http://www.regulations.gov, Such requests must be made in writing designation (69 FR 18018), the Army or from the Ventura Fish and Wildlife and be addressed to the Field had not yet completed its INRMP and, office directly (see FOR FURTHER Supervisor (see FOR FURTHER therefore, was not exempted under INFORMATION CONTACT). During the INFORMATION CONTACT section). We will section 4(a)(3)(B) of the Act. However, development of the final revised schedule public hearings on this the Army was excluded under section designation, we will consider economic proposal, if any are requested, and 4(b)(2) of the Act for reasons of national impacts, public comments, and other announce the dates, times, and places of security, and because existing new information. Certain areas may be those hearings in the Federal Register management plans provided a benefit to excluded from the final critical habitat and local newspapers at least 15 days Astragalus jaegerianus. The Army’s designation under section 4(b)(2) of the prior to the first hearing. Act and our implementing regulations at INRMP was approved in 2006, and Required Determinations includes management actions that the 50 CFR 424.19. At this time, we are not proposing any Secretary has determined benefit A. Regulatory Planning and Review – specific exclusions of areas from critical jaegerianus. With our current Executive Order 12866 habitat under section 4(b)(2) of the Act exemption of all areas within the for Astragalus jaegerianus. We will The Office of Management and Budget Army’s NTC (see ‘‘Relationships to consider any available information (OMB) determines whether this rule is Sections 4(a)(3) of the Act’’ section), the about areas covered by conservation or significant under Executive Order (E.O.) entire Goldstone-Brinkman unit has management plans that we should 12866. OMB bases its determination been exempted from proposed consider for exclusion from the upon the following four criteria: designation as revised critical habitat. designation under section 4(b)(2) of the (1) Whether the rule will have an Similarly, almost all (6,068 acres (2456 Act, including whether the benefit of annual effect of $100 million or more on ha) of 7,032 ac (2,846 ha)) of the exclusion of those lands would the economy or adversely affect an Paradise Unit on NTC has been outweigh the benefits of their inclusion. economic sector, productivity, jobs, the exempted from proposed designation as For example, we consider whether there environment, or other units of the revised critical habitat. Army lands are conservation partnerships that government. outside the NTC are not subject to the would be encouraged or discouraged by (2) Whether the rule will create INRMP and therefore not exempted. designation of, or exclusion from, inconsistencies with other Federal Exclusions critical habitat in an area. In addition, agencies’ actions. we look at the presence of Tribal lands (3) Whether the rule will materially Application of Section 4(b)(2) of the Act or Tribal Trust resources that might be affect entitlements, grants, user fees, Section 4(b)(2) of the Act states that affected, and consider the government- loan programs, or the rights and the Secretary must designate and revise to-government relationship of the obligations of their recipients. critical habitat on the basis of the best United States with the Tribal entities. (4) Whether the rule raises novel legal available scientific data after taking into We also consider any social impacts that or policy issues. consideration the economic impact, might occur because of the designation. At this time, we do not believe that national security impact, and any other the rule would have an annual effect on relevant impact of specifying any Peer Review the economy of $100 million or more or particular area as critical habitat. The In accordance with our joint policy affect the economy in a material way. Secretary may exclude an area from published in the Federal Register on We base this on information provided in critical habitat if he determines that the July 1, 1994 (59 FR 34270), we will the economic analysis that was prepared

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for the previous proposed critical An analysis of the economic impacts distribution, or use. There are no habitat designation in 2004 (Industrial of the 2004 proposed critical habitat transmission power lines identified on Economics 2005). In that economic designation was made available to the the proposed designated habitat, or analysis, the predesignation costs (from public on December 8, 2004 (69 FR energy extraction activities (Bureau of the time of listing, 1998 to 2004) ranged 70971). In that analysis, we summarized Land Management 1980). Therefore, this from $2.23 to $2.75 million, and the that the estimated predesignation costs action is not a significant energy action annualized (over 20 years) ranged from $1.58 million to $2.1 and no Statement of Energy Effects is postdesignation costs ranged from million. These costs were associated required. However, we will further $351,000 to $787,000 at a 3-percent primarily with two major conservation evaluate this issue as we conduct our discount rate. However, we will be efforts: those taken by the Army to plan economic analysis, and review and conducting a new economic analysis in for and implement conservation actions revise this assessment as warranted. conjunction with this revised proposed at Fort Irwin, and those taken by the Unfunded Mandates Reform Act (2 designation. BLM to plan for, and implement, U.S.C. 1501 et seq.) conservation actions within the Regulatory Flexibility Act (5 U.S.C. 601 framework of the West Mojave Plan. The In accordance with the Unfunded et seq.) total post-designation costs were Mandates Reform Act (2 U.S.C. 1501), Under the Regulatory Flexibility Act estimated to range from $5.84 million to the Service makes the following (5 U.S.C. 601 et seq., as amended by the $13.01 million. These estimated costs findings: Small Business Regulatory Enforcement were associated primarily with land (1) This proposed rule will not Fairness Act (SBREFA) of 1996), management activities and project- produce a Federal mandate. In general, whenever an agency is required to related surveys and monitoring a Federal mandate is a provision in publish a notice of rulemaking for any associated with the conservation of legislation, statute, or regulation that proposed or final rule, it must prepare Astragalus jaegerianus over a 20–year would impose an enforceable duty upon and make available for public comment time period. Note that although zero (0) State, local, or Tribal governments, or a regulatory flexibility analysis that acres of critical habitat were designated the private sector, and includes both describes the effects of the rule on small in the previous final rule in 2005, some ‘‘Federal intergovernmental mandates’’ entities (i.e., small businesses, small of these estimated costs have been borne and ‘‘Federal private sector mandates.’’ organizations, and small government by the Army and BLM since then for These terms are defined in 2 U.S.C. jurisdictions). However, no regulatory activities related to the conservation of 658(5)-(7). ‘‘Federal intergovernmental flexibility analysis is required if the A. jaegerianus. mandate’’ includes a regulation that head of the agency certifies the rule will We do not anticipate significant ‘‘would impose an enforceable duty not have a significant economic impact impacts to small entities as a result of upon State, local, or [T]ribal on a substantial number of small this rulemaking. Of the approximately governments,’’ with two exceptions. It entities. SBREFA amended the 14,069 acres proposed for critical excludes ‘‘a condition of Federal Regulatory Flexibility Act (RFA) to habitat for Astragalus jaegerianus, assistance.’’ It also excludes ‘‘a duty require Federal agencies to provide a approximately 1,282 acres are on Army arising from participation in a voluntary statement of the factual basis for lands but outside the boundaries of the Federal program,’’ unless the regulation certifying that a rule will not have a NTC, about 9,888 acres are lands ‘‘relates to a then-existing Federal significant economic impact on a managed by the Bureau, and 2,899 acres program under which $500,000,000 or substantial number of small entities. are privately owned. The prospective more is provided annually to State, SBREFA also amended the RFA to costs associated with conservation local, and [T]ribal governments under require agencies to provide a statement measures for A. jaegerianus are a result entitlement authority,’’ if the provision of factual basis for certifying that the of multiple causative factors, including would ‘‘increase the stringency of rule will not have a significant implementation of conservation conditions of assistance’’ or ‘‘place caps economic impact on a substantial measures proposed as parts of the upon, or otherwise decrease, the Federal number of small entities. Army’s NTC expansion plan and the Government’s responsibility to provide According to the Small Business Bureau’s CDCA plan amendments. funding,’’ and the State, local, or Tribal Administration (SBA), small entities Conservation measures associated with governments ‘‘lack authority’’ to adjust include small organizations, including A. jaegerianus are not expected to result accordingly. At the time of enactment, any independent nonprofit organization in appreciable reduction of either these entitlement programs were: that is not dominant in its field, and mining or dual-sport activities in the Medicaid; AFDC work programs; Child small governmental jurisdictions, area. Nutrition; Food Stamps; Social Services including school boards and city and Block Grants; Vocational Rehabilitation town governments that serve fewer than Energy Supply, Distribution, or Use – State Grants; Foster Care, Adoption 50,000 residents, as well as small Executive Order 13211 Assistance, and Independent Living; businesses. The SBA defines small On May 18, 2001, the President issued Family Support Welfare Services; and businesses categorically and has an Executive Order (E.O. 13211; Actions Child Support Enforcement. ‘‘Federal provided standards for determining Concerning Regulations That private sector mandate’’ includes a what constitutes a small business at 13 Significantly Affect Energy Supply, regulation that ‘‘would impose an CFR 121-201 (also found at http:// Distribution, or Use) on regulations that enforceable duty upon the private www.sba.gov/size/), which the significantly affect energy supply, sector, except (i) a condition of Federal Regulatory Flexibility Act requires all distribution, and use. Executive Order assistance or (ii) a duty arising from federal agencies to follow. To determine 13211 requires agencies to prepare participation in a voluntary Federal if potential economic impacts to these Statements of Energy Effects when program.’’ small entities are significant, we undertaking certain actions. This The designation of critical habitat consider the types of activities that proposed rule to designate critical does not impose a legally binding duty might trigger regulatory impacts under habitat for the Astragalus jaegerianus, as on non-Federal Government entities or this rule as well as the types of project described above, is not expected to private parties. Under the Act, the only modifications that may result. significantly affect energy supplies, regulatory effect is that Federal agencies

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must ensure that their actions do not Federalism – Executive Order 13132 National Environmental Policy Act destroy or adversely modify critical In accordance with Executive Order It is our position that, outside the habitat under section 7. While non- jurisdiction of the Circuit Court of the Federal entities that receive Federal 13132, the rule does not have significant Federalism effects. A Federalism United States for the Tenth Circuit, we funding, assistance, or permits, or that do not need to prepare environmental assessment is not required. As discussed otherwise require approval or analyses as defined by NEPA in above, the designation of critical habitat authorization from a Federal agency for connection with designating critical in areas currently occupied by an action, may be indirectly impacted habitat under the Act. We published a Astragalus jaegerianus would have little by the designation of critical habitat, the notice outlining our reasons for this incremental impact on State and local legally binding duty to avoid determination in the Federal Register governments and their activities. This is destruction or adverse modification of on October 25, 1983 (48 FR 49244). This because the proposed revised critical critical habitat rests squarely on the assertion was upheld by the Circuit habitat occurs to a great extent on Federal agency. Furthermore, to the Court of the United States for the Ninth Federal lands managed by the Circuit (Douglas County v. Babbitt, 48 extent that non-Federal entities are Department of Defense and the Bureau indirectly impacted because they F.3d 1495 (9th Cir. 1995), cert. denied of Land Management, and less than 2 516 U.S. 1042 (1996)). receive Federal assistance or participate percent occurs on private lands that in a voluntary Federal aid program, the would involve State and local agencies. Clarity of the Rule Unfunded Mandates Reform Act would We are required by Executive Orders not apply, nor would critical habitat The proposed designation of critical 12866 and 12988 and by the shift the costs of the large entitlement habitat may have some benefit to State Presidential Memorandum of June 1, programs listed above onto State and local governments, in that the areas 1998, to write all rules in plain governments. essential to the conservation of these species are more clearly defined, and language. This means that each rule we (2) This proposed rule will not the primary constituent elements of the publish must: ‘‘significantly or uniquely’’ affect small habitat necessary to the survival of the (1) Be logically organized; governments. A Small Government species are identified. While this (2) Use the active voice to address Agency Plan is not required. State lands information does not alter where and readers directly; will not be proposed. Given the what federally sponsored activities may (3) Use clear language rather than jargon; distribution of this species, small occur, it may assist these local (4) Be divided into short sections and governments will not be uniquely governments in long-range planning affected by this proposed rule. Small sentences; and rather than waiting for case-by-case (5) Use lists and tables wherever governments will not be affected at all section 7 consultation to occur. possible. unless they propose an action requiring If you feel that we have not met these Federal funds, permits, or other Civil Justice Reform – Executive Order 12988 requirements, send us comments by one authorization. Any such activity will of the methods listed in the ADDRESSES require that the involved Federal agency In accordance with Executive Order section. To better help us revise the ensure that the action is not likely to 12988, the Department of the Interior’s rule, your comments should be as adversely modify or destroy designated Office of the Solicitor has determined specific as possible. For example, you critical habitat. However, as discussed that this proposed revised rule does not should tell us the numbers of the above, Federal agencies are currently unduly burden the judicial system and sections or paragraphs that are unclearly required to ensure that any such activity that it does meet the requirements of written, which sections or sentences are is not likely to jeopardize the species, sections 3(a) and 3(b)(2) of the Order. too long, the sections where you feel and no further regulatory impacts from We are proposing to designate critical lists or tables would be useful, etc. this proposed designation of critical habitat in accordance with the habitat are anticipated. We will examine Government-to-Government provisions of the Endangered Species Relationship with Tribes any potential impacts to small Act. This proposed revision uses governments in our economic analysis, standard property descriptions and In accordance with the President’s and revise our determination if identifies the primary constituent memorandum of April 29, 1994, necessary. elements within the designated areas to ‘‘Government-to-Government Relations with Native American Tribal Takings – Executive Order 12630 assist the public in understanding the habitat needs of Astragalus jaegerianus. Governments’’ (59 FR 22951), E.O. 13175, and the Department of the In accordance with Executive Order Paperwork Reduction Act of 1995 (44 Interior’s manual at 512 DM 2, we 12630 (‘‘Government Actions and U.S.C. 3501 et seq.) readily acknowledge our responsibility Interference with Constitutionally to communicate meaningfully with ’’ Protected Private Property Rights ), we This proposed rule does not contain recognized Federal Tribes on a have analyzed the potential takings new or revised information collection government-to-government basis. We implications of designating critical that requires approval by OMB under have determined that there are no Tribal habitat for Astragalus jaegerianus. This the Paperwork Reduction Act of 1995. lands essential for the conservation of preliminary assessment concludes that This rule will not impose recordkeeping Astragalus jaegerianus. Therefore, this proposed rule does not pose or reporting requirements on State or designation of critical habitat for A. significant takings implications. local governments, individuals, jaegerianus has not been proposed on However, we have not yet completed businesses, or organizations. An agency Tribal lands. the economic analysis for this proposed may not conduct or sponsor, and a revised rule. Once the economic person is not required to respond to, a References Cited analysis is available, we will review and collection of information unless it A complete list of all references cited revise this preliminary assessment as displays a currently valid OMB control herein is available at http:// warranted. number. www.regulations.gov and upon request

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from the Ventura Fish and Wildlife 2. In §17.96(a), revise critical habitat shrubs within which Astragalus Office (see FOR FURTHER INFORMATION for Astragalus jaegerianus under Family jaegerianus grows, most notably: CONTACT section). Fabaceae to read as follows: Thamnosma montana, Ambrosia dumosa, Eriogonum fasciculatum ssp. Author §17.96 Critical habitat—plants. polifolium, Ericameria cooperi var. The primary authors of this proposed (a) Flowering plants. cooperi, Ephedra nevadensis, and rule are the staff of the Ventura Fish and * * * * * Salazaria mexicana. Wildlife Office. Family Fabaceae: Astragalus (3) Critical habitat does not include List of Subjects in 50 CFR part 17 jaegerianus (Lane Mountain milk- manmade structures (including, but not vetch) limited to, buildings, aqueducts, Endangered and threatened species, runways, roads, and other paved areas) Exports, Imports, Reporting and (1) Critical habitat units are depicted and the land on which they are located recordkeeping requirements, for San Bernardino County, California, existing within the legal boundaries on Transportation. on the map below. the effective date of this rule and not (2) Critical habitat consists of the containing one or more of the primary Proposed Regulation Promulgation mixed desert scrub community within constituent elements. Accordingly, we propose to amend the range of Astragalus jaegerianus that is characterized by the following (4) Critical habitat map units. These part 17, subchapter B of chapter I, title critical habitat units were mapped using 50 of the Code of Federal Regulations, primary constituent elements: (i) Shallow soils derived primarily Universal Transverse Mercator, Zone 10, as set forth below: from Jurassic or Cretaceous granitic North American Datum 1983 (UTM NAD 83) coordinates. These coordinates PART 17—[AMENDED] bedrock, and less frequently soils derived from diorite or gabbroid establish the vertices and endpoints of 1. The authority citation for part 17 bedrock and at one location granitic the boundaries of the units. continues to read as follows: soils overlain by scattered rhyolitic (5) Note: Map of Paradise and Authority: 16 U.S.C. 1361-1407; 16 U.S.C. cobble, gravel, and sand. Coolgardie Critical Habitat Units for 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- (ii) The highly diverse mixed desert Astragalus jaegerianus follows: 625, 100 Stat. 3500; unless otherwise noted. scrub community that includes the host BILLING CODE 4310–55–S

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(6) Paradise Unit, San Bernadino (7) Coolgardie Unit, San Bernadino Dated: March 18, 2010 County, CA [Description of unit location County, CA [Description of unit location Thomas L. Strickland, to be inserted here.] to be inserted here.] Assistant Secretary for Fish and Wildlife and * * * * * Parks. [FR Doc. 2010–7117 Filed 3–31–10; 8:45 am] BILLING CODE 4310–55–C

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